                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-2393-13T3

NORTH JERSEY MEDIA GROUP INC.,
d/b/a COMMUNITY NEWS,                 APPROVED FOR PUBLICATION

     Plaintiff-Appellant,                 August 31, 2016

v.                                      APPELLATE DIVISION


BERGEN COUNTY PROSECUTOR'S
OFFICE and FRANK PUCCIO, in
his capacity as Custodian of
Records for the BERGEN COUNTY
PROSECUTOR'S OFFICE,

     Defendants-Respondents.
________________________________________________________________

         Argued November 17, 2015 – Decided August 31, 2016

         Before Judges Fisher, Espinosa and Rothstadt.

         On appeal from Superior Court of New Jersey,
         Law Division, Bergen County, Docket No. L-
         6741-13.

         Jennifer A. Borg, General Counsel, argued the
         cause for appellant (North Jersey Media Group,
         Inc., attorneys; Ms. Borg, of counsel and on
         the briefs; Robert D. Thompson and Bobby D.
         Conner, on the briefs).

         John M. Carbone argued the cause for
         respondents (Carbone and Faasse, attorneys;
         Mr. Carbone, of counsel and on the brief;
         Frank T. Puccio, on the brief).

         Thomas J. Cafferty argued the cause for amici
         curiae The Reporters Committee for Freedom of
         the Press and 25 Media Organizations (Gibbons
         PC, and Bruce D. Brown of the Massachusetts
            and District of Columbia bars, admitted pro
            hac vice, attorneys; Mr. Cafferty, of counsel
            and on the brief).

     The opinion of the court was delivered by

ESPINOSA, J.A.D.

     This    matter   concerns   a   news   organization's   request   for

records from a prosecutor's office regarding a person who was not

charged with any crime pursuant to the Open Public Records Act

(OPRA), N.J.S.A. 47:1A-1 to -13, and the common law right of

access.     The prosecutor's office declined to confirm or deny the

existence of responsive records.

     In this matter of first impression, we must determine whether

the prosecutor's response was permissible under OPRA and the common

law or a violation thereof.       For the reasons set forth below, we

hold that an agency may "neither confirm nor deny" the existence

of records in response to an OPRA request when the agency (1)

relies upon an exemption authorized by OPRA that would itself

preclude the agency from acknowledging the existence of such

documents and (2) presents a sufficient basis for the court to

determine that the claimed exemption applies.          In this case, we

conclude that records relating to a person who has not been

arrested or charged with an offense are entitled to confidentiality

based   upon   long-established      judicial   precedent.    Therefore,

pursuant to N.J.S.A. 47:1A-9(b), an exemption exists under OPRA


                                      2
                                                                 A-2393-13T3
that precludes a custodian of records from disclosing whether such

records exist in response to an OPRA request.      We further conclude

that the Bergen County Prosecutor's Office (BCPO) made a sufficient

showing to avail itself of this exemption and that access is also

properly denied under the common law right of access.

                                    I.

     Plaintiff, North Jersey Media Group, Inc., d/b/a Community

News (NJMG), appeals from an order that dismissed its complaint

against defendants, BCPO and its custodian of records, Frank

Puccio, alleging a violation of OPRA and the common law right of

access.   One of NJMG's reporters1 made an OPRA request to the BCPO

"[i]n   furtherance   of   the   newsgathering   process"   for   records

concerning a person who had not been charged with any crime, whom

we shall refer to as A.B.C.      The following records were requested:

           1.   All law enforcement reports filed against
           or involving [A.B.C.] from January 1, 2003 to
           present.

           2.   All complaints and/or reports (verbal or
           written) made to law enforcement officials
           concerning [A.B.C.] from January 1, 2003 to
           present, including, but not limited to, his
           work   at   [three   designated   places   of
           employment.]

           3.   Recordings and/or transcripts of 911
           calls and/or non-emergency calls made between


1
  According to its complaint, NJMG publishes two daily newspapers,
two websites and nearly forty weekly newspapers, including
Community News.
                                    3
                                                                  A-2393-13T3
     January 1,   2003   and   present   related   to
     [A.B.C.]

     4.   Written communications (e.g. emails and
     letters) to, from and/or between:

          a.   BCPO and [A.B.C.]
          b.   BCPO and [A.B.C.'s] attorney
          c.   [A.B.C.'s employer]/Any
               representatives or
               affiliates . . . .

BCPO responded to this request by letter that stated in part:

          You have requested records related to
     someone who has neither been arrested nor
     charged with committing an offense.         In
     essence, this amounts to inquiring whether a
     person who has neither been arrested nor
     charged with committing an offense is, or has
     been, the subject of an investigation.     The
     [BCPO] will neither confirm nor deny whether
     an individual who has neither been charged nor
     arrested is, or has been, the subject of an
     investigation.     Law enforcement agencies
     routinely   receive   allegations   that   are
     determined to be unprovable, unfounded or
     untrue.    Identifying the target of such
     allegations could unfairly subject that
     individual to irreparable harm and subject
     this office and its employees to civil
     liability and professional discipline. It is
     for this reason, among others, that grand jury
     proceedings are conducted in secret.      More
     instructively, even when a crime has been
     committed, [OPRA] does not require a law
     enforcement agency to name suspects. When no
     arrest has been made, OPRA only requires a law
     enforcement agency to disclose "the type of
     crime, time, location and type of weapon, if
     any."   N.J.S.A. 47:1A-3b.   By not including
     the names of suspects in the list of items to
     be disclosed, the Legislature wisely chose to
     protect suspects who may be exonerated without
     being charged from the public scorn and stigma


                           4
                                                        A-2393-13T3
           that can arise from being the target of a
           criminal investigation.

           [(Emphasis added).]

     BCPO defended its refusal to confirm or deny the existence

of such records:

           To suggest that a law enforcement agency must
           confirm or deny that someone is or has been
           has been [sic] the subject of an investigation
           even when no crime may have occurred by
           stating   that   records    related  to   that
           individual are exempt from disclosure because
           they are criminal investigatory records is to
           create   precisely   the   problem  that   the
           Legislature sought to avoid in enacting
           N.J.S.A. 47:1A-3b. Nothing in OPRA suggests
           such an unjust result and fundamental fairness
           prohibits it.

