North Jersey Newspapers Co. v. Passaic County Bd. of Chosen Freeholders

• Decision Date: 05 February 1992
• Citation: 127 N.J. 9,601 A.2d 693
• Parties: , 19 Media L. Rep. 1962 NORTH JERSEY NEWSPAPERS COMPANY, Plaintiff-Appellant, v. PASSAIC COUNTY BOARD OF CHOSEN FREEHOLDERS, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 9

127 N.J. 9

601 A.2d 693, 19 Media L. Rep. 1962

NORTH JERSEY NEWSPAPERS COMPANY, Plaintiff-Appellant, v. PASSAIC COUNTY BOARD OF CHOSEN FREEHOLDERS, Defendant-Respondent.

Supreme Court of New Jersey.

Argued Oct. 22, 1991.

Decided Feb. 5, 1992.

Thomas J. Cafferty, for plaintiff-appellant (McGimpsey & Cafferty, attorneys; Thomas J. Cafferty, Alexander F. McGimpsey, Jr., and Arlene M. Turinchak, on the briefs).

Raymond P. Vivino, Passaic County Counsel, for defendant-respondent (Raymond P. Vivino, attorney; Michael H. Glovin, Asst. County Counsel, on the briefs).

Eric Neisser, for amicus curiae American Civil Liberties Union.

Edward J. Dauber, Asst. Atty. Gen., for amicus curiae Attorney General of New Jersey (Robert J. Del Tufo, Atty. Gen., attorney; Edward J. Dauber and William Harla, Asst. Atty. Gen., of counsel; Mark J. Fleming, Deputy Atty. Gen., on the briefs).

The opinion of the Court was delivered by

O'HERN, J.

This case concerns the public's right of access to telephone toll-billing records under the Right-to-Know Law, N.J.S.A. 47:1A-1 to -4. That Act grants citizens unrestricted access to all records of governmental action that are "required by law to be made, maintained or kept on file." Because a public record of the identity of persons called is not required by law to be "made, maintained or kept on file," we hold that the Right-to-Know Law does not provide an unqualified right of access to the telephone toll-billing records of a public body that would disclose the identity of the parties called. Rather, we direct that the telephone toll-billing records of a public body be made available after a showing that the public need for the identity of the parties called outweighs the governmental policies of confidentiality in telephone communications and of executive privilege.

I

On July 11, 1990, plaintiff, North Jersey Newspapers Company (the Newspaper), requested copies of the itemized telephone bills for the Passaic County Board of Chosen Freeholders' office- and car-phone lines for March, April, and May 1990. For certain types of calls, notably long-distance and car-phone calls, those telephone bills include: the telephone number called; the date, time, and length of the call; and the charge for the call. The Newspaper made that request pursuant to the New Jersey Right-to-Know Law and its common law right of access to such records.

Defendant, Passaic County Board of Chosen Freeholders (the Board), denied the request, reasoning that although the Right-to-Know Law governed the total amounts of the bills, the law did not apply to itemization of the bills. The Board also refused to release the telephone bills under a common-law theory, arguing that the Board's confidentiality interests outweighed the Newspaper's need to review the bills.

The Newspaper sued in Superior Court, seeking access to the requested records. Attached to the Board's answer to the complaint was the certification of the County Finance Director, which outlined the procedure for payment of County telephone bills. The procedure requires placement of the total amount of the bill on an official bill list, along with the check number, the purchase order number, and the vendor's name. The official bill list is then presented for approval at the Freeholders' meeting. Thus, the official record of payment does not contain the disputed information listed in the itemized bill. The certification also specified that each Freeholder, after reviewing the itemized bill, reimburses the County for personal calls.

The trial court granted the relief sought by the Newspaper, concluding that the itemized telephone bills were public records under the Right-to-Know Law and that neither the Governor nor the Legislature had specifically excepted telephone bills from the Right-to-Know Law. The trial court also found that the Newspaper's interest in reviewing the bills outweighed any constitutional or privacy rights of third parties. The trial court noted that the County records included the prosecutor's telephone lines. Because the Newspaper had not requested documents pertaining to those lines, the court allowed the prosecutor's office to review and excise any calls made in connection with its official business.

