A Capehart Scatchard Blog

N.J. Supreme Court Rules on OPRA’s Privacy Provision

On May 23, 2018, the New Jersey Supreme Court in Brennan v. Bergen County Prosecutor’s Office, issued an important decision regarding the Open Public Records Act’s (“OPRA”) privacy provisions. Often times, school districts and other public entities deny OPRA requests on the basis that they are protecting the privacy of others. In these situations, the Court clarified that the public entity must first show that disclosure of the records would invade a “person’s reasonable expectation of privacy” before advancing any privacy arguments to withhold the documents.

This case involved Plaintiff’s OPRA request to the Bergen County Prosecutor’s Office (“BCPO”) seeking payment receipts and contact information of successful bidders of sports memorabilia during the BCPO’s public auction. The BCPO provided copies of receipts but redacted names and addresses. Plaintiff was not satisfied with the BCPO’s response and challenged the denial.

The trial court agreed with Plaintiff reasoning that the successful bidders had a “limited” interest in their names and addresses being released when analyzing the privacy argument under Doe v. Poritz, 142 N.J. 1, 88 (1995). The Appellate Division reversed the trial court reasoning that the individuals had a reasonable expectation of privacy. For example, the successful bidders could be targets of theft.

The New Jersey Supreme Court reversed the Appellate Division and agreed with Plaintiff. With regard to the BCPO’s redaction of the names and addresses of successful bidders, the Court determined that it is not reasonable to expect that details about a public auction of government property will remain private. In short, the Court reasoned:

[T]he sale of government property at a public auction is a quintessential public event that calls for transparency. To guard against possible abuses, the public has a right to know what property was sold, at what price, and to whom.

In addition, the Court clarified that the balancing factors in Doe with regard to a privacy argument only apply after the public entity presents a “colorable claim that public access to the records requested would invade a person’s objectively reasonable expectation of privacy.” That is, the Doe factors do not automatically apply every time a privacy interest exists.

School districts and other public entities should be careful when they assert privacy interests as a basis for nondisclosure of a government record. This case demonstrates that the burden has increased for public entities to deny an OPRA request on the basis of protecting privacy.


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About the Author

About the Author:

Sanmathi (Sanu) Dev, Esq. concentrates her practice on the representation of boards of education and charter schools in all areas of school law including: labor and employment, special education, Section 504, student discipline, FERPA, Anti-Bullying Bill of Rights Act, student residency, civil rights, tenure, OPRA, and OPMA. In connection with these representations, she is experienced in handling matters before State and Federal courts, including the Office of Administrative Law. Ms. Dev is an experienced special education litigator and defends school districts in due process hearings from inception through trial. In addition, she has handled matters before governmental agencies, including the U.S. Office for Civil Rights and New Jersey Division on Civil Rights. Ms. Dev routinely conducts training and seminars, drafts policies and manuals, and provides strategic advice to school administrators regarding school law issues. Ms. Dev was recently recognized as one of South Jersey’s Awesome Attorneys as published by South Jersey Magazine. She is licensed to practice law in New Jersey, the District Court for the District of New Jersey and Pennsylvania.


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