On appeal from the Superior Court, Appellate Division.
For affirmance in part, reversal in part and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by O'Hern, J.
This case concerns the standard that shall govern the disclosure, for use in civil proceedings, of confidential investigative records relating to a licensing board's inquiry into a professional's acts. We hold that the standard is a showing of particularized need that outweighs the public interest in confidentiality of the investigative proceedings, taking into account (1) the extent to which the information may be available from other sources, (2) the degree of harm that the litigant will suffer from its unavailability, and (3) the possible prejudice to the agency's investigation. We find that, with one exception, the record before us requires a remand to evaluate the character of the materials sought in order to apply the standard we adopt.
The issue arises from a claim of medical malpractice alleged to have occurred while Elnora Lampley Faniel was a patient of the defendant College Hospital and New Jersey College of Medicine and Dentistry (U.M.D.N.J.) from February 22, 1980 through March 27, 1980. On March 10, 1980, Elnora Lampley Faniel underwent a "routine" dilation & curetage (D & C) procedure in the Obstetrics and Gynecology (OB-GYN) Unit of the defendant hospital. However, complications developed.
Based on a review of the defendant hospital's records, it appears that while Elnora Lampley Faniel was in the recovery room, the endotracheal tube placed in her throat as part of the D & C operation came out. As a result, she was unable to maintain her airway, and shortly thereafter, underwent respiratory and cardiac arrest. Attempts to restore her cardiac and
respiratory systems were successful only in returning her to a comatose state in which she apparently remained until her death in the defendant hospital on March 27, 1980. Velma McClain brings this action for wrongful death as the personal representative of the deceased.
The death of Elnora Lampley Faniel coincided with several other deaths that occurred in the OB-GYN unit of the defendant hospital. Following these deaths, investigations were initiated by the State Board of Medical Examiners (Board) with respect to the facts and circumstances and possible causes for these deaths, including that of plaintiff's decedent.
The Board states that its investigation went beyond a simple review of plaintiff's decedent's hospital records and charts. According to the Board, "numerous staff and supervisory physicians were called to testify concerning their involvement in the actual care rendered to patients and the supervision of the delivery of such care." The investigation was conducted by an executive committee of the Board. It forwarded a report dealing with the deaths to the Board for its review. The report contained the executive committee's evaluation and recommendations. Also included is the report of the executive committee's consulting obstetrician-gynecologist. Plaintiff contends that the records of the investigation contain information and evidence that is relevant to the civil litigation and otherwise unavailable to the plaintiff from other sources.*fn1
Following service of the plaintiff's subpoena, a motion to quash was filed on behalf of the State Board. The trial court called for an in camera inspection of the documents sought by plaintiff pursuant to Beck v. Bluestein, 194 N.J. Super. 247 (App.Div.1984). Following its in camera inspection, the trial court ruled that the documents produced by the State Board should be released to plaintiff.
On appeal, the Appellate Division affirmed the trial court in an unreported opinion. We granted the Board's motion for leave to appeal. 97 N.J. 650 (1984). Preliminarily, we note that our consideration is hampered by the state of the record. Neither all the materials sought nor a precise description of them is before us. Under these circumstances, we elect to review the objections generally, set forth the appropriate standards, and remand the matter to the trial court for further proceedings.
We start with the familiar proposition that, unless otherwise limited by an order of court, "[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action." R. 4:10-2(a). Strictly speaking, there is no evidentiary privilege that applies to these records. See Evid.R. 23 to 40 inclusive. The Board argues, however, that the privilege to withhold official information, Evid.R. 34, outweighs the interest of a private litigant to gain access to the records. The controversy over executive privilege is as old as the Republic, and requires courts to balance the claims of the member of the public against the claims of government to confidentiality. See United States v. Nixon, 418 U.S. 683, 708, 94 S. Ct. 3090, 3107, 41 L. Ed. 2d 1039, 1064 (1974); United States v. Burr, 25 Fed.Cas. 187, 192 (No. 14,694) (C.C.Va.1807).
In our analysis of the substantive principles to be applied to make such policy determinations and to balance such
interests, we have not sharply distinguished between the sources of the right to review or the right to have access to public records. In Irval Realty v. Board of Pub. Util. Comm'rs, 61 N.J. 366 (1972), the Court stated:
A person seeking access to public records may today consider at least three avenues of approach. He may assert his common law right as a citizen to inspect public records; he may resort to the Right to Know Law, N.J.S.A. 47:1A-1 et seq., or, if he is a litigant, he may avail himself of the broad discovery procedures for which our rules of civil practice make ample provision. [ Id. at 372.]
At common law, however, a citizen was required to demonstrate some "personal" or "particular" interest in the material sought to be examined. Id. In order to overcome this requirement and make official governmental records available to the general public for inspection and copying, the Legislature adopted a state Right to Know Law, N.J.S.A. 47:1A-1 to -4. However, we have interpreted that law as not embracing a definition of public records equivalent to a common-law definition of public records. Nero v. Hyland, 76 N.J. 213, 221 (1978).*fn2 Our common-law definition of a public record is broader than that contained in the Right to Know Law. A public record under common law is
one required by law to be kept, or necessary to be kept in the discharge of a duty imposed by law, or directed by law to serve as a memorial and evidence of something written, said, or done, or a written memorial made by a public officer authorized to perform that function, or a writing filed in a public office. The elements essential to constitute a public record are * * * that it be a written memorial, that it be made by a public officer, and that the officer be authorized by law to make it. [ Id. at 222 (citing Josefowicz v. Porter, 32 N.J. Super. 585, 591 (App.Div.1954), quoting 76 C.J.S. Records § 1, p. 112, cited in Irval Realty, supra, 61 N.J. at 375).]
However, the existence of a cognizable common-law interest in obtaining the materials that are part of the record does not grant an absolute ...