Recently, the Appellate Division of the New Jersey Superior Court upheld a criminal indictment against a former employee of the North Bergen Board of Education (the Board), which stemmed from the alleged theft of public records. The defendant had argued, based on an earlier New Jersey Supreme Court ruling, that she had a right to take the documents to support her discrimination lawsuit against the Board. Because the ruling relates to alleged actions by a public employee, it is unclear what impact, if any, it could have on private sector businesses in New Jersey.

In State of New Jersey v. Saavedra, the former employee, Ivonne Saavedra, previously filed a civil complaint alleging gender, ethnicity, and sex discrimination, among other claims. During the civil lawsuit, she gave her attorney more than 300 documents from her employer, which she subsequently produced to the Board during discovery. The Board then contacted the Hudson County prosecutor. Ms. Saavedra was indicted on charges of second-degree official misconduct—a crime relating only to public employees—and third-degree theft of movable property. Although the second offense is a crime applicable to any individual, the level of the charge was based on the theft of public records.

Among the documents Ms. Saavedra took were an estimated 69 original documents as well as highly confidential documents containing private information about parents and students, including:

• A bank statement from a parent
• An appointment schedule of a psychiatrist who treated students with special needs, including some treatment notes
• A consent form related to Medicaid reimbursement, containing private information about the student and subjecting the Board to liability if missing from its records
• A signed letter from a parent with confidential identifying information
• A letter from a parent describing a child’s emotional condition and identifying the child by name

Ms. Saavedra challenged the indictment, contending that the New Jersey Supreme Court’s decision in Quinlan v. Curtiss-Wright Corporation gave her a right to take the documents to support her discrimination claim. In Quinlan, the court established a seven-part test to determine whether an employee who takes confidential documents belonging to the employer has engaged in activity protected under the New Jersey Law Against Discrimination (NJLAD).

The court held that Quinlan does not establish a bright line rule permitting employees to take confidential documents of the employer and further held that a judge considering a criminal indictment need not conduct an analysis under Quinlan to determine if the taking of documents was lawful. Instead, the State is obligated to produce evidence to establish a prima facie violation of the criminal statute to support an indictment. The employee can then raise an affirmative defense at trial that he or she held an honest belief that he or she had a right to the documents (presumably in accordance with the test in Quinlan).

The Saavedra decision is undoubtedly in tension with the New Jersey Supreme Court’s decision in Quinlan. Although Quinlan may give employees some latitude in taking confidential employer documents, public employees must now be concerned about criminal standards. It remains to be seen how these standards will be applied to private sector employees and whether the Legislature will weigh in on employees’ public policy concerns—that the possibility of criminal sanctions will chill potentially protected anti-discrimination and whistleblower activities.