fidentiality provisions by properly redacting the names of the
complainant and the corrections officers.
The court further concluded that the plaintiff also was not
entitled to the records under the common law right of access,
which is a standard claim asserted in litigation under OPRA.
Under the common law right of access, an individual seeking
access to government records bears the burden to demonstrate
that his or her interest in disclosure is greater than the public
interest in maintaining confidentiality. In this case, the court
concluded that balance must be struck in favor of nondisclo-
sure based, in part, on the concern to maintain safety and se-
curity in the facility and also to protect the names of the com-
plainants who provided the information in reliance upon the
fact that it would be confidential.
The strongly worded opinion rejects the open-ended nature
of some OPRA requests involving sensitive documents by bal-
ancing the confidentiality of certain information with a recog-
nition that disclosure of the names of corrections officers could
undermine the safety and security in the county jail.
We note that the OPRA request involved in this case is not
uncommon. In fact, we are aware that the same plaintiff who
filed the OPRA request in this case has filed other OPRA re-
quests seeking similar law enforcement information as well.
This decision should be helpful in protecting disclosure of this
information in similar cases. Although the opinion is unpub-
lished, and cannot be used as precedent, it will provide a road
map for future cases.
On the other hand, the Appellate Division’s published deci-
sion in Scheeler v. Office of the Governor expanded the scope of
what constitutes a “public record,” subject to disclosure under
OPRA. In this case, a citizen made a wide-ranging request to
the governor’s office for all OPRA requests anyone had made to
that office, or other governmental agencies, concerning Bridge-
gate issues. Similar requests were also made by an anonymous
requester. The governor’s office refused to provide the informa-
tion, contending that OPRA requests made by other citizens for
public documents do not constitute a “public record,” and that
in any event an individual is not entitled to receive copies of
requests for records made by third parties.
The Appellate Division disagreed, holding that a request for
records previously made under OPRA is itself a “government
record” and is the refore subject to disclosure. The court also re-
jected the governor’s claim that giving out that sort of informa-
tion would only serve to assist individuals in advancing their
private interests in their own individual litigation. The argu-
ment was that allowing them to discover requests made by an-
other party would have no purpose other than determining the
strategy of parties to litigation, particularly in a criminal mat-
ter. But the court held that a party’s purpose in seeking to learn
about OPRA requests made by third parties is irrelevant, even
though it might give insight into what a defendant in another
matter thought was an important record. Nor may the request-
er of government documents claim a right of “privacy” so other
individuals or newspapers may not find out who has requested
documents from government agencies. In fact, the court ruled
that anonymous requests for documents must also be honored.
This case again illustrates the breadth with which some OPRA
requests are generally analyzed under current law. As long as a
request is made with sufficient specificity that a governmental
agency can determine what is being requested, and no coun-
tervailing policy interest is in play, the courts have liberally in-
terpreted the statute to ensure that documents are provided.
More important, this case illustrates again how OPRA can be a
very powerful weapon for PBA Locals or law enforcement offi-
cers in seeking a variety of material. d
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