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Nero v. Hyland

Decided: October 21, 1975.

JOHN NERO, PLAINTIFF,
v.
WILLIAM F. HYLAND, ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, DEFENDANT



Rizzi, A.j.s.c.

Rizzi

This is an action in lieu of prerogative writs in which plaintiff seeks a judgment granting him access to a character investigation of himself, prepared by the New Jersey Division of State Police at the request of both Governor Brendan T. Byrne and defendant William F. Hyland, Attorney General of New Jersey. The investigation was conducted under the direction of the Attorney General for the purpose of providing the Governor with information that would assist him in deciding whether to appoint plaintiff to a position in State Government. The case now comes before the court on cross-motions for summary judgment.

The principal question presented is whether plaintiff has either a statutory or common law right to require defendant to disclose the contents of the character investigation.

Before reaching the critical issue herein presented, the court must first be satisfied that the document sought is a public record. If it is not, plaintiff would have neither a statutory nor common law right of access to the report in question. DeLia v. Kiernan , 119 N.J. Super. 581 (App. Div. 1972).

N.J.S.A. 47:1A-2, commonly known as the "Right to Know Law," defines public records as

Compilation of the character investigation which plaintiff seeks in the instant case is totally within the discretion of the Governor and Attorney General and is not required to be

prepared or kept by any statute, rule or regulation, and therefore the plaintiff's claim to the document would be denied if the Right to Know Law was the exclusive source of the definition of a "public record."

Plaintiff, however, urges that N.J.S.A. 47:3-16, the Destruction of Public Records Law, is to be read in pari materia with N.J.S.A. 47:1A-2 in ascertaining the meaning of "public record." In line with the approach of the Appellate Division in Citizens for Better Ed. v. Camden Bd. of Ed. , 124 N.J. Super. 523 (App. Div. 1973), this court agrees with the plaintiff's contention. In N.J.S.A. 47:3-16 "public record" is defined, in pertinent part, as

Considering these statutes in pari materia, Citizens for Better Ed., supra at 529, this court concludes that the document in question qualifies as a public record. The character investigation was received by the defendant, a state officer, who has retained the documents for the information contained therein.

Having so determined, does the legal classification of the document as a public record automatically confer to the plaintiff the right of access, either under the statutory or common law, to the character investigation?

In resolving this question, the court starts with the statute, N.J.S.A. 47:1A-1. It states in relevant part that

This statute makes available to the general public official records of government, with the right ...


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