On appeal from the Superior Court of New Jersey, Law Division, Camden County.
J.h. Coleman, Stern and Keefe. The opinion of the court was delivered by Stern, J.A.D.
The opinion of the court was delivered by
While in police custody on November 27, 1986, Mark Watson was shot to death. A subsequent investigation by law enforcement officials resulted in the filing of no charges or complaints. Claiming that scrutiny is in the public interest plaintiffs, Southern Jersey Newspapers Inc., publisher of the Courier Post, and its reporter Ken Shuttleworth, seek access to and review of the police files and the autopsy report. Their application was granted in substantial part by a Judge of the Law Division who entered an order of disclosure of 26 documents from the City's police file and the autopsy report after reviewing them in camera. Defendants appeal from the disclosure order and plaintiffs cross appeal from that portion of the order denying access to other documents, autopsy photos, counsel fees and costs. Defendant City of Camden*fn1 claims that the ordered
disclosure of material in its police file is not required by the Right to Know Law, N.J.S.A. 47:1A-1 et seq., because the investigative file is not a "public record" and that plaintiffs do not have a sufficient interest to obtain access to the records under the common law. The Medical Examiner asserts that the autopsy report, also made subject to review, is a "public record" but is excepted from disclosure under the Right to Know Law. He also challenges the Law Division's order of disclosure under the common law.
It is undisputed that Watson was arrested by the Camden police officers and was thereafter shot to death while in police custody on November 27, 1986. Subsequently, an internal investigation was conducted by the Police Department of Camden and by the County Prosecutor. An autopsy was performed by the County Medical Examiner. The FBI also conducted an investigation, apparently to ascertain if there was a federal civil rights violation. A Camden County grand jury returned a "no bill" in February 1987. Press conferences and releases revealed the results of the investigation, and between February 1987 and November 1988 Shuttleworth unsuccessfully sought to obtain access to the relevant investigative files and reports from defendants and others.
The City first claims that its police file is not a "public record" and that, even if it were, disclosure under the Right to Know Law (RKL), N.J.S.A. 47:1A-1 et seq., is excepted because of Executive Orders of the Governor.
The RKL embodies policy which promotes unrestricted public access to "public records." N.J.S.A. 47:1A-1. The critical question thereunder, therefore, is whether the material sought is a "public record." N.J.S.A. 47:1A-2 provides:
Except as otherwise provided in this act or by any other statute, resolution of either or both houses of the Legislature, executive order of the Governor, rule of court, any Federal law, regulation or order, or by any regulation promulgated under the authority of any statute or executive order of the Governor, all records which are required by law to be made, maintained or kept on file by any board, body, agency, department, commission or official of the State or of any political subdivision thereof or by any public board, body, commission or authority created pursuant to law by the State or any of its political subdivisions, or by any official acting for or on behalf thereof (each of which is hereinafter referred to as the "custodian" thereof) shall, for the purposes of this act, be deemed to be public records. Every citizen of this State, during the regular business hours maintained by the custodian of any such records, shall have the right to inspect such records . . . . [emphasis added]
If a document is a "public record" access to it is an absolute right unless a specific exception applies. Techniscan v. Passaic Valley Water, 113 N.J. 233, 236, 549 A.2d 1249 (1988); McClain v. College Hosp., 99 N.J. 346, 354, 492 A.2d 991 (1985). Unlike the right of access under the common law, "any citizen, without any showing of personal or particular interest, has an unqualified right to inspect public documents if they are, in fact, the statutorily-defined records" under the RKL. N.J. Newspapers v. Passaic County, 127 N.J. 9, 14, 601 A.2d 693 (1992); Techniscan v. Passaic Valley Water, supra, 113 N.J. at 236, 549 A.2d 1249 (emphasis in original); see also Loigman v. Kimmelman, 102 N.J. 98, 101, 505 A.2d 958 (1986). And there is no reason to suggest that a newspaper does not have the same right of access to a "public record" under the RKL as a private citizen. See N.J. Newspapers v. Passaic County, supra; South Jersey Pub. v. N.J. Expressway, 124 N.J. 478, 487, 497, 591 A.2d 921 (1991); Techniscan v. Passaic Valley Water, supra, 113 N.J. at 235, 549 A.2d 1249; cf. Asbury Park Press v. Dept. of Health, 233 N.J. Super. 375, 381, 558 A.2d 1363 (App.Div.1989), certif. den. 117 N.J. 646, 569 A.2d 1344 (1989); Red Bank Register v. Board of Educ., 206 N.J. Super. 1, 7, 501 A.2d 985 (App.Div.1985). Thus, plaintiffs are entitled to access to the records they seek if they are "public records" as defined in N.J.S.A. 47:1A-2.
