Nero v. Hyland

• Decision Date: 10 May 1978
• Citation: 76 N.J. 213,386 A.2d 846
• Parties: , 3 Media L. Rep. 2367 John NERO, Plaintiff-Respondent v. William F. HYLAND, Attorney General of the State of New Jersey, Defendant- Appellant.
• Court: New Jersey Supreme Court

Page 213

76 N.J. 213

386 A.2d 846, 3 Media L. Rep. 2367

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

Jersey, Defendant- Appellant.

Supreme Court of New Jersey.

Argued Jan. 9, 1978.

Decided May 10, 1978.

Stephen Skillman, Asst. Atty. Gen., for defendant-appellant (William F. Hyland, Atty. Gen., attorney; Michael A. Santaniello, Deputy Atty. Gen., on the brief).

William K. Dickey, Collingswood, for plaintiff-respondent (Dickey & Thomas, Collingswood, attorneys).

The opinion of the court was delivered by

PASHMAN, J.

This appeal requires the Court to determine whether information concerning the character and background of a prospective gubernatorial appointee gathered in a "four-way" investigative check made at the behest of the Governor of the State of New Jersey is a public record under the so-called Right to Know Law, N.J.S.A. 47:1A-1 et seq., L.1963, c. 73, or under the common law. If such an investigative report is a public record for either of these purposes, we must next determine whether access to the contents of that report should nevertheless be denied to a prospective appointee who claims that his reputation was damaged by a public comment of the Governor which allegedly implied that his particular "four-way" background check had yielded unfavorable information.

Although the record is far from complete, the essential facts are undisputed. Governor Byrne had considered appointing John Nero to a position on the New Jersey Lottery Commission. This was rumored in the public press. Nero was a prominent supporter of the Governor in his 1973 campaign and was a well-known public figure in his own right in Camden County. He is the proprietor of a well-known restaurant, is a former Chairman of the Camden County Municipal Utilities Authority and has served on legislative study commissions.

When the appointment did not come to pass, Governor Byrne was asked at a news conference why he had not appointed Nero to the Lottery Commission. Although the exact words of his response are not known, both parties agree that the thrust of the Governor's answer was that Nero had not been appointed because the then Attorney General, defendant, William Hyland, was concerned over certain information affecting Nero which the standard background check had turned up. ¹ Reports of the Governor's response were disseminated by the media throughout the State.

Nero demanded disclosure of the report resulting from the character investigation, presumably in order to defend his reputation. By letter dated April 10, 1975, his attorney was advised that the Attorney General considered the character investigation to be confidential and would not release the report to Nero. This litigation followed.

Nero brought an action in lieu of prerogative writ seeking a judgment granting him access to the files 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 the report. The judge first determined that the definition of a public record contained in the Right to Know Law, N.J.S.A. 47:1A-2, which includes * * * 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 * * *

would not, standing alone, encompass the character investigation report sought. The bases for this conclusion were the fact that the initiation of these investigations is a matter totally within the discretion of the Governor and the Attorney General and the fact that the records so gathered are not required to be kept by any statute or regulation.

However, the judge found merit in the approach taken in Citizens for Better Ed. v. Camden Bd. of Ed., 124 N.J.Super. 523, 308 A.2d 35 (App.Div.1973), which read the above-quoted definition from the Right to Know Law in pari materia with the definition of a public record contained in the Destruction of Public Records Law, N.J.S.A. 47:3-15 et seq., L.1953, c. 410:

* * * 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. (N.J.S.A. 47:3-16)

The judge held that an investigatory document of the type received by Attorney General Hyland, retained for the information therein contained, thus constituted a public record for purposes of the Right to Know Law's access requirements.

Nevertheless, the trial court concluded that the public access mandated by that law was subject to exceptions, N.J.S.A. 47:1A-1, and that one of the specified exceptions related to executive orders of the Governor. N.J.S.A. 47:1A-2. The judge then referred to Executive Order No. 48, issued by former Governor, now Chief Justice Hughes, which expressly dealt with investigatory files of the New Jersey State Police. The 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. (1968 N.J.Laws at 1718-1719)

The judge noted that under Irval Realty Inc. v. Bd. of Public Utility Commissioners, 61 N.J. 366, 372, 294 A.2d 425 (1972), the Governor's right to exempt certain public records from disclosure was circumscribed by the last phrase of N.J.S.A. 47:1A-1, "for the protection of the public interest." Applying that test, he found that the public interest is best served when background checks of potential public employees obtain as much information as possible and that this salutary goal would be undermined if the sources of such information could not be guaranteed anonymity. Thus, the Attorney General's refusal to disclose the reports to Nero was upheld.

The court went on to determine the inapplicability of Irval Realty's directive that trial judges examine the contents of the reports whose disclosure is sought prior to rendering a decision on their accessibility. See 61 N.J. at 375, 294 A.2d 425. The judge observed that requiring submission of an investigatory report to the trial judge would have the effect of creating an absolute right of judicial examination of materials that the Executive had determined should be confidential in order to protect the public interest. The judge also rejected the plaintiff's claim under the common law, basing his decision on the same public policy reasons. Accordingly, the defendant's motion for summary judgment was granted.

The Appellate Division was in substantial agreement with the trial court, but reversed and remanded due to its disagreement with the absolute nature of the holding that investigatory files must of necessity remain confidential. 146 N.J.Super. 46, 368 A.2d 965 (App.Div.1977). The appeals court deemed that holding offensive to the spirit of Irval Realty, supra. It held that where a governmental official elects to comment on the results of an investigation in a manner reasonably implying derogation of an individual's character in a manner likely to result in broad dissemination of the comment, the judge should make the in camera inspection called for in Irval Realty :

If in his sound judgment some part or all of the information therein contained should not be revealed, he will so rule. If the whole of the record cannot be shown to the party seeking discovery, but certain portions may be, then the judge should extract these portions and make them available for perusal or direct that such other practical steps be taken as will achieve the desired result. (146 N.J.Super. at 49, 368 A.2d at 966, citing Irval Realty, supra, 61 N.J. at 375-376, 294 A.2d 425)

Thus, the trial court was instructed to read the files. On the petition of the Attorney General, we granted certification. 74 N.J. 264, 377 A.2d 669 (1977).

I

We hold that character investigations made at the behest of the Governor as chief executive in connection with a contemplated nomination are not public records under the Right to Know Law, N.J.S.A. 47:1A-2, since they are not "required by law to be made, maintained or kept on file * * * " by any agency or official of the State. No statute, regulation, executive order or judicial decision requires that the Governor conduct a character investigation of potential nominees to state positions and more specifically prospective members of the Lottery Commission. The Governor, of course, has the privilege of causing such an investigation to be made, but the procedure is not mandated by law. It follows, therefore, that when a report of a character investigation is made, it is not a "public record" as defined in N.J.S.A. 47:1A-2.

The trial court and the Appellate Division erred in holding to the contrary. That result was reached by engrafting upon N.J.S.A. 47:1A-2 the definition of a public record contained in the Destruction of Public Records Law, N.J.S.A....