Gallner, P.J.J.D.R.C. (temporarily assigned).
Plaintiff served a subpoena duces tecum upon the Board of Public Utility Commissioners (hereinafter Board) in which she requested access to certain records in the Board's possession. The documents sought to be inspected pertain to an investigation by the Board of a grade crossing of the Pennsylvania-Reading Seashore Line located in Vineland, New Jersey, as a result of a fatality which occurred on or about August 8, 1967. Thereafter, the Attorney General, on behalf of the Public Utility Commission, moved to quash the subpoena.
Plaintiff has followed the improper statutory procedure to invoke the court's aid in inspecting the documents sought here. Having been denied the right of inspection, her remedy should have been by way of a proceeding in lieu of prerogative writs for an order requiring the custodian of the records to produce. N.J.S.A. 47:1A-4. However, since the subpoena does not seek the production of the records in court nor any Board official to testify, it will be treated as though this action were brought on by a proceeding under N.J.S.A. 47:1A-4 and will be decided on the merits. The briefs and arguments raise a substantial question of law and the following of the prescribed procedure would not change the posture of the case at this point, nor would it alter the substantial questions involved. The action will be treated as if properly brought.
The chief question to be decided is whether the various investigations by the Board sought to be "discovered" are immune from such scrutiny. This query of necessity brings the court face to face with N.J.S.A. 47:1A-1 et seq. , and Board regulation 14:406-4 (4). N.J.S.A. 47:1A-1 provides:
The Legislature finds and declares 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.
This policy is modified by the exceptions contained in N.J.S.A. 47:1A-2. The Board claims that its regulation was passed by virtue of the authority vested in it by N.J.S.A. 47:1A-2. Plaintiff seeks to escape the thrust of this regulation in seeking discovery of the reports requested in the subpoena duces tecum.
The common law right of an interested citizen to inspect public records, Ferry v. Williams , 41 N.J.L. 332 (Sup. Ct. 1889), has been incorporated into the "Right to Know Law," N.J.S.A. 47:1A-1, quoted above.
In implementing this policy so declared, the Legislature provided in N.J.S.A. 47:1A-2 that records are discoverable, "Except as otherwise provided in this act or by any other statute, * * * 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 on executive order of the Governor * * *.
Pursuant to the authority vested in him by N.J.S.A. 47:1A-2, the Governor, in three executive orders, Nos. 7, 8, 9, empowered the chief executive officer of each executive department of the State Government to adopt regulations specifying which records would be subject to public inspection. Acting under this delegated power, the Board promulgated regulation 14:406-4, subparagraph 4, which reads:
All records which are required to be made, maintained or kept by and for the Board which relate to accidents and investigation of accidents concerning public utilities and to safety inspections * * * shall not be deemed public records, copies of which may be purchased or reproduced under the provision of Chapter 73, P.L. 1963.
We must assume, without more concrete authority to the contrary, that the executive orders referred to were issued to carry out the general purpose of the "Right to Know Law" on the one hand and to protect and immunize certain critical governmental functions from public prying and scrutiny on the other. See N.J.S.A. 47:1A-3. The United States Supreme Court, in Jencks v. United States ,
353 U.S. 657, 77 S. Ct. 1007, 1014, 1 L. Ed. 2 d 1103 (1957), expressed that concept in this language;
It is unquestionably true that the protection of vital national interests may militate against public disclosure of documents in the Government's possession. This has been recognized in decisions of this Court in civil causes where the Court has considered the statutory authority conferred upon the departments of government to adopt regulations "not inconsistent with law, for * * * use * * * of the records, papers * * * appertaining" to his department.
In addition, the executive orders must be read in pari materia with the statute under which the Board is given rule-making power. It is noteworthy that our Legislature, long before the "Right to Know Law," contemplated the enactment of rules by a governmental agency necessary only for the protection of the public and not arbitrary or generally prohibitive, for in N.J.S.A. 48:2-12, it provided that "the Board may make all needful rules for its government and other proceedings." (Emphasis supplied). This court reads "needful" as meaning necessary to accomplish a public protective purpose only.
First, it must be borne in mind that the Governor's executive orders and any protective regulation promulgated thereunder must bear a relationship to public policy, the need to protect the record and the balance between such need and the interests of justice and litigants. Our courts have not been reluctant to strike down regulations deemed to be inimical to the provisions of N.J.S.A. 47:1A-1.
In Accident Index Bureau v. Hughes , 46 N.J. 160 (1965), the Supreme Court held a regulation of the Workmens Compensation Division denying inspection of records as being arbitrary and discriminatory. The regulation there involved had a built-in motive to prevent a profit-making organization from prying into ...