     BCPO also wrote to the Government Records Council (GRC),

seeking "both an advisory opinion and review/appeal" that would

affirm the denial of access to the records sought, grant access

to the records, or find "a clear and specific exemption from

release of the records sought."       In support of its denial of

access,   BCPO   reviewed   authorities   for   the   proposition   that

information received by law enforcement authorities concerning

possible criminal activities should be treated as confidential and

privileged against disclosure and cited both the New Jersey Rules

of Professional Conduct for Attorneys and the right to privacy

guaranteed by the New Jersey Constitution.




                                  5
                                                               A-2393-13T3
     Following BCPO's request for review by the GRC, NJMG filed

an order to show cause and verified complaint, asserting its

statutory prerogative to have the denial of access adjudicated by

the Superior Court, N.J.S.A. 47:1A-6, and seeking declaratory

judgment that BCPO violated OPRA and the common law right of

access.   The complaint also asked the court to require BCPO to

submit a Vaughn index, in which the custodian of records identifies

responsive documents and the exemptions it claims warrant non-

disclosure.   Vaughn v. Rosen, 484 F.2d 820, 826-27 (D.C. Cir.

1973), cert. denied, 415 U.S. 977, 94 S. Ct. 1564, 39 L. Ed. 2d

873 (1974); see also N.Y. Times Co. v. U.S. Dep't of Justice, 758

F.3d 436, 438 (2d Cir. 2014); Minier v. CIA, 88 F.3d 79, 803-04

(9th Cir. 1996).

     The Bergen County Prosecutor, John L. Molinelli, submitted a

certification that stated, in part:

          2.   I invoke and utilize all available
          privileges and exemptions to bar the release
          of the documents requested herein, including,
          but not limited to, criminal investigatory
          records,   confidential,   privacy   and   as
          otherwise permitted under the laws of the
          State of New Jersey.

               . . . .

          4.   In   this   instance  and   in   others
          previously, unless an arrest has been made,
          charges are filed or a grand jury indictment
          is returned, I, as the Bergen County
          Prosecutor, will not respond to an inquiry
          about the receipt or possession of documents

                                6
                                                           A-2393-13T3
          or the existence or non-existence         of   a
          criminal investigation.

          5.   I believe this position is necessary and
          proper due to the constraints placed upon me
          by   the  Rules   of  Professional   Conduct;
          particularly RPC 3.6 and 3.8.

          6.   Many times, when allegations contained in
          a letter or other communication are received
          by this office and are investigated, the
          allegations are found to be untrue or its
          [sic] determined that the allegations cannot
          be proven or the actions of the person
          implicated do not rise to a level of criminal
          conduct.

          7.   Disclosing, confirming or identifying
          the subject or content of such allegations as
          communicated would unfairly subject that
          person to irreparable harm and possibly raise
          against the [BCPO] a tort action by the person
          so identified for false light claims and civil
          liability.

          8.   When a reporter seeks such confirmation
          as a result of a tip, communication from the
          individual making the allegations, or an
          undisclosed, "off the record," not for
          attribution or deep throat source, it should
          not be the Prosecutor giving veracity,
          notoriety, approbation or confirming the issue
          for the press.

          [(Emphasis added).]

     BCPO later submitted, ex parte, documents described by the

trial judge as "a sealed envelope containing a certification of

[the custodian of records], including a two page Vaughn Index and

a second sealed envelope containing copies of what defendants

assert to be the criminal investigatory records."   The trial judge


                                7
                                                             A-2393-13T3
declined to examine the documents or Vaughn index because they

were submitted under seal.2

       The trial judge denied the relief sought and dismissed NJMG's

complaint.       In his written opinion, the judge rejected BCPO's

contention       that   the   criminal     investigatory       record    exemption

applied "because the record is void of any evidence of a pending

investigation."         Addressing BCPO's argument that disclosure would

violate     individual      privacy    rights,     the   judge   considered      and

weighed the factors relevant to a determination whether the need

for disclosure outweighs individual privacy concerns.                   See Burnett

v. Cnty. of Bergen, 198 N.J. 408, 427 (2009); Doe v. Poritz, 142

N.J.   1,   88    (1995).      He     concluded,    "records     related    to   the

investigation of an individual that has not been arrested [or]

charged with a crime generally must not be disclosed as privacy

concerns outweigh the public's need for the information."                  Turning

to NJMG's claim that disclosure was required based upon the common

law right of access, the judge considered and weighed the factors

identified in Loigman, supra, 102 N.J. at 113, and concluded access

to such records was not warranted under the common law right of




2
   The stated reason for the judge's decision not to review the
Vaughn index submitted under seal was that he was not provided
with any authority that permitted an in camera submission of the
index. The Supreme Court has recognized that, in rare cases, an
in camera submission is appropriate. Loigman v. Kimmelman, 102
N.J. 98, 111 (1986).
                                          8
                                                                           A-2393-13T3
access because "disclosure of the requested information [would be]

an unreasonable invasion of individual privacy."

       NJMG raises a number of arguments in its appeal.          First, NJMG

challenges the trial court's interpretation of OPRA, contending

the court created a new exemption for the denial of access to

public records that is: not articulated in OPRA, inconsistent with

its plain language; renders statutory provisions, i.e., N.J.S.A.

47:1A-3(b)    and   N.J.S.A.   47:1A-8,    meaningless;    and    shifts   the

burden of proof from the public agency to the requestor of public

records.     NJMG argues further that, because defendants failed to

certify facts to support their contention that requested records

related to a person who had not been charged with a crime, the

trial court relied upon an insufficient record and defendants

failed to satisfy their burden of proof, N.J.S.A. 47:1A-6.                 NJMG

also contends the trial court erred in misapplying the factors

identified in Burnett and Loigman and in failing to require a

Vaughn index or conduct an in camera review.           Finally, NJMG argues

the trial court erred in holding that its OPRA request implicates

personal privacy rights protected by the New Jersey Constitution

because this argument was not properly raised in the trial court.

BCPO   argues   the   trial    court   relied   upon   existing    statutory

exemptions, did not create a new exemption under OPRA, and properly

weighed relevant facts and authorities.


                                       9
                                                                     A-2393-13T3
       We granted amicus curiae status to The Reporters Committee

for Freedom of the Press and twenty-five media organizations.3                In

addition to joining NJMG's arguments, amici argue the response to

neither confirm nor deny the existence of responsive documents,

which has been permitted in response to requests for records under

the Freedom of Information Act (FOIA), 5 U.S.C.A. § 552, has been

overused and abused and should not be permitted in response to an

OPRA request.

