The opinion of the court was delivered by: Serpentelli
This case involves a novel issue concerning citizen access to documents pursuant to the Right to Know Law, N.J.S.A. 47:1A-1 to 4, and the New Jersey common law. Under what circumstances, if any, may a citizen require the county prosecutor to disclose the contents of criminal investigation files?
In May 1993, the Ocean County Prosecutor's Office was advised of an auditor's report indicating that proceeds were missing from the operation of a county-owned facility known as the Forge Pond Golf Course (Forge Pond). The Prosecutor was notified that two county employees, Camille Musto and Joseph Juliano, had been confronted with the audit findings. He was told that they were under investigation and had been suspended. Musto was the cashier at Forge Pond. Juliano was the manager of county golf operations.
On January 4, 1994, Musto entered a not guilty plea to an accusation charging her with the theft of $7,500. She applied for enrollment in the Pretrial Intervention Program (PTI) pursuant to R. 3:28. She resigned her position, waived all rights and entitlements of her employment and agreed to make full restitution.
Musto was admitted to PTI on February 22 for a three-year term. An order of postponement was signed by this court. She remains in PTI to this date. If she successfully completes the program, the charges against her will be dismissed on February 22, 1997.
The Prosecutor's investigation apparently failed to develop sufficient evidence against Juliano to support criminal charges. However, Juliano's attorney offered to have his client resign his position, relinquish any employee benefits and make a payment of $20,000 for losses suffered by the county. The proposal was accepted and no criminal charges were brought against Juliano.
On January 4, 1994, the Prosecutor and a Freeholder held a joint news conference regarding the Forge Pond investigation. Both made public statements as to the results. The conference was widely reported in the media. On September 16, over nine months after the outcome of the investigation was revealed, plaintiff Szczech sought to review the Prosecutor's files concerning the probe. Plaintiff Goldberg subsequently made a similar request. Neither sought a specific document but, rather, wanted the unlimited opportunity to review all files.
When access was denied, plaintiffs filed a complaint on October 11, "individually and as Democratic Candidates for Ocean County Freeholder." An amended complaint was filed on October 13, followed by a second amended complaint on October 24 which joined Musto and Juliano as additional defendants.
As noted, plaintiffs' action originally sought relief under both statutory and common law. At oral argument, plaintiffs' counsel admitted that there was no statutory provision requiring production of the documents. This concession is important in light of the differing relief afforded under statutory and common law. N.J.S.A. 47:1A-2 provides:
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...shall, for the purposes of this act, be deemed to be public records.... (emphasis added)
Thus, the statute gives a citizen, without showing a personal particular interest, an unqualified right to inspect public documents if they are, in fact, documents required by law to be made, maintained or kept on file. Techniscan v. Passaic Valley Water, 113 N.J. 233, 236, 549 A.2d 1249 (1988).
By contrast, under the common law, a citizen's right to examine public documents rests upon a showing of some personal or particular interest in the material sought. Irval Realty, Inc. v. Board of Pub. Util. Comm'rs, 61 N.J. 366, 372, 294 A.2d 425 (1972). However, even the existence of such an interest does not give an absolute right to obtain the documents. Rather, the court must engage in a balancing test to determine whether the individual's right to the information ...