On appeal from the Superior Court, Appellate Division, whose opinion is reported at 198 N.J. Super. 449 (1985).
For modification 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 Pollock, J.
[104 NJ Page 92] This appeal presents the question whether the informer's privilege precludes the disclosure of the identity of a complainant
to a professional disciplinary board. In this case, someone informed the New Jersey Board of Dentistry (Board) that plaintiffs, Dr. Joseph B. Grodjesk and Dr. Herbert B. Dolinsky, had violated Board regulations. The Board dismissed the complaint, and plaintiffs, believing defendant, Theresa Faghani, to be the complainant, filed a malicious-prosecution action against her. Faghani denies that she was the informer. Through notices to take depositions and subpoenas duces tecum served upon the Board and its investigator, plaintiffs seek disclosure of the contents of the complaint and of the identity of the informer.
The Law Division entered an order quashing the subpoenas and notices of deposition. In a reported decision, the Appellate Division declined to recognize the application of the informer's privilege to the confidential complaint filed with the Board. 198 N.J. Super. 449, 457-58 (1985). Accordingly, the court reversed and remanded the matter to the Law Division. We granted the Board's motion for leave to appeal, 101 N.J. 259 (1985). Although we conclude that the informer's privilege applies to confidential information supplied to the Board, we recognize that plaintiffs cannot maintain their action without confirmation that Faghani is the informer. Consequently, we find that plaintiffs' need to confirm that fact outweighs the interest of the Board in not disclosing the identity of the informer and the contents of the complaint. Nonetheless, plaintiffs have not yet established a colorable claim for malicious prosecution. In particular, plaintiffs have not made any showing that the complaint to the Board caused them a special grievance. As a result, we modify the judgment of the Appellate Division and remand the matter to the Law Division for further proceedings.
On March 17, 1982, the Board received a telephone call accusing Dr. Grodjesk and Dr. Dolinsky of violating Board
regulations by employing unlicensed and unqualified dental assistants to take x-rays, administer general anesthesia, and render dental treatment. The Board conducted an investigation and after reviewing the investigatory report in a closed session on September 4, 1983, found no cause for action.
Dr. Grodjesk and Dr. Dolinsky suspected that a former employee, Faghani, had made the complaint to the Board, and they instituted this action for malicious prosecution against her. They alleged that Faghani falsely and maliciously made the complaint and that the investigation had damaged their reputations, causing them emotional distress and the loss of business. In support of their allegation that defendant is the informer, they attached affidavits from two dental assistants employed by them. Both affidavits asserted that Faghani said she intended to "get even" with plaintiffs, and one affidavit related that Faghani stated she had done so by making a complaint to the Board.
Faghani denied the assertions in the affidavits and stated at her deposition that she never filed a complaint against plaintiffs with the Board. Although a Board representative spoke with her during the course of its investigation, Faghani maintains that she did not charge plaintiffs with any unprofessional or unethical conduct.
Faced with defendant's denial, plaintiffs served subpoenas duces tecum and deposition notices on the Board's executive secretary and on the investigator who conducted the investigation. The subpoenas requested the production of all documents in possession of the Board "sent to or received from defendant Theresa M. Faghani, or any other person, relating to plaintiffs" and any "other document or thing of whatever nature relating to any allegation in the Complaint." Because the designated documents included the identity of a confidential informer, the Attorney General moved to quash the subpoenas and deposition notices.
The trial court reviewed the Board's records in camera and concluded that the public interest in maintaining the confidentiality of the documents outweighed any benefit to plaintiffs in their malicious-prosecution action. Consequently, the court entered an order quashing the subpoenas and deposition notices.
In reversing, the Appellate Division agreed with the Law Division's "methodology of balancing the private need for discovery with the public need for confidentiality," but concluded "that the trial judge did not correctly apply that test." 198 N.J. Super. at 454. The Appellate Division acknowledged that the need for effective law enforcement justified protecting the identity of a criminal informer. Id. at 457. Focusing on this need, the court identified two policy considerations that form the basis of the privilege: the need to protect the informer from physical harm and the utility of an informer as an ongoing source of information about criminal activity. Id. The Appellate Division concluded, however, that neither of those policy considerations applied to protect complainants to professional regulatory agencies. Id. at ...