       In light of our conclusion that the refusal to confirm or

deny the existence of records relating to a person who has not

been    charged   with   an   offense    falls    within   an   exemption    to

disclosure authorized by OPRA, we need not reach NJMG's remaining

arguments.

                                       II.

       The trial judge's determination that plaintiff's OPRA request

was    properly   denied   and   the    legal    conclusion     regarding   the

appropriate exemption are both legal issues subject to de novo


3
   Advance Publications, Inc., American Society of News Editors,
The Asbury Park Press, The Associated Press, Association of
Alternative Newsmedia, The Center for Investigative Reporting,
Courier News, Courier Post, The Daily Journal, Daily Record, Dow
Jones & Company, Inc., Home News Tribune, Investigative Reporters
and Editors, Investigative Reporting Workshop at American
University, National Newspaper Association, The National Press
Club, National Press Photographers Association, New Jersey Press
Association, The New York Times Company, News Corp, The Newspaper
Guild – CWA, NYP Holdings, Inc., Online News Association, Time
Inc., and Tully Center for Free Speech.
                                       10
                                                                      A-2393-13T3
review.    N. Jersey Media Group, Inc. v. Twp. of Lyndhurst, 441

N.J. Super. 70, 89-90 (App. Div. 2015); K.L. v. Evesham Twp. Bd.

of Educ., 423 N.J. Super. 337, 349 (App. Div. 2011), certif.

denied, 210 N.J. 108 (2012).            Our review of the determination

regarding the common law right of access is de novo as well.

Drinker Biddle & Reath LLP v. N.J. Dep't of Law & Pub. Safety, 421

N.J. Super. 489, 497 (App. Div. 2011).           We note further, "appeals

are taken from orders and judgments and not from opinions, oral

decisions, informal written decisions, or reasons given for the

ultimate conclusion."         Do-Wop Corp. v. City of Rahway, 168 N.J.

191, 199 (2001).      Thus, although we reach the same conclusion as

the trial court, we do so for different reasons.

                                       A.

      The Legislature's stated purpose in enacting OPRA was to make

government     records   "readily      accessible"    to     the   public     "with

certain exceptions, for the protection of the public interest."

N.J.S.A. 47:1A-1.      OPRA directs that "all government records shall

be   subject    to   public   access    unless   exempt,"       and    that   "any

limitations on the right of access . . . shall be construed in

favor of the public's right of access."              Ibid.    The goal of such

ready access is to promote good government.                "With broad public

access    to   information    about    how   state   and     local    governments

operate, citizens and the media can play a watchful role in curbing


                                       11
                                                                         A-2393-13T3
wasteful government spending and guarding against corruption and

misconduct."   Burnett, supra, 198 N.J. at 414.    The public's right

to disclosure is not, however, absolute.         Kovalcik v. Somerset

Cnty. Prosecutor's Office, 206 N.J. 581, 588 (2011); Educ. Law

Ctr. v. N.J. Dep't of Educ., 198 N.J. 274, 284 (2009).

     OPRA provides that, upon receipt of a written request for

access, the custodian "shall grant access to a government record

or deny a request for access to a government record."          N.J.S.A.

47:1A-5(i).    N.J.S.A.   47:1A-5(g)   sets    forth   the   custodian's

obligations upon receipt of an OPRA request.       The custodian must

"promptly comply with a request" and, if "unable to comply . . .

shall indicate the specific basis therefor on the request form and

promptly return it to the requestor."         Ibid.; see also Gannett

N.J. Partners, LP v. Cnty. of Middlesex, 379 N.J. Super. 205, 215

(App. Div. 2005).   A public agency that denies access bears "the

burden of proving that the denial of access is authorized by law."

N.J.S.A. 47:1A-6.   The custodian may not rely upon "conclusory and

generalized allegations of exemptions," but must provide specific

reasons for withholding documents.     Newark Morning Ledger Co. v.

N.J. Sports & Exposition Auth., 423 N.J. Super. 140, 162 (App.

Div. 2011) (quoting Loigman, supra, 102 N.J. at 110).




                                12
                                                                A-2393-13T3
                                          B.

     From   the   outset,      BCPO     declined      to    confirm   or    deny    the

existence of responsive records and set forth its rationale for

maintaining the confidentiality of information relating to "an

individual who has neither been charged nor arrested . . . or has

been[] the subject of an investigation."                   NJMG has characterized

this as a "novel basis for denial."                   However, BCPO's response

conforms to Standard 1.5(a), Contacts with the Public During the

Investigative     Process,     of   the    ABA      Standards   on    Prosecutorial

Investigations,        which   states     that,      with    limited,      enumerated

exceptions, "[t]he prosecutor should neither confirm nor deny the

existence   of    an    investigation,         or   reveal    the    status   of    the

investigation,         nor     release         information      concerning          the

investigation."        ABA Standards for Criminal Justice: Prosecutorial

Investigations § 1.5(a) (3d ed. 2014).

     This noncommittal response has come to be known as a Glomar

response and had its origin in Phillippi v. CIA, 546 F.2d 1009

(D.C. Cir. 1976).       The Central Intelligence Agency (CIA) responded

to a FOIA request for records pertaining to the Hughes Glomar

Explorer, an oceanic vessel publicly listed as a privately owned

research ship that was allegedly owned by the federal government.

Id. at 1011.       The CIA asserted, "in the interest of national

security, involvement by the U.S. Government in the activities


                                          13
                                                                              A-2393-13T3
which are the subject matter of [the plaintiff's] request can

neither be confirmed nor denied," claiming that the "existence or

nonexistence of the requested records was itself a classified fact

exempt from disclosure under . . . FOIA."       Id. at 1012.     The

precise issue we face here – whether the public agency may decline

to confirm or deny the existence of records – was not decided by

the Phillippi court because the requestor in that case did not

contend the government could never make such a claim based on

national security considerations.    Ibid.

     However, by 2009, when the Court of Appeals for the Second

Circuit announced it was joining its sister circuits in holding

the Glomar doctrine available to agencies responding to FOIA

requests, the court noted the doctrine was "well settled as a

proper response to a FOIA request."     Wilner v. NSA, 592 F.3d 60,

68 (2d Cir. 2009), cert. denied, 562 U.S. 828, 131 S. Ct. 387, 178

L. Ed. 2d 24 (2010).   The court recognized the Glomar response as

"the only way in which an agency may assert that a particular FOIA

statutory exemption covers the 'existence or nonexistence of the

requested records' in a case in which a plaintiff seeks such

records."   Ibid. (citation omitted).

