Asbury Park Press, Inc. v. Borough of Seaside Heights

• Decision Date: 17 December 1990
• Citation: 586 A.2d 870,246 N.J.Super. 62
• Parties: , 18 Media L. Rep. 2264 ASBURY PARK PRESS, INC., Plaintiff, v. BOROUGH OF SEASIDE HEIGHTS and Anthony L. Schremmer, Chief of Police of the Seaside Heights Police Department, Defendants.
• Court: New Jersey Superior Court

Page 62

246 N.J.Super. 62

586 A.2d 870, 18 Media L. Rep. 2264

ASBURY PARK PRESS, INC., Plaintiff, v. BOROUGH OF SEASIDE HEIGHTS and Anthony L. Schremmer, Chief of Police of the Seaside Heights Police Department, Defendants.

Superior Court of New Jersey, Law Division Ocean County.

Decided Dec. 17, 1990.

Richard M. Eittreim, for plaintiff (McCarter & English, attorneys, Newark).

William T. Hiering, Jr., for defendants (Hiering, Hoffman, Garvey & Gannon, attorneys, Toms River).

SERPENTELLI, A.J.S.C.

In this case the court is asked to decide whether a newspaper should be entitled to access to police reports concerning an alleged beating of a citizen by law enforcement officers or whether the need for confidentiality in the conduct of police affairs outweighs the public's right to know about the incident.

Plaintiff, Asbury Park Press, Inc., is the owner and publisher of a daily newspaper. Plaintiff's complaint alleges, on information and belief, that the Seaside Heights Police Department prepared reports concerning a beating of Jean-Philippe Van De Wiele, which occurred on September 4, 1989. It is also alleged that on or about November 20, 1989, Van De Wiele filed a notice of claim against the Borough of Seaside Heights naming several law enforcement officers as participants in the beating. Finally, plaintiff asserts that around October 1990, the Borough of Seaside Heights entered into a settlement agreement with Van De Wiele in which the borough paid him approximately $250,000.

In its effort to publish information concerning the alleged beating and the reason for the subsequent settlement, plaintiff sought to inspect any and all reports on file with the Seaside Heights Police Department regarding the incident. Plaintiff's request for the documents was denied. This action ensued.

On the return date of plaintiff's order to show cause, plaintiff argued that the documents requested are accessible under both the Right to Know Law, N.J.S.A. 47:1A-1 et seq., and the common law. Plaintiff also contended that since all criminal and disciplinary investigations into the incident have been completed, the police investigatory process would not be compromised by the release. Defendants countered that the disclosure of the reports would "chill" the ability of police departments throughout the State to conduct internal investigations of incidents involving law enforcement officers. Defendants reasoned that those who prepare the reports would know that their comments could subsequently be opened to public view.

At the conclusion of oral argument, the court determined that it should conduct an in camera examination of the reports. Having completed its review, and having considered the balancing test dictated by the Supreme Court decisions discussed below, the court concludes that the reports should be released to plaintiff.

As noted, plaintiff rests its complaint on both the Right to Know Law and the common law right to know. Plaintiff first argues that police and investigative reports come within the definition of "public records" as contained in N.J.S.A 47:1A-1 et seq. The Right to Know Law defines "public records" as:

... 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 ... [ N.J.S.A. 47:1A-2; emphasis supplied]

Except for those documents which are exempted from the Right to Know Law under N.J.S.A. 47:1A-2, every citizen of the State is entitled to inspect and copy any document included within the definition of a "public record." Clearly, the documents involved in this case are kept by a political subdivision of the State. The critical question then becomes whether the police reports are records which are "required by law to be made, maintained or kept on file."

In its brief, plaintiff relies on N.J.A.C. 13:57-1.1 et seq., to support the proposition that the reports are, in fact, public records under the statute. N.J.A.C. 13:57-1.2(a) regulates reporting responsibilities of a municipal full-time police department regarding offenses that have occurred within that municipality. At oral argument, however, plaintiff conceded that its reliance on the administrative regulation was tenuous at best and that its primary argument was based on the common law. Defendants responded that the documents sought by plaintiff are exempt from the Right to Know Law under Executive Order No. 9, issued by Governor Hughes on September 30, 1963, and Executive Order No. 123, issued by Governor Kean on November 12, 1985. Both orders direct that certain public documents are not subject to inspection, including fingerprint cards, plates, photographs and other similar criminal investigation records which are required to be made, maintained or kept by any state or local government agency [Executive Order No. 9, Paragraph 3(e), Executive Order No. 123 Paragraph 2(a) ]. It is to be noted that Executive Order No. 123 modified Executive Order No. 9 by allowing the fingerprint cards, plates, photographs and similar investigation records to be made public as soon as practicable unless it shall appear that the release of any such information would jeopardize the safety of any person or investigation in progress or be otherwise inappropriate. The term "as soon as practicable" is defined as generally meaning 24 hours.

Defendants' argument as to the applicability of this executive order is as tenuous as plaintiff's claim that the documents are required to be maintained under the Administrative Code. The orders refer to fingerprint cards, plates, photographs and similar criminal investigation records. The documents before the court are incident reports and statements of witnesses prepared by police officers which bear no similarity to fingerprint cards, plates or photographs. Furthermore, if the reports which the court has read in camera were deemed to be "similar" within the definition of the executive orders, plaintiff could argue that the provisions of paragraph 2(a) of Executive Order No. 123 expressly require that the documents be made public unless it would appear that they would jeopardize the safety of any person or any investigation in progress or otherwise be inappropriate. The court's review of those documents satisfies it that disclosure would in no way jeopardize the safety of any person, that no investigation is in progress and that it would not be otherwise inappropriate to release them under the terms of that executive order.

In any event, plaintiff is not able to direct the court to any requirement that the documents be maintained and thus the court must turn its focus to plaintiff's claim based upon the common law right to know. The common law definition of a public record is broader than that contained in the Right to Know Law. 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. [Josefowicz v. Porter, 32 N.J.Super. 585, 591, 108 A.2d 865 (App.Div.1954) (quoting 76 C.J.S., Records, § 1 at 112) ]

Given this definition, the reports sought in this case are public records since they are written memorials made or maintained by public officers who are authorized to do so. If these documents were required by law to be maintained, plaintiff would have had an absolute right to disclosure under the Right to Know Law. However, under the common law, a citizen's right to access to public documents rests upon a showing of a personal or particular interest in the material sought. Yet, even the existence of this interest does not give an absolute right to obtain the documents. The court must engage in a balancing test to determine whether the individual's right to the information outweighs the public's interest in confidentiality of the material. Nero v. Hyland, 76 N.J. 213, 222-224, 386 A.2d 846 (1978); McClain v. College Hosp., 99 N.J. 346, 354-355, 492 A.2d 991 (1985). Our Supreme Court has noted that most of the cases which have discussed the standard for determining a citizen's interest in access to documents have arisen in the context of a private need. Loigman v. Kimmelman, 102 N.J. 98, 104, 505 A.2d 958 (1986). The Court there commented that "[s]omewhat different but related considerations arise when the citizen seeks access to information to further a public good." Ibid. Those considerations are present in the case at hand.

The Loigman Court summarized the basic principles applicable to an effort to obtain disclosure of documents for the public good. It held that ordinarily, only an assertion of citizen or taxpayer status is necessary for the production of...