Accident Index Bureau v. Hughes

• Decision Date: 17 April 1964
• Docket Number: No. A--220,A--220
• Citation: 199 A.2d 656,83 N.J.Super. 293
• Parties: ACCIDENT INDEX BUREAU, Inc., a corporation of the State of New Jersey, Plaintiff-Petitioner, v. Richard J. HUGHES, Governor of the State of New Jersey, Raymond F. Male, Commissioner of the Department of Labor and Industry, and Thomas L. Franklin, of the Division of Workmen's Compensation, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 293

83 N.J.Super. 293

199 A.2d 656

ACCIDENT INDEX BUREAU, Inc., a corporation of the State of New Jersey, Plaintiff-Petitioner, v. Richard J. HUGHES, Governor of the State of New Jersey Raymond F. Male, Commissioner of the Department of Labor and Industry, and Thomas L. Franklin, of the Division of Workmen's Compensation, Defendants-Respondents.

No. A--220.

Superior Court of New Jersey Appellate Division.

Argued April 6, 1964.

Decided April 17, 1964.

Edward B. Meredith, Trenton, for plaintiff-petitioner (Meredith & Meredith, Trenton, attorneys; Edward B. Meredith, Trenton, of counsel).

William L. Kirchner, Jr., Deputy Atty. Gen., for defendants-respondents (Arthur J. Sills, Atty. Gen., attorney; William L. Kirchner, Jr., Newark, of counsel).

Before Judges GOLDMANN, KILKENNY and COLLESTER.

The opinion of the court was delivered by

KILKENNY, J.A.D.

Plaintiff's petition for a declaratory judgment asks us to adjudge and declare unconstitutional and void (1) L.1963, c. 73, N.J.S.A. 47:1A--1 et seq., 'The Right to Know Law'; (2) the second sentence of paragraph one and the whole of paragraph two of Executive Order No. 9, effective October 1, 1963; and (3) the regulation of the Commissioner of Labor and Industry, dated July 31, 1963 and effective October 1, 1963. Plaintiff also prays that the Commissioner be permanently enjoined from the enforcement of such regulation and that it may be granted such other and further relief as may be proper and just.

By L.1963, c. 73, effective July 1, 1963, the Legislature declared 'it to be the public policy of this State that public records shall be readily accessible for examination by the citizens of this State, with certain exceptions, for the protection of the public interest.' All records which are required by law to be made, maintained or kept on file by any board, body, agency, department, commission or official of the State or of any political subdivision thereof, or by any public board, body, commission or authority created pursuant to law by the State or any of its political subdivisions, or by any official acting for or on behalf thereof, are, subject to the exception hereinafter noted, deemed under this law 'to be public records.' Excepted from the citizen's right to inspect and copy are those public records otherwise provided for by statute, resolution of either or both houses of the Legislature, executive order of the Governor, rule of court, any federal law, regulation or order, or by any regulation promulgated under the authority of any statute or executive order of the Governor.

L.1963, c. 73 provides that any citizen of this State who has been or shall have been denied for any reason the right to inspect, copy or obtain a copy of any such record, to whose inspection he is entitled, 'may apply to the Superior Court of New Jersey by a proceeding in lieu of prerogative writ for an order requiring the custodian of the record to afford inspection, the right to copy or to obtain a copy thereof, as provided in this act.'

The Governor's Executive Order No. 9, after reciting in its preamble that L.1963, c. 73 represents a right supplemental to the existing common law right of the public to examine and copy public records, subject to the limitation that exercise of the right is 'not detrimental to the public interest,' specifies certain named records in paragraph 3 of the order which shall not be deemed to be public records subject to inspection. We are not concerned herein with those specific records. However, the Governor's order, particularly in paragraph 2, authorized and empowered the head or principal executive of each principal department of State Government with respect to the records of his department and any agencies, authorities and commissions assigned or allocated to such department or under its supervision, to adopt and promulgate, from time to time, regulations setting forth which records under his jurisdiction shall not be deemed to be public records, subject to inspection and available for copying, pursuant to the provisions of L.1963, c. 73. The second sentence of paragraph 1 of this executive order provided that such records, so covered by departmental regulation, shall not be deemed to be public records.