     The court emphasized that the availability of the Glomar

response depended upon a showing that the conventional response

to a FOIA inquiry "would cause harm cognizable under a [] FOIA


                                14
                                                           A-2393-13T3
exception."   Ibid.     (alteration in original) (quoting Gardels v.

CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982)).

           To properly employ the Glomar response to a
           FOIA request, an agency must "tether" its
           refusal to respond to one of the nine FOIA
           exemptions — in other words, "a government
           agency may . . . refuse to confirm or deny the
           existence of certain records . . . if the FOIA
           exemption    would    itself   preclude    the
           acknowledgment of such documents."

           [Wilner, supra, 592 F.3d at 68 (emphasis
           added) (first citation omitted) (quoting
           Minier, supra, 88 F.3d at 800).]

Because the "existence or nonexistence of a record" must be "a

fact exempt from disclosure under" the exception relied upon, a

Glomar response is unavailable if "the existence or nonexistence

of the particular records covered . . . has been officially and

publicly disclosed."       Wilner, supra, 592 F.3d at 70.

      As is the case when an agency denies access under OPRA, see

N.J.S.A. 47:1A-6, the agency that relies upon a Glomar response

must prove the applicability of a specific exemption.                  Wilner,

supra, 592 F.3d at 68; Pipko v. CIA, 312 F. Supp. 2d 669, 679

(D.N.J. 2003).      The agency may satisfy this burden by submitting

an    affidavit     that    "describe[s]       the     justifications        for

nondisclosure with reasonably specific detail, demonstrate[s] that

the   information    withheld   logically      falls   within   the    claimed

exemptions,   and     show[s]    that    the    justifications        are    not



                                    15
                                                                       A-2393-13T3
controverted by contrary evidence in the record or by evidence of

[] bad faith."       Hunt v. CIA, 981 F.2d 1116, 1119 (9th Cir. 1992).

       An example of the judicial analysis required to determine

whether a Glomar response is appropriate is found in People for

the Ethical Treatment of Animals v. National Institutes of Health,

745 F.3d 535 (D.C. Cir. 2014).               A number of FOIA requests were

made    to   the    National      Institutes    of   Health   (NIH)      regarding

investigations of animal abuse at a university research lab.                    Id.

at 538.      One of these requests was for "materials related to all

[NIH] investigations into complaints . . . regarding" three named

researchers at the lab.           Id. at 539.      The exemption at issue was

5 U.S.C.A. § 552(b)(7)(C) (Exemption 7(C)), which, the court

stated, supports such a response for "'records or information

compiled for law enforcement purposes' . . . . if acknowledgment

of     responsive    documents      'could     reasonably     be    expected     to

constitute an unwarranted invasion of personal privacy.'"                   Id. at

541 (citation omitted).           Noting the "substantial privacy interest

held by the targets of law-enforcement investigations," ibid.

(citation omitted), the court found a Glomar response appropriate

"as to any documents that would confirm the existence of an

investigation into the three named researchers."               Id. at 544.

       However,     the   court    viewed    the   FOIA   request   to    be   more

expansive, requiring consideration of whether a Glomar response


                                        16
                                                                          A-2393-13T3
was   available    for    another    category     of   responsive    documents

subsumed within the request. The court concluded a Glomar response

would not be justified under Exemption 7(C) for "documents showing

that NIH responded to complaints about the three researchers by

conducting an investigation that did not target the researchers

themselves."      Id. at 544.     As to that category of documents, the

purpose served by Exemption 7(C) was not defeated by an admission

that responsive documents existed and so, the availability of the

Glomar response was tailored accordingly. See also Nation Magazine

v. U.S. Customs Serv., 71 F.3d 885, 887-88 (D.C. Cir. 1995) (in

reviewing FOIA request for records relating to offers made by H.

Ross Perot to assist the Customs Service in drug interdiction

efforts, the court rejected the agency's claim that Exemption 7(C)

permitted   a   Glomar    response    to   all   requests    for   information

regarding third persons in its investigative files).

                                      C.

      Consequently,      we   must   determine    whether    the    refusal    to

confirm or deny the existence of responsive records is an available

response to an OPRA request.              NJMG asserts that a refusal to

confirm   or    deny   the    existence    of   responsive   records    is    not

permitted under OPRA.         In NJMG's view, OPRA strictly limits the

response an agency may make to a request for records, imposing an

obligation to identify responsive records in every case as a


                                      17
                                                                       A-2393-13T3
prerequisite to identifying the exemption relied upon.   Like FOIA,

there is no language in OPRA that explicitly permits an agency to

decline to confirm or deny the existence of responsive records.4

Although we note the absence of specific statutory authorization

posed no obstacle to the adoption of the Glomar doctrine in either

federal caselaw or in New York, see Matter of Abdur-Rashid v. New

York City Police Dep't, 140 A.D.3d 419 (N.Y. App. Div. 2016), our

concern is whether this response is permitted under OPRA.

     Our role in interpreting a statute is to discern and give

effect to the Legislature's intent.    DiProspero v. Penn, 183 N.J.

477, 492 (2005).   The plain language of the statute is "the best

indicator" of legislative intent.     In re Plan for the Abolition

of the Council on Affordable Hous., 214 N.J. 444, 467 (2013).     "If

the plain language leads to a clear and unambiguous result, then

[the] interpretive process is over."    Richardson v. Bd. of Trs.,

Police & Firemen's Ret. Sys., 192 N.J. 189, 195 (2007).     When "a

literal interpretation would create a manifestly absurd result,

contrary to public policy," or "would lead to results inconsistent

with the overall purpose of the statute," such interpretations




4
   Our research has revealed one statute that expressly permits
such a response. Indiana's Access to Public Records Act permits
a state agency to "[r]efuse to confirm or deny the existence of
the record" under certain circumstances if the agency considers
the request to be for a record excepted from disclosure.   Ind.
Code Ann. § 5-14-3-4.4(a)(2).
                                18
                                                            A-2393-13T3
should be rejected in favor of the spirit of the law.                   Hubbard v.

Reed, 168 N.J. 387, 392-93 (2001) (citation omitted); Turner v.

