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Keddie v. Rutgers

March 6, 1997

WELLS H. KEDDIE AND THE RUTGERS COUNCIL OF AAUP CHAPTERS, PLAINTIFFS-RESPONDENTS AND CROSS-APPELLANTS,
v.
RUTGERS, THE STATE UNIVERSITY, DEFENDANT-APPELLANT AND CROSS-RESPONDENT.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 286 N.J. Super. 285 (1996).

The opinion of the Court was delivered by Coleman, J. Chief Justice Poritz and Justices Handler, Pollock, O'hern, Garibaldi and Stein join in Justice Coleman's opinion.

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

Wells H. Keddie et al. v. Rutgers, the State University (A-34/35-96)

Argued October 22, 1996 -- Decided March 6, 1997

COLEMAN, J., writing for a unanimous Court

The issue addressed in this appeal is whether a citizen of this State who is also a professor at Rutgers, the State University (Rutgers), has either a statutory right under the Right-to-Know Law (RTKL) or a common-law right of access to "public records" concerning Rutgers' expenditures for outside legal counsel in labor, civil rights, and employment related matters in which Rutgers is or has recently been a party.

Rutgers is an instrumentality of the State for the purpose of operating the State University of New Jersey. Wells H. Keddie is a citizen of New Jersey and a professor of Labor Studies at Rutgers. Rutgers Council of American Association of University Professors Chapters (AAUP-Rutgers) is an unincorporated association which, for purposes of collective negotiation, represents certain faculty members, teaching assistants, and graduate assistants employed by Rutgers. At the time this lawsuit began, Keddie was president of AAUP-Rutgers.

On September 23, 1992, Keddie and AAUP-Rutgers requested "public records" from Rutgers' president relating to the expenditure of university funds for legal representation in labor relations, civil rights, and other employment-related matters. Keddie and AAUP-Rutgers also requested copies of documents filed with courts, agencies and arbitrable forums. The documents requested can be classified into three categories: 1) attorneys bills; 2) documents Rutgers generated internally from the legal bills; and 3) pleadings, briefs, affidavits, and other filings made with courts, agencies, and arbitrable forums and the decisions or awards rendered (legal submissions).

University Counsel denied the requests, asserting that the legal submissions were available from other sources, and that Rutgers was not required to disclose the other records requested.

On November 20, 1992, Keddie and AAUP-Rutgers filed suit, seeking access to the documents pursuant to the common law and the RTKL. After considering cross-motions for summary judgment filed by the parties, the trial court held that: 1) Rutgers is a public body and is therefore covered by the RTKL; 2) none of the requested documents were public records under the RTKL; 3) the outside attorneys bills were not common-law public records; and 4) the internally generated legal billing documents and the legal submissions were public records within the common-law definition but were not accessible because Rutgers' interests in nondisclosure manifestly outweighed Keddie's and AAUP-Rutgers' interests in disclosure. The trial court did order Rutgers to: 1) provide Keddie and AAUP-Rutgers with an ongoing list of pending and new cases in which Rutgers was involved that related to labor, employment, and civil rights matters; and 2) forward to Keddie and AAUP-Rutgers a copy of any final decision or award and other relevant data.

On appeal, the Appellate Division reversed, finding that the attorneys bills and the internally generated legal billing documents were public records under the RTKL. The Appellate Division also reversed the trial court's order requiring Rutgers to provide periodic updates on pending and new matters, concluding that Rutgers did not have an obligation to provide copies of legal submissions because they were readily available from other sources.

The Supreme Court granted Rutgers' petition for certification.

HELD :

The documents requested by Professor Keddie and AAUP-Rutgers are not public records under the Right-to-Know Law because they are not explicitly required "to be made, maintained or kept on file" by Rutgers. However, all of the requested documents are common-law public records.

