Nero v. Hyland

• Decision Date: 07 January 1977
• Citation: 368 A.2d 965,146 N.J.Super. 46
• Parties: John NERO, Plaintiff-Appellant, v. William F. HYLAND, Attorney General of the State of New Jersey, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 46

146 N.J.Super. 46

368 A.2d 965

John NERO, Plaintiff-Appellant, v. William F. HYLAND, Attorney General of the State of New Jersey, Defendant-Respondent.

Superior Court of New Jersey Appellate Division.

Argued Dec. 13, 1976.

Decided Jan. 7, 1977.

William K. Dickey, Collingswood, for plaintiff-appellant.

Michael A. Santaniello, Deputy Atty. Gen., Trenton, for defendant-respondent (William F. Hyland, Atty. Gen., attorney; Stephen Skillman, Asst. Atty. Gen., Trenton, of counsel).

Before Judges FRITZ, CRAHAY and ARD.

The opinion of the court was delivered by

FRITZ, 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 generally to be 'readily accessible for examination by the citizens of this State'; that certain exceptions to a disclosure requirement limit the public right to know nonetheless; that one of these exceptions comes into play upon an exercise by executive order of the Governor's judgment declaring a record immune, and that the right of the Governor to exercise his discretion in this regard is not without limits.

Our difference in judgment with that of Judge Rizzi springs solely from the inflexibility inherent in his statement that 'In order to gather this necessary information (background checks of potential government officers) investigatory files such as the one before this court of necessity must be kept confidential in order to convince citizens that they may safely confide in law enforcement officials.' 136 N.J.Super. at 542, 347 A.2d at 32. Even our difference with Judge Rizzi in this respect is not overwhelming. As a general proposition, the statement is unexceptionable. Our concern is for the inexorable nature of the expression. If the opinion below means records such as those in question are to be protected from disclosure regardless of the circumstances, we believe it offends the sense of Irval Realty v. Bd. of Pub. Util. Comm'rs, 61 N.J. 366, 294 A.2d 425 (1972). There our Supreme Court recognized the necessity for balancing 'the interest of the public in maintaining the confidentiality of (such) records and the interest of (the persons concerned) in examining them' (61 N.J. at 375, 294 A.2d at 430), whenever these important competing interests are involved.

Nor do we disagree with the suggestion that ordinarily records such as the character investigation record here involved should be held entirely confidential. But where, as here, although there are alternatives, the government elects to comment on the results of the investigation in a manner reasonably implying derogation to the character of the individual concerned and likely to result in a fairly broad dissemination of such comment, ¹ we believe the competing interests, each of which is worthy of high regard as a matter of important public policy, ought to be weighed and the result made to depend on which concern has the greatest weight. Such a rule of law provides government with the guidelines whereby it may protect the confidentiality of the reports by appropriately circumscribing...