Brennan v. Bergen County Prosecutor's Office, 233 N.J. 330 (2018)


Activist Bill Brennan filed an OPRA request seeking the names and addresses of individuals who had purchased sports memorabilia from a public auction held by the Bergen County Prosecutor’s Office (BCPO). The auction garnered considerable news attention because some made allegations that the memorabilia was not authentic.

The trial court ruled that the names and addresses should be disclosed, but the Appellate Division reversed and held that the purchasers had a reasonable expectation of privacy that protected their identities. The court concluded that release of their names and addresses could identify them as collectors and make them susceptible to theft.

The New Jersey Supreme Court reversed, finding that “the sale of government property at a public auction is a quintessential public event that calls for transparency.” The court also made it clear that there is no wholesale exemption in OPRA for home addresses contained in government records.

Pashman Stein Walder Hayden P.C. filed an amicus curiae brief on behalf of Libertarians for Transparent Government, a nonprofit organization, and participated significantly in oral argument in this matter. Pashman Stein attorney CJ Griffin asked the court to go beyond simply ruling that there was no expectation of privacy in this case, but to rather provide additional guidance to public agencies and lower courts regarding when OPRA’s privacy-balancing test should be applied. In 2009, the court adopted a seven-factor balancing test to determine when a citizen’s reasonable expectation of privacy outweighs a requestor’s interest in accessing a public record. Griffin argued that lower courts were automatically applying the balancing test even where no colorable claim of privacy was raised and that as a result, the lower courts were engrafting an “interest” requirement into OPRA where none existed. Thus, the court was asked to provide guidance that the balancing test should not be routinely applied simply because an agency cites to OPRA’s privacy provision.

The New Jersey Supreme Court did just that and held that the privacy-balancing test should be applied “only where a party first presents a colorable claim that public access to records would invade a person’s reasonable expectation of privacy.” In this case, it did not find that the agency had raised a colorable claim of privacy because home addresses are generally not entitled to protection and because the purchase of government property is a “quintessential public event that calls for transparency.”

Press Coverage:

Supreme Court Rules For Brennan In OPRA Case | New Jersey Globe | May 23, 2019
New Jersey Supreme Court: Release bidder names in disputed memorabilia auction | | May 23, 2018
Supreme Court Rules OPRA Applies to Email, Other Electronic Data | NJSPOTLIGHT | June 21, 2017


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