On interlocutory appeal from an order of the Superior Court, Law Division, Ocean County.
Matthews, Antell and Francis.
This is an appeal from an order entered in the Law Division denying the Bergen Record 's motion to have written transcripts of tape recordings played during pretrial hearings made available to the press. Appellant, the Bergen Evening Record Corporation, is the publisher of The Record, a newspaper circulated primarily in Bergen County.
The hearing at which the tapes in question were played was held in order to excise portions of the tapes and to determine the competency of the tapes. A request to hold that hearing in camera was denied by the trial judge. Although the hearings were open to the press and public and the comments of the judge and counsel were recorded, no transcripts were being made of the tapes as they were played by the court reporter. Apparently members of the press found it difficult to hear and
report on what was being said on the tapes. The judge and counsel had the use of transcripts of the tapes at the hearing.
The Record filed a formal motion to have transcripts of the tapes made available to them. The trial judge denied the motion, reasoning that it was premature because the tapes were not judicial records available to the public since they had not yet been admitted into evidence. The judge's order reserved the right to reconsider The Record 's motion at any time.
Appellant filed a motion for ad interim relief with this court and also a motion for leave to appeal. The request for leave to appeal was granted but a stay of the order was denied.
Although The Record later received those of the transcripts that were admitted into evidence, and it is no longer possible for appellant's request that it receive the transcripts for use at the hearing to be effectuated, we do not regard this appeal as moot. This is an issue of public importance and will recur unless the issue is determined. State v. Allen, 73 N.J. 132, 138 (1977).
The Record and the American Civil Liberties Union, as amicus curiae, contend that the refusal of the trial judge to allow the press to have copies of the transcripts which were being used by the court and counsel during pretrial hearings was error. Although the press apparently received copies of the transcripts which were used as evidence when they were actually introduced at trial, they did not have them at the time of the hearings and never received transcripts of any excluded recordings. As we have noted, the trial judge denied the motion because he believed that the transcripts were not part of the judicial record, since they were not yet actually entered as evidence.
In light of both New Jersey common law and recent federal and Supreme Court decisions under the First Amendment, we conclude that the refusal to provide the transcripts was error. It is the public policy of New Jersey to hold hearings
in open court. State v. Hannah, 171 N.J. Super. 325, 330 (App.Div.1979). Open trials are also ...