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South Jersey Publishing Co. v. New Jersey Expressway Authority

Decided: June 27, 1991.


On certification to the Superior Court, Appellate Division.

The opinion of the Court was delivered by Stein, J. Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, and Garibaldi join in this opinion.


The issue before us is whether the public's right to know, as embodied in our common law, in the Right to Know Law, N.J.S.A. 47:1A-1 to -4, and in the Open Public Meetings Act, N.J.S.A. 10:4-6 to -21, requires the disclosure of the minutes and related documents of a governmental meeting properly held in executive session once the matter under discussion has been resolved fully.

South Jersey Publishing Company (the Press) sought disclosure of the minutes and a related Memorandum of Understanding (Memorandum) reached at an executive-session meeting of the New Jersey Expressway Authority (Authority) concerning

the termination of employment of Donald B. Vass, the Authority's then-Executive Director. The Authority rejected the Press's disclosure request, asserting that public revelation at any time of the minutes of the executive session and the Memorandum would circumvent its purpose for meeting in executive session. The trial court agreed and the Appellate Division affirmed, specifically holding that permanent nondisclosure was permissible under the Open Public Meetings Act, N.J.S.A. 10:4-6 to -21.

We granted the Press's petition for certification, 122 N.J. 414 (1990), and now reverse.


The facts of the case are undisputed. Donald B. Vass was Executive Director of the Authority from 1985 until March 16, 1989. During Vass's tenure, the Press published a series of articles reporting on Vass's allegedly improper conduct in his position as Executive Director. Prompted by the Press reports, the Authority conducted an investigation of the use of Authority credit cards by several of its employees, including Vass.

In January 1989, the Authority notified the affected employees about the investigation, informing them that a special meeting regarding the investigation would be held on January 27, 1989, and that the meeting would take place in executive session because it pertained to a personnel matter. See N.J.S.A. 10:4-12(b)(8). It further informed them of their right to request that the discussion take place in public. See ibid.

On January 26, 1989, Vass's attorney requested in writing that the discussion "be handled as any normal personnel matter would be in Executive Session." By consent of Vass and the Authority, the January 27th meeting was postponed and the matter scheduled for discussion at the regular Authority meeting on February 16, 1989. The Authority adopted a resolution in open session on that date authorizing the Commissioners to meet in executive session to discuss personnel matters involving

Vass. Significantly, the resolution authorized disclosure of the executive-session minutes

upon final resolution of the issues discussed, unless in the opinion of the Commissioners, disclosure of any discussion which takes place in said closed meeting would circumvent the very purpose of discussing the matter in closed session, in which event the minutes of such subject matter shall not be disclosed to the public.

In early March, the parties negotiated the Memorandum, which set forth the terms and conditions of Vass's resignation. At the next regular meeting of the Authority on March 16, 1989, the Commissioners adopted a resolution in open session authorizing a second executive-session meeting concerning Vass's personnel matter, containing a disclosure provision identical to that set forth in the February 16th resolution. The Authority reviewed the Memorandum in executive session and subsequently adopted a resolution in open session authorizing the Authority to agree to its terms. The resolution described the following economic terms of the parties' agreement: (1) full salary to Vass through December 31, 1989; (2) pension, health- and life-insurance, and other relevant group-benefit coverage through December 31, 1989; and (3) compensation for all unused vacation and sick time accrued through March 16, 1989. By agreement between Vass and the Authority, the Memorandum was to remain a confidential part of Vass's personnel file. The resolution further provided that the minutes of the closed meetings at which the Authority discussed personnel matters involving Donald B. Vass shall not be made available to the public since disclosure of any such discussion would circumvent the very purpose of the Open Public Meetings Act which authorizes a public body to discuss such matters privately.

In both the resolution and a public statement issued the same day, the Authority referred to its investigation of Vass's use of an Authority credit card for personal purposes and its belief that the "investigation and other related matters [had] diminished Mr. Vass's ability to manage the affairs of the Authority in the future." The public statement also indicated that the Attorney General had reviewed the matter and had found no criminal intent or action by Vass.

Following the adoption of the resolution at the public-session portion of the March 16th meeting, a Press reporter requested a copy of the Memorandum and the executive-session minutes. The Authority rejected his request, informing him that both documents would remain confidential permanently. Both documents are currently on file with the Authority and have not been released to the public at any time.

In April 1989, the Press commenced litigation against the Authority, four of its Commissioners, and Vass, seeking to compel the Authority to disclose the Memorandum and executive-session minutes pertaining to Vass's termination of employment and to void the Authority's agreement with Vass. The Press moved for summary judgment, contending that it was entitled to the documents pursuant to the Right to Know Law and the common law. The Authority and Vass cross-moved for summary judgment, claiming that the executive-session exception to the Open Public Meetings Act, N.J.S.A. 10:4-12(b), exempted the documents from disclosure requirements.

In granting the cross-motions for summary judgment, the trial court concluded that the personnel exception to the Open Public Meetings Act, N.J.S.A. 10:4-12(b)(8), was an implicit exception to the Right to Know Law's disclosure requirements. See N.J.S.A. 47:1A-2. The court then held that the Authority did not have to disclose the Memorandum and executive-session minutes, reasoning that to do so would circumvent the purpose of meeting in closed session. It did, however, limit its holding to disclosure at that time, noting that there may be circumstances warranting disclosure in the future. In an unpublished opinion, the Appellate Division affirmed substantially for the reasons expressed in the trial court's opinion, adding only that the nondisclosure could continue indefinitely.


New Jersey has a history of commitment to public participation in government and to the corresponding need for an

informed citizenry. The New Jersey courts have long recognized a limited common-law right to inspect governmental records. See, e.g., Ferry v. Williams, 41 N.J.L. 332 (Sup. Ct. 1879) (court recognized common-law right of discovery of public documents); Casey v. MacPhail, 2 N.J. Super. 619 (Law Div. 1949) (citizen taxpayer granted access to voter registration lists). The Open Public Meetings Act, N.J.S.A. 10:4-6 to -21, and the Right to Know Law, N.J.S.A. 47:1A-1 to -4, also reflect that tradition favoring the public's right to be informed about governmental actions.

Under the common law, the threshold condition for access to public records is that a citizen establish an interest in the subject matter of the material he or she is seeking. Irval Realty, Inc. v. Board of Pub. Util. Comm'rs, 61 N.J. 366, 372 (1972). The interest does not have to be purely personal, but rather "as one citizen or taxpayer out of many, concerned with a public problem or issue, he might demand and be accorded access to public records bearing upon the problem, even though his individual interest may [be] slight." Ibid. For example, a newspaper's interest in "'keep[ing] a watchful eye on the workings of public agencies'" is sufficient to accord standing under the common law. Red Bank Register v. Board of Educ., 206 N.J. Super. 1, 9 (App. Div. 1985) (quoting Nixon v. Warner Communications, Inc., 435 U.S. 589, 598, 55 L. Ed. 2d 570, 579-80 (1978)).

After a court determines that a plaintiff has standing to assert a right to inspect and examine governmental documents, it must determine if the records sought are "public records." Under the common law, a "public record" 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.

[Nero v. Hyland, 76 N.J. 213, 222 (1978)

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