Home News Pub. Co. v. State

• Decision Date: 09 March 1988
• Parties: The HOME NEWS PUBLISHING CO., a New Jersey Corporation, Plaintiff-Appellant, v. STATE of New Jersey, the Department of Corrections of the State of New Jersey, and the State Parole Board, Department of Corrections, State of New Jersey, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 7

224 N.J.Super. 7

539 A.2d 736

The HOME NEWS PUBLISHING CO., a New Jersey Corporation Plaintiff-Appellant, v. STATE of New Jersey, the Department of Corrections of the State of New Jersey, and the State Parole Board Department of Corrections, State of New Jersey, Defendants-Respondents.

Superior Court of New Jersey Appellate Division.

Argued Feb. 22, 1988.

Decided March 9, 1988.

Thomas J. Cafferty, North Brunswick, for appellant (McGimpsey & Cafferty, attorneys, Thomas J. Cafferty, on the brief).

Michael E. Kahn, Deputy Atty. Gen., for respondents (W. Cary Edwards, Atty. Gen., attorney, Michael R. Clancy, Deputy Atty. Gen., of counsel, Michael E. Kahn, on the brief).

Before Judges PETRELLA and DREIER.

The opinion of the court was delivered by

DREIER, J.A.D.

Plaintiff Home News Publishing Company has appealed from a Law Division order denying the Newspaper access to certain classes of parole records. The newspaper requested defendant, New Jersey State Parole Board (Parole Board), to give plaintiff access to specified but wide-ranging Parole Board records concerning eight parolees. The following information was requested:

(1) The number of times and dates each individual was considered for parole.

(2) The dates of each denial of parole.

(3) A copy of the hearing determination.

(4) A copy of the case assessment.

(5) A copy of all reports presented during any such hearings.

(6) Whether these paroles were granted administratively or by Board Panel hearing.

(7) All records reflecting credits earned to reduce sentence including recording reflecting programs in which such credits were earned.

(8) A copy of the notification of release.

(9) Records reflecting current parole status. ¹

(10) Records reflecting correspondence between Parole Board and Bureau of Parole.

(11) Transcript, minutes or recordings of parole hearings.

The Attorney General's Office advised the Parole Board that it only had to supply plaintiff with three classes of records, (1), (2) and (6), above. The Parole Board sent plaintiff the information approved by the Attorney General's Office.

On May 19, 1986 plaintiff filed a Law Division complaint. The Parole Board moved to dismiss the complaint or in the alternative to transfer the action to the Appellate Division. ² The trial judge denied the Parole Board's motion. The Parole Board then moved for summary judgment asserting that the requested information is exempt from the Right to Know Law and that the interest in confidentiality outweighs plaintiff's common law right of inspection. The judge denied both this motion and a subsequent motion for reconsideration on the basis that the court had not reviewed the documents in controversy. The Parole Board submitted the documents for an in camera inspection, and the judge granted the summary judgment motion on May 26, 1987.

Because the judge's orders inadvertantly were not forwarded to plaintiff, it assumed that the case had been transferred to the Appellate Division and therefore failed to file a notice of appeal. Leave to appeal nunc pro tunc was therefore granted on November 10, 1987.

On this appeal Home News contends that it is entitled to the requested parole information pursuant to the Right to Know Law, N.J.S.A. 47:1A-1 et seq., and the common law right of inspection, see Irval Realty v. Bd. of Pub. Util. Comm'rs, 61 N.J. 366, 372, 294 A.2d 425 (1972).

I

We note initially that the trial judge merely determined that inmates were deserving of a protected right of privacy. She did not examine the interplay between the Right to Know Law, the common-law right to inspect public records, the State's need for confidentiality and the prisoner's right of privacy. Since this matter was initially appropriate for appellate review, we will treat the matter anew.

The Right to Know Law, N.J.S.A. 47:1A-1 et seq., provides that

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 ... by any public board, body, commission or authority created pursuant to law by the State ... shall, for the purposes of this act, be deemed to be public records. [ N.J.S.A. 47:1A-2].

The law also states that documents are exempted from disclosure if

provided in this act or by any other statute, resolution ... 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. [ N.J.S.A. 47:1A-2].

