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Guarriello v. Benson

Decided: January 31, 1966.

THEODORE GUARRIELLO AND ELLEN FLACH, PLAINTIFFS,
v.
WILLIAM BENSON AND JACOB FLAKER, DEFENDANTS



Schneider, J.c.c. (temporarily assigned).

Schneider

[90 NJSuper Page 234] This is an action in lieu of prerogative writs brought by plaintiffs in an

attempt to compel Jacob Flaker, the Township Clerk of Wyckoff, to make available certain tape recordings of hearings held by the municipality of Wyckoff at the request of the Northwest Bergen County Sewer District, for the purpose of re-recording said tapes. The action against William Benson, the mayor, was dismissed prior to trial. Counsel for the parties have stipulated that any resident of the town is free to hear the tapes and that typed transcripts of any of the four hearings could be made from the tapes. Further,

"This suit does not seek the right to hear the tapes or the right to obtain typed or printed copies of what the tapes contain, but rather is limited expressly to the right to rerecord the tapes."

In addition, the parties have stipulated to the following facts. By resolution adopted July 23, 1952, the Board of Chosen Freeholders of Bergen County, New Jersey, established the Northwest Bergen County Sanitary Sewer District as a sewerage district under and pursuant to an act of the Legislature known as chapter 123 of the Laws of 1946, as amended, N.J.S.A. 40:36A-1 et seq. Pursuant to said act and resolution there was created for said sewerage district, the Northwest Bergen County Sewer Authority ("Authority"), and thereafter the board of freeholders duly appointed commissioners for the Authority. The sewer district consists of the territory of 16 municipalities located within Bergen County.

Pursuant to the act the Authority caused to be prepared a project report covering its initial stage of construction, which contemplated serving six municipalities, including the Township of Wyckoff. Some time in 1963 the Authority, through its commissioners, requested permission of the governing body of the Township of Wyckoff to hold hearings in that township so as to provide an opportunity to the Authority to explain the proposed project to the residents of the township. The Wyckoff Township Committee advised the Authority commissioners that it had no objection to such hearings being held within the Township of Wyckoff. Thereafter, hearings

were held on four different occasions at four different locations so that the residents in different parts of the township could conveniently attend the hearings. The hearings were open to the public. Tape recordings were made at the hearings, and the tape recordings are in the custody of the township clerk.

On October 22, 1963 Robert Flach, the husband of one of the plaintiffs, appeared at the office of the Wyckoff Township Clerk Flaker in the township municipal building and requested permission to re-record the tapes of the hearings held by the Northwest Bergen County Sewer Authority. Although the township clerk was willing to permit Mr. Flach to listen to the tapes, he declined to permit a re-recording. The Wyckoff Township Committee, by resolution, has declared it to be the policy of the township that the tapes in question be made available to any resident desiring access to the same. The resolution further directs the township clerk to play the tapes for any resident requesting to hear the same and to prepare typed transcripts of any such hearings for any resident desiring the same and willing to pay the reasonable cost thereof. The township committee also determined as a matter of policy that the tapes should not be made available for re-recording by residents of the township.

The court must first be satisfied that these tapes are public records. For if they are not, then a fortiori plaintiff would have no right under the circumstances to hear or copy them.

The term "public record" was defined in Moore v. Bd. of Freeholders of Mercer County, 76 N.J. Super. 396 (App. Div. 1962), modified 39 N.J. 26 (1962). The court in Moore looked to N.J.S.A. 47:3-15 et seq., known as the Destruction of Public Records Law (1953), for a definition of the term. Although this statute only defines public records for the purpose of the act, it has been regarded by the courts as a good working definition of the term. Public records are

"* * * any paper, written or printed book, document or drawing, map or plan, photograph, microfilm, sound-recording or similar device * * * which has been made * * * by any officer, commission, agency or authority of the State * * * and has been retained * * * as evidence of its activities or ...


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