On certification to the Superior Court, Appellate Division, whose opinion is reported at 146 N.J. Super. 46 (1977).
For reversal -- Chief Justice Hughes, Justices Sullivan, Pashman, Clifford, Schreiber and Handler and Judge Conford. For affirmance -- None. The opinion of the court was delivered by Pashman, J.
This appeal requires the Court to determine whether information concerning the character and background of a prospective gubernatorial appointee gathered in a "four-way" investigative check made at the behest of the Governor of the State of New Jersey is a public record under the so-called Right to Know Law, N.J.S.A. 47:1A-1 et seq., L. 1963, c. 73, or under the common law. If such an investigative report is a public record for either of these purposes, we must next determine whether access to the contents of that report should nevertheless be denied to a prospective appointee who claims that his reputation was damaged by a public comment of the Governor which allegedly implied that his particular "four-way" background check had yielded unfavorable information.
Although the record is far from complete, the essential facts are undisputed. Governor Byrne had considered appointing John Nero to a position on the New Jersey Lottery Commission. This was rumored in the public press. Nero was a prominent supporter of the Governor in his 1973 campaign and was a well-known public figure in his own right
in Camden County. He is the proprietor of a well-known restaurant, is a former Chairman of the Camden County Municipal Utilities Authority and has served on legislative study commissions.
When the appointment did not come to pass, Governor Byrne was asked at a news conference why he had not appointed Nero to the Lottery Commission. Although the exact words of his response are not known, both parties agree that the thrust of the Governor's answer was that Nero had not been appointed because the then Attorney General, defendant, William Hyland, was concerned over certain information affecting Nero which the standard background check had turned up.*fn1 Reports of the Governor's response were disseminated by the media throughout the State.
Nero demanded disclosure of the report resulting from the character investigation, presumably in order to defend his reputation. By letter dated April 10, 1975, his attorney was advised that the Attorney General considered the character investigation to be confidential and would not release the report to Nero. This litigation followed.
Nero brought an action in lieu of prerogative writ seeking a judgment granting him access to the files of the character investigation. Cross motions for summary judgment were made. The trial court in a reported opinion, 136 N.J. Super. 537 (Law Div. 1975), found that unless the document in question was a public record, Nero had neither a statutory nor common law right of access to the report. The judge first determined that the definition of a public record contained in the Right to Know Law, N.J.S.A. 47:1A-2, which includes
* * * 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 * * *
would not, standing alone, encompass the character investigation report sought. The bases for this conclusion were the fact that the initiation of these investigations is a matter totally within the discretion of the Governor and the Attorney General and the fact that the records so gathered are not required to be kept by any statute or regulation.
However, the judge found merit in the approach taken in Citizens for Better Ed. v. Camden Bd. of Ed., 124 N.J. Super. 523 (App. Div. 1973), which read the above-quoted definition from the Right to Know Law in pari materia with the definition of a public record contained in the Destruction of Public Records Law, N.J.S.A. 47:3-15 et seq., L. 1953, c. 410:
The judge held that an investigatory document of the type received by Attorney General Hyland, retained for the information therein contained, thus constituted a public record for purposes of the Right to Know Law's access requirements.
Nevertheless, the trial court concluded that the public access mandated by that law was subject to exceptions, N.J.S.A. 47:1A-1, and that one of the specified exceptions related to executive orders of the Governor. N.J.S.A. 47:1A-2. The judge then referred to Executive Order No. 48, issued by former Governor, now Chief Justice, Hughes, which expressly dealt with investigatory files of the New Jersey State Police. The order provides, in pertinent part, that
1. No person having custody of State Police investigative files shall turn over the same to any other person who is not a member of a duly recognized law enforcement agency unless ordered to do so by a court of competent ...