Goldmann, Kilkenny and Collester. The opinion of the court was delivered by Kilkenny, J.A.D.
[83 NJSuper Page 294] Plaintiff's petition for a declaratory judgment asks us to adjudge and declare unconstitutional and void (1) L. 1963, c. 73, N.J.S.A. 47:1A-1 et seq. , "The Right to Know Law"; (2) the second sentence of paragraph one and the whole of paragraph two of Executive Order No. 9, effective October 1, 1963; and (3) the regulation of the Commissioner of Labor and Industry, dated July 31, 1963 and effective October 1, 1963. Plaintiff also prays that the Commissioner be permanently enjoined from the enforcement of such regulation and that it may be granted such other and further relief as may be proper and just.
By L. 1963, c. 73, effective July 1, 1963, the Legislature declared "it to be the public policy of this State that public records shall be readily accessible for examination by the citizens of this State, with certain exceptions, for the protection of the public interest." 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 or of any political subdivision thereof, or by any public board, body, commission or authority created pursuant to law by the State or any of its political subdivisions, or by any official acting for or on behalf thereof, are, subject to the exception hereinafter noted, deemed under this law "to be public records." Excepted from the citizen's right to inspect and copy are those public records otherwise provided for by statute, resolution of either or both houses of the Legislature, executive order of the Governor, rule of court, any federal law, regulation or order, or by any regulation promulgated under the authority of any statute or executive order of the Governor.
L. 1963, c. 73 provides that any citizen of this State who has been or shall have been denied for any reason the right to inspect, copy or obtain a copy of any such record, to whose inspection he is entitled, "may apply to the Superior Court of New Jersey by a proceeding in lieu of prerogative writ for an order requiring the custodian of the record to afford inspection, the right to copy or to obtain a copy thereof, as provided in this act."
The Governor's Executive Order No. 9, after reciting in its preamble that L. 1963, c. 73 represents a right supplemental to the existing common law right of the public to examine and copy public records, subject to the limitation that exercise of the right is "not detrimental to the public interest," specifies certain named records in paragraph 3 of the order which shall not be deemed to be public records subject to inspection. We are not concerned herein with those specific records. However, the Governor's order, particularly in paragraph 2, authorized and empowered the head or principal executive of each principal department of State Government,
with respect to the records of his department and any agencies, authorities and commissions assigned or allocated to such department or under its supervision, to adopt and promulgate, from time to time, regulations setting forth which records under his jurisdiction shall not be deemed to be public records, subject to inspection and available for copying, pursuant to the provisions of L. 1963, c. 73. The second sentence of paragraph 1 of this executive order provided that such records, so covered by departmental regulation, shall not be deemed to be public records.
Acting upon the authority vested in him by Executive Orders Nos. 7, 8 and 9, the Commissioner of Labor and Industry adopted and promulgated a regulation, effective October 1, 1963, the challenged portion thereof reading as follows:
"The following records shall not be deemed public records, copies of which may be purchased or reproduced under the provisions of Chapter 73, P.L. 1963:
a. All records required by statute to be made, maintained or kept on file pursuant to the provisions of the Workmen's Compensation Law, R.S. 34:15-1 et seq., if the purpose of the inspection or copying is to provide employers with information concerning prospective employees." (Italics ours)
This 1963 regulation had a history. Plaintiff has for several years conducted a business which it styles "An Independent Research Service Dedicated to the Prevention and Reduction of Accidents in Industry and on the Highways." In 1958, or prior thereto, it published and circulated an advertising brochure entitled, "How Much Do You Really Know About the Man You Are About to Hire?" This publication advised employers of the costly mistakes of hiring persons "whose record of physical disabilities and mental handicaps disqualifies them for the jobs to which they have been assigned." It noted that "all too often the employer finds that he has unwittingly put on his payroll a workmen's compensation 'professional.' It is only when an injury is reported and a claim filed that the hapless employer finds that he has 'been taken.' Then it is too late." It solicited insurance companies
and employers for membership at an annual fee of $25 and, for a report charge of only $5, engaged that it would furnish "a complete history of previous ...