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Irval Realty Inc. v. Board of Public Utility Commissioners

Decided: June 28, 1971.

IRVAL REALTY, INC., ET AL., PLAINTIFFS-RESPONDENTS,
v.
BOARD OF PUBLIC UTILITY COMMISSIONERS, DEFENDANT-APPELLANT



Sullivan, Collester and Labrecque. The opinion of the court was delivered by Collester, J.A.D.

Collester

[115 NJSuper Page 339] This is an appeal by defendant Board of Public Utility Commissioners (Board) from a summary judgment entered in the Superior Court in favor of plaintiffs, ordering defendant to produce and permit inspection and copying of accident reports made by the Board and those filed with the Board by the South Jersey Gas Company

relating to explosions that occurred on plaintiffs' properties which were serviced by the public utility.

The facts are not in dispute. On May 5, 1969 an explosion occurred on premises in Turnersville owned by Irval Realty, Inc., resulting in extensive damage to the Watson Turkey Farm, which was located on the property and operated by Eastern Turkey, Inc. On July 30, 1969 an unrelated explosion occurred in Newfield. This explosion completely destroyed a house and seriously injured Eleanor Papalardo, who died several days later. Investigations were made by the Board and the gas company, and reports thereof were filed with the Board pursuant to N.J.S.A. 48:2-36.1 and the Board's administrative order No. 14:260.

Plaintiffs instituted actions against the South Jersey Gas Company for property damages caused by the explosions and for the wrongful death of Eleanor Papalardo. In preparing their cases for trial plaintiffs learned that following the Irval Realty explosion the gas company had removed some piping, and that while the firemen were still fighting the fire which followed the Papalardo explosion the company removed a gas meter, regulator and piping. One piece of such piping was allegedly misplaced. They also learned that reports based on testings conducted by the gas company had been submitted to the Board.

Plaintiffs requested permission of the Board to inspect and copy the reports filed by the company and reports made by the Board's investigators. Defendant notified plaintiffs that such reports were privileged information under its administrative order No. 14:260 and refused the request. Plaintiffs thereupon brought an action in lieu of prerogative writs pursuant to N.J.S.A. 47:1A-4 for an order to inspect and copy the records. Defendant filed an answer alleging that the information did not come within the classification of public records which were discoverable under N.J.S.A. 47:1A-1 et seq. and was privileged under its regulation No. 14:406-4(4). Plaintiffs' motion for summary judgment was granted and defendant appealed.

N.J.S.A. 48:2-36.1 authorizes the Board to require a public utility to submit accident reports. Pursuant to that statute the Board promulgated administrative order No. 14:260 requiring a public utility to submit reports of "reportable accidents," which include accidents that result in the death of a person or damage to the property of others amounting to more than $1,000. Defendant does not deny that the accidents involved in this case are "reportable accidents" under its administrative order or that reports have been filed by both the gas company and the Board's investigators.

In the "Right to Know Law," L. 1963, c. 73 (N.J.S.A. 47:1A-1 et seq.), 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." N.J.S.A. 47:1A-2 provides in pertinent part:

Except as otherwise provided in this act or by any * * * executive order of the Governor * * * 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 by any public board, body, commission, or authority created pursuant to law by the State * * * shall, for the purposes of this act, be deemed to be public records.

Pursuant to this authority, the Governor in 1963 issued executive order No. 9 which authorized and empowered the head or principal executive of each principal department of the State Government to adopt regulations setting forth which records under his jurisdiction shall not be deemed to be public records subject to inspection and available for copying. Acting under this authority the Board promulgated regulation No. 14:406-4 "(Public Records)", subsection 4 of which provides:

All records which are required to be made, maintained or kept by and for the Board which relate to ...


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