Irval Realty Inc. v. Board of Public Utility Com'rs

Citation294 A.2d 425,61 N.J. 366
PartiesIRVAL REALTY INC. et al., Plaintiffs-Respondents, v. BOARD OF PUBLIC UTILITY COMMISSIONERS of the State of New Jersey, Defendant-Appellant.
Decision Date25 July 1972
CourtUnited States State Supreme Court (New Jersey)

Marilyn Loftus Schauer, First Asst. Atty. Gen., for appellant (George F. Kugler, Jr., Atty. Gen. attorney; Marilyn Loftus Schauer, Trenton, of counsel; Richard Pisacane, Deputy Atty. Gen., on the brief).

Jay H. Greenblatt, Vineland, for respondents (Greenblatt & Greenblatt, Vineland, attorneys; Jay H. Greenblatt, Vineland, of counsel, and on the brief).

The opinion of the Court was delivered by

MOUNTAIN, J.

Plaintiffs instituted this action in lieu of prerogative writ against defendant, Board of Public Utility Commissioners, asserting a right to inspect records and reports to which they had been denied access by the Board. The trial court granted plaintiffs' motion for summary judgment and directed that the records be produced. On appeal the judgment of the trial court was affirmed by the Appellate Division. 115 N.J.Super. 338, 279 A.2d 866 (1971). We granted defendant's petition for certification. 59 N.J. 290, 281 A.2d 803 (1971). The original judgment has been stayed throughout the course of judicial review.

On May 5, 1969, a gas explosion occurred on property in Washington Township, Gloucester County, where plaintiff, Eastern Turkey, Inc., was operating a turkey farm. The premises are owned by plaintiff, Irval Realty, Inc. The explosion caused substantial property damage but no personal injuries.

On July 30, 1969, a similar but unrelated incident occurred in Newfield, also in Gloucester County. This explosion took place on premises then owned by Eleanor Papalardo, wife of plaintiff, Philip Papalardo. As a result of the injuries she sustained Eleanor Papalardo died.

The claimants seeking compensation for damages and injuries resulting from each explosion commenced separate suits. Both actions were initiated against South Jersey Gas Company, the utility supplying gas to the respective premises and allegedly responsible for the accidents. This utility is not a party to the present proceedings. In due course application was made on behalf of the plaintiffs in both actions to the Board of Public Utility Commissioners, requesting to be allowed to inspect and copy certain reports which pertained to each of the accidents. The requests were denied. The reports which are sought to be examined are of two types. One kind of report is prepared by the utility and filed with the Board; the other type is an investigation report prepared by the Board's own staff.

The report prepared by the utility is submitted in response to N.J.A.C. 14:11--5.4, a rule promulgated by the Board requiring utilities to keep a record of and report to the Board all accidents wherein service to the public is adversely affected and wherein the safe conduct of the utility's business is affected. Such a report includes the name and address of the utility, the date and place of the accident, the effect of the accident upon service in the area, details of the accident itself, what corrective measures were taken and, finally, any recommendations the utility may care to offer to avoid a recurrence.

The second type of report, that customarily prepared by a staff member of the Board, includes many of the same kinds of data listed above, and also provides for collating information procured from occupants, neighbors, witnesses, utility representatives at the scene of the accident and policemen or firemen.

It is quite apparent that the information contained in these reports might normally be expected to be of very great help to any plaintiffs, such as those before us, who seek compensation for loss occasioned by gas explosions.

Having been denied access to these reports, the plaintiffs in the two damage suits, who collectively are the plaintiffs here, commenced this action claiming a right to the information contained in these documents by virtue of the so-called Right to Know Law, L.1963, c. 73 now N.J.S.A. 47:1A--1 et seq. This statute declares it to be the policy of this State that public records shall be readily accessible for examination by the citizens of the State, with certain exceptions designed to protect the public interest. It goes non to provide for a broad right of inspection of public records including the right to make or purchase copies. Excepted from the material that is thus made generally available are, Inter alia, such records as may be removed from this category by 'executive order of the Governor' or '. . . by any regulation promulgated under the authority of any . . . executive order of the Governor.' N.J.S.A. 47:1A--2.

Shortly after the aoption of this statute Governor Hughes, on September 30, 1963, issued an Executive Order delegating to the head of each principal department of the executive branch of government the authority to adopt regulations, from time to time, setting forth what records should not be deemed public records within the reach of the foregoing statute. Acting pursuant to this authority, the Board of Public Utility Commissioners adopted the following regulation:

All records which are required to be made, maintained or kept by and for the Board which relate to accidents and investigation of accidents concerning public utilities and to safety inspections and surveys of property and equipment of public utilities shall not be deemed public records copies of which may be purchased or reproduced under the provisions of Chapter 73, P.L.1963. (N.J.A.C. 14:3--6.5(d))

It is essentially upon this regulation that the Board relies in its refusal to allow access to the records in question. It is further argued by the Board that unless such reports from utility companies remain confidential, the utilities will be disinclined to suggest ways and means whereby such accidents may be prevented in the future, for fear that such proposals may be employed to their detriment by damage claimants.

In affirming the trial court judgment in favor of plaintiffs, the Appellate Division concluded that the right of the Governor, by executive order, and of the Board, by regulation, to exclude public records from disclosure was circumscribed by N.J.S.A. 47:1A--1, which indicates that such exclusions are intended to be limited to those made necessary in order to protect the public interest. 115 N.J.Super., Supra, at 344, 279 A.2d 866. It went on to consider the arguments that had been advanced in support of and against disclosure, as a matter of public policy, and determined that the adverse effect upon the public resulting from inspection was here clearly outweighed by the plaintiffs' important need to receive all reasonable assistance in the prosecution of their claims. Id. at 345, 279 A.2d 866.

We agree with the conclusion reached both by the trial court and the Appellate Division, whose judgment we affirm. But we prefer to amplify somewhat the basis of the decision.

A person seeking access to public records may today consider at least three avenues of approach. He may assert his common law right as a citizen to inspect public records; he may resort to the Right to Know Law, N.J.S.A. 47:1A--1 et seq., or, if he is a litigant, he may avail himself of the broad discovery procedures for which our rules of civil practice make ample provision.

At common law a citizen had an enforceable right to require custodians of public records to make them available for reasonable inspection and examination. It was, however, necessary that the citizen be able to show an interest in the subject matter of the material he sought to scrutinize. Such interest need not have been purely personal. As one citizen or taxpayer out of many, concerned with a public problem or issue, he might demand and be accorded access to public records bearing upon the problem, even though his individual interest may have been slight. Ferry v. Williams, 41 N.J.L. 332 (Sup.Ct.1879); Taxpayers Association v. City of Cape May, 2 N.J.Super. 27, 64 A.2d 453 (App.Div.1949); Moore v. Board of Chosen Freeholders of Mercer County, 76 N.J.Super. 396, 184 A.2d 748 (App.Div.1962), mod. 39 N.J. 26, 186 A.2d 676 (1962). Yet some showing of interest was required.

The Right to Know Law, N.J.S.A. 47:1A--1 et seq., seems to require no such showing. Its intention, as we read the statute, is to afford broad access to public records to All citizens, whether or not they are able to demonstrate any personal or particular interest in the material which they seek to examine. In support of this conclusion we note in the first place that the statute itself contains no requirement of...

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