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State Appeals Court In NJMG Case Allows 'Neither Confirm Nor Deny' Response

Acting Bergen County Prosecutor Gurbir S. Grewal
Acting Bergen County Prosecutor Gurbir S. Grewal Photo Credit: Jerry DeMarco

HACKENSACK, N.J. -- New Jersey became the second state in the nation in which authorities may “neither confirm nor deny” the existence of certain public records, under a state appeals court ruling Wednesday against a complaint brought by North Jersey Media Group.

It began when a reporter for the Community News weekly requested records connected to a Catholic priest who wasn’t arrested or charged with a crime, court papers show.

In response, the Bergen County Prosecutor’s Office neither confirmed nor denied existence of records about the unidentified priest – a decision later supported by now-retired Superior Court Judge Peter Doyne in Hackensack when NJMG challenged it.

The Appellate Division supported Doyne.

“It is obvious that, in order to protect the confidentiality of persons who have been the subject of investigation but not charged with any offense, the prosecutor must respond to requests for such records uniformly,” the higher court decision issued Wednesday said.

“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,” it said.

Acting Bergen Prosecutor Gurbir S. Grewal welcomed the news.

“We are pleased that the Appellate Division sustained and sanctioned our actions in refusing to respond to a public records request based on issues of privacy,” he said.

“Law enforcement agencies are well aware that an unfounded allegation can ruin a life and the public has every right to expect that they will behave accordingly.

“Today’s ruling allows law enforcement agencies the flexibility they need to do so,” Grewal continued. “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.

“It is as simple as that,” the prosecutor said.

Jennifer Borg, the chief counsel for North Jersey Media Group, called the decision “ not only disappointing” but rare .

“Even though the appellate panel technically affirmed the lower court's ruling … it did so for completely different reasons than those cited by the lower court and for reasons not even raised by the plaintiff,” she said, according to a report on the NJMG site.

Borg didn't say whether the company would let the decision stand or appeal to the state Supreme Court.

Although Doyne relied on the state constitution’s right to privacy, the Appellate Division focused on New Jersey’s Open Public Records Act (OPRA).

OPRA “explicitly permits an agency to decline to confirm or deny the existence of responsive records,” and “to respond to public records requests by stating that they are unable to comply,” the higher court wrote in Wednesday’s ruling.

The agencies, of course, must have “sufficient basis” to withstand a court challenge in such cases, the three-member panel added.

“It is obvious that, in order to protect the confidentiality of persons who have been the subject of investigation but not charged with any offense, the prosecutor must respond to requests for such records uniformly,” the decision emphasized. “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.”

According to NJMG, the ruling made law a tool first used by the federal government to protect national security interests during the Cold War .

Indiana is the other state that permits “neither confirm nor deny” responses – although it’s under state law.

North Jersey Media Group recently was purchased by Gannett.

NJMG was supported in the appeal by The New York Times, Wall Street Journal and the Newark Star-Ledger, among other media groups.

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