First Union Nat'l Bank, 162 N.J. 75, 84 (1999).                When the language

does not yield an unambiguous interpretation, we continue the

process to discern legislative intent, interpreting statutory

language "in accordance with common sense" and may "consider the

entire legislative scheme of which a particular provision is but

a part."    Morristown Assocs. v. Grant Oil Co., 220 N.J. 360, 380

(2015).     We may also turn to extrinsic evidence, "including

legislative      history,     committee    reports,      and    contemporaneous

construction."      DiProspero, supra, 183 N.J. at 492-93 (citation

omitted); see also Burnett, supra, 198 N.J. at 421.                     There are

many    tools    available    for   our   analysis,      but    only    one   goal.

"Regardless of the materials relied upon and the analytical tools

employed, in the final analysis, courts should seek to effectuate

the fundamental purpose for which the legislation was enacted."

In re Young, 202 N.J. 50, 64 (2010) (citation omitted).

       As we have noted, the obligation imposed upon the custodian

of public records is to "promptly comply with a request" or, if

"unable to comply," to "indicate the specific basis therefor on

the    request   form   and   promptly     return   it    to    the    requestor."

N.J.S.A. 47:1A-5(g); see also Gannett N.J. Partners, supra, 379

N.J. Super. at 215.         Other than providing a "specific basis" for


                                      19
                                                                          A-2393-13T3
the inability to comply, the statute establishes no inflexible

requirements for a non-compliance response.      Whether an agency

denies access to identified records or declines to confirm or deny

responsive records exist, its reply falls within the category of

"unable to comply" and is subject to review under that standard.

Therefore, we discern no impediment to the availability of a Glomar

response under OPRA's plain language.

     We also reject the interpretation urged by NJMG that the

submission of a Vaughn index is required in all cases in which the

agency does not comply with a request.      Neither OPRA nor FOIA

calls for the production of a Vaughn index in every case in which

access is denied.    Although the use of such a log has become

customary, courts that have considered this issue have cautioned

that the production and review of a Vaughn index is not appropriate

in every case.    Federal courts have ruled that, when an agency

submits a Glomar response supported by an affidavit that is

"sufficient to establish that the requested documents should not

be disclosed, a Vaughn index is not required."   Minier, supra, 88

F.3d at 804.     The rationale is that "acknowledging even the

existence of certain records would reveal information entitled to

be protected."   N.Y. Times Co., supra, 758 F.3d at 438 n.3.

     By way of example, in Wilner, supra, 592 F.3d 60, the question

was whether the National Security Agency's Glomar response was


                                20
                                                           A-2393-13T3
properly rooted in 5 U.S.C.A. § 552(b)(3) (Exemption 3), an

exemption that states FOIA does not apply to matters exempted from

disclosure by other statutes under specified conditions.5                       The

court found a Vaughn index was unnecessary because this exemption

"depends   less    on   the   detailed      factual    contents    of    specific

documents"   and   thus   "the   sole       issue   for   decision      [was]   the

existence of a relevant statute and the inclusion of withheld

material within the statute's coverage."              Wilner, supra, 592 F.3d

at 72 (quoting Ass'n of Retired R.R. Workers v. U.S. R.R. Ret.

Bd., 830 F.2d 331, 336 (D.C. Cir. 1987)); see also Vaughn, supra,

484 F.2d at 826-27 (acknowledging that the specificity of the

index need not "contain factual descriptions that if made public

would compromise the secret nature of the information"); ACLU v.

FBI, 59 F. Supp. 3d 584, 594 (S.D.N.Y. 2014); Pipko, supra, 312

F. Supp. 2d at 680.

                                       D.

     We next turn to NJMG's argument that the only available

exemptions   to    disclosure    are     those      enumerated    as    protected

categories within the four corners of OPRA.                NJMG's argument is

belied by the very statutory provisions it cites for support.




5
   Exemption 3 is similar to N.J.S.A. 47:1A-9(b). However, because
the OPRA provision recognizes privileges established by judicial
decision and other means, it is broader in scope than Exemption
3.
                                       21
                                                                          A-2393-13T3
    N.J.S.A. 47:1A-1 explicitly recognizes that records may be

exempt from public access based upon authorities other than the

exemptions enumerated within OPRA:

         [A]ll government records shall be subject to
         public access unless exempt from such access
         by: [OPRA] as amended and supplemented; any
         other statute; resolution of either or both
         houses   of   the   Legislature;    regulation
         promulgated under the authority of any statute
         or Executive Order of the Governor; Executive
         Order of the Governor; Rules of Court; any
         federal law, federal regulation, or federal
         order.

         [(Emphasis added).]

    Moreover,    N.J.S.A.     47:1A-9      codifies   the    Legislature's

unambiguous   intent   that   OPRA   not   abrogate   or    erode   existing

exemptions to public access:

         a. The provisions of [OPRA] shall not abrogate
         any exemption of a public record or government
         record from public access heretofore made
         pursuant to [the Right-to-Know Law, N.J.S.A.
         47:1A-1 to -4]; any other statute; resolution
         of either or both Houses of the Legislature;
         regulation promulgated under the authority of
         any statute or Executive Order of the
         Governor; Executive Order of the Governor;
         Rules of Court; any federal law; federal
         regulation; or federal order.

         b. The provisions of [OPRA] shall not abrogate
         or   erode  any   executive   or   legislative
         privilege   or   grant    of   confidentiality
         heretofore established or recognized by the
         Constitution of this State, statute, court
         rule or judicial case law, which privilege or
         grant of confidentiality may duly be claimed
         to restrict public access to a public record
         or government record.

                                     22
                                                                    A-2393-13T3
           [(Emphasis added).]

     Directly   applying   OPRA's     language,   the   Supreme   Court

recognized exemptions for documents protected by the attorney-

client privilege and the work-product doctrine. O'Boyle v. Borough

of Longport, 218 N.J. 168, 185 (2014).     See also Mason v. City of

Hoboken, 196 N.J. 51, 65 (2008); Slaughter v. Gov't Records

Council, 413 N.J. Super. 544, 550 (App. Div. 2010) (stating it was

"clear that an exemption from a right of public access to a

government record can be established" by both administrative rule

and by an executive order of the Governor), certif. denied, 208

N.J. 372 (2011).

     Therefore, the plain language of the statute as well as

judicial precedent make it clear that an exemption is statutorily

recognized by OPRA if it is established by any of the authorities

enumerated in N.J.S.A. 47:1A-1 or -9.

     N.J.S.A. 47:1A-9(b) has three requirements for a grant of

confidentiality to shield a record from disclosure under OPRA.