The Appellate Division reversed, concluding that although the records were public documents under the Right-to-Know Law, the Freeholders' privacy interests were protected by article I, paragraph 7 of the New Jersey Constitution as construed by this Court in State v. Hunt, 91 N.J. 338, 450 A.2d 952 (1982). North Jersey Newspaper Co. v. Passaic County Bd. of Chosen Freeholders, 245 N.J.Super. 113, 117, 584 A.2d 275 (1990). One member dissented, reasoning that the constitutional right of privacy does not extend to the contents of a telephone bill of a person making telephone calls on "public time with public equipment and at public expense." Id. at 122, 584 A.2d 275. Because of the dissent below, plaintiff appeals to us as of right under Rule 2:2-1(a). After oral argument, we requested that the parties brief the issue of whether the itemized telephone bills are subject to the Right-to-Know Law.

II

At first glance, the question of whether the public should have access to the toll-billing telephone records of public officials under the Right-to-Know Law seems to answer itself. The public has paid for the telephone calls; the numbers called have been recorded on the bill that the public body has paid; the public should have the right to learn the identity of the person called by the public official.

In Right-to-Know cases courts must maintain critical focus on the nature of the public records sought. Not all public records are Right-to-Know records. There is a narrow but important distinction between records "required by law to be made, maintained or kept on file," which are Right-to-Know records, N.J.S.A. 47:1A-2, and written records "made by public officers in the exercise of public functions," which are common-law records. Nero v. Hyland, 76 N.J. 213, 221-23, 386 A.2d 846 (1978). We have repeatedly noted that distinction and its relevance.

Under the Right-to-Know Law, any citizen, without any showing of personal or particular interest, has an unqualified right to inspect public documents if they are, in fact, the statutorily-defined records. Irval Realty Inc. v. Board of Pub. Util. Commr's, 61 N.J. 366, 372-73, 294 A.2d 425 (1972). In contrast, the citizen's common-law right to gain access to other public records requires a balancing of interests. McClain v. College Hosp., 99 N.J. 346, 492 A.2d 991 (1985).

The documents that the Newspaper seeks in this case are the itemized telephone bills for long-distance and car-phone calls. Included in those bills are the telephone numbers called by the Freeholders. The question is whether those itemized bills constitute records "required by law to be made, maintained or kept." Obviously, no law explicitly requires the public body to make a record of telephone numbers called by public officials; otherwise, the local calls, which are not recorded, would have to be recorded as well.

Plaintiff contends that the public agency must make a record of all the detail included with the bill because the Local Fiscal Affairs Law, N.J.S.A. 40A:5-1 to -42, requires the party submitting a voucher to include "a detailed bill of items or demand." N.J.S.A. 40A:5-16a. The Board and the Attorney General counter that a summary of the bill is sufficient for payment purposes, and therefore the itemized bill including the numbers called is not necessary for payment of the bill. The Board also points out that for many, if not most, calls only the message units for each phone are shown on the telephone bill. The message units appear on the County's telephone bill without showing any corresponding telephone numbers. A recent Passaic County telephone bill included a $6512 charge for message units.

The Board further states that in the past, the detailed billing information requested, which includes the telephone number called and the date, time, and length of call, was not included on the vouchers and yet the vouchers were paid. The Board argues that because the requested information was not necessary then, and the same detailed statutory requirement existed, it is not necessary now.

In response, the Newspaper contends that the meaning of the term "detailed" is meant to grow with the times. It argues that "the requirements necessary to meet the test of 'detailed' increases as the information routinely afforded in the marketplace increases and as custom, evolving hand-in-hand with the informational growth, dictates." Thus, it urges that the informational standards and customs that prevailed in 1960--the year of enactment of the current version of N.J.S.A. 40A:5-16a in which the term "detailed" appears--should not exclusively govern 1990 results. What qualified as "detailed" in 1960, when telephone bills contained much less detailed information due to inferior technology, is no longer considered "detailed" in 1991. Today, advanced technology allows the telephone company to provide the consumer with detailed information, such as number, date, time, and length of call. The Newspaper argues that because that information is routinely available and customarily demanded and received, it meets the statutory test of "detailed." In short, plaintiff argues that the more information that is accumulated, the more information the Legislature intended to disclose. We think not.

We doubt that the Legislature intended that all detailed information a modern computer-based system can generate constitutes records "required by law to be made, maintained or kept" under the Right-to-Know Law. This is not the first time that parties have sought to expand the scope of the Right-to-Know Law by "engrafting" on it the record-retention features of another law--for example, the Destruction of Public Records Law, N.J.S.A. 47:3-15 to -32. Ne...