Before Judges Stern, Coburn, and Alley. On appeals from a final
determination of the New Jersey Government Records Council (Case No.
The opinion of the court was delivered by: Alley, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
We consolidate these appeals for purposes of this opinion. The appeals are from a final agency determination by the Government Records Council (GRC), which was created to carry out the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. The GRC decision overturns a decision by South Brunswick Township (the Township) and provides a newspaper reporter, Kenneth Serrano, with access to a tape of a 911 call made by a defendant in an ongoing murder prosecution a few hours prior to the alleged homicide for which the defendant has been indicted. The agency's decision would compel the current custodian of the tape, the Prosecutor of Middlesex County (prosecutor), to provide the Township with sufficient access to accommodate Serrano's request. The Township also has the means of reproducing the 911 call independent of the tape taken by the prosecutor. The prosecutor and the Township have appealed this final agency decision to us after being denied a protective order in the Law Division. They sought a stay of the GRC order from us on an emergent basis, and pending our determination of these appeals the GRC has agreed to forego enforcement or implementation of its decision.
The backdrop of these proceedings includes a pending homicide prosecution in Middlesex County, State v. Michael Janicki, Indictment No. 02-08-00978. The indictment charges Janicki with, among other things, stabbing his father, Ortwin Janicki, to death while the father slept in their South Brunswick home.
An investigation by the prosecutor's office and Township police alleges the following sequence of events: At about 11:15 p.m., July 16, 2002, Michael Janicki dialed 911 from his home and reached South Brunswick Police headquarters. Police and emergency medical service (EMS) units responded to Janicki's call, but he declined their assistance when they arrived at his home. At 2:15 a.m. on July 17, 2002, Janicki, it is alleged, stabbed his father. His mother, Cheryl Janicki, immediately placed a 911 call. Police officers from the Township arrived at the Janicki home ten minutes later, beginning the criminal investigation. At 3:20 a.m., investigators from the prosecutor's office arrived at the scene and took control of the investigation. By 3:00 p.m. defendant was found in Plainsboro, taken into custody, and later that day, charged with murder. The crime and the criminal proceedings have been covered extensively in the media, particularly by the Home News Tribune. Janicki's then counsel allegedly revealed to the public that he had placed a 911 call in the hours before the crime. On or about July 23, 2002, after that disclosure, Kenneth Serrano, a reporter with the Home News Tribune, filed a request with South Brunswick Township under OPRA seeking three items: (a) an audiotape of Janicki's telephone call to 911 on July 16, 2002; (b) police reports regarding that call; and (c) EMS records concerning that call. Township officials brought the request to the attention of First Assistant Middlesex County Prosecutor William Lamb and denied the request on July 24, 2002, referring to Lamb's reliance on a "[p]ending investigation." In late August Serrano sought review of the Township's denial by filing a complaint with the newly created GRC.
A Preliminary Finding of the GRC's Acting Executive Director, dated November 27, 2002, characterized the police reports as confidential because they qualified as "criminal investigatory records" under N.J.S.A. 47:1A-1.1. These initial findings recommended, however, that the GRC find the 911 tape to be "publicly accessible in the absence of any facts that the release of this information meets the criteria in the N.J.S.A. 47:1A-3(b) for withholding records involved in an on-going criminal investigation." This report also noted the GRC had not received an explanation as to why release of the tape "would 'jeopardize' an investigation in progress or be 'otherwise inappropriate to release'" under N.J.S.A. 47:1a-3(b).
The prosecutor responded to the GRC in a December 4, 2002 letter. He took the position that Rule of Professional Conduct (RPC) 3.6 prohibited his office from making public any information about the identity or nature of physical evidence expected to be presented at trial and cited a 1992 directive on this point from Chief Justice Robert N. Wilentz. The prosecutor asserted that public release of the tape would "jeopardize the right to a fair trial" and would be "grossly inappropriate," considering that the "Janicki defense had interposed an insanity/diminished capacity defense" and that he anticipated Janicki's mental state would be "the outcome determinative issue in the case." He contended release of the tape might make it impossible to find a jury in Middlesex County and might draw a defense motion for change of venue. Further, he argued that a GRC directive to release the tape "would directly interfere with judicial prerogatives" usurping the role of criminal court judges as "sole arbiters of controversies regarding access to discovery material," citing R. 3:13-3 and Winberry v. Salisbury, 5 N.J. 240, cert. denied, 340 U.S. 877, 71 S. Ct. 123, 95 L. Ed. 638 (1950). Finally, he objected that the GRC proceedings failed to name as parties the prosecutor, defense counsel, and the trial judge.
