Courier News v. Hunterdon

• Decision Date: 19 March 2003
• Citation: 358 N.J. Super. 373,817 A.2d 1017
• Parties: COURIER NEWS, Plaintiff-Appellant, v. HUNTERDON COUNTY PROSECUTOR'S OFFICE, Defendant-Respondent.
• Court: New Jersey Superior Court

817 A.2d 1017

358 N.J. Super. 373

COURIER NEWS, Plaintiff-Appellant, v. HUNTERDON COUNTY PROSECUTOR'S OFFICE, Defendant-Respondent.

Superior Court of New Jersey, Appellate Division.

Argued March 12, 2003.

Decided March 19, 2003.

John C. Connell, Haddonfield, argued the cause for appellant (Archer & Greiner, attorneys; Mr. Connell, William L. Ryan and Kerri E. Chewning, Newark, on the brief).

Steven C. Lember, First Assistant Prosecutor, argued the cause for respondent (J. Patrick Barnes, Hunterdon County Prosecutor, attorney; Mr. Lember, on the brief).

Thomas J. Cafferty argued the cause for amicus curiae, New Jersey Press Association (McGimpsey & Cafferty, attorneys; Mr. Cafferty and Arlene M. Turinchak, Somerset, on the brief).

Before Judges KING, LISA and FUENTES.

The opinion of the court was delivered by FUENTES, J.A.D.

Plaintiff Courier News moves, under R. 2:5-6(a), for leave to appeal the decision of the Law Division denying its application made pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. Plaintiff seeks access to tape recordings of all 911 calls made on February 14, 2002, in connection with the death of Costas Christofi at the home of Jayson Williams. These recordings are in the custody of defendant Hunterdon County Prosecutor's Office as evidence in the case of State v. Jayson Williams. On March 4, 2003, we granted the motion of the New Jersey Press Association to intervene as amicus curiae. Williams did not participate in the proceedings before the Law Division and did not make an application to intervene here. On March 12, 2003, we heard oral argument on plaintiff's motion. We now grant leave to appeal¹ and summarily reverse. R. 2:2-3(b); R. 2:8-3(b).

I

In the early morning hours of February 14, 2002, an emergency 911 telephone call was placed from the home of former professional athlete Jayson Williams in connection with the death of Costas Christofi. Immediately thereafter, law enforcement authorities concluded that the death was a homicide and seized the tape recording of the 911 call as evidence in the criminal investigation. On May 1, 2002, a Grand Jury indicted Williams on various criminal charges including aggravated manslaughter, hindering apprehension, tampering with a witness and tampering with evidence.²

On July 8, 2002, a Courier News reporter formally requested a copy of the 911 tape from the Hunterdon County Prosecutor's Office. On July 10, 2002, defendant denied the request based on the following reasons:

1. The release of the information requested will jeopardize the continuing investigation and prosecution of the pending, post-indictment case of State v. Williams, and

2. The release of the information requested would be otherwise inappropriate because it is evidence in a pending criminal prosecution;

3. The release of the information requested would be otherwise inappropriate because its release would impair the constitutional rights of victims. N.J. State Constitution, Article 1, Paragraph 22, N.J.S.A. 52:4B-36.

4. The release of the information requested would be otherwise inappropriate because its release might impair the right of the defendant to obtain a fair trial. N.J. State Constitution, Article I, Paragraph 10.

By letter dated October 22, 2002, counsel for the Courier News again requested from defendant a copy of the 911 tapes. Defendant again denied the request.

On December 18, 2002, plaintiff filed an action in lieu of prerogative writs and an order to show cause with verified complaint seeking access to the 911 tape as a government record under OPRA.³ The Law Division judge entered the order to show cause on December 18, 2002, and made it returnable on January 24, 2003.

II

On the return date of the order to show cause, the court construed plaintiff's application as one seeking "a mandatory preliminary injunction." Invoking the authority of Crowe v. De Gioia, 90 N.J. 126, 447 A.2d 173 (1982), the court then concluded that plaintiff had not shown irreparable harm because: "Defendants do not take the position that they refuse to release the 911 tapes, but indicated that the tapes will be released very shortly when one of the tapes will be admitted in evidence [in the criminal trial]." The court also found that granting plaintiff's request would alter the status quo.

The pretrial media coverage has been extensive. To publish the transcripts of the tapes on the eve of jury selection would have a potential to make it more difficult to select a fair and impartial jury panel. The argument that a foreign jury could be impaneled is one that does—is not significant to this court.

