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Daily Journal v. Police Dep't of the City of Vineland

May 17, 2002

THE DAILY JOURNAL, PLAINTIFF-APPELLANT,
v.
POLICE DEPARTMENT OF THE CITY OF VINELAND; THE CUSTODIAN OF RECORDS FOR POLICE DEPARTMENT OF THE CITY OF VINELAND; AND CITY OF VINELAND, DEFENDANTS/THIRD-PARTY PLAINTIFFS-RESPONDENTS,
v.
OFFICE OF CUMBERLAND COUNTY PROSECUTOR, AND ARTHUR J. MARCHAND, CUMBERLAND COUNTY PROSECUTOR, THIRD-PARTY DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-1047-98.

Before Judges Havey, Braithwaite and Weissbard.

The opinion of the court was delivered by: Havey, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 25, 2002

Plaintiff, the Daily Journal, a daily newspaper published in Vineland, appeals from a summary judgment dismissing its complaint in lieu of prerogative writs, in which it sought access to certain investigation reports of the Vineland Police Department concerning allegations of wrongdoing by the Vineland Road Department. The allegations of wrongdoing were the subject of a presentment returned by the Cumberland County Grand Jury. Judge Francis found that the investigation reports sought by plaintiff did not constitute public records pursuant to the Right-to-Know Law (RTKL), N.J.S.A. 47:1A-1 to -4, and that, under the common law right of access, the need for confidentiality outweighed plaintiff's interest in disclosure. Specifically, the judge was persuaded that the policy of confidentiality underlying the filing and return of a grand jury presentment outweighed the public's right to know the details of the investigation. We agree and affirm.

The essential facts are not in dispute. On August 15, 1996, the Police Department of the City of Vineland (the police department) began investigating Vineland's Road Department with respect to allegations dating back to November 1995, regarding the misappropriation of public funds by the wrongful ordering of parts to be used on the personal vehicle of the garage supervisor. Approximately ten police officers were put on the case. The investigation included the questioning of fifty-seven witnesses, some in tape-recorded interviews, and the collection of numerous photographs and documents. Factual information was memorialized in written investigation reports prepared by members of the police department. The investigation concluded in September 1996.

The matter was then forwarded to the Cumberland County Prosecutor who impaneled a grand jury to examine the same allegations to see if there was probable cause for criminal charges. A grand jury was impaneled in March 1997. The grand jury ultimately issued a presentment, which was then revised to delete certain information. The grand jury proceedings concluded in February 1998.

None of the police records prepared in 1996 were compiled pursuant to the grand jury investigation or pursuant to any other law enforcement agency's request. That is, the police file was prepared before the grand jury convened and independently of the grand jury's investigation. The records consisted of two or three folders, containing a total of 200 to 500 pieces of paper. The reports prepared by the police officers contained "just the facts" and did not include any evaluative material. Chief Brunetta testified during his deposition that "[p]eople were interviewed and they gave us information that caused us to pick up other people that were interviewed and so forth." The police department had no current intention to conduct any further investigation regarding these allegations, and all indictments had been concluded.

The chief of police admitted that his department was not an arm of the grand jury, and that the release of the police records would not endanger any police officer. Also, the chief admitted that the records did not contain any information describing the deliberations of the department or an assessment of the department's operations. However, he believed that it was possible that the files contained the names of individuals as to whom supplementary investigation revealed no evidence of wrongdoing.

Following the conclusion of the grand jury proceedings, five municipal employees were arrested on criminal charges, without indictment. They all applied for and were accepted into pretrial intervention. Another municipal employee was indicted by the grand jury, tried, and acquitted.

According to Judge Francis*fn1 the grand jury investigation was limited in its testimonial presentation to the police officers who had conducted the investigation. That is, the officers testified regarding the contents of their police reports and no independent witnesses who had been interviewed by the officers were called to testify.

The initial presentment returned by the grand jury was reviewed by Judge Francis, in his role as acting assignment judge, to see if it contained any scandalous or other improper material, in accordance with Rule 3:6-9. After striking objectionable matter, he referred the names of three of the public officials named in the presentment back to the grand jury for consideration of whether an indictment should be returned. As noted, only one of these officials was actually indicted.

The judge also redacted the names of any private citizens named in the presentment, concluding that they should be dealt with instead by way of indictment or disorderly persons complaints, because presentments were to be limited to public employees and public officials. The trial judge did not conclude that these private citizens had done nothing wrong; rather, he concluded only that they should not be named in the presentment.

Judge Francis conducted an in camera hearing respecting the three public officials named in the presentment. R. 3:6-9(c). He concluded that there was insufficient evidence to support the censuring of two of the public officials. As to the third official, since the evidence was sufficient only as to parts of the presentment, the judge further edited it.

In the final presentment, as edited by Judge Francis, it was noted that the police department had interviewed current employees of the Road Department, vendors who supplied goods and services to Vineland, private homeowners who received services from the Road Department, the Business Administrator of Vineland, and others.

The grand jury found that violations had occurred with respect to the: ordering of parts and materials by the Road Department which were converted for personal use; trimming of trees on private property; supplying of topsoil purchased by the Road Department for the benefit of private citizens; delivery of stone and gravel to private residences using the Road Department's staff and equipment; maintenance of personal vehicles by the Road Department's garage; installation of pipe and diversion of a stream on private property; use of only one primary vendor for all business with the Road Department; abuse of time cards and overtime logs; and performance of work during regular business hours using City material for the benefit of a former mayor.

The grand jury concluded that the Road Department was seriously mismanaged, that many employees felt their jobs would be in jeopardy if they did not follow the directions of certain supervisors, and that there were no checks and balances to establish whether property was being converted to personal use or to prevent the mismanagement which prevailed.

More disturbing was the apparent ability of one employee to intimidate other employees, and supervisors by his perceived political connection to politicians within the city government. It was difficult for us as grand jurors in some instances to determine whether or not specific wrongful acts were at the direction of a politician or this employee[']s perceived authority. This perception, whether real or not, should not have been permitted to exist and it was incumbent upon those elected officials of the city government to see that it did not.

Numerous exhibits were attached to the presentment. The investigative reports of the police officers who testified before the grand jury were not among them.

Despite Judge Francis' efforts at redaction, the press nevertheless discovered the names of many of the private citizens who had originally been named in the presentment. According to Deborah Marko, a reporter for plaintiff, the allegations and ensuing investigations generated an enormous amount of publicity and resulted in forty-two articles being published by plaintiff between August 1996 and January 1999. However, the actual details of what had occurred and who was involved was never revealed to the public, and the redacted presentment failed to detail the full scope of the corruption. It was plaintiff's contention that politically connected people had been protected. Plaintiff thus alleged that the public needed access to the police files in order to safeguard against future criminal activity and abuse of the taxpayers' trust, and in order to allow the public to form their own opinions regarding the conduct, the investigations, and the prosecution.

Plaintiff's efforts to obtain the investigation reports were rebuffed. According to the prosecutor, at the conclusion of the grand jury proceedings, the trial judge had directed him not to release any other information absent further order of the court.

In ruling on the summary judgment motions, Judge Francis first concluded that plaintiff had no statutory right to the reports because they were not public records within the RTKL. Specifically, the court found that there was no ...


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