D'Elena v. Burlington County Bd. of Chosen Freeholders
| Decision Date | 25 July 1985 |
| Citation | 203 N.J.Super. 109,495 A.2d 1357 |
| Parties | Richard D'ELENA, Individually and as President of Burlington County Council # 16 of NJCSA, Plaintiff-Respondent, v. BURLINGTON COUNTY BOARD OF CHOSEN FREEHOLDERS, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
Cynthia J. Nadolski, Asst. Burlington County Sol., for defendant-appellant (Michael J. Hogan, Burlington County Sol., attorney).
John A. Sweeney, Mount Holly, for plaintiff-respondent (Sweeney & Sweeney, Mount Holly, attorneys).
Before Judges MATTHEWS, FURMAN and HAVEY.
The opinion of the court was delivered by
MATTHEWS, P.J.A.D.
Plaintiff instituted this action in lieu of prerogative writs to compel the Burlington County Board of Chosen Freeholders to release the names and home addresses of its employees under the Right to Know Act, N.J.S.A. 47:1A-1 et seq. The trial judge granted plaintiff's motion for summary judgment and ruled that this list was a public record under that act.
The Burlington County Board has approximately 1,593 employees; 1,448 classified employees and 145 unclassified. On March 15, 1984 the Business Administrator of Burlington Council # 16 NJCSA, CWA Local 1044, wrote to the Clerk of the County of Burlington, requesting a list "showing employees' addresses."
On March 21, 1984, plaintiff, as president of Burlington Council # 16, wrote to Steven Raymond, the Burlington County prosecutor, stating that Burlington Council # 16 had become affiliated with another union and it was "necessary to update our bargaining unit records." He requested a list of "all employees in our bargaining unit (members and non-members), including each employees' [sic ] department number, social security number and home address." John A. Sweeney, attorney for plaintiff, also requested such a list in a letter written to Juliana on April 18, 1984, and a letter to Cynthia Nadolski, defendant's attorney, on May 4, 1984.
On May 17, 1984, Nadolski wrote to Sweeney responding to his request. She stated that the board had met and decided not to release the list on the grounds that (1) the information was not a "public record" as defined by the Right to Know Act, and (2) release of the information would be an "invasion of personal privacy." As a compromise to allow plaintiff to receive the information by "less intrusive means," the board suggested sending a letter to each employee informing him or her that Council # 16 wanted the information and asking their permission to release it. This letter would be included in the employees' paycheck.
On June 5, 1984 plaintiff instituted this action and moved for summary judgment. Plaintiff alleged that he was a citizen who had been refused a copy of a list of the board's employees' names and home addresses, which list the board "is required by law to maintain and/or does maintain." He alleged that the board's refusal to release this list violated the act. Plaintiff asked for a judgment directing the board to provide this list and for taxed costs and counsel fees.
On June 18, 1984, the Law Division judge issued a letter opinion granting plaintiff's motion for summary judgment. He ruled that while no law had been pointed out requiring the board to keep a list of its employees' names and home addresses, the list obviously existed and should be released even if it was not a record required to be kept within the meaning of the act. He restricted plaintiff's use of the list "for his own purposes, as an individual and as a union official."
On June 7, 1984, defendant had moved for an order allowing it to notify its employees that plaintiff had filed a complaint to compel release of their names and addresses. After a hearing the judge reserved decision. In his letter opinion, he stated that it was "my opinion that the County has a right to provide such notice without a court Order." Therefore, he approved an order authorizing, but not requiring notice, and withheld execution of the order until July 27, 1984. On July 24, 1984, an order was entered granting defendant's motion to notify its employees, effective June 7, 1984.
On July 25, 1984, Nadolski wrote to the judge asking for reconsideration of his decision because the board had sent notice to its employees of plaintiff's complaint, and many of them had objected to the release of their home addresses. Defendant also asked for an opportunity to oppose plaintiff's motion for attorneys' fees which had apparently been granted ex parte after plaintiff had submitted a certification. After a hearing, the judge denied defendant's motion for reconsideration and awarded plaintiff $500 in attorneys' fees and $75 in court costs. Judgment was entered accordingly on August 7, 1984. An order was subsequently entered staying the release of the list pending appeal.
Defendant contends that the judge erred by ruling that the names and addresses of its employees should be released under the act.
N.J.S.A. 47:1A-2 provides:
Except as otherwise provided in this act or by any other 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, 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 (each of which is hereinafter referred to as the "custodian" thereof) shall for the purposes of this act, be deemed to be public records. Every citizen of this State, during the regular business hours maintained by the custodian of such records, shall have the right to inspect such records....
In his letter opinion, the judge ruled that under a liberal construction of the act, the names and addresses of defendant's employees should be released. He noted that No express "law" has been pointed to which requires the Board of Freeholders to maintain a list of the names and addresses of its employees. It is obvious, however, that such information must be maintained by the County for numerous purposes and that, at the very least, administrative rules or directives, or Freeholder resolutions, or informal rules require the maintenance of employee name and address records. That information is necessary for purposes of the workmen's compensation insurance, for payroll purposes, for tax purposes and in order to carry out the County's residency requirements. If an actual list is not available the records which contain the names and addresses must be available to the public.
Under Citizens for Better Ed. v. Bd. of Ed., Camden, 124 N.J.Super. 523, 308 A.2d 35 (App.Div.1973), (Citizens ), discussed infra, the judge ruled that this list could be released if it existed even if it was not required by law to be maintained.
A citizen who wants to see public records has three ways of obtaining access to them. The citizen may assert "his common law right as a citizen to inspect public records; he may resort to the Right to Know Law ... 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 v. Bd. of Pub. Util. Commissioners, 61 N.J. 366, 372, 294 A.2d 425 (1972). The existence of the act does not affect the existence of the other means of access. Id. at 373, 294 A.2d 425.
The act is designed to promote "a free flow of information in order to ensure an informed citizenry." Nero v. Hyland, 76 N.J. 213, 221, 386 A.2d 846 (1978). The act does not require the citizen to show any interest in the material which he or she wants to see. Irval, supra, 61 N.J. at 372-373, 294 A.2d 425. It exempts records which relate to investigations in progress, N.J.S.A. 47:1A-3, and records which have been exempted by an order of the Governor or regulation or statute. N.J.S.A. 47:1A-2. The Governor does not have unlimited power to exempt material; he or she must act "for the protection of the public interest." N.J.S.A. 47:1A-1. A citizen who has been denied access to records may bring a complaint in lieu of prerogative writs; if he or she prevails, he or she may receive taxed costs and an attorney's fee up to $500. N.J.S.A. 47:1A-4.
The threshold issue in a case involving the act is whether a document is a record "required by law to be made, maintained or kept on file." N.J.S.A. 47:1A-2. In Citizens, supra, 124 N.J.Super. at 526, 308 A.2d 35, petitioner sought the release of the results of standardized achievement tests "on a school-by-school and...
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