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Asbury Park Press Inc. v. Borough of Seaside Heights

Decided: December 17, 1990.

ASBURY PARK PRESS, INC., PLAINTIFF,
v.
BOROUGH OF SEASIDE HEIGHTS AND ANTHONY L. SCHREMMER, CHIEF OF POLICE OF THE SEASIDE HEIGHTS POLICE DEPARTMENT, DEFENDANTS



Serpentelli, A.j.s.c.

Serpentelli

In this case the court is asked to decide whether a newspaper should be entitled to access to police reports concerning an alleged beating of a citizen by law enforcement officers or whether the need for confidentiality in the conduct of police affairs outweighs the public's right to know about the incident.

Plaintiff, Asbury Park Press, Inc., is the owner and publisher of a daily newspaper. Plaintiff's complaint alleges, on information and belief, that the Seaside Heights Police Department prepared reports concerning a beating of Jean-Philippe Van De

Wiele, which occurred on September 4, 1989. It is also alleged that on or about November 20, 1989, Van De Wiele filed a notice of claim against the Borough of Seaside Heights naming several law enforcement officers as participants in the beating. Finally, plaintiff asserts that around October 1990, the Borough of Seaside Heights entered into a settlement agreement with Van De Wiele in which the borough paid him approximately $250,000.

In its effort to publish information concerning the alleged beating and the reason for the subsequent settlement, plaintiff sought to inspect any and all reports on file with the Seaside Heights Police Department regarding the incident. Plaintiff's request for the documents was denied. This action ensued.

On the return date of plaintiff's order to show cause, plaintiff argued that the documents requested are accessible under both the Right to Know Law, N.J.S.A. 47:1A-1 et seq., and the common law. Plaintiff also contended that since all criminal and disciplinary investigations into the incident have been completed, the police investigatory process would not be compromised by the release. Defendants countered that the disclosure of the reports would "chill" the ability of police departments throughout the State to conduct internal investigations of incidents involving law enforcement officers. Defendants reasoned that those who prepare the reports would know that their comments could subsequently be opened to public view.

At the conclusion of oral argument, the court determined that it should conduct an in camera examination of the reports. Having completed its review, and having considered the balancing test dictated by the Supreme Court decisions discussed below, the court concludes that the reports should be released to plaintiff.

As noted, plaintiff rests its complaint on both the Right to Know Law and the common law right to know. Plaintiff first argues that police and investigative reports come within the definition of "public records" as contained in N.J.S.A.

47:1A-1 et seq. The Right to Know Law defines "public records" as:

Except for those documents which are exempted from the Right to Know Law under N.J.S.A. 47:1A-2, every citizen of the State is entitled to inspect and copy any document included within the definition of a "public record." Clearly, the documents involved in this case are kept by a political subdivision of the State. The critical question then becomes whether the police reports are records which are "required by law to be made, maintained or kept on file."

In its brief, plaintiff relies on N.J.A.C. 13:57-1.1 et seq., to support the proposition that the reports are, in fact, public records under the statute. N.J.A.C. 13:57-1.2(a) regulates reporting responsibilities of a municipal full-time police department regarding offenses that have occurred within that municipality. At oral argument, however, plaintiff conceded that its reliance on the administrative regulation was tenuous at best and that its primary argument was based on the common law. Defendants responded that the documents sought by plaintiff are exempt from the Right to Know Law under Executive Order No. 9, issued by Governor Hughes on September 30, 1963, and Executive Order No. 123, issued by Governor Kean on November 12, 1985. Both orders direct that certain public documents are not subject to inspection, including fingerprint cards, plates, photographs and other similar criminal investigation records which are required to be made, maintained or kept by any state or local government agency [Executive Order No. 9, Paragraph 3(e); Executive Order No. 123, Paragraph 2(a)]. It is to be noted that Executive Order No. 123 modified Executive ...


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