Nero v. Hyland
| Citation | 347 A.2d 29,136 N.J.Super. 537 |
| Parties | John NERO, Plaintiff, v. William F. HYLAND, Attorney General of the State of New Jersey, Defendant. |
| Decision Date | 21 October 1975 |
| Court | Superior Court of New Jersey |
William K. Dickey, Collingswood, for plaintiff.
Michael A. Santaniello, Trenton, for defendant (William F. Hyland, Atty. Gen., attorney).
RIZZI, A.J.S.C.
This is an action in lieu of prerogative writs in which plaintiff seeks a judgment granting him access to a character investigation of himself, prepared by the New Jersey Division of State Police at the request of both Governor Brendan T. Byrne and defendant William F. Hyland, Attorney General of New Jersey. The investigation was conducted under the direction of the Attorney General for the purpose of providing the Governor with information that would assist him in deciding whether to appoint plaintiff to a position in State Government. The case now comes before the court on cross-motions for summary judgment.
The principal question presented is whether plaintiff has either a statutory or common law right to require defendant to disclose the contents of the character investigation.
Before reaching the critical issue herein presented, the court must first be satisfied that the document sought is a public record. If it is not, plaintiff would have neither a statutory nor common law right of access to the report in question. DeLia v. Kiernan, 119 N.J.Super. 581, 293 A.2d 197 (App.Div.1972).
N.J.S.A. 47:1A--2, commonly known as 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 * * *. (Emphasis supplied)
Compilation of the character investigation which plaintiff seeks in the instant case is totally within the discretion of the Governor and Attorney General and is not required to be prepared or kept by any statute, rule or regulation, and therefore the plaintiff's claim to the document would be denied if the Right to Know Law was the exclusive source of the definition of a 'public record.'
Plaintiff, however, urges that N.J.S.A. 47:3--16, the Destruction of Public Records Law, is to be read In pari materia with N.J.S.A. 47:1A--2 in ascertaining the meaning of 'public record.' In line with the approach of the Appellate Division in Citizens for Better Ed. v. Camden Bd. of Ed., 124 N.J.Super. 523, 308 A.2d 35 (App.Div.1973), this court agrees with the plaintiff's contention. In N.J.S.A. 47:3--16 'public record' is defined, in pertinent part, as
* * * any paper, written or printed book, document * * * that has been received by any such officer, commission, agency or authority of the State * * * in connection with the transaction of public business and has been retained by such recipient or its successors as evidence of its activities or because of the information contained therein.
Considering these statutes In pari materia, Citizens for Better Ed., supra at 529, 308 A.2d 35, this court concludes that the document in question qualifies as a public record. The character investigation was received by the defendant, a state officer, who has retained the documents for the information contained therein.
Having so determined, does the legal classification of the document as a public record automatically confer to the plaintiff the right of access, either under the statutory or common law, to the character investigation?
In resolving this question, the court starts with the statute, N.J.S.A. 47:1A--1. It states in relevant part that
* * * public records shall be readily accessible for examination by the citizens of this State, with certain exceptions, for the protection of the public interest.
This statute makes available to the general public official records of government, with the right to inspect and obtain copies of those records. It is also clear from the statute that the public's right of access to public records is not an unbridled right, but, as the statute indicates, subject to 'certain exceptions, for the protection of the public interest.' See Guarriello v. Benson, 90 N.J.Super. 233, 238, 217 A.2d 22 (Law Div.1966).
Other exceptions to the disclosure requirement are found in N.J.S.A. 47:1A--2. This statute states, in another relevant portion:
Except as otherwise provided in this act or by any * * * Executive order of the Governor * * * 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, commission of authority created pursuant to law by the State * * * shall, for the purposes of this act, be deemed to be public records. (Emphasis supplied)
It is undisputed that, pursuant to the foregoing authority, former Governor Richard J. Hughes issued Executive Order No. 48 which directly dealt with investigatory files of the New Jersey State Police. That order provides, in pertinent part, that:
1. No person having custody of State Police investigative files shall turn over the same to any other person who is not a member of a duly-recognized law enforcement agency unless ordered to do so by a court of competent jurisdiction or by the Governor of the State of New Jersey.
2. No person shall divulge the contents of those files to any other person who is not a member of a duly-recognized law enforcement agency unless ordered to do so by a court of competent jurisdiction or by the Governor of the State of New Jersey, where the release of such information is likely to subject witnesses or other persons to physical harm, threats of harm, bribes, economic reprisals and other intimidation. No information shall be divulged where the maintenance of secrecy regarding informants is required for effective investigation of criminal activity or the protection of confidential relationships and privileges recognized by law.
The character investigation sought by the plaintiff in the case at hand was conducted by the Law Jersey Division of State Police and would, therefore, appear to be exempt from disclosure under Executive Order No. 48.
The right of the Governor, by executive order, to exclude public records from disclosure in accordance with N.J.S.A. 47:1A--2, and the right of the courts to create exemptions are circumscribed by the last phase of N.J.S.A. 47:1A--1, 'for the protection of the public interest,' and the interpretation given that section by our Supreme Court in Irval Realty, Inc. v. Bd. of Public Utility Comm'rs, 61 N.J. 366, 294 A.2d 425 (1972). In that case plaintiffs were involved in civil actions against a gas company...
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Nero v. Hyland
...of the character investigation. Cross motions for summary judgment were made. The trial court in a reported opinion, 136 N.J.Super. 537, 347 A.2d 29 (Law Div.1975), found that unless the document in question was a public record, Nero had neither a statutory nor common law right of access to......
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Ramer v. Byrne
...Law and therefore properly the subject of inspection by plaintiff. Plaintiff cites several cases, among them Nero v. Hyland, 136 N.J.Super. 537, 347 A.2d 29 (Law Div. 1975); Citizens For Better Education v. Bd. of Ed., Camden, 124 N.J.Super. 523, 308 A.2d 35 (App.Div.1973); Trenton Times Co......
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Nero v. Hyland
...P.J.A.D. We are in substantial agreement with much of that said by Judge Rizzi in his crisp and articulate opinion below. 136 N.J.Super. 537, 347 A.2d 29 (Law Div.1975). We agree wholly and for the reasons there set forth that the document involved is a public record; that such records are ......