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OPRA’s Privacy Clause: A Citizen’s Reasonable Expectation of Privacy Viewed Objectively by a Records Custodian
May 24, 2018
OPRA’s Privacy Clause: A Citizen’s Reasonable Expectation of Privacy Viewed Objectively by a Records Custodian

Municipal and Government attorney Michael J. Coskey explains the recent NJ Supreme Court ruling on OPRA's privacy clause. 

Yesterday, the New Jersey Supreme Court addressed the meaning of the Open Public Records Act’s (OPRA) privacy clause, which directs public entities to safeguard personal information that, if disclosed, would violate a citizen’s reasonable expectation of privacy.

In Brennan v. Bergen County Prosecutor’s Office (A-62-16), the Bergen County Prosecutor’s Office, citing privacy concerns, declined to provide the name and address of successful bidders at a public auction of a forfeited property. In its analysis, the court viewed the fact that the individuals were participating at a public auction and bidding on seized property forfeited to the government undermined the notion that they could reasonably expect the auction to be confidential. The court held that prior to an extended analysis, a custodian must first present a plausible claim that public access to the records requested would invade a person’s objectively reasonable expectation of privacy. Since the custodian failed to present a persuasive claim in support of its privacy argument, the court required disclosure of the names and addresses of the successful bidders.

Under the court’s holding, a records custodian must first view objectively whether it is reasonable for the individual to have expected that the government would keep certain information private. If it is unreasonable for an individual to have expected the information would remain private, a records custodian may not rely upon the privacy provision of OPRA and must disclose the information to the requestor. The circumstances in Brennan undoubtedly weighed in favor of disclosure; however, not all requests for personal information would be as definitive.

This holding is another example of the difficulties records custodians face on a daily basis. Don’t feel that you have to make these determinations alone, contact the OPRA team at Parker McCay if you have any questions regarding this Supreme Court decision.

The content of this post is for informational purposes only and should not be construed as legal advice or legal opinion. You should consult a lawyer concerning your specific situation and any specific legal question you may have.

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