The Parole Board contends that Request 10 (correspondence between the Parole Board and the Bureau of Parole) and Request 11 (transcripts/recordings/minutes of parole hearings) are not public records. Plaintiff concedes that Request 11 is not a public record within the Right to Know Law, however, it asserts a right to access under the common law. The Parole Board correctly states that the requirement that documents "be made, maintained or kept on file," has been strictly construed. As noted in Collins v. Camden Cty. Health Dept., 200 N.J.Super. 281, 285, 491 A.2d 66 (Law Div.1984), "[t]he courts have clearly stated that a written report must be specifically required by law to be made in order to be characterized as a public record subject to disclosure." See Nero v. Hyland, 76 N.J. 213, 220-221, 386 A.2d 846 (1978). Plaintiff has presented no law specifically requiring written reports between the Parole Board and the Bureau of Parole, nor does plaintiff advance any other argument in support of its contention that this correspondence is a public record.

The remaining request categories ³ appear to describe public records within the definitions of N.J.S.A. 47:1A-2 and Collins, supra, 200 N.J.Super. at 285, 491 A.2d 66. The Parole Board argues, however, that the remaining requests need not be complied with because of exemptions provided by Parole Board regulations and the Department of Correction's regulations and standards.

Pursuant to N.J.S.A. 30:4-123.48(d), the Parole Board has promulgated a regulation regarding the confidentiality of Parole Board administrative operations and of written materials pertaining to inmates or parolees. N.J.A.C. 10A:71-2.1. Pursuant to N.J.S.A. 30:1B-10, the Department of Corrections also has promulgated N.J.A.C. 10A:31-3.5 and Standard 281.8, with which the Parole Board is statutorily obliged to comply. See N.J.S.A. 30:4-123.54(c) and N.J.S.A. 30:4-123.55(c).

DOC Standard 281 provides that certain categories of records may be inspected or released with the consent of the inmate/parolee subject to the deletion of confidential information which is defined in .8:

.8 Confidential Records: definition

The following types of records are designated confidential:

(a) Reports which are evaluative, diagnostic or prognostic in nature furnished with a legitimate expectation of confidentiality and which, if revealed to the inmate or others, could be detrimental to the inmate or could jeopardize the safety of individuals who signed the reports, or were parties to the decisions, conclusions or statements contained therein;

(b) Information the disclosure of which could have a substantial adverse impact on the security or orderly operation of the institution;

(c) Information or reports which would invade or jeopardize privacy rights of the inmate/parolee or others; (d) Disclosures which would jeopardize internal decision-making or policy determinations essential to the effective operation of any institution or the Department;

(e) Disciplinary and criminal investigative reports, including those from informants, disclosure of which would impede ongoing investigations, create a risk of reprisal or interfere with the security or orderly operation of the institution;

(f) Such other records as the Commissioner or Superintendents, based on their experience and exercise of judgment, believe must be kept confidential to insure maintenance of discipline and the orderly operation of the institution or Department.

The adoption or amendment of any administrative rules after March 8, 1981 must have been in compliance with the rulemaking procedures of the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 et seq. See Legislative Oversight Act, L.1981, c. 27, effective March 8, 1981, discussed in Department of Corrections v. McNeil, 209 N.J.Super. 120, 123, 506 A.2d 1291 (App.Div.1986), certif. den. 104 N.J. 422, 517 A.2d 418 (1986). The Parole Board admits that DOC Standard 281 has not been so promulgated. Plaintiff, therefore, has been denied access to information partially in reliance on a procedurally defective standard.

Even though regulations are invalid for failing to comply with the notice, hearing and publication requirements of the APA, a court is not obliged to void these rules immediately when the public interest requires otherwise. McNeil, supra, 209 N.J.Super. at 125, 506 A.2d 1291. In McNeil, the Appellate Division did not order general retroactive invalidation of prison disciplinary standards not adopted in conformity with the APA; an overall invalidation of standards would have voided "literally tens of thousands of disciplinary proceedings" and would have triggered "the early inappropriate release of large numbers of inmates." Ibid. Here, the Parole Board similarly argues that the invalidation of DOC 281.8 would not be in the best interest of the public because

individuals who have submitted reports, letters, memorandums and verbal information to the Parole Board have done so with the understanding that this information would be kept confidential. These individuals could be subject to physical retaliation if the information is released. Indeed, many other individuals not involved with this specific case could be in physical danger if Standard 281 is voided. Finally, the inmates' right to privacy would be infringed.

This is a persuasive argument. See also Thompson v. New Jersey State...