Acting upon the authority vested in him by Executive Orders Nos. 7, 8 and 9, the Commissioner of Labor and Industry adopted and promulgated a regulation, effective October 1, 1963, the challenged portion thereof reading as follows:

'The following records shall not be deemed public records, copies of which may be purchased or reproduced under the provisions of Chapter 73, P.L. 1963:

a. All records required by statute to be made, maintained or kept on file pursuant to the provisions of the Workmen's Compensation Law, R.S. 34:15--1 et seq., If the purpose of the inspection or copying is to provide employers with information concerning prospective employees.' (Italics ours.)

This 1963 regulation had a history. Plaintiff has for several years conducted a business which it styles 'An independent Research Service Dedicated to the Prevention and Reduction of Accidents in Industry and on the Highways.' In 1958, or prior thereto, it published and circulated an advertising brochure entitled, 'How Much Do You Really Know About the Man You Are About to Hire?' This publication advised employers of the costly mistakes of hiring persons 'whose record of physical disabilities and mental handicaps disqualifies them for the jobs to which they have been assigned.' It noted that 'all too often the employer finds that he has unwittingly put on his payroll a workmen's compensation 'professional.' It is only when an injury is reported and a claim filed that the hapless employer finds that he has 'been taken.' Then it is too late.' It solicited insurance companies and employers for membership at an annual fee of $25 and, for a report charge of only $5, engaged that it would furnish 'a complete history of previous injuries and claims by any individual.'

On March 26, 1958 the Attorney General took note of plaintiff's brochure and rendered an opinion, at the request of the then Commissioner of Labor and Industry, in which he stated that the Commissioner could refuse to permit plaintiff to search the records of the Division of Workmen's Compensation 'where the purpose of the search is to provide employers with information concerning prospective employees'. The rationale of that conclusion is summed up in the following language of the opinion:

'No person can lawfully do that which has a tendency to be injurious to the public or against the public good. * * * The service as outlined by Accident Index Bureau, Inc. is designed to discourage the employment of the handicapped and would frustrate the efforts of the Department of Labor and Industry to effectuate the policy of this State concerning industrial injuries and employment of the handicapped.'

On September 23, 1958 the executive vice-president of the New Jersey State Council of the C.I.O. wrote a letter to the then Director of the Division of Workmen's Compensation, therein called attention to plaintiff's aforesaid brochure, complained that plaintiff's operation was influencing employers to reject applicants for employment who had previously sustained compensable injuries and questioned whether the Division should permit plaintiff to inspect the workmen's compensation files.

Despite this letter and the Attorney General's opinion, plaintiff was not prohibited from inspecting and copying workmen's compensation records for reports to prospective employers prior to October 1, 1963, when the departmental regulation now under review became effective. The present Director of the Division of Workmen's Compensation advised plaintiff's Mr. Grosman, by letter of October 29, 1963, that inspection of the Division's records would not be permitted 'where the purpose of inspection of our records is to furnish an employer with information concerning prospective employees,' but no one would be subject to the restriction where the purpose of inspection was other than that. On December 13, 1963 the Director issued a directive requiring persons searching the records to represent in writing that their purpose is not to supply employers with information concerning prospective employees.

Workmen's compensation records are required by law to be made, maintained and kept on file. N.J.S.A. 34:15--58. The Secretary of the Bureau is required by law to file the record of each case left with him by the official conducting the hearing, and to 'keep a card index of such record in such manner as to afford ready reference thereto. Such records shall be open to the inspection of the public.' (Italics ours.) R.S. 34:15--59, N.J.S.A. Hence, there can be no doubt that, by express legislative pronouncement, they are essentially 'public records,' in the same general category as judgment records of courts of law. For a definition of a 'public record,' see Moore v. Bd. of Freeholders of Mercer County, 76 N.J.Super. 396, 406--407, 184 A.2d 748 (App.Div.1962), modified 39 N.J. 26, 186 A.2d 676 (1962); Josefowicz v. Porter, 32 N.J.Super. 585, 591, 108 A.2d 865 (App.Div.1954); 76 C.J.S. Records § 1, p. 112; N.J.S.A. 47:3--16.

The right of a citizen to inspect public records has never been an unlimited one. Rex v. Shelley, 3 T.R. 141 (K.B. 1789); Ferry v. Williams, 41 N.J.L. 332 (Sup.Ct.1879); In re Freeman, 75 N.J.L. 329, 68 A. 222 (Sup.Ct.1907); Moore v. Bd. of Freeholders of Mercer County, supra, 76 N.J.Super., at p. 407, 184 A.2d 748. The right to inspect public...