First, there must be a grant of confidentiality established or

recognized by any of the enumerated authorities.          Second, the

nature of the privilege must provide a reasonable basis for the

restriction of public access to the record.       Third, the privilege

must have been established or recognized prior to the enactment

of OPRA.   All three requirements are met as to the confidentiality

                                 23
                                                              A-2393-13T3
of information regarding a person who has not been arrested or

charged with an offense.

     Long before the enactment of OPRA, the confidentiality of

information law enforcement authorities receive regarding possible

criminal activity was recognized in our caselaw.

           The receipt by appropriate law enforcement
           officials of information concerning the
           existence or occurrence of criminal activities
           is critical to the uncovering and the
           prosecution of criminal offenses, and is thus
           crucial to effective law enforcement. In order
           that the flow of such information be not
           impeded or cut off, the law has long treated
           the information as confidential and privileged
           against    disclosure,    thereby    protecting
           witness security, the State's relationship
           with its informants and witnesses, and other
           confidential    relationships,    among   other
           things.

           [State v. Marshall, 148 N.J. 89, 273 (1997)
           (emphasis added) (citation omitted).]

     "Confidentiality is vital not only because it serves to

protect government sources of information, but also because it

enhances   the   effectiveness   of    investigative   techniques      and

procedures."     Nero v. Hyland, 76 N.J. 213, 225 (1978).        "[E]ven

inactive investigatory files may have to be kept confidential in

order to convince citizens that they may safely confide in law

enforcement officials."       Ibid. (citation omitted).         See also

Loigman, supra, 102 N.J. at 107-08 (recognizing "a high degree of

confidentiality"    in   investigative   materials   relating   to   "the


                                  24
                                                                 A-2393-13T3
government's      need     to    conduct    such   affairs       with   skill,     with

sensitivity to the privacy interests involved, and in an atmosphere

of confidentiality that encourages the utmost candor"); State v.

Kearney, 109 N.J. Super. 502, 506 (Law Div. 1970).

      In   sum,       before     OPRA   was     enacted,     judicial       decisions

recognized the need to maintain "a high degree of confidentiality"

for records regarding a person who has not been arrested or

charged.   The confidentiality accorded such information promotes

both the integrity and effectiveness of law enforcement efforts

for the benefit of the public at large.                  In addition, the grant

of confidentiality protects the privacy interest of the individual

who, lacking an opportunity to challenge allegations in court,

would face irremediable public condemnation.                     The need and scope

of confidentiality recognized in our courts' decisions "may duly

be   claimed     to    restrict    public     access    to   a   public    record    or

government record."         N.J.S.A. 47:1A-9(b).         We therefore hold that,

pursuant    to        N.J.S.A.    47:1A-9(b),      an    exemption        exists    for

information received or maintained by law enforcement agencies

regarding a person who has not been arrested or charged with an

offense.

                                           E.

      BCPO did not specifically identify N.J.S.A. 47:1A-9(b) as the

source of the exemption that shields the records sought here.                        We


                                           25
                                                                             A-2393-13T3
therefore   turn    to     the   question   whether   BCPO's   response

"describe[d] the justifications for nondisclosure with reasonably

specific detail, demonstrat[ing] that the information withheld

logically falls within" the exemption.       See Hunt, supra, 981 F.2d

at 1119.

     OPRA requires the custodian of records to "indicate the

specific basis" for an inability to comply with an OPRA request.

N.J.S.A. 47:1A-5(g).       An agency denying access should identify

applicable statutory provisions to facilitate judicial review.

However, the mere recitation of an applicable exemption will

generally be insufficient because the custodian may not rely upon

"conclusory and generalized allegations of exemptions."          Newark

Morning Ledger, supra, 423 N.J. Super. at 162 (citation omitted).

The sufficiency of the response is measured against whether the

proffered reasons prove the applicability of a specific exemption.

See Wilner, supra, 592 F.3d at 68.

     In this case, we are mindful that the person whose privacy

would be irreparably invaded had no opportunity to press the case

against disclosure.       See Gannett N.J. Partners, supra, 379 N.J.

Super. at 214-15.        We also note that, although the concept of

protecting such information is long-standing and the response

given here conforms to accepted standards of prosecutorial ethics,

the precise issue of what exemption applies to protect this


                                    26
                                                               A-2393-13T3
information has not been addressed before.                Therefore, under the

circumstances of this case, we consider the totality of BCPO's

response to discern whether the reasons given for its refusal to

confirm or deny the existence of responsive records logically fall

within the exemption authorized by N.J.S.A. 47:1A-9(b).6

     Aside   from   N.J.S.A.     47:1A-3(b),       BCPO   did    not   explicitly

identify other exemptions contained within OPRA that supported its

rationale for declining to confirm or deny the existence of records

here.      The   certification    submitted        in   opposition     to    NJMG's

complaint stated the "privileges and exemptions" available to bar

access included "criminal investigatory records, confidential,

[and]   privacy."      In   addition,        the   certification       cited      the

constraints imposed upon a prosecutor by the Rules of Professional

Conduct.

     In    its   initial    response    to    NJMG's      OPRA   request,       BCPO

identified the request as seeking records "related to someone who

has neither been arrested nor charged with committing an offense,"

amounting to an inquiry whether the person "is, or has been, the

subject of an investigation."           The response stated BCPO would


6
   It remains the burden of the custodian to show that the denial
of access is properly grounded in an exemption authorized by OPRA.
We do not intend that our review of exemptions not explicitly
identified by BCPO should in any way relieve a custodian of public
records from that burden or impose an obligation upon courts to
sift through OPRA to determine if an appropriate exemption exists
based upon the facts revealed.
                                       27
                                                                            A-2393-13T3
"neither confirm nor deny whether an individual who has neither

been charged nor arrested is, or has been, the subject of an

investigation," and explained:

           Law enforcement agencies routinely receive
           allegations   that  are   determined  to   be
           unprovable, unfounded or untrue. Identifying
           the target of such allegations could unfairly
           subject that individual to irreparable harm
           and subject this office and its employees to
           civil liability and professional discipline.

     BCPO's response identified the irreparable harm suffered by

a person who has been the subject of unproven allegations of

criminal   wrongdoing.     We     are   satisfied    that,   under    the

circumstances here, the reasons BCPO provided for declining to

confirm or deny the existence of responsive records adequately

invoke and logically fall within the relevant exemption.

                                   F.

     BCPO's   response   fairly   implicated   the    general   privacy

provision, N.J.S.A. 47:1A-1, the criminal investigatory record

exemption, N.J.S.A. 47:1A-1.1, and the investigation in process

exemption, N.J.S.A. 47:1A-3.      For the sake of completeness, we

review these exemptions to explain why they do not provide a basis

for the exemption we recognize under N.J.S.A. 47:1A-9(b).

