Only a few weeks ago, I discussed an Appellate Division opinion ordering disclosure of criminal investigatory records from a closed investigation under the common law right of access, even though the records were held confidential under OPRA. Today the Appellate Division issued a similar ruling in a different case.

This matter involved a request for the records of the Warren Prosecutor’s Office’s investigation into the possible misuse of County-owned equipment by county jail officers. The trial judge upheld the denial of access to these records under OPRA, and the requestor did not appeal this ruling. The trial judge ordered disclosure of some of the records under the common law.

The Appellate Division affirmed the common law decision. Unfortunately, its opinion contains neither a description of most of the records ordered released nor a discussion of why the court determined that the disclosure interest in these records outweighed the confidentiality interest applicable to criminal investigatory records. The Appellate Division simply said that the trial judge properly balanced the competing interests, leaving custodians with no guidance as to how to assess future common law requests for criminal investigative files.

However, the opinion is helpful in showing that the court appreciates that the common law does not override the privacy interests of people involved in criminal investigations. The Appellate Division affirmed the trial court’s order that the names and identifying information of witnesses be redacted. According to the appellate court, this addressed the confidentiality and privacy concerns raised here.

The bottom line: when a common law request is made for records of a closed criminal investigation, a court may order disclosure of some of the records, but probably not those that involve privacy interests or other privileged material.