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Loigman v. Kimmelman

Decided: February 25, 1986.


On certification to the Superior Court, Appellate Division.

For affirmance -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. For reversal -- None. The opinion of the Court was delivered by O'Hern, J.


In this case we are called upon to balance the citizen's right of access to official information with the government's need for confidentiality in the conduct of law-enforcement investigations. Here, the citizen seeks access to what is described as an Attorney General's audit of the confidential account of the Monmouth County Prosecutor. Such accounts are designed to enable a prosecutor to conduct undercover operations, reward informers, and perform other sensitive law-enforcement functions.

The plaintiff is a practicing attorney of Monmouth County. He had sought information from the Monmouth County Board of Freeholders with respect to disbursements made under the county prosecutor's confidential account and his petty-cash and confiscated-monies accounts. He learned that the Attorney General had conducted a review of the matters. He requested a copy of what is referred to as an audit of the account. The Attorney General declined to turn over the material on the ground that it was a confidential internal investigation, privileged from disclosure. The plaintiff brought suit in the Superior Court under the State's Right to Know Law, N.J.S.A. 47:1A-1 to -4, asserting that the document was a public record "required by law to be made, maintained or kept on file." N.J.S.A. 47:1A-2. Under the Right to Know Law, any citizen, without any showing of personal or particular interest, has an unqualified right to inspect such documents if they are, in fact, such public records. Irval Realty Inc. v. Board of Pub. Util. Comm'rs, 61 N.J. 366, 372-73 (1972).

The Attorney General moved to dismiss the plaintiff's complaint on the ground that the record of the confidential investigation of the accounts of the Monmouth County Prosecutor's

office was not one required by law to be maintained or kept on file, and was not, therefore, a "public record" under the statute. At oral argument on the return day of the State's motion, the plaintiff for the first time, and without any papers in support of the argument, asserted a common-law right of access to the materials. The trial court granted the State's motion for judgment on both grounds.

On appeal, the Appellate Division, in an unreported opinion, affirmed the trial court's ruling that the document or documents were not public records required by law to be made, maintained, or kept on file under the Right to Know Law. It reversed the judgment of the trial court, however, with respect to plaintiff's common-law interest in obtaining access to the materials. In view of the fact that plaintiff alleged a common-law right of inspection that was not clearly asserted in the trial court, the Appellate Division concluded that the claim should be first decided by the trial judge. It remanded the matter to that court to determine

whether plaintiff is an appropriately interested party, whether the documents are public records at common law, and, if so, to call for their production to the court for a review in camera to ascertain whether all or some portion of the audits should remain confidential as urged by the attorney general or whether all or some part should be made available to plaintiff for his inspection.*fn1

The question of whether these records are public records at common law has been amply covered in prior decisions. See Nero v. Hyland, 76 N.J. 213, 221-22 (1978) (written memorials "made by public officers in the exercise of public functions" are common-law public records even though they may not be public records under Right to Know Law); Irval Realty, supra, 61 N.J. at 375 (records prepared by State agency are public records at common law even if they are not required by law and

thus not public records within Right to Know statute). The subject needs no further discussion.

We granted the Attorney General's petition to review whether the Appellate Division opinion calls for an automatic in camera review at the request of any claimant alleging citizen status, no matter how confidential the material. 101 N.J. 253 (1985). We think not, especially in view of the fact that, on a motion for rehearing, the Appellate Division clarified its decision, observing that the trial court "did not decide whether the documents were public records at common law and whether plaintiff has standing. Therefore, unless the trial judge answers these questions affirmatively there will be no in camera inspection." In view of the concerns expressed, we granted leave as well to the County Prosecutors' Association to be heard as amicus curiae.


In McClain v. College Hosp., 99 N.J. 346 (1985), we recently reviewed the citizen's common-law right to gain access to public records. There, we dealt with a patient's right of access to confidential investigative records relating to a licensing board's inquiry into a professional's acts. We described the balancing process that courts must make as being "concretely focused upon the relative interests of the parties in relation to these specific materials." Id. at 361. We also described the process as flexible and adaptable to different circumstances and "sensitive to the fact that the requirements of confidentiality are greater in some situations than in others." Id. at 362. We summarized it thus:

As the considerations justifying confidentiality become less relevant, a party asserting a need for the materials will have a lesser burden in showing justification. If the reasons for maintaining confidentiality do not apply at all in a given situation, or apply only to an insignificant degree, the party seeking disclosure should not be required to demonstrate a compelling need. [99 N.J. at 362.]

We believe that similar principles apply in this context. Nero v. Hyland, supra, 76 N.J. 213, does not, as asserted by the

Attorney General, sustain an absolute privilege of secrecy for all such investigatory materials. Rather, we held there that a State Police character investigation of an applicant for a public position is so sensitive that disclosing the materials to the very individual whose qualifications were being canvassed would chill the investigative process. Id. at 224. The opinion made clear, however, that there was no fixed rule for determining whether disclosure is appropriate. A court should balance, in each case, the individual's right to the information against the public interest in the confidentiality of the file. Id. at 223-24 (quoting Roviaro v. United States, 3 ...

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