Recent New Jersey Law Division Decision Highlights Importance of Making Government Records Requests Under Both OPRA and the Common Law

The right of public access to information about sexual harassment claims brought against a public entity is the focus of a recent decision of the Superior Court of New Jersey, Law Division (Atlantic County). The decision illustrates the interplay between the common law right of access to government records and the New Jersey Open Public Records Act (“OPRA”), as well as the importance of making a request for a government record under both.

In John Paff v. City of Brigantine, decided by The Honorable Nelson C. Johnson, J.S.C. (author of the book, Boardwalk Empire, late of HBO fame), the plaintiff, a public access advocate, sought a report prepared by an outside attorney retained by the City of Brigantine to conduct an independent investigation regarding allegations of sexual harassment against the City’s Chief of Police. Plaintiff sought access pursuant to both OPRA and the common law. The OPRA request was denied. OPRA specifically exempts from the definition of a government record, and thus from public access, “ … information generated by or on behalf of public employers or employees in connection with any sexual harassment complaint filed with the public employer …”

Nonetheless, after noting that OPRA specifically preserved the common law right of access (N.J.S.A. 47:1A-1), the trial court, as required by the common law, balanced the interest in accessing the report against the interest in confidentiality. In striking the balance in favor of access, the court redacted portions of the report to protect the confidentiality of the complainant. In determining that the specific exemption from access for this type of report contained in OPRA was not dispositive of the common law right of access, the trial court followed the New Jersey Supreme Court decision in Home News v. Department of Health. In Home News, the Supreme Court noted that, while there existed a regulation precluding a statutory right of access, “[T]he existence of a regulation is not dispositive of whether there is a common law right to inspect a public record, but it weighs very heavily in the balancing process …”

The lesson is clear – a requestor should always seek access to government records under both OPRA and the common law.

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