     We begin with the threshold requirement for a Glomar response.

For an exemption to serve as a basis for a Glomar response, the




                                   28
                                                                A-2393-13T3
exemption itself must preclude the acknowledgment that responsive

documents exist.    See Wilner, supra, 592 F.3d at 68.

      A "criminal investigatory record" is defined as "a record

which is not required by law to be made, maintained or kept on

file that is held by a law enforcement agency which pertains to

any   criminal     investigation   or   related   civil   enforcement

proceeding."     N.J.S.A. 47:1A-1.1.    The agency relying upon this

exemption must present sufficient facts to show: (1) the existence

of a criminal investigation or related proceeding and (2) that the

responsive records "pertain" to that proceeding.      Therefore, the

agency that seeks to prove the applicability of this exemption

must, as a preliminary step, acknowledge that responsive records

exist.

      The "investigation in process" exemption, N.J.S.A. 47:1A-3,

shields records that "pertain to an investigation in progress by

any public agency" if such access is "inimical to the public

interest." See, e.g., Courier News v. Hunterdon Cnty. Prosecutor's

Office, 358 N.J. Super. 373, 380 n.5 (App. Div. 2003) (rejecting

claim that access to a 911 tape one year after a homicide fell

within the "investigation in progress" exemption).    This provision

also depends upon proof that a criminal investigation exists.

      The proofs necessary for the "criminal investigatory records"

and "investigation in progress" exemptions cannot be reconciled


                                   29
                                                             A-2393-13T3
with the fact that the "existence or nonexistence of a record"

must be "a fact exempt from disclosure under" an exemption relied

upon for a Glomar response.      Therefore, neither exemption provides

a statutorily recognized authority for a Glomar response.

     BCPO also relies upon RPC 3.8(f), which states:

           [E]xcept for statements that are necessary to
           inform the public of the nature and extent of
           the prosecutor’s action and that serve a
           legitimate   law   enforcement   purpose,   [a
           prosecutor   shall]   refrain    from   making
           extrajudicial comments that have a substantial
           likelihood of heightening public condemnation
           of the accused . . . .

     This proscription has the force of court rule pursuant to

Rule 1:14.      However, the RPC fails to satisfy the other criteria

for the exemption.        A prohibition against making extrajudicial

comments that could prejudice an accused is designed to curb

prosecutorial misconduct.        Because the RPC does not reference

records or, more particularly, records relating to an uncharged

suspect,   it    cannot   be   said   to   establish   or   recognize   the

confidentiality of public records maintained by the prosecutor as

to persons who have never been charged with an offense.          Moreover,

the RPC did not become effective until 2004, after the enactment

of OPRA.     Therefore, it cannot provide a basis for an exemption

under N.J.S.A. 47:1A-9(b).

     BCPO also cited both the constitutional guarantee of privacy,

N.J. Const. art. I, ¶ 1; see Doe, supra, 142 N.J. at 89, and the

                                      30
                                                                  A-2393-13T3
privacy provision of OPRA, N.J.S.A. 47:1A-1, as grounds for the

denial of access.        In light of our conclusion that access may be

denied based upon the exemption contained in N.J.S.A. 47:1A-9(b),

resolution   of    the    constitutional    question    is    not    "absolutely

imperative in the disposition of the litigation" and "should not

be reached."      Burnett, supra, 198 N.J. at 420.

     The general privacy provision contained in N.J.S.A. 47:1A-1

states "a public agency has a responsibility and an obligation to

safeguard from public access a citizen's personal information with

which it has been entrusted when disclosure thereof would violate

the citizen's reasonable expectation of privacy."                   See Burnett,

supra, 198 N.J. at 422-23 (emphasis added) (recognizing this

privacy clause as a substantive provision of OPRA).                      Although

"personal information" is not defined, OPRA does identify specific

categories of information that either should not be disclosed or

should be redacted from records that are disclosed.                    See, e.g.,

N.J.S.A. 47:1A-5(a) (requiring the redaction of "any information

which discloses the social security number, credit card number,

unlisted    telephone      number,   or   driver   license     number     of   any

person").    The privacy provision has been found to require denial

of access to social security numbers, Burnett, supra, 198 N.J. at

428, and the names and telephone numbers of persons called from

government-issued        telephones.      Livecchia    v.    Borough    of   Mount


                                       31
                                                                         A-2393-13T3
Arlington, 421 N.J. Super. 24, 29 (App. Div. 2011).                 It is not

applicable   to    the     settlement      of   a   sexual   harassment     and

discrimination lawsuit against a county, Asbury Park Press v.

Cnty. of Monmouth, 201 N.J. 5, 6 (2010);            motor vehicle recordings

from mobile video recorders in police vehicles, Paff v. Ocean

Cnty. Prosecutor's Office, ___ N.J. Super.            ____, ____ (App. Div.

June 30, 2016) (slip op. at 39-41); and the destination locations

of calls placed from government-issued telephones, Livecchia,

supra, 421 N.J. Super. at 29.

     It is unnecessary for us to determine the full scope of the

privacy provision.       However, in considering whether this provision

satisfied the requirement for exemption here pursuant to N.J.S.A.

47:1A-9(b), we discern a common thread in these privacy provision

cases: the protected information is personal in the sense that it

provides identifying information about a person that originates

with the individual and is "entrusted" to the government.                    We

therefore conclude that the basis for withholding the records

sought here does not logically fall within this exemption.

                                      G.

     We have considered the argument of amici that the application

of the Glomar doctrine in federal courts has undermined the

overarching goal of ready public access by obstructing judicial

scrutiny.    Our    review     of   federal     caselaw   reveals   that    any


                                      32
                                                                      A-2393-13T3
infringement upon the scope of judicial review is attributable to

clearly articulated congressional intent rather than inherent

flaws in the doctrine itself.

     When   evaluating    a    Glomar   response,   federal   courts   must

"accord 'substantial weight' to the agency's affidavits."         Wilner,

supra, 592 F.3d at 68 (alterations in original) (quoting Minier,

supra, 88 F.3d at 800).       This standard of deference has its origin

in the 1974 amendments to 5 U.S.C.A. § 552(b)(1) which, Congress

made clear, were intended to override the Supreme Court's holding

in Environmental Protection Agency v. Mink, 410 U.S. 73, 93 S. Ct.