Public records must be documents "required by law to be made, maintained or kept on file" by public bodies such as the
City of Camden. N.J.S.A. 47:1A-2. See Techniscan v. Passaic Valley Water, supra, 113 N.J. at 236, 549 A.2d 1249. The records sought by plaintiffs' complaint specifically include all reports relating to Watson's arrest and the related firearm discharges which resulted in his death and the wounding of two police officers. Plaintiffs also sought access to tape recordings of the investigation, the police inventory of Watson's possessions, and copies of any rules or procedures of the Camden Police Department pertaining to firearms in the area of prisoner detentions.*fn2 Defendants argue that even if the records are required to be made, maintained or kept on file, they are not "public records" by virtue of relevant regulations and Executive Orders which are authorized exceptions to the RKL.
Plaintiffs insist that N.J.S.A. 40:48-6*fn3 and Camden Code §§ 5-97 and 87-2A(3) require these records to be made or maintained and that they are therefore "public records" under the RKL. However, neither the statute nor the municipal code specifically requires that the investigative reports plaintiffs seek be made, maintained or kept on file. Rather, they provide how material which is in the possession of the government, whether by virtue of some legal requirement or otherwise, is to be maintained. Thus, they need not be "maintained" by law within the meaning of the RKL. See N.J. Newspapers v.
Passaic County, supra, 127 N.J. at 16, 601 A.2d 693 (telephone bills of freeholders not required to be "made, maintained or kept by law"); Nero v. Hyland, 76 N.J. 213, 221, 386 A.2d 846 (1978) (character investigation of prospective lottery official not "mandated by law"; report of such investigation therefore not public record under RKL). See also Asbury Park Press v. Dept. of Health, supra, 233 N.J. Super. at 380-81, 558 A.2d 1363; Home News Pub. Co. v. State, 224 N.J. Super. 7, 11-12, 539 A.2d 736 (App.Div.1988); Red Bank Register v. Board of Educ., supra, 206 N.J. Super. at 6-7, 501 A.2d 985. Moreover, the definition of what may be included as public record under the RKL has been "strictly construed," Home News Pub. Co. v. State, supra, 224 N.J. Super. at 11, 539 A.2d 736, to prevent "expansion of the plain wording of the definition of public record under [the] Act." Nero v. Hyland, supra, 76 N.J. at 221, 386 A.2d 846.
We do not understand the Law Division's order of February 28, 1991 to have ordered disclosure under the RKL. If it had, no balancing would have been necessary and no in camera review, as engaged in by the trial Judge here, would have been necessary or appropriate. In any event, we need not now decide whether the police investigative file is a "public record" or is subject to an exception under the RKL*fn4 because if access is required under the common law, there might be nothing remaining to be disclosed under the RKL.*fn5 That is not to say that in some cases, rights under the RKL, under which no standing and balancing are required, should not be decided first because of the nature of the issues thereunder and the statutory
right to access. However, because the trial Judge granted relief under the common law, we proceed directly to a review of the common-law questions as Disposition thereof may be dispositive of all issues under the RKL. See e.g. South Jersey Pub. v. N.J. Expressway, supra, 124 N.J. at 496-98, 591 A.2d 921; Techniscan v. Passaic Valley Water, supra, 113 N.J. at 236-38, 549 A.2d 1249; Irval Realty v. Bd. of Pub. Util. Commissioners, 61 N.J. 366, 375, 294 A.2d 425 (1972) 0 (not deciding issue under RKL in light of common law right to access). We also do so because "[i]t is well established that the common law right to inspect and examine public documents is not curtailed by the Right to ...