Before Judges D'Annunzio, Newman and Fall.
The opinion of the court was delivered by: Newman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County.
This appeal by the intervenor, The Press of Atlantic City (the Press), raises an issue of first impression regarding the accessability under the Right-to-Know Law, N.J.S.A. 47:1A-1 to -4, of tenure charge documents filed by a school district against a superintendent of schools. The motion judge ruled that these documents were exempted from the Right-to-Know Law and denied access to the Press. We hold that tenure charge documents are "public records" within the meaning of the Right-to-Know Law, are not exempted from the Right-to-Know-Law's unrestricted right to public disclosure, and access to them should have been granted upon request.
Initially, we recognize that the documents which were initially sought by the Press have since been accessed, but not, of course, at the time when first requested. Although, technically, the matter has been mooted and we ordinarily decline to decide moot appeals, we will on occasion "rule on such matters where they are of substantial importance and are capable of repetition, yet evade review." Mistrick v. Division of Med. Assistance & Health Servs., 154 N.J. 158, 165 (1998); New Jersey Div. of Youth & Family Servs. v J.B., 120 N.J. 112, 118-19 (1990) (finding that press access to preliminary hearing involving emergency removal of a child from custody was a substantial issue of public importance). We deem the issue before us to be of significant public importance and capable of repetition, thereby warranting our full consideration.
In a closed session on June 3, 1998, the Atlantic City Board of Education (the Board) determined to suspend plaintiff, Dr. H. Benjamin Williams, from his position as superintendent of schools and place him on administrative leave, directed its labor counsel to investigate the institution of tenure charges against Dr. Williams, named an acting superintendent, and authorized a search for a replacement.
Dr. Williams commenced an action against the Board and several Board members on June 8, 1998, seeking to set aside the June 3, 1998 action which resulted in his suspension. On June 12, 1998, emergent relief was denied.
On or about July 10, 1998, Dr. Williams filed an amended complaint setting forth various claims which alleged violations of the Open Public Meetings Act and that plaintiff's suspension and the appointment of an acting superintendent were arbitrary and capricious; alleged a violation of the Law Against Discrimination, contending that Dr. Williams's suspension was racially motivated; alleged that defendants violated the Tenure Employees Hearing Law by making public disclosures about the tenure charges and plaintiff's termination; and alleged violations of 42 U.S.C. § 1983 and § 1985 and violations of Dr. Williams's constitutional and common law right of privacy and of the Civil Rights Act of 1991. Defendants answered the complaint. On or about July 29, 1998, the Board filed tenure charges against plaintiff.
On August 20, 1998, the Press filed a motion to intervene and to obtain a copy of the tenure charges which included supporting documents. On September 11, 1998, the motion judge permitted the Press to intervene in this action, but denied its motion for disclosure of the tenure charges. The motion judge concluded:
I think it's clear that [the Legislature or Governors] intended that these things be done outside the public view. I think it's clear that the personnel, that whether or not it is filed with the board or filed in the personnel file or filed simultaneously in the board and in the personnel file is not the determinative factor, but the determinative factor is that these proceedings involving personnel, involving charges of unfitness for employment, involving charges which will be heard in private meetings should not be disclosed. And the Court, therefore, finds that the statute and Executive Order 11 precludes the Court from turning over the documents under the Right to Know statute.
On September 14, 1998, the Board certified the tenure charges against Dr. Williams to the Commissioner of Education (Commissioner) and suspended him without pay. The Commissioner then determined that the charges were sufficient to warrant dismissal and, within ten days of making that determination, the matter was referred to the Office of Administrative Law for a hearing. At the time of argument, the hearing had been held, but no decision had been rendered.
Plaintiff's amended complaint was dismissed on December 4, 1998, pending the completion of the administrative proceedings.
On appeal the Press contends that the tenure charge documents are statutory public records and, therefore, are accessible under the Right-to-Know-Law. The Tenure Employees Hearing Law and the Right-to-Know-Law, when read together, the Press argues, permit unqualified access to the tenure charge documents. Furthermore, the Press asserts that there was no exception by way of ...