NJ may deny public records access, court says.

• Position: FOIA - New Jersey

Government agencies in New Jersey may deny access to public records by saying they can "neither confirm nor deny" their existence when they receive an information request under the state's Open Public Records Act (OPRA), New Jersey's state appeals court has ruled.

The decision makes New Jersey the second state to adopt as law what one media lawyer has called "a broad and damaging secrecy tool" first used by the U.S. government during the Cold War to protect its national security interests. The other state, Indiana, authorized "neither confirm nor deny" responses through a statute, not a court ruling.

The ruling was made against North Jersey Media Group, a division of Gannett that publishes several newspapers, including The Record. The New Jersey appeals court allowed what is known as a "Glomar" response, which some U.S. agencies have used since the 1970s to block requests for public records submitted under the U.S. Freedom of Information Act.

"Glomar responses are used under FOIA in two contexts: where confirming or denying raises national security issues or privacy issues," said Erwin Chemerisnky, a First Amendment expert and dean of the law school at the Uni versity of California, Irvine. "But even then, agencies must present as much as possible. It is essential that Glomar responses be limited or they could be used to undermine public records laws."

In 2013, a reporter for North Jersey Media Group filed a request under OPRA and the common law seeking from the Bergen County Prosecutor's Office recordings or transcripts of 911 calls, complaints, and other documents regarding a Catholic priest who has never been arrested or charged with a crime.

To protect the priest's privacy, the prosecutor's office neither confirmed nor denied the records existed. "Exposing information regarding individuals who have not been...