A recent Appellate Division opinion serves as a reminder that OPRA’s exemption for criminal investigatory records is not dispositive of a civil litigant’s discovery request for such records. The court reaffirmed the well-established principle that a civil litigant may obtain discovery of criminal investigatory records, if he can prove that his need for the information for the litigation outweighs the strong confidentiality interest that covers these records.

In Varnelas v. Morris County School District, plaintiff sued various defendants over the tragic suicide of her son, allegedly caused by bullying and assaults committed by two juveniles and an adult, Michael Conway. The Morris County Prosecutor’s Office had investigated and indicted Conway. In connection with the civil action, plaintiff issued a discovery subpoena to the Prosecutor’s Office for its investigatory file on Conway. The Prosecutor’s Office refused to comply with the subpoena, based on OPRA’s exemption for criminal investigatory records.

The Appellate Division stated that OPRA’s exemption does not forbid production of the records when they are sought for civil discovery. Instead, the common law balancing of needs test applies to the litigant’s request. The Appellate Division remanded the case for the trial judge to apply the balancing test to determine whether plaintiff’s need for the information in the records outweighed the confidentiality interest here.

This opinion breaks no new ground, as the law is clear that civil litigants can potentially obtain discovery of OPRA-exempt records, depending on the outcome of the balancing test. Still, it’s a useful reminder that trial judges must engage in a careful evaluation of the confidentiality and litigation interests at stake before granting a discovery request for such a record.