Court Rules State Violated the Open Public Records Act by Redacting Information in Public Records

Affiliate: ACLU of New Jersey
May 13, 2014 12:00 am

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ACLU-NJ Sued After Receiving Partially Blacked-Out Public Record Regarding Grants for Automated License Plate Readers

May 13, 2014

FOR IMMEDIATE RELEASE
CONTACT: 212-549-2666, media@aclu.org

NEWARK – A state appellate court today ruled that the New Jersey Attorney General’s Division on Criminal Justice (DCJ) violated the Open Public Records Act (OPRA) when it blacked-out information from a state grant application requested by the American Civil Liberties Union of New Jersey.

The court rejected the state’s position that records custodians could review documents line-by-line and redact information that they deemed irrelevant to the request.

“Records custodians are charged with providing public records when requested. This decision makes clear that the government may not use its own judgment to block the release of public information,” said ACLU-NJ Legal Director Ed Barocas. “Government agencies are only permitted to redact a document when the redactions are explicitly allowed by OPRA. In this case, the state never claimed the information was exempt but blacked out information anyway.”

On July 30, 2012, as part of a national ACLU effort to learn more about Automated License Plate Readers (ALPRs), surveillance technology that is designed to track the movements of every passing driver, the ACLU-NJ requested public records from several municipalities and the DCJ. Among other things, the ACLU-NJ sought training materials, policies and records of all federal funds sought or received for ALPRs.

The DCJ responded by sending 79 pages of redacted documents, including certain pages of a grant application that were completely blacked-out. It also redacted information line-by-line that it deemed irrelevant to the request, including blacking out other items for which funding was requested or received.

The ACLU-NJ initially filed the lawsuit against the DCJ in October 2012.

In siding with the ACLU-NJ, the court emphasized that records custodians are not empowered to subjectively decide what information within a public document can be disclosed. It found “no legal support” for a policy that allowed custodians to determine what is relevant and “what information contained in this same document will be withheld from the public, based only on the custodian’s notion of relevancy.”

The Appellate Division also rejected the idea that a requestor should have to make a second request or negotiate with a custodian for the information before challenging the denial of access in court.

“From this point forward, once documents are identified as part of a request, an agency must either provide the entire document or ask the requestor if they would rather have only parts of the document, but it cannot redact parts of the document unless there is a legal exemption allowing them to do so,” said Barocas. “And in this case, it’s not as if they were saving time and money by withholding parts of the document. They went line by line, paragraph by paragraph to black things out.”

As a result of these and nationwide ALPR public records requests, the national ACLU issued “You Are Being Tracked” a report documenting the proliferation ALPRs. The report found that ALPRs collect vast quantities of data on innocent people and pose serious privacy risks.

Though many of the jurisdictions examined in the report keep ALPR data for a year or less, the report noted that New Jersey jurisdictions are required to keep ALPR data for 5 years.

ALPR cameras are mounted on patrol cars or on stationary objects along roads that snap a photograph of every license plate that enters their fields of view. Typically, each photo is time, date, and GPS-stamped then stored, and sent to a database, which provides an alert to a patrol officer whenever a match or “hit” appears. The report and responses to the records requests are available at www.aclu.org/alpr.

The case is captioned: ACLU-NJ v. Division of Criminal Justice. Former ACLU-NJ Open Governance Fellow Tom MacLeod served as lead counsel and argued the case before the court.

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