Am. Civil Liberties Union of N.J. v. Cnty. Prosecutors Ass'n of N.J.
Decision Date | 22 December 2022 |
Docket Number | DOCKET NO. A-2572-20 |
Citation | 474 N.J.Super. 243,287 A.3d 777 |
Parties | AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY, Plaintiff-Appellant, v. COUNTY PROSECUTORS ASSOCIATION OF NEW JERSEY, Defendant-Respondent. |
Court | New Jersey Superior Court — Appellate Division |
Karen Thompson argued the cause for appellant (American Civil Liberties Union of New Jersey Foundation, attorneys; Karen Thompson, Newark, Elyla Huertas, Jeanne LoCicero and Alexander Shalom, Newark, on the briefs).
Christopher J. Gramiccioni argued the cause for respondent (Kingston Coventry LLC, attorneys; Joseph Paravecchia, of counsel and on the brief).
CJ Griffin argued the cause for amicus curiae Libertarians for Transparent Government (Pashman Stein Walder Hayden, PC, attorneys; CJ Griffin, on the brief).
Before Judges Sumners, Geiger and Susswein.
The opinion of the court was delivered by
GEIGER, J.A.D.
Plaintiff American Civil Liberties Union of New Jersey (ACLU) contends defendant County Prosecutors Association of New Jersey (CPANJ) is a public agency subject to records requests under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and the common law right of access. The ACLU requested CPANJ to produce documents regarding CPANJ's funding, the context and contents of its meetings and events (including dates, times, and locations), and the people performing its operating functions. CPANJ denied the records request in its entirety, contending it is "not a public agency subject to the dictates of OPRA or requests made under the common law right of access."
The ACLU filed this action to compel disclosure of the requested records, claiming that CPANJ violated OPRA and the common law right of access. In response, CPANJ filed a motion to dismiss the complaint for failure to state a claim upon which relief can be granted prior to any discovery being exchanged.
Following oral argument, the trial court issued an oral decision and order granting CPANJ's motion to dismiss the complaint. The court found CPANJ was not a public agency under OPRA and was not subject to the common law right of access. The ACLU appeals from that order. We affirm.
CPANJ is a nonprofit association comprised of the twenty-one county prosecutors of New Jersey. It is organized under Section 501(c) of the Internal Revenue Code.1 CPANJ does not compensate any of its members. It has no staff or office. According to its IRS Form 990 tax filings, CPANJ derives revenue solely from educational conferences and membership dues and assessments.
In support of its position that CPANJ's records are subject to disclosure under OPRA and the common law right of access, the ACLU's asserted:
CPANJ also has a designated seat on the Domestic Violence Fatality and Near Fatality Review Board, N.J.S.A. 52:27D-43.17c. Similarly, one member of the Commission on Human Trafficking shall be "a county prosecutor, appointed by the Governor based upon the recommendation of [CPANJ]." N.J.S.A. 52:17B-237.
On July 19, 2019, the ACLU submitted records requests to CPANJ pursuant to OPRA and the common law right of access. The requests sought production of meeting agendas and minutes, funding records, and briefs filed in state or federal courts by CPANJ, as well as any policies or practices shared with county prosecutors by CPANJ. On September 18, 2019, CPANJ sent a letter to plaintiff denying access to all the document requests under both OPRA and the common law. CPANJ stated it is "a private non-profit organization and not a public agency subject to the dictates of OPRA or to requests made under the common law right of access." CPANJ described itself as:
a non-profit society, organized pursuant to Section 501(c)(6) of the Internal Revenue Code, which covers business leagues, chambers of commerce, boards of trade, and similar organizations. It is a private association comprised of the [twenty-one] County Prosecutors and has as its goal the promotion of the orderly administration of criminal justice within the State and the fair and effective enforcement of the constitution and laws of this State through the cooperation of all law enforcement agencies ....
CPANJ stated its goals "are not binding upon any of [its] members" and it does not "assume the responsibilities of any of the member's [sic] individual duties." It further claimed "CPANJ does not fulfill a purpose or perform the duties of the prosecutors' offices, individually or as a whole" and that "a County Prosecutor is not required to be a member of the CPANJ."
CPANJ provided two additional bases for the denial. First, even if it were a public agency, the records sought would be exempt from production as confidential materials "which, if disclosed, would compromise an agency's ability to effectively conduct investigations," and/or as "inter-agency advisory, consultative, or deliberative materials" or "records ... related to criminal investigations."
Second, CPANJ claimed it could not execute plaintiff's request because CPANJ "does not ‘possess’ or ‘maintain’ records." CPANJ explained that it "does not have a physical office, location, or even an online presence" and that "records related to the CPANJ are scattered and possessed by [its] many members ... making possession by a custodian unrealistic." On its 990 tax forms, however, CPANJ lists the Fairfield address of a New Jersey accounting firm as its own address, and states that "the organization's books and records" are located at that address. To date, CPANJ has not provided the requested documents.
The ACLU stated it filed this action to obtain the requested records to:
(1) continue its investigation into how county prosecutors and their staff members coordinate their efforts on criminal justice policy; (2) determine if those efforts are in anyway financed by or supported with State funds or resources; and (3) adequately monitor prosecutorial transparency and accountability within the New Jersey criminal justice system.
The ACLU maintains the records it requested "are all ‘government records’ as that term is defined by OPRA because they were all ‘made, maintained or kept on file in the course of [CPANJ's] official business.’ " N.J.S.A. 47:1A-1.1. The ACLU contends the "documents are not exempt from production under any of OPRA's exceptions[,] ... are required to be kept in the regular order of business, were filed with the courts of this State, and disseminated by CPANJ to the Attorney General." It further contends it does not seek information that would compromise the CPANJ's investigatory capacities; rather, to the extent that the requested documents contain privileged or confidential information, redaction, not non-disclosure, is the proper response.
The ACLU alleged CPANJ violated OPRA by failing to: (1) make "the records requested ‘readily accessible for inspection, copying, or examination’ in violation of N.J.S.A. 47:1A-1"; (2) "grant access to government records within seven business days, in violation of N.J.S.A. 47:1A-5 ([i])"; (3) "prove that the denial of access is authorized by law, in violation of N.J.S.A. 47:1A-6"; (4) "designate a records custodian, in violation of N.J.S.A. 47:1A-1.1"; (5) "maintain an OPRA request form, in violation of N.J.S.A. 47:1A-5(f)"; and (6) lawfully allow "access to non-exempt portions of government records, in violation of...
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