Red Bank Register, Inc. v. Board of Educ. of Long Branch

Citation206 N.J.Super. 1,501 A.2d 985
Parties, 29 Ed. Law Rep. 642, 12 Media L. Rep. 1860 The RED BANK REGISTER, INC., a corporation, Plaintiff-Appellant, v. The BOARD OF EDUCATION OF LONG BRANCH, New Jersey, a body corporate; James A. Vaccaro, Frank Pallone, Alice B. Nicas, Donald B. Wood, John A. Tobia, Jr., Godfrey Buzzelli, Merrick Tomaine, Robert Lieberman, William Knox, Herbert Korey and John Doe, individuals, Defendants-Respondents.
Decision Date20 November 1985
CourtNew Jersey Superior Court – Appellate Division

Frederick L. Whitmer, Morristown, for appellant (Pitney, Hardin, Kipp & Szuch, Morristown, attorneys; Frederick L. Whitmer and Julianne Flach Sowinski, Morristown, on the brief).

Thomas J. Warren, Red Bank, for respondents (McOmber & McOmber, Red Bank, attorneys; Kurt M. Hughes, Red Bank, on the brief).

Before Judges MORTON I. GREENBERG, J.H. COLEMAN and HAVEY.

The opinion of the Court was delivered by

MORTON I. GREENBERG, P.J.A.D.

This matter comes on before the court on appeal from an order dismissing this action in which plaintiff claims a right to examine certain documents in the possession of defendant. 1 Inasmuch as employees of plaintiff, a corporation publishing a newspaper, The Register, desired to view the documents in connection with preparation of an article or articles relating to a then impending school district election, the matter was dealt with in the trial court on an expedited basis.

The action was started on March 25, 1985 by plaintiff filing a complaint in lieu of prerogative writs against defendant Long Branch Board of Education. Plaintiff sought an order allowing it access to so-called Curriculum Mapping Reports prepared for and held by defendant. Plaintiff conceived it was entitled to relief under the New Jersey Right to Know Law, N.J.S.A. 47:1A-1, the common law, U.S. Const., Amend. I and N.J. Const. (1947), Art. I, par. 6. Plaintiff sought immediate discovery, summary disposition of the matter under R. 4:67 and an expedited plenary hearing. With the complaint plaintiff filed a certification of Alan Sipress, one of its reporters, and an affidavit of Frederick L. Whitmer, its attorney. On March 26, 1985 defendant submitted a brief in opposition to plaintiff's case and on that day the trial judge heard oral argument. On March 27, 1985 defendant filed an answering affidavit of Herbert Korey, its superintendent of schools. On the same day the judge, on the basis of the record before him which included the certification and affidavits as well as the curriculum reports and without a plenary hearing, found that plaintiff had no statutory or common law right to see the documents and thus he dismissed the action. In addition, the judge denied plaintiff's request for an evidentiary hearing. The trial judge entered an order on March 27, 1985 reflecting this decision. Plaintiff immediately appealed and unsuccessfully sought a summary reversal. Thus the matter has come on before us for plenary disposition.

The following facts were set forth in the affidavits. Around March 1, 1985 Sipress, who was reporting on the impending school district election, learned of the existence of six reports prepared by defendant and contacted Korey in an effort to obtain copies of them. Korey originally agreed to show them to Sipress. However, when Sipress went to Korey's office to see the reports, Korey, acting at the direction of defendant which in turn relied on advice of counsel, would not give him three reports entitled "Curriculum Mapping Project/Teacher Allocated Time" as they had been not formally accepted by it and contained outdated data from 1980-1981 as well as personnel evaluations. Sipress' affidavit suggested he had information that the reports dealt with mismanagement of school funds, proposed curriculum improvements and did not contain personnel evaluations but rather referred to individuals in general terms. Whitmer's affidavit was essentially a legal argument supporting plaintiff's right to relief.

