New Jersey Appeals Court Condones ‘Glomar Responses’ Under OPRA

 A New Jersey appeals court recently held that public entities may decline to confirm or deny the existence of records responsive to a request under the Open Public Records Act (OPRA). While such responses have long been sanctioned under the federal Freedom of Information Act (FOIA), the decision in North Jersey Media Group, Inc. v. Bergen County Prosecutor’s Office is the first to hold that the “confirm nor deny” response is also proper under OPRA.

The History of “Glomar Responses”

The term “Glomar response” originates from Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976). The Central Intelligence Agency (CIA) responded to a FOIA request for records pertaining to the Hughes Glomar Explorer, an oceanic vessel publicly listed as a research ship privately owned by billionaire Howard Hughes. Media reports at the time maintained that the federal government was using the ship to salvage a sunken Russian submarine that was carrying nuclear missiles.

In response to a request by journalist Harriet Ann Phillippi regarding the government’s attempts to conceal the existence of the project, the CIA asserted, “in the interest of national security, involvement by the U.S. Government in the activities which are the subject matter of [the plaintiff’s] request can neither be confirmed nor denied.” The CIA further claimed that the “existence or nonexistence of the requested records was itself a classified fact exempt from disclosure under . . . FOIA.”

The D.C. Circuit Court of Appeals upheld the CIA’s response and established procedural rules that federal agencies must satisfy to use the response going forward. Since the 1970s, the government’s refusal to “neither confirm nor deny” the existence of requested documents under FOIA has been known as a “Glomar Response.” Reliance on the “neither confirm nor deny” response has spiked in the wake of the 9/11 attacks and has also recently surfaced in state law public records suits.

The Appellate Division’s OPRA Decision

The New Jersey suit involved an OPRA request made by a reporter for North Jersey Media Group, Inc., d/b/a Community News, (NJMG) to the Bergen County Prosecutor’s Office (BCPO). The request sought records concerning a catholic priest who had not been charged with any crime.

In the interest of protecting the priest’s privacy, the BCPO responded that it could neither confirm nor deny that the records existed. “Exposing information regarding individuals who have not been arrested or charged with any crime is an invasion of privacy and could have devastating repercussions,” the BCPO argued. NJMG filed suit under OPRA, and the trial court dismissed the case.

In support of NJMG’s appeal, more than 25 media organizations submitted amicus curiae briefs. They argued that the noncommittal “Glomar” response was prone to frequent abuse under FOIA and has led to “pervasive secrecy” at the federal level. Accordingly, they argued it should not be extended to state laws like OPRA.

Nonetheless, the Appellate Division affirmed the dismissal. It held that the refusal to confirm or deny the existence of records relating to a person who has not been charged with an offense falls within an exemption to disclosure authorized by OPRA.

In its precedential decision, the court specifically noted that the Second Circuit affirmed the use of “Glomar” responses on the federal level, highlighting that the federal appeals court characterized it as a “well settled as a proper response to a FOIA request.” The New Jersey appeals court went on to rule that declining to neither deny nor confirm the existence of responsive records is also permitted under OPRA. In reaching its decision, the court emphasized that “records may be exempt from public access based upon authorities other than the exemptions enumerated within OPRA.”

“In this case, we conclude that records relating to a person who has not been arrested or charged with an offense are entitled to confidentiality based on long-established judicial precedent,” Judge Marianne Espinosa wrote. “To deny records exist in some cases and to issue no denial in others would implicitly confirm the existence of records in a particular case, entirely defeating any effort to protect the confidentiality interest at stake,” she added.

Going forward, 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.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck. He is also the editor of the Constitutional Law Reporter and Government and Law blogs.