Southern New Jersey Newspapers, Inc. v. Township of Mount Laurel
| Decision Date | 18 August 1994 |
| Citation | 646 A.2d 510,275 N.J.Super. 465 |
| Parties | SOUTHERN NEW JERSEY NEWSPAPERS, INC., Plaintiff-Appellant, v. The TOWNSHIP OF MOUNT LAUREL, the Police Department of the Township of Mount Laurel and the Custodian of Records for the Police Department of the Township of Mount Laurel, Defendants-Respondents. |
| Court | New Jersey Superior Court — Appellate Division |
John C. Connell, Haddonfield, for appellant (Archer & Greiner, attys.; Mr. Connell, on the brief).
Michael L. Mouber, Mount Laurel, for respondents.
Jean H. Culp, Asst. Sol. of Burlington County, amicus curiae, for Burlington County Adjuster.
John DiCicco, Sr. Deputy Atty. Gen., as amicus curiae.
Before Judges SHEBELL, LONG and LANDAU.
The opinion of the court was delivered by
LANDAU, J.A.D.
This is an appeal by plaintiff Southern New Jersey Newspapers, Inc. (plaintiff) publisher of the Camden Courier Post, from the grant of summary judgment on the cross motion of defendants, the Township of Mount Laurel, the Police Department of the Township of Mount Laurel, and the Custodian of Records for the Police Department of the Township of Mount Laurel (collectively hereafter, the Township) and from the denial of plaintiff's motion for summary judgment in its action which sought access to certain gun permit files maintained by the Township. The Burlington County Solicitor appeared below and has participated in the appeal as amicus curiae on behalf of the Burlington County Adjuster, with particular reference to the Adjuster's interest in confidentiality of certain mental health records under N.J.S.A. 30:4-24.3. Additionally, the Burlington County Prosecutor was permitted to participate in the trial court, and the Attorney General has participated as amicus curiae on the appeal.
Our review leads to affirmance of the grant of summary judgment to the Township and the denial of plaintiff's motion. However, we conditionally modify the summary judgment to provide that it is partial, in order to permit plaintiff to amend its pleadings consistent with the limitations set forth below.
Plaintiff's complaint in lieu of prerogative writs sought access to, and permission to copy, records of permits for the sale and purchase of firearms, asserting that such records were subject to the Right to Know Law, N.J.S.A. 47:1A-1 to -4. The complaint also asserted common law rights, and a constitutional right under the First Amendment of the United States Constitution and the New Jersey Constitution, Article I, Paragraph 6. Plaintiff did not initially request the background information required by the Township in connection with issuance of handgun purchase permits and firearms purchaser identification cards.
We note that information respecting permits to carry handguns, N.J.S.A. 2C:58-4, has not been requested. The issues here raised involve only permits for purchase of handguns, N.J.S.A. 2C:58-3a, and firearms purchaser identification cards, N.J.S.A. 2C:58-3b. The identification cards are issued with respect to acquisition and maintenance of rifles and shotguns.
During the course of discovery, the Township advised plaintiff of the various back-up documents which are solicited and maintained in connection with issuance of the handgun purchaser permits and firearms purchaser identification cards, consistent with the requirements set forth in N.J.S.A. 2C:58-3c 1. These records included forms designated as follows:
1. Voluntary Form of Register of Firearms--S.P. 650
2. Instructions for a Duplicate Firearms I.D. Card
3. Application for a Duplicate Firearms Purchaser Identification Card--STS-3
4. Instructions for Firearms Applicant
5. Reference Form
6. Application for Permit to Carry Handgun--SP642
7. Consent for Mental Health Records Search--STS-1
8. Application to Purchase Handgun
9. Application for Firearms Purchaser Identification Card--STS-33
10. Firearms Applicant Investigation Report
By the time the summary judgment motions were considered, it was recognized that plaintiff sought not only copies of the purchase permits and firearms purchaser identification cards which had been issued during a given period, as requested in its complaint, but also by discovery or otherwise, all of the completed statutorily required background information including the application, as well as details of the issued permits, firearms purchaser identification cards, copies of reference letters, and investigative conclusions.
The information required from applicants is particularized in N.J.S.A. 2C:58-3e 2. The Legislature has specifically precluded the addition of any conditions or requirements to those statutorily enumerated. N.J.S.A. 2C:58-3f.