This is not a case where the defendants are refusing to provide the information. Their position is, to provide it at this time so alters the status quo that the irreparable harm would not occur to the plaintiffs, but would occur to the defendants and the survivors of the decedent.

The court denied plaintiff's application "without prejudice," but indicated that plaintiff retained the right to pursue the relief requested by filing a summary judgment motion under R. 4:69-2.

III

Both plaintiff and amicus curiae intervenor argue that the Law Division judge erred when he failed to apply the procedural mechanism outlined in OPRA. We agree.

Under OPRA,

A person who is denied access to a government record by the custodian of the record, at the option of the requestor, may:

institute a proceeding to challenge the custodian's decision by filing an action in Superior Court which shall be heard in the vicinage where it is filed by a Superior Court Judge who has been designated to hear such cases because of that judge's knowledge and expertise in matters relating to access to government records;

....

Any such proceeding shall proceed in a summary or expedited manner. The public agency shall have the burden of proving that the denial of access is authorized by law. If it is determined that access has been improperly denied, the court or agency head shall order that access be allowed. A requestor who prevails in any proceeding shall be entitled to a reasonable attorney's fee.

[N.J.S.A. 47:1A-6 (emphasis added).]

This statutory language requires a trial court to proceed under the procedures prescribed in Rule 4:67. R. 4:67-1(a). The action is commenced by order to show cause supported by a verified complaint. R. 4:67-2(a). At the initial hearing, if the court is "satisfied with the sufficiency of the application, [it] shall order defendant to show cause why final judgment should not be rendered for the relief sought." Ibid. The court must try the case at the return date of the order to show "or on such short day as it fixes." R. 4:67-5. The Rule also clearly sets out the procedural framework governing the trial.

If no objection is made by any party, or the defendants have defaulted in the action, or the affidavits show palpably that there is no genuine issue as to any material fact, the court may try the action on the pleadings and affidavits, and render final judgment thereon. If any party objects to such a trial and there may be a genuine issue as to a material fact, the court shall hear the evidence as to those matters which may be genuinely in issue, and render final judgment.

[Ibid.]

A summary action is not a summary judgment motion. In a proceeding conducted under R. 4:67-5, a court must make findings of facts, either by adopting the uncontested facts in the pleadings after concluding that there are no genuine issues of fact in dispute, or by conducting an evidentiary hearing. Moreover, a party in a summary action proceeding is not entitled to favorable inferences such as those afforded to the respondent in a summary judgment motion. O'Connell v. New Jersey Mfrs. Ins. Co., 306 N.J.Super. 166, 172, 703 A.2d 360 (App.Div.1997). Here, the Law Division judge's procedural errors deprived plaintiff of its right to a summary adjudication of its OPRA application. However, all of the legal issues have been fully briefed. We invoke our original jurisdiction to decide the case and thereby vindicate the important public policy embodied in OPRA. N.J.S.A. 47:1A-1; AAA Mid-Atlantic Ins. v. Prudential Ins., 336 N.J.Super. 71, 78, 763 A.2d 788 (App.Div.2000); R. 2:10-5.

IV

We begin our analysis by emphasizing the public policy of this State expressed in OPRA:

government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions, for the protection of the public interest, and any limitations on the right of access accorded by [OPRA] shall be construed in favor of the public's right of access....

[N.J.S.A. 47:1A-1.]

The custodian of the government record has the burden of proving that the denial of access is authorized by law. N.J.S.A. 47:1A-6.

Defendant does not dispute that the 911 tape is a "government record" within the meaning of N.J.S.A. 47:1A-1.1.⁴ Defendant nevertheless argues that the tape is exempt from public inspection under the provisions of N.J.S.A. 47:1A-3a because it is part of an ongoing criminal investigation and its release to the media would be inimical to the public interest because (1) it would make selecting an impartial jury more difficult; and (2) dissemination of the tape will likely cause juror confusion. We reject these arguments because they are not supported by either facts or law.⁵

N.J.S.A. 47:1A-3a provides:

Notwithstanding the [other] provisions of [this Act], where it shall appear that the record or records which are sought to be inspected, copied, or examined shall pertain to an investigation in progress by any public agency, the right of access provided for in [OPRA] may be denied if the inspection, copying or examination of such record or records shall be inimical to the public interest....

Thus, as noted by Judge Serpentelli in Asbury Park Press v. Lakewood Twp. Police Dep't, 354 N.J.Super. 146, 158, 804 A.2d 1178 (Law Div.2002), "In order to find a basis to...