NJ Press Association Opposes Van Drew’s Firearms Records Exemption Bill

TRENTON – Sen. Jeff Van Drew’s Senate bill (S2552) would exempt firearms records from the state’s Open Public Records law. This bill and a companion Assembly bill (A3788) are being opposed by the New Jersey Press Association (NJPA). Regardless, Van Drew firmly believes gun ownership records should remain private to protect gun owners.
According to the bill’s synopsis, S2552 “Codifies regulation exempting firearms records from State’s open public records law; abolishes common law right of access to these records.” The Senate bill was introduced Feb. 7 in the 215th Legislature. The bill has VanDrew (D-1st) and Steven V. Oroho (R-24th) as primary sponsors.
On May 2, Thomas J. Cafferty, NJPA general counsel, plans to present the association’s stance against the bill citing “common law’s flexible balancing approach…” in a hearing before the Senate Law and Public Safety Committee. Cafferty’s paper states “A3788/S2552 abolishes this discrete balancing in favor of an across the board closure of ‘personal firearms records.’
Van Drew said he will not be present at the hearing, as he is not a member of that committee. Nor will there be a floor vote on the bill, since this is only a hearing, he said. Van Drew told the Herald these bills were created in response to a situation in New York State. A newspaper there acquired, through public records, addresses of registered firearms owners, then published a map with all those addresses.
In a telephone interview April 30, Van Drew expressed his concern that publishing names and addresses of gun owners endangers lives. “You are putting those folks in law enforcement in danger; they do have a weapon. It may put those who own a weapon who are not in law enforcement in danger, since a criminal would know exactly where to go. Those who don’t have a gun would be in danger; if a criminal wants to invade a home, he’d know there would be no resistance with a firearm,” Van Drew said.
This bill has “a broad level of support on the part of Second Amendment supporters and advocates. This is one of the less controversial pieces of legislation I have sponsored,” said the Dennis Township resident-senator. “Without question, that is the right thing to do,” he added.
Van Drew supports the Open Public Records Act to enable citizens to access to their governments’ records. “There was good reason for the law, and I support it,” he said. But the issue of personal rights and privacy to Van Drew was paramount over public access to records of firearms owners. “If there is a crime, law enforcement can have access, but not just a press reporter or just another individual. It is a personal issue,” Van Drew said. “Some things in America, there are some issues that still should be behind closed doors for personal reasons. I believe this is one of them,” said the senator.
The NJPA opposes the bill’s language that eliminates the common law avenue for public records access which is safeguarded by the Open Public Records Act. The abolition, set forth in A3788, of any common law right of access to the “personal firearms records” defined therein is not only unnecessary, but also contrary to the express language and intent of the Open Public Records Act, to preserve the public’s longstanding common law right of access to government records.
The NJPA position paper states:
A. “Personal firearms records” are government records under the common law.
Currently, the Open Public Records Act, N.J.S.A. 47:1A-1 et seq. (“OPRA”) provides that
nothing contained therein shall be construed as affecting in any way the common law right of access
to any record. A3788 creates an exception to this provision by amending Sections 1 and 8 of OPRA,
specifically providing that “any common law right of access to a personal firearms record is
abolished.” NJPA opposes this language eliminating the common law’s longstanding avenue for
access to these records, which was expressly preserved by the OPRA.
“New Jersey can boast of a long and proud ‘tradition of openness and hostility to secrecy
in government.’” Education Law Center v. New Jersey Dept of Educ., 198 N.J. 274, 283 (2009).
New Jersey’s well-established common law protection of a citizen’s right to access, is
complemented by the Legislature’s enactment of OPRA, which was intended to enhance the
citizenry’s statutory rights to government records and which explicitly preserves the common law
right of access by providing that “nothing contained in [OPRA]…shall be construed as
affecting in any way the common law right of access to any record.” Id. at 283 and 302. See
also, N.J.S.A. 47:1A-1 and 47:1A-8.
The analysis under the common law right of access, which can reach a wider array of
documents than OPRA, is comprised of a two-step inquiry: (1) a requestor must establish an interest
in the records; and (2) the requestor’s interest in disclosure of the relevant records must outweigh
the State’s interest in non-disclosure. Id. at 302-303.
In making that determination, courts consider the following factors: (1) the extent to which
disclosure will impede agency functions by discouraging citizens from providing information to the
government; (2) the effect disclosure may have upon persons who have given such information, and
whether they did so in reliance that their identities would not be disclosed; (3) the extent to which
agency self-evaluation, program improvement, or other decision-making will be chilled by
disclosure; (4) the degree to which the information sought includes factual data as opposed to
evaluative reports of policymakers; (5) whether any findings of public misconduct have been
insufficiently corrected by remedial measures instituted by the investigative agency; and (6)
whether any agency disciplinary or investigatory proceedings have arisen that may circumscribe the
individual’s asserted need for the materials. Id. at 303.
The existence of a regulation against disclosure is not dispositive of whether there is a
common law right to inspect a public record, but it weighs ‘very heavily’ in the balancing process in
favor of confidentiality. Home News v. Dep’t of Health, 144 N.J. 446, 455 (1996). The focus is on
the character of the records sought to be disclosed and the relative interests of the parties in relation
to the specific records. Id. The process is a flexible one, which is sensitive to the fact that the
requirements of confidentiality are greater in some situations than in others. Id.
