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Red Bank Register Inc. v. Board of Education of Long Branch

Decided: November 20, 1985.


On appeal from the Superior Court, Law Division, Monmouth County.

Morton I. Greenberg, J. H. Coleman and Havey. The opinion of the Court was delivered by Morton I. Greenberg, P.J.A.D.


[206 NJSuper Page 3] This matter comes on before the court on appeal from an order dismissing this action in which plaintiff claims a right to examine certain documents in the possession of defendant.*fn1

Inasmuch as employees of plaintiff, a corporation publishing a newspaper, The Register, desired to view the documents in connection with preparation of an article or articles relating to a then impending school district election, the matter was dealt with in the trial court on an expedited basis.

The action was started on March 25, 1985 by plaintiff filing a complaint in lieu of prerogative writs against defendant Long Branch Board of Education. Plaintiff sought an order allowing it access to so-called Curriculum Mapping Reports prepared for and held by defendant. Plaintiff conceived it was entitled to relief under the New Jersey Right to Know Law, N.J.S.A. 47:1A-1, the common law, U.S. Const., Amend. I and N.J. Const. (1947), Art. I, par. 6. Plaintiff sought immediate discovery, summary disposition of the matter under R. 4:67 and an expedited plenary hearing. With the complaint plaintiff filed a certification of Alan Sipress, one of its reporters, and an affidavit of Frederick L. Whitmer, its attorney. On March 26, 1985 defendant submitted a brief in opposition to plaintiff's case and on that day the trial judge heard oral argument. On March 27, 1985 defendant filed an answering affidavit of Herbert Korey, its superintendent of schools. On the same day the judge, on the basis of the record before him which included the certification and affidavits as well as the curriculum reports and without a plenary hearing, found that plaintiff had no statutory or common law right to see the documents and thus he dismissed the action. In addition, the judge denied plaintiff's request for an evidentiary hearing. The trial judge entered an order on March 27, 1985 reflecting this decision. Plaintiff immediately appealed and unsuccessfully sought a summary reversal. Thus the matter has come on before us for plenary disposition.

The following facts were set forth in the affidavits. Around March 1, 1985 Sipress, who was reporting on the impending

school district election, learned of the existence of six reports prepared by defendant and contacted Korey in an effort to obtain copies of them. Korey originally agreed to show them to Sipress. However, when Sipress went to Korey's office to see the reports, Korey, acting at the direction of defendant which in turn relied on advice of counsel, would not give him three reports entitled "Curriculum Mapping Project/Teacher Allocated Time" as they had been not formally accepted by it and contained outdated data from 1980-1981 as well as personnel evaluations. Sipress' affidavit suggested he had information that the reports dealt with mismanagement of school funds, proposed curriculum improvements and did not contain personnel evaluations but rather referred to individuals in general terms. Whitmer's affidavit was essentially a legal argument supporting plaintiff's right to relief.

In his affidavit Korey explained the background leading to preparation of the curriculum reports and described their contents. The work on the reports originated with Dr. Fenwick English, an educational specialist with the accounting firm of Peat, Marwick & Mitchell. English had written extensively about teacher time on task in the classroom and the linkage of that time with what was expected to be taught and with testing instruments a school board used to identify student progress. This concept is referred to as "curriculum mapping." Defendant had engaged Peat, Marwick & Mitchell to make a report on curriculum mapping. Teachers employed by defendant were to cooperate in the study by showing how much time they spent on particular areas of instruction. English, however, left Peat, Marwick & Mitchell before the project was completed and this led to the involvement in the reports of Dr. Donald Weinstein. Weinstein had been employed by defendant as an administrator, but on April 21, 1982 resigned effective June 30, 1983. Defendant and Weinstein subsequently agreed that he would serve as a consultant to defendant from July 1, 1983 to December 31, 1983 and in this capacity would report to the assistant superintendent for curriculum and instruction and work on the study

of curriculum mapping. Korey asserted that Weinstein helped to computerize the data gathered and summarize the results. However, escalating computer costs halted the computerization of the data, and in Korey's view Weinstein's summary was based on "incomplete and imprecise data." Thus defendant did not accept the reports but instead acknowledged them as internal working documents.

The trial judge rendered an oral opinion concluding that the curriculum reports were not public records pursuant to either the Right to Know Law or the common law as they were not required or authorized by law to be made. The judge did find that the curriculum reports had been made by a public official and were written memorials, requirements for a document to be a common law public record. The judge further held that neither discovery nor a plenary hearing was needed. Accordingly, the complaint was dismissed with prejudice and the court entered the final order of March 27, 1985 reflecting its decision. Plaintiff now appeals, claiming it was entitled to discovery and a plenary hearing and further asserting that in any event the curriculum reports are public records under the Right to Know Law and at common law.

We deal first with and reject plaintiff's claim it was entitled to a plenary hearing. The trial judge examined the reports in camera and consequently knew their contents, so no hearing was required to familiarize him with the reports. Further, the parties raise no issue as to how the reports were created. In the circumstances the matter was properly disposed of on ...

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