Atlantic City Convention Center Authority v. South Jersey Pub. Co., Inc.

• Decision Date: 23 March 1994
• Citation: 135 N.J. 53,637 A.2d 1261
• Court: New Jersey Supreme Court
• Parties: , 22 Media L. Rep. 1718 ATLANTIC CITY CONVENTION CENTER AUTHORITY, a body corporate politic, Plaintiff-Respondent, v. SOUTH JERSEY PUBLISHING COMPANY, INC., t/a The Press & Sunday Press, Defendant-Appellant, and Ted Bergman, Defendant.

Page 53

135 N.J. 53

637 A.2d 1261, 22 Media L. Rep. 1718

ATLANTIC CITY CONVENTION CENTER AUTHORITY, a body corporate

politic, Plaintiff-Respondent, v. SOUTH JERSEY PUBLISHING COMPANY, INC., t/a The Press &

Sunday Press, Defendant-Appellant,

and

Ted Bergman, Defendant.

Supreme Court of New Jersey.

Argued Nov. 29, 1993.

Decided March 23, 1994.

Nelson C. Johnson, Atlantic City, argued the cause for appellant (Sills, Cummis, Zuckerman, Radin, Tischman, Epstein & Gross, attorneys).

Fredric L. Shenkman, Atlantic City, argued the cause for respondent (Goldenberg, Mackler & Sayegh, attorneys).

Susan R. Oxford, Assistant Deputy Public Advocate, argued the cause for amicus curiae Public Advocate of New Jersey (Zulima V. Farber, Public Advocate, attorney).

Grey J. Dimenna, Assistant Chief Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Fred DeVesa, Acting Attorney General, attorney; Joseph L. Yannotti and Mark J. Fleming, Assistant Attorneys General, of counsel; Bruce J. Solomon, Deputy Attorney General, on the brief).

The opinion of the Court was delivered by

O'HERN, J.

"Welcome to the electronic world." These prophetic words were uttered in 1980 by one of the attorneys arguing in United States v. Myers (In re Application of National Broadcasting Co.)--the first case where members of the broadcast media successfully applied for judicial permission to copy and broadcast videotapes admitted into evidence in a criminal trial.

[David Marburger, In Defense of Broadcaster Access to Evidentiary Video and Audio Tapes, 44 U.Pitt.L.Rev. 647, 647 (1983) (footnote omitted).]

In this case the media seek to copy and publish audio tapes of a public body's executive sessions (meetings closed to the public) during which personnel matters were discussed. We hold that media representatives are entitled to access to such records of official public action, subject before disclosure to the removal of any confidential or privileged information that may be withheld under our principles of common-law access to public records or related principles of the Open Public Meetings Act, N.J.S.A. 10:4-6 to -21. We remand the matter to the Chancery Division for reconsideration of its decision barring access to the tapes.

I

For purposes of this appeal, we accept generally the version of the case as set forth in the brief of the Atlantic City Convention Center Authority (the Authority).

The Authority operates the Atlantic City Convention Center pursuant to N.J.S.A. 52:27H-29. As an agency of the State, the Authority conducts its meetings under the Open Public Meetings Act. Its principal responsibility is to oversee the Convention Hall in Atlantic City. The Atlantic County Improvement Authority now owns the Convention Hall, and the New Jersey Sports and Exposition Authority leases it. The Authority operates the Atlantic City Convention and Visitors Bureau (Bureau) as one of its activities.

In 1988, before the Authority became involved with the Atlantic County Improvement Authority or the New Jersey Sports and Exposition Authority, Ted Bergman was the chief officer of its Bureau. Bergman resigned or was fired from employment with the Bureau that year. Pursuant to the Open Public Meetings Act, the Authority went into executive session to discuss Bergman's personnel performance; therefore, details of that session are not known.

In May and June of 1991, the Authority developed a new position designed to increase business for non-casino hotels in Atlantic City. The Authority discussed the new position in executive session, pursuant to N.J.S.A. 10:4-12(b)(8). The Authority hired Bergman as an independent contractor for the purpose of attracting convention business to the Atlantic City area that would use non-casino hotels. The Authority's by-laws permitted tape recording of those executive-session meetings to assist in preparation of the minutes required by law. The South Jersey Publishing Company (the Press) requested that the Authority release the minutes of the executive sessions dealing with the circumstances under which Bergman had left the Bureau and the circumstances under which he had been rehired. The Authority asked Bergman whether he would consent to the release of the executive-session minutes. He would not agree.