Thus, inherent in the common law right of access is an exquisite case-by-case balancing of
interests that result in access only when the interest in disclosure outweighs the interest in
confidentiality.
The abolition, set forth in A3788, of any common law right of access to the
“personal firearms records” defined therein is not only unnecessary, but also contrary to the express language and intent of OPRA to preserve the public’s longstanding common law right of access to government records.
The balancing set forth in the common law right of access more than adequately protects the
confidentiality of records when that confidentiality outweighs any interest in disclosure, while also
acknowledging that there may be situations in which the need for confidentiality is slight in
comparison to the need for disclosure.
In most cases, a common law request for “personal firearms records” will be denied, since those records are made confidential by regulation, see, N.J.A.C.
13:54-1.15, a factor that weighs heavily in favor of confidentiality. However, despite the great
weight given to such a regulation, there still may be situations where the public’s interest in
disclosure is greater than a private interest in confidentiality.
For example, a common law request made by a domestic violence offender for his or her
victim’s “personal firearms records” will likely tip the scales in favor of confidentiality. In that case,
the victim’s safety and personal privacy is clearly greater than the need of his or her abuser to know
whether the victim possesses a firearm. However, if the roles were reversed and it was the victim
who made a request for his or her abuser’s “personal firearms records,” the interest in
confidentiality is diminished and the interest is disclosure is much greater.
The common law’s flexible balancing approach allows for a case-by-case analysis that
evaluates the facts in a specific case and weighs the relevant interests that are at stake.
A3788/S2552 abolishes this discrete balancing in favor of an across-the-board closure of “personal
firearms records.” As the example demonstrates, such a categorical elimination of a potential
avenue for access is both unnecessary and unsound policy.
Access to “personal firearms records,” when appropriate under the common law, is
important, not only for the public’s protection, but also for the public’s education. The Press and
scholars examine “personal firearms records” in order to draw correlations between gun ownership
and crime rates and/or mental illness. Such studies provide the public with information about the
criminal justice and mental health systems in this State.
Thus, A3788/2552’s creation of an absolute curtain of secrecy as to “personal firearms
records” is simply unwarranted and contrary to the Legislature’s goal of transparency in
government.
B. A3788/S2552’s exemption from public access of information that would jeopardize
personal and public safety is overbroad and unnecessary.
A3788/S2552 further amends OPRA by providing, in Section 1 of the Bill, that a public
agency has a responsibility and an obligation “to safeguard from public access information when
disclosure thereof would jeopardize personal or public safety…,” thereby creating a wholly new,
overbroad and vague exception. This exception encompasses far more than “personal firearms
records.” It may be fairly read to eliminate from public access a variety of records, including but not
limited to, police reports, criminal records, agency investigation reports, etc. The list is endless due
to the amorphous standard set forth in A3788/S2552.
Moreover, OPRA already exempts from the definition of “government record,” any
“security measures and surveillance techniques which, if disclosed, would create a risk to the safety
of persons, property, electronic data or software,” and also provides that “a public agency has a
responsibility and an obligation to safeguard from public access a citizen’s personal
information…when disclosure thereof would violate the citizen’s reasonable expectation of
privacy.” See, N.J.S.A. 47:1A-1 and 47:1A-1.1. Therefore, the language that A3788/S2552
proposes to add to OPRA regarding the nondisclosure of information that would jeopardize personal
or public safety is simply unnecessary.
C. A3788/S2552’s exemption of “personal firearms records” from OPRA’s definition of
“government record” is unnecessary.
Finally, A3788/S2552 amends OPRA by providing, in Section 2 of the Bill, that a
“government record” shall not include:
personal firearms records, except for use by any person authorized by law to have
access to these records or for use by any government agency, including any court or
law enforcement agency, for purposes of the administration of justice.
The Bill defines “personal firearms record” as:
any background investigation conducted by the chief of police, the county
prosecutor, or the Superintendent of State Police, of any applicant for a permit to
purchase a handgun, firearms identification card license, or firearms registration; any
application for a permit to purchase a handgun, firearms identification card license,
or firearms registration; any document reflecting the issuance or denial of a permit to
purchase a handgun, firearms identification card license, or firearms registration; and
any permit to purchase a handgun, firearms identification card license, or any
firearms license, certification, certificate, form of register, or registration statement.
NJPA opposes A3788/S2552’s exemption of “personal firearms records” from the definition
of “government record,” since those records are already made confidential by N.J.A.C. 13:54-1.15.
OPRA exempts from public access any record made exempt by any regulation. N.J.S.A. 47:1A-9.
Therefore, it is unnecessary and duplicative to amend OPRA to exempt such records from public
access.
For the foregoing reasons, NJPA opposes A3788/S2552.
(The New Jersey Press association is a non-profit organization incorporated in 1857 under the laws of New Jersey. It has a membership of 20 daily newspapers, over 160 weekly newspapers, over 50 digital new websites, as well as over 60 corporate and non-profit associate members.)