827, 35 L. Ed. 2d 119 (1973), regarding the in camera review of

classified documents.     Congress overrode President Ford's veto of

the 1974 amendments to FOIA to do so.         Military Audit Project v.

Casey, 656 F.2d 724, 738 n.47 (D.C. Cir. 1981).        The Senate report

states:

            [T]he Executive departments responsible for
            national defense and foreign policy matters
            have unique insights into what adverse affects
            [sic] might occur as a result of public
            disclosure of a particular classified record.
            Accordingly, the conferees expect that Federal
            courts, in making de novo determinations in
            section 552(b)(1) cases under the Freedom of
            Information law, will accord substantial
            weight to an agency's affidavit concerning the
            details of the classified status of the
            disputed record.

            [S.Rep.No. 93-1200 (1974), as reprinted in,
            1974   U.S.C.C.A.N.  6285,  6290  (emphasis
            added).]

                                     33
                                                                  A-2393-13T3
Because no corresponding limitation upon judicial review exists

in OPRA or is suggested by the legislative history, our review of

Glomar responses will not be burdened by such a directive.

                                  III.

     Finally, we turn to NJMG's argument that the denial of access

here violated its common law right to access.         OPRA explicitly

does not "limit[] the common law right of access to a government

record,   including    criminal   investigatory   records    of    a    law

enforcement agency."     N.J.S.A. 47:1A-8; see also N.J.S.A. 47:1A-

1.   The definition of a public record under the common law 7 is

broader than that contained in OPRA.       Bergen Cnty. Improvement

Auth. v. N. Jersey Media Grp., Inc., 370 N.J. Super. 504, 509-10

(App. Div.), certif. denied, 182 N.J. 143 (2004).           However, the

right to access common law records is a qualified one, Newark

Morning Ledger, supra, 423 N.J. Super. at 171, and the showing a

requestor must make to gain access is greater than that required

under OPRA.   Mason, supra, 196 N.J. at 67-68.

     In Keddie, the Supreme Court identified three predicates for

the common law right to access public records: "(1) the records




7
   Under common law, a government record "is one that is made by
a public official in the exercise of his or her public function,
either because the record was required or directed by law to be
made or kept, or because it was filed in a public office." Keddie
v. Rutgers, 148 N.J. 36, 49 (1997).
                                   34
                                                                  A-2393-13T3
must be common law public documents; (2) the person seeking access

must 'establish an interest in the subject matter of the material';

and (3) the citizen's right to access 'must be balanced against

the State's interest in preventing disclosure.'"        148 N.J. at 50

(citations omitted).

     The trial court here found the first two Keddie requirements

satisfied, a conclusion BCPO does not challenge on appeal.      NJMG's

primary challenge to the trial court's analysis is that, because

BCPO declined to confirm or deny the existence of responsive

records, there was no factual record to support the trial judge's

conclusions.    We disagree.

     After making the determinations required by Keddie, "a court

must balance the plaintiff's interest in the information against

the public interest in confidentiality of the documents, including

a consideration of whether the 'demand for inspection is premised

upon a purpose [that] tends to advance or further a wholesome

public interest or a legitimate private interest.'"            S. N.J.

Newspapers, Inc. v. Twp. of Mt. Laurel, 141 N.J. 56, 72 (1995)

(alteration    in   original)   (citation   omitted).   The   balancing

required calls for consideration of:

          (1) the extent to which disclosure will impede
          agency functions by discouraging citizens from
          providing information to the government; (2)
          the effect disclosure may have upon persons
          who have given such information, and whether
          they did so in reliance that their identities

                                   35
                                                               A-2393-13T3
          would not be disclosed; (3) the extent to
          which    agency    self-evaluation,    program
          improvement, or other decision making will be
          chilled by disclosure; (4) the degree to which
          the information sought includes factual data
          as   opposed    to   evaluative   reports   of
          policymakers; (5) whether any findings of
          public misconduct have been insufficiently
          corrected by remedial measures instituted by
          the investigative agency; and (6) whether any
          agency    disciplinary     or    investigatory
          proceedings have arisen that may circumscribe
          the individual's asserted need for the
          materials.

          [Loigman, supra, 102 N.J. at 113.]

     These factors are largely irrelevant here.   The nature of the

records sought and the response given by BCPO call for flexibility

in the balancing process employed.   See Atl. City Convention Ctr.

Auth. v. S. Jersey Publ. Co., 135 N.J. 53, 60 (1994) (citation

omitted) (noting the balancing process is "flexible and adaptable

to different circumstances and sensitive to the fact that the

requirements of confidentiality are greater in some situations

than in others").

     NJMG's argument that the record is insufficient because BCPO

has not certified to facts that would warrant non-disclosure

ignores the context its OPRA request gave to the analysis.       "In

furtherance of the newsgathering process," NJMG sought reports

"filed against or involving" A.B.C., "complaints . . . made to law

enforcement officials concerning" A.B.C., and "[r]ecordings . . .

of 911 calls . . . related to" A.B.C.   The unmistakable import of

                               36
                                                           A-2393-13T3
the request was to seek records regarding criminal allegations

against A.B.C.   BCPO's refusal to confirm or deny the existence

of such records directly responded to that request, noting the

request was one for records relating to a person who was not

arrested or charged with an offense.   Such information has been

long acknowledged to enjoy a high degree of confidentiality.

     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.   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.         See

Daily Journal v. Police Dept. of City of Vineland, 351 N.J. Super.

110, 128-29 (App. Div.) (citation omitted) (stating disclosure of

the names of individuals mentioned in grand jury presentment would

be "tantamount to an accusation" without "furnish[ing a] forum for

a denial," depriving the individual of "the right to answer and

to appeal"), certif. denied, 174 N.J. 364 (2002).   The record here

was sufficient to identify the issue joined by the request and the

response and permit a determination as to whether access was

required by the common law.




                                37
                                                           A-2393-13T3
      Where   "reasons   for   maintaining   a   high   degree    of

confidentiality in the public records are present, even when the

citizen asserts a public interest in the information, more than

[the] citizen's status and good faith are necessary to call for

production of the documents."    Loigman, supra, 102 N.J. at 105-

06.   That high degree of confidentiality applies here.       After

considering the arguments advanced by NJMG, we conclude the common

law right of access did not require BCPO to disclose whether or

not records responsive to its request existed.

      Affirmed.




                                38
                                                           A-2393-13T3
