Typically, when an investigation of possible government wrongdoing comes to light, newspapers and other requestors use OPRA or the common law to try to find out the names of the public employees under investigation. However, this information is confidential under the law’s protection of privacy.

This was confirmed again in a recent Appellate Division case, discussed here, which granted access under the common law to some records of an investigation into whether county employees had improperly used county equipment. While holding that certain investigatory records had to be released, the court upheld the confidentiality of witness names and similar information, citing the interests of privacy. The opinion does not say whether this holding covers the names of the employees who were investigated, but a subsequent news report makes clear that these names were kept confidential by the court.

This result is consistent with the settled rule that  basic principles of privacy prohibit the public release of names of individuals who are investigated, but ultimately not charged with a crime. Similarly, OPRA’s personnel exemption bars disclosure of the identities of public employees (including police) who are being investigated for possible disciplinary infractions.

Unfortunately, despite this clear law, requestors continue to ask custodians and courts to reveal this confidential information.