Considering itself on the horns of a dilemma in that the Press might have been entitled to the executive-session minutes but Bergman had retained his rights to privacy, the Authority began these proceedings. It requested direction from the court concerning disclosure of the executive-session minutes under the standards set forth in the recently-decided case of South Jersey Publishing Co. v. New Jersey Expressway Authority, 124 N.J. 478, 591 A.2d 921 (1991). The Chancery Division, after reviewing the minutes for any confidential or privileged information, directed that the Authority release the executive-session minutes dealing with Bergman's leaving the Bureau as well as the minutes dealing with the Authority hiring Bergman as an independent contractor. Shortly before the return date of its own motion for disclosure of the minutes, the Press sought release of the tape recordings of the executive sessions as well. To make the drafting of the minutes easier and more accurate and pursuant to Authority by-laws, the Authority voluntarily tape-recorded general sessions and executive sessions for its own convenience. The Authority opposed the release of the audio tapes of the executive sessions. The Chancery Division ruled that tape recordings of the executive sessions were not "public records subject to disclosure" and that even assuming they were public records, the privacy interest of Bergman and the interests of the Authority in the integrity of the executive process outweighed the interest of the Press in the release of the recordings.

On appeal the Appellate Division, in an unpublished opinion, affirmed the Chancery court, holding that the court had correctly determined the tapes were not public records under the common law or the Right-to-Know Law, N.J.S.A. 47:1A-2. Further, the Appellate Division held that the trial court did not need to balance the Press' interest in the release of the tape recordings against the public and private interest in confidentiality because no legal requirement dictated that the tapes should serve as public records.

We granted the Press' petition for certification, 134 N.J. 474, 634 A.2d 522 (1993).

II

A.

In a long series of cases we have outlined the standards for access to public records. The gender references are a bit dated but the principles are unaffected. We summarize them briefly.

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.

[Irval Realty Inc. v. Board of Pub. Util. Comm'rs, 61 N.J. 366, 372, 294 A.2d 425 (1972).]

At common law, however, courts required citizens to demonstrate some "personal" or "particular" interest in the material sought to be examined. Ibid. In order to overcome that requirement and make official governmental records available to the general public for inspection and copying, the Legislature adopted the Right-to-Know Law, N.J.S.A. 47:1A-1 to -4. However, that law does not embrace a definition of a public record that is equivalent to the common-law definition of a public record. Nero v. Hyland, 76 N.J. 213, 221, 386 A.2d 846 (1978). The Right-to-Know Law covers only those records "required by law to be made, maintained or kept on file." N.J.S.A. 47:1A-2. Thus, a limited class of records is unqualifiedly available to all citizens under the statute, while a much broader class of records is only qualifiedly available to the public under the common law.

In addition, although our common-law definition of a public record is broader than the Right-to-Know-Law definition, our courts developed that common-law definition long before electronic means of recording information were generally employed. Our cases had held that

[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, that the officer be authorized by law to make it * * * "

[Nero, supra, 76 N.J. at 222, 386 A.2d 846 (quoting Josefowicz v. Porter, 32 N.J.Super. 585, 591, 108 A.2d 865 (App.Div.1954).]

Finally, even if a party has a cognizable common-law interest in obtaining materials that are part of the public record, a court will not grant an absolute right to the documents. Once a court determines that a party has both an interest and a need for a document, the court must engage in a balancing process "concretely focused upon the relative interests of the parties in relation to [the] specific materials." McClain v. College Hosp., 99 N.J. 346, 361, 492 A.2d 991 (1985). That process is "flexible and adaptable to different circumstances and sensitive to the fact that the requirements of confidentiality are greater in some situations than in others." Id. at 362. We and other courts of the State have applied this standard in a number of settings. See North Jersey Newspapers Co. v. Passaic County, 127 N.J. 9, 601 A.2d 693 (1992) (considering media representative's interest in obtaining access to telephone numbers called by public officials); Loigman v. Kimmelman, 102 N.J. 98, 505 A.2d 958 (1986) (considering...