In his affidavit Korey explained the background leading to preparation of the curriculum reports and described their contents. The work on the reports originated with Dr. Fenwick English, an educational specialist with the accounting firm of Peat, Marwick & Mitchell. English had written extensively about teacher time on task in the classroom and the linkage of that time with what was expected to be taught and with testing instruments a school board used to identify student progress. This concept is referred to as "curriculum mapping." Defendant had engaged Peat, Marwick & Mitchell to make a report on curriculum mapping. Teachers employed by defendant were to cooperate in the study by showing how much time they spent on particular areas of instruction. English, however, left Peat, Marwick & Mitchell before the project was completed and this led to the involvement in the reports of Dr. Donald Weinstein. Weinstein had been employed by defendant as an administrator, but on April 21, 1982 resigned effective June 30, 1983. Defendant and Weinstein subsequently agreed that he would serve as a consultant to defendant from July 1, 1983 to December 31, 1983 and in this capacity would report to the assistant superintendent for curriculum and instruction and work on the study of curriculum mapping. Korey asserted that Weinstein helped to computerize the data gathered and summarize the results. However, escalating computer costs halted the computerization of the data, and in Korey's view Weinstein's summary was based on "incomplete and imprecise data." Thus defendant did not accept the reports but instead acknowledged them as internal working documents.

The trial judge rendered an oral opinion concluding that the curriculum reports were not public records pursuant to either the Right to Know Law or the common law as they were not required or authorized by law to be made. The judge did find that the curriculum reports had been made by a public official and were written memorials, requirements for a document to be a common law public record. The judge further held that neither discovery nor a plenary hearing was needed. Accordingly, the complaint was dismissed with prejudice and the court entered the final order of March 27, 1985 reflecting its decision. Plaintiff now appeals, claiming it was entitled to discovery and a plenary hearing and further asserting that in any event the curriculum reports are public records under the Right to Know Law and at common law.

We deal first with and reject plaintiff's claim it was entitled to a plenary hearing. The trial judge examined the reports in camera and consequently knew their contents, so no hearing was required to familiarize him with the reports. Further, the parties raise no issue as to how the reports were created. In the circumstances the matter was properly disposed of on affidavits. R. 4:67-5. In any event in view of our disposition of the case this issue is moot.

The curriculum reports are clearly not public records within the Right to Know Law. Under N.J.S.A. 47:1A-2 a record is a public record if by law it is required to be made, maintained or kept on file by a public agency or official. See Nero v. Hyland, 76 N.J. 213, 220, 386 A.2d 846 (1978). We are aware of no law that required defendant to have the reports made. Nor was defendant required to maintain or keep the reports on file. N.J.S.A. 18A:17-9(b), cited by plaintiff, is of no aid to it. That section simply requires the secretary of a school board to keep and maintain all contracts, records and documents belonging to the board. But the section does not require that the board keep documents. See Collins v. Camden Cty. Health Dept., 200 N.J.Super. 281, 491 A.2d 66 (Law Div.1984) (a requirement that a secretary of a health board keep records of official actions of the board does not result in personnel evaluations held by the board being classified as statutory public records).

Plaintiff's contention that the curriculum reports are public records at common law and therefore subject to disclosure has merit. It is well established that the common law right to inspect and examine public documents is not curtailed by the Right to Know Law and the definition of public record at common law is broader than under that statute. Beck v. Bluestein, 194 N.J.Super. 247, 259-260, 476 A. 2d 842 (App.Div.1984). A public record under the common law is

... one required by law to be kept, or necessary to be kept in the discharge of a duty imposed by law, or directed by law to serve as a memorial and evidence of something written, said, or done, or a written memorial made by a public officer authorized to perform that function, or a writing filed in a public office. The elements essential to constitute a public record are ... that it be a written memorial, that it be made by a public officer, and that the officer be authorized by law to make it.... (Citations omitted.)

Nero v. Hyland, supra, 76 N.J. at 222, 386 A.2d 846. See also McClain v. College Hosp., 99 N.J. 346, 354, 492 A.2d 991 (1985). Thus the Supreme Court has indicated that (1) a written memorial (2) made by a public officer (3) in the exercise of a public function which he is lawfully authorized to perform is a common law public record. Nero v. Hyland, supra, 76 N.J. at 222, 386 A.2d 846.

Obviously the reports are written memorials. The question of whether the reports were made by a public officer is more difficult to answer. The trial judge, though denying plaintiff relief, considered Weinstein to be a public officer within Duncan v. Board of Fire, &c., Commissioners, 131 N.J.L. 443, 37 A.2d 85 (Sup.Ct.1944), which held a person is a public officer if he is "... invested with any portion of political power partaking in any degree in the administration of civil government, and performing duties which flow from the sovereign authority." Id. at 446, 37 A.2d 85. Defendant challenges this finding because Weinstein worked as...

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