For affirmance -- Chief Justice Weintraub and Justices Jacobs, Proctor, Hall, Schettino and Haneman. For reversal -- Justice Francis. Francis, J. (dissenting).
[46 NJ Page 161] Defendants appeal from an adverse ruling in the Appellate Division upon a petition brought by Accident Index Bureau, Inc., for a declaratory judgment requesting
that court to hold unconstitutional and void (1) N.J.S.A. 47:1A-1 et seq., "The Right to Know Law"; (2) parts of Executive Order No. 9, effective October 1, 1963; and (3) a regulation of the Commissioner of Labor and Industry, dated July 31, 1963 and effective October 1, 1963. The appeal is here on our grant of certification. 43 N.J. 353 (1964).
Although the facts are stated in the opinion below, 83 N.J. Super. 293 (App. Div. 1964), for convenience, we summarize them. Accident Index is engaged in a service of searching public and other records and providing abstracts of the records to its subscribers who are various companies and employers throughout the State. A majority of its searching is in the field of workmen's compensation records with special reference to past injuries of prospective employees. For the latter purpose Accident Index searches the records required by statute to be maintained and filed in the Division of Workmen's Compensation pursuant to N.J.S.A. 34:15-59.
In 1958, the Commissioner of Labor and Industry took note of an Accident Index brochure distributed to employers in New Jersey soliciting new customers. It appeared that the Commissioner was of the opinion that the brochure was designed to discourage the employment of the handicapped or previously injured workmen and the filing of claims with the Division of Workmen's Compensation. The Commissioner requested the Attorney General to advise him as to his authority to prohibit the Accident Index from inspecting the records of the Division of Workmen's Compensation. On March 26, 1958 the Attorney General advised the Commissioner that he could prohibit the searching of the records "where the purpose of the search is to provide employers with information concerning prospective employees," inasmuch as the public policy of the State is to effectuate the re-employment of the handicapped and injured workers. No action was taken by the Commissioner until July 31, 1963 when he promulgated a regulation which plaintiff here attacks.
In "The Right to Know Law" 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." N.J.S.A. 47:1A-1. In implementing this policy the act provided:
"Except as otherwise provided in this act or by any other 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, 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 (each of which is hereinafter referred to as the 'custodian' thereof) shall, for the purposes of this act, be deemed to be public records." L. 1963, c. 73, § 2; N.J.S.A. 47:1A-2.
Pursuant to this authority, the Governor, in three Executive Orders Nos. 7, 8, 9, empowered the chief executive officer of each of the executive departments of the State Government to adopt regulations specifying which records would be or would not be subject to public inspection. Acting under this authority, on July 31, 1963 the Commissioner of Labor and Industry promulgated the regulation, effective October 1, 1963, providing in part that:
"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."
The Appellate Division held the regulation to be invalid because (1) it unreasonably discriminates between an employer who contemplates hiring an applicant and an employer who has already employed him, and (2) it either operates to deny employers a right of inspection affirmatively assured by statute, or alternatively, if the regulation allows that right to
an employer who examines the record himself but not to an employer who seeks to examine it through an agent, the line so drawn is arbitrary.
We gather the Commissioner did not intend to deny an employer access to pertinent records for any legitimate purpose, including a decision as to whether to hire a given man. What disturbed the Commissioner was the fact that the plaintiff, a profit-making corporation engaged in examining public records, advertised for business in terms which suggested that a man who has had a compensable experience should be suspected of being accident prone or a malingerer or a professional claims collector.
The Appellate Division expressly refrained from deciding "the propriety of plaintiff's advertising methods" (83 N.J. Super., at p. 302). One can readily understand the Commissioner's concern with that kind of thing. The policy of the compensation law is that compensation shall be paid for every compensable experience, and that no employee shall waive what is due him. See Esso Standard Oil Co. v. Holderman, 75 N.J. Super. 455, 467-468 (App. Div. 1962), affirmed o.b. 39 N.J. 355 (1963). To that end the statute requires reports of the occurrence of compensable events and of settlements privately made, so that the administrative agency may learn whether the policy of the law is being met. N.J.S.A. 34:15-96 thru 102. To the same end, the statute provides that no binding disposition of an employee's formal petition can be made without the approval of the administrative trial tribunal. N.J.S.A. 34:15-22.
Whatever would intimidate a workman to forego a legitimate compensation demand is hostile to the purpose of the statute, and militating to that end is propaganda that an employee who sought what was due him and now wants employment should be suspected of being accident-prone or a malingerer or a professional claims collector. This, together with the impact of that kind of solicitation ...