New Jersey newspaper gets "Glomared" when seeking records.
TRENTON -- A state appeals court ruled on Wednesday that government officials don't necessarily have to acknowledge the existence of a record when refusing to release it.
The three-judge panel sided with prosecutors in Bergen County, who responded to a request from a news organization by saying they could "neither confirm nor deny" they had documents related to a possible criminal case.
The court agreed that in some cases, even acknowledging a record exists can divulge sensitive information. The so-called Glomar response, originally invoked by the federal government in a matter of national security, has been finding its way into state courts in recent years, a trend free press advocates have called troubling.
At issue in Wednesday's decision was a request made by the Community News, a weekly newspaper in northern New Jersey, for records held by the Bergen County Prosecutor's Office regarding an individual who had been accused of sexual abuse but never criminally charged.
The decision did not name the individual, although he has been identified elsewhere as a Catholic priest.
A trial court judge ruled the request violated the priest's privacy rights, but the news organization appealed. The appellate ruling found prosecutors could withhold the information under state records laws.
What police records should be public?
A coalition of media entities and free press advocates --led by North Jersey Media Group, which owned the paper, and including Advance Publications, the parent company of NJ Advance Media; the New York Times; the Wall Street Journal and the Reporters Committee for Freedom of the Press -- has advocated for the release of the documents.
The Glomar response owes its name to a CIA operation involving the Hughes Glomar Explorer, a secret giant ship, to retrieve a sunken Soviet submarine in the early 1970s. In response to press inquiries about the operation, the federal government argued even acknowledging its existence could undermine national security.
In the decades since, the federal government has used the case as precedent to refuse records under the U.S. Freedom of Information Act.
The media groups argued the "can neither confirm nor deny" defense employed by government record keepers had been "overused and abused" as a means of curtailing public access. Until Wednesday, it had not been used successfully in state cases involving New Jersey's Open Public Records Act.
Tom Cafferty, an attorney for the news organizations who joined the suit, said Wednesday that the ruling could have broad implications for access to government records in New Jersey.
"Will records custodians seek to apply this 'Glomar doctrine' to records beyond law enforcement records of the type that were at issue in this case?" he asked.
In their decision, the court held that "in order to protect the confidentiality of persons who have been the subject of investigation but not charged with any offense," prosecutors must have a consistent policy on the release of such records.
"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," Judge Marianne Espinosa wrote in the decision.
In a statement Wednesday, Bergen County Prosecutor Gurbir Grewal said the court ruling "allows law enforcement agencies the flexibility they need" to protect the privacy of those they investigate.
"The court simply codified a basic tenet of common sense and fair dealing with which any reasonable person would agree: An innocent person's name does not belong in a newspaper every time a law enforcement agency receives an anonymous note," the prosecutor said. "It is as simple as that."
Cafferty said there was "no question" that in cases where criminal charges are not brought, privacy implications should be considered when discussing investigations.
"On the other hand, is the appropriate way to address that concern to (refuse to divulge information), or is the appropriate response to say, 'We found no basis to the allegations'?"
According to the appellate decision, government agencies can't use the "neither confirm nor deny" response indiscriminately, but would rather have to establish "sufficient basis" for such refusals and make their case to a judge.
But Cafferty said that court oversight would happen behind closed doors, giving the requesting party -- be they private citizens or the press -- little insight on the arguments the government is making for withholding information from them.
"Now, requesters and their attorneys are effectively going to have one arm tied behind their back," he said.
S.P. Sullivan may be reached at ssullivan@njadvancemedia.com. Follow him on Twitter. Find NJ.com on Facebook.