NORTH JERSEY MEDIA GROUP INC., D/B/A COMMUNITY NEWS VS. BERGEN COUNTY PROSECUTOR'S OFFICE, ET AL.
A-2393-13T3
A news organization requested records from a prosecutor's office regarding a person who was not charged with any crime pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and the common law right of access. In this matter of first impression, we must determine whether the prosecutor's refusal to confirm or deny the existence of responsive records was permissible under OPRA and the common law or a violation thereof. We hold that an agency may "neither confirm nor deny" the existence of records in response to an OPRA request when the agency (1) relies upon an exemption authorized by OPRA that would itself preclude the agency from acknowledging the existence of such documents and (2) presents a sufficient basis for the court to determine that the claimed exemption applies. Because records relating to a person who has not been arrested or charged with an offense are entitled to confidentiality based
upon long-established judicial precedent, an exemption exists under N.J.S.A. 47:1A-9(b) that precludes a custodian of records from disclosing whether such records exist in response to an OPRA request. We further conclude that the prosecutor's office made a sufficient showing to avail itself of this exemption and that access is also properly denied under the common law right of access.