1. Under the RTKL, the narrow question is whether the disputed records are required by law "to be made, maintained or kept on file." If so, the documents qualify as public records under the RTKL. Once documents are found to be RTKL records, citizens of the State have an almost absolute right of access to those documents. This Court has consistently held that the RTKL's definition of a public record is narrow and is to be strictly construed. In this case, the statute governing the operation of Rutgers does not explicitly require that the attorneys bills and the internally generated legal billing documents "be made, maintained or kept on file," in order to satisfy auditors; therefore, those documents are not RTKL documents. (pp. 6-13)

2. A common-law record is one that is made by a public official in the exercise of his or her public function, either because the record was required or directed by law to be made or kept, or because it was filed in a public office. The right to access common-law records is a qualified one, depending on three requirements: 1) the records must be common-law public documents; 2) the person seeking access must establish an interest in the subject matter of the material; and 3) the citizen's right to access must be balanced against the State's interest in preventing disclosure. The documents sought in this case are common-law public records because they were created by, or at the behest of, public officers in the exercise of a public function. (pp. 14-15)

3. One seeking access to common-law public records must establish that the balance of its interest in disclosure against the public interest in maintaining confidentiality weighs in favor of disclosure. Where, as here, common-law documents have been filed with courts, agencies and arbitrable forums without being sealed, confidentiality is non-existent. That alone is sufficient to require disclosure unless otherwise protected by an exception listed in the RTKL. The obligation for disclosure when confidentiality is nonexistent is not lessened because the information is publicly available from another source or the information has been disclosed to or by another entity. Here, the trial court erred in finding that the legal submissions should not be disclosed under the common-law balancing-of-interests test. AAUP-Rutgers and Keddie must bear the reasonable costs of copying, assembling and delivering the documents. (pp. 16-18)

4. The cost of document production and diversion of dedicated manpower are insufficient reasons under the balancing test to prevent disclosure of the documents. Budgetary constraints cannot relieve Rutgers of its obligation to produce the attorneys bills and the internally generated legal billing documents. However, Rutgers may collect a reasonable fee to cover its reproduction and delivery expenses. (pp. 18-20)

5. The matter is remanded to the trial court to conduct, consistent with this opinion, a common-law balancing test in respect of the attorneys bills, and a new balancing test in respect of the internally generated legal billing documents. The documents are to be submitted in camera to the trial court and, as to each individual document, the court must make factual findings as to why Keddie's and AAUP-Rutgers' interests in disclosure are or are not outweighed by Rutgers' interest in nondisclosure. The availability of the documents from other sources, the costs associated with reproduction, or the inconvenience to Rutgers are not to be considered in the balancing test. The court may consider redaction to protect confidential or privileged material. (pp. 20-22)

Judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court to conduct a common-law balancing test in respect of the attorneys bills and the internally generated legal billing documents in a manner consistent with this opinion.

CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI and STEIN join in JUSTICE COLEMAN'S opinion.

The opinion of the Court was delivered by

COLEMAN, J.

The issue raised in this appeal is whether a taxpaying citizen of this State who is also a professor at Rutgers, the State University ("Rutgers"), has either a statutory or common-law right to access "public records" concerning Rutgers' expenditures for outside legal counsel in labor, civil rights, and employment-related matters in which Rutgers is or has recently been a party. The trial court denied access under both the common law and the Right-to-Know Law, N.J.S.A. 47:1A-1 to -4. The Appellate Division reversed, holding that all of the attorneys bills and the internally generated legal billing documents requested were "public records" under the Right-to-Know Law. 286 N.J. Super. 285, 297, 669 A.2d 247 (App. Div. 1996). The Appellate Division also held that Rutgers was not obligated to provide plaintiffs with either legal documents and decisions filed with courts, agencies, and arbitral forums, or a list of pending legal matters. Id. at 297-98.

We hold that none of the documents requested are "public records" under the Right-to-Know Law because they are not explicitly required "to be made, maintained or kept on file" by Rutgers. N.J.S.A. 47:1A-2. We conclude, ...


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