During the hearing on the motions, held November 20, 1991, it became known that the Superintendent of the Division of State Police (Superintendent) had proposed in the New Jersey Register for August 5, 1991, readoption of regulations governing permits to purchase handguns and firearms purchaser identification cards, as well as certain amendments adopted effective November 15, 1991.
As then amended, N.J.A.C. 13:54-1.15 provided that background investigations conducted by chiefs of police or the Superintendent before issuing such permits and firearms purchaser identification cards are not public records and should not be disclosed to any person, including the applicant, except upon order of a court of competent jurisdiction. The rationale explained upon proposing adoption of this Rule was that such background investigations contained sensitive information often revealed to law enforcement authorities on the condition that it not be disseminated. In addition, the rationale included reference to protection of privacy rights of the applicant because background investigations include such subjects as prior convictions, medical and mental disabilities, alcoholism, drug addiction, and "other matters that ought not be disclosed in public forum absent a compelling need."
When these regulatory changes became known, the motion judge requested supplemental filings from the parties, addressed to the issue of the Law Division's jurisdiction to decide a matter which might hinge on validity of an agency rule. See R. 2:2-3(a)(2).
We note the presence of a substantial dispute among the various participants in this appeal respecting whether validity of the regulation was being challenged or whether the court was merely called upon to interpret the regulation. The Attorney General, as amicus curiae, contends that plaintiff never directly contested the validity of N.J.A.C. 13:54-1.15, and is foreclosed from raising the issue on appeal from a judgment of the Law Division. It is evident, however, that this matter involves issues of substantial public interest. As the regulation was amended several times during the pendency of the litigation, this action and the evolving regulation are inextricably intertwined. Notwithstanding plaintiff's failure to address formally adoption of the regulation by direct appeal, an appeal which undoubtedly would have been consolidated with this case, we will consider the validity of N.J.A.C. 13:54-1.15, as amended. See Neider v. Royal Indemnity, 62 N.J. 229, 234, 300 A.2d 142 (1973). This case is readily distinguished from Bergen Pines Hosp. v. Dept. of Human Services, 96 N.J. 456, 476 A.2d 784 (1984) in that the principal objection to validity of the Superintendent's regulation is the question of legislatively delegated authority to adopt it. See Cumberland Farms, Inc. v. Moffett, 218 N.J.Super. 331, 337 n. 2, 527 A.2d 913 (App.Div.1987).
In his opinion rendered on March 25, 1992 and implemented by order of April 5, 1992, Judge Wells granted summary judgment to the Township and denied summary judgment to plaintiff, holding that neither the background files nor the permits could be released to plaintiff despite his conclusion that, prima facie, all of the documents, including background materials and permits, were Right to Know public records within the definition of N.J.S.A. 47:1A-2. At the time of the April, 1992 order, N.J.A.C. 13:54-1.15 purported to exempt from public record status only the background information required by statute. See N.J.S.A. 47:1A-2; 24 N.J.R. 3022-23.
In denying access to the background information, the judge relied primarily upon N.J.A.C. 13:54-1.15, the regulation adopted by the Superintendent. As to the purchase permits and identification cards, however, and as an additional reason respecting the background documents, the judge utilized the common law public records balancing test 3 to deny access, notwithstanding his conclusion that, but for the regulation, the permits and identification cards records would be Right to Know documents. The judge also found that permitting access to the background information would have a chilling effect upon the investigative process, adversely impact on compliance with the regulatory scheme, create a potential for black market in the sale of firearms, and deter qualified persons from exercising the right to purchase firearms. Plaintiff's constitutional claims of right to access were rejected. Judge Wells also noted the long history of affording confidential status to such documents. He therefore concluded that the public interest balance weighed strongly in favor of the Township.
As there were no material factual issues in dispute, Judge Wells entered an order on April 15, 1992, granting the Township's motion for summary judgment and denying the plaintiff's motion.
Plaintiff appealed in timely fashion, and filed a brief in September 1992. However, in the interim, N.J.A.C. 13:54-1.15 was again proposed for amendment by the Superintendent, specifically responding to Judge Wells' holding that the handgun purchaser permits and firearms purchaser identification cards were not covered by the amended version of N.J.A.C. 13:54-1.15 in effect as of April 15, 1992.
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