New Jersey Court Approves Common Law Right of Access to Agency Depositions

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The state’s equivalent of FOIA does not set the bounds of access.

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New Jersey’s intermediate appellate court ruled last week that an appellant did not have a right of access to certain government deposition transcripts under the Open Public Records Act (OPRA), the state’s equivalent of the federal Freedom of Information Act (FOIA), but may have such a right under the common law.

Under OPRA, as under FOIA, private entities may access public records, except those falling into excluded categories, such as trade secrets and personally identifiable information. OPRA also excludes discovery materials, such as deposition transcripts, that are not filed with a court.

Drinker Biddle & Reath, a Philadelphia-based national law firm, requested unfiled transcripts of three depositions that the New Jersey Department of Environmental Protection took in its ongoing litigation against ExxonMobil. The trial and appellate court agreed with the New Jersey Department of Law and Public Safety’s Division of Law that OPRA did not grant private access to unfiled discovery.

However, the appellate court disagreed with the trial court on the common-law right of access to government documents. The appellate court found that proving that an entity has a common-law right of access entails a different analysis from determining if it has a statutory right. Under the statute, the legislature sets out the rights of access and exceptions to those rights. Under the common law, the entity seeking access must prove that its need for the information outweighs the government’s right to confidentiality.

The court outlined three steps for analyzing common-law right of access claims.  First, the entity may only have access if the documents are “public records.” Both parties in this case agreed that the deposition transcripts were public records.

Second, the entity must have a proper interest in obtaining the documents, an inquiry that requires showing as little as “a citizen’s concern about a public problem.” Both parties agreed that Drinker Biddle met this threshold.

Finally, access must be determined using a balancing test, weighing the state’s confidentiality interest against the private entity’s interest in obtaining the information. The appellate court determined that the trial court failed to conduct a proper balancing test, so it sent the case back to the lower court with instructions to conduct the balancing test using the appropriate factors.