For modification -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. Opposed -- None. The opinion of the court was delivered by Haneman, J.
All of the plaintiffs are taxpayers and citizens of Mercer County. At the time this action was instituted, two of them were Republican candidates for the office of Freeholder of Mercer County at the election to be held in November 1962. The individual defendants were elected or appointed officials of the Board of Chosen Freeholders of Mercer County (Board). Two of them were Democratic candidates for re-election as Freeholders at the same election.
On or about June 7, 1962, plaintiffs filed a complaint in the Chancery Division seeking a declaratory judgment and injunctive relief. The gravamen of the complaint was defendants' alleged refusal to permit them to photocopy various county records. On June 29, 1962, before filing answer, defendants moved to dismiss the complaint for failure to state a claim upon which relief could be granted and for a number of other specified grounds. After a hearing, the trial judge denied the motion. Plaintiffs then served notice on one of the defendants for the taking of his deposition. On July 10, subsequent to filing an answer and prior to the return date for the taking of the deposition, defendants moved for a summary judgment. On July 26 the motion was argued, and on August 3 the trial court granted defendants' motion, on the ground that there was no right to obtain a photocopy by any
means. It relied on Evening Journal Ass'n v. MacPhail, 45 N.J. Super. 184 (Law Div. 1957). See Moore v. Board of Freeholders of Mercer County, 76 N.J. Super. 42 (Ch. Div. 1962). Thereafter, plaintiffs appealed to the Appellate Division. Plaintiffs filed their brief, and on September 11 moved to advance the case on the argument list. On September 24 the Appellate Division granted the motion and directed defendants to file briefs by October 5, assigning October 9 as the argument date. After argument the Appellate Division orally reversed the judgment dismissing the complaint. On October 11 a written opinion was filed which granted permission to plaintiffs to photocopy county records and particularized the reasoning upon which the reversal of the trial court was based. Moore v. Bd. of Freeholders of Mercer County, 76 N.J. Super. 396 (App. Div. 1962).
Defendants petitioned this court for certification and a stay pending final determination of the cause. The Attorney General filed a petition seeking leave for the State of New Jersey to intervene and join in the dual application of defendants. This court granted the petition for certification and for leave to intervene. Because of the imminence of the general election on November 7, 1962, and the consequent public nature and interest in the relief sought by plaintiffs, this court directed that, pending the outcome of the appeal, plaintiffs be permitted to use their photocopy machine and volunteer workers to photostat a particularized list of records. However, we granted a stay as to any other photocopying with plaintiffs' own equipment and provided that plaintiffs should have the right to obtain such copies of additional records from defendants at a reasonable cost. This disposition satisfied the urgency of the situation. Thereafter, the appeal was briefed and argued and we now set forth our views on the questions raised.
Defendants admit that the plaintiffs are taxpayers and citizens of Mercer County and that the instruments sought to be copied are records which plaintiffs have the right to inspect and handcopy, so long as the inspection and copying take
place during ordinary business hours, under the supervision of a county representative, and are not an unreasonable interference with the conduct of county business. However, defendants deny that plaintiffs have any right to personally photocopy the records, and have offered to furnish them with photocopies which defendants would prepare at a reasonable cost.
The trial court correctly stated the issue to be whether plaintiffs had the right to photocopy with their own machine. The trial court, however, did not reach that question because it followed Evening Journal Ass'n v. MacPhail, supra, which held that a photocopy could not in any event be had. We think that case was erroneously decided and hence the issue as initially stated by the trial court must be decided. Therefore, the single issue confronting this court is whether the plaintiffs have a right to photocopy the above referred to records with their own equipment.
Defendants argue that the common law right to copy public records contemplates the individual's right to hand-copy but that his right to photocopy is not recognized under the common law, and in the absence of a permissive statute, fails to exist.
To buttress their position, defendants advert to four bills which were introduced in the Legislature: Senate No. 64 (1960); Assembly No. 358 (1960); Assembly No. 536 (1961), and Assembly No. 560 (1962) which would have accorded a citizen, inter alia, the right to make photocopies of public records. They reason that the introduction of these measures, coupled with the arguments which they suggest were advanced in opposition to their passage, reveals that the bills were generally considered to create a new right to photocopy and consequently broadened the scope of the common law. They conclude that in light of the noted objections, the failure of the Legislature to adopt these bills signified a ...