On appeal from the Superior Court, Appellate Division.
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 O'Hern, J.
This case concerns the public's right of access to telephone toll-billing records under the Right-to-Know Law, N.J.S.A. 47:1A-1 to -4. That Act grants citizens unrestricted access to all records of governmental action that are "required by law to be made, maintained or kept on file." Because a public record of the identity of persons called is not required by law to be "made, maintained or kept on file," we hold that the Right-to-Know Law does not provide an unqualified right of access to the telephone toll-billing records of a public body that would disclose the identity of the parties called. Rather, we direct that the telephone toll-billing records of a public body be made available after a showing that the public need for the identity of the parties called outweighs the governmental policies of confidentiality in telephone communications and of executive privilege.
On July 11, 1990, plaintiff, North Jersey Newspapers Company (the Newspaper), requested copies of the itemized telephone bills for the Passaic County Board of Chosen Freeholders' office- and car-phone lines for March, April, and May 1990. For
certain types of calls, notably long-distance and car-phone calls, those telephone bills include: the telephone number called; the date, time, and length of the call; and the charge for the call. The Newspaper made that request pursuant to the New Jersey Right-to-Know Law and its common law right of access to such records.
Defendant, Passaic County Board of Chosen Freeholders (the Board), denied the request, reasoning that although the Right-to-Know Law governed the total amounts of the bills, the law did not apply to itemization of the bills. The Board also refused to release the telephone bills under a common-law theory, arguing that the Board's confidentiality interests outweighed the Newspaper's need to review the bills.
The Newspaper sued in Superior Court, seeking access to the requested records. Attached to the Board's answer to the complaint was the certification of the County Finance Director, which outlined the procedure for payment of County telephone bills. The procedure requires placement of the total amount of the bill on an official bill list, along with the check number, the purchase order number, and the vendor's name. The official bill list is then presented for approval at the Freeholders' meeting. Thus, the official record of payment does not contain the disputed information listed in the itemized bill. The certification also specified that each Freeholder, after reviewing the itemized bill, reimburses the County for personal calls.
The trial court granted the relief sought by the Newspaper, concluding that the itemized telephone bills were public records under the Right-to-Know Law and that neither the Governor nor the Legislature had specifically excepted telephone bills from the Right-to-Know Law. The trial court also found that the Newspaper's interest in reviewing the bills outweighed any constitutional or privacy rights of third parties. The trial court noted that the County records included the prosecutor's telephone lines. Because the Newspaper had not requested documents pertaining to those lines, the court allowed the prosecutor's
office to review and excise any calls made in connection with its official business.
The Appellate Division reversed, concluding that although the records were public documents under the Right-to-Know Law, the Freeholders' privacy interests were protected by article I, paragraph 7 of the New Jersey Constitution as construed by this Court in State v. Hunt, 91 N.J. 338, 450 A.2d 952 (1982). North Jersey Newspaper Co. v. Passaic County Bd. of Chosen Freeholders, 245 N.J. Super. 113, 117, 584 A.2d 275 (1990). One member Dissented, reasoning that the constitutional right of privacy does not extend to the contents of a telephone bill of a person making telephone calls on "public time with public equipment and at public expense." Id. at 122, 584 A.2d 275. Because of the Dissent below, plaintiff appeals ...