A letter submitted to the GRC on behalf of the Township noted the tape had been taken by the prosecutor on July 25 and at that time the prosecutor ordered the Township not to release a copy to anyone. The Township relied on the letter by the prosecutor and stated that, being subordinate to the County, the Township must comply with the position of the prosecutor because he is the "foremost representative of the Executive Branch of government in law enforcement in his county."
The GRC's Acting Executive Director prepared a document entitled "Finding and Recommendation" dated December 6, 2002. This document recommended that the GRC find the 911 tape to be "not publicly accessible" because he had determined that "the County Prosecutor has provided sufficient evidence for the Council to conclude that the content of the tape meets the criteria in N.J.S.A. 47:1A-3(b) for withholding records involved in an on-going criminal investigation."
Counsel for Serrano and the Home News Tribune then submitted a letter dated December 11, 2002, to the GRC, whose arguments included the contention that because 911 tapes must be kept by law they do not qualify as "criminal investigatory records" as defined in N.J.S.A. 47:1A-1.1. Thus, Serrano asserted that 911 tapes should not be covered by the confidentiality accorded criminal investigatory records during ongoing criminal investigations.
Next, the GRC's Acting Executive Director issued a "Draft Amended Finding and Recommendation" dated January 8, 2003. Here, he concluded the tape must be handed over because it was "'open for public inspection, examination or copying' before the Prosecutor or the Police commenced investigation in this matter." Given this conclusion, according to the GRC, the tape constituted a public record which was not protected as a criminal investigatory record.
A related proceeding thereafter took place before Judge Frederick DeVesa in Middlesex County, on short notice on January 15, prior to the January 17 meeting of the GRC at which the matter was to be considered. The prosecutor sought a protective order against disclosure of the tape under State v. Williams, 93 N.J. 39 (1983), and Judge DeVesa heard argument on behalf of the prosecutor, the Home News Tribune, and defendant Janicki. The GRC did not participate. The judge listened to the tape in camera and requested, through the parties, that the GRC allow him time to research and to prepare his decision. The GRC did not accede to the judge's suggestion that additional time would be appropriate. Judge DeVesa denied the protective order, placing the reasons for his decision in an oral opinion and issuing an order in State v. Janicki on January 16, 2003.
In his decision, Judge DeVesa stated that he gave "due deference" to the decision by Janicki's defense counsel not to oppose release of the tape. According to the prosecutor, Janicki did not oppose release of the tape to the media for "strategic reasons." Janicki's current defense counsel, William Fetky, gave notice he intended to use an insanity/diminished capacity defense, and the prosecutor alleges that the content of the tape lies "[a]t the heart of" that defense. Materials submitted by Fetky refer to the content of the call, and Fetky stated before Judge DeVesa:
I think if I oppose the release of that tape . . . [i]t's going to appear that Defense Counsel and/or Michael Janicki is trying to hide something. That is the last thing in the world that I want to do. Because, quite frankly, Judge, I have listened to the tape. I have listened to the tape on several occasions. I think the tape bolsters my expert's opinion that Michael Janicki is suffering from the serious mental illness of schizophrenia.
The judge denied the protective order, determining that R. 3:13-3, a rule governing discovery, did not allow a criminal judge to take extraordinary action such as issuing such an order unless there was a necessity "to protect the rights of a defendant, particularly to a fair trial[.]" He concluded there was no such need on these facts where the tape was not "so prejudicial to either the State or the defendant, that it would directly and clearly threaten the right of a fair trial by either" and the tape was "highly likely" to be admitted into evidence at trial. *fn1 On these facts, Judge DeVesa determined that the potential for prejudice was effectively limited to the potential to taint a juror or jury, and he concluded "fair and impartial jurors" would be available even if the tape were released and that the criminal process would be adequate to remedy any damage done by release of the tape. He also concluded that if the prosecutor were accused of acting unethically by complying with an order by the GRC, the application for a protective order should exonerate him.
Judge DeVesa commented, however, on "very serious concerns" he hoped the GRC would address. He questioned the authority of the GRC to order release of evidentiary materials from the police or prosecutor during the pendency of a trial. He questioned the GRC's authority to order disclosure by a constitutional officer such as the prosecutor where that officer was not a party to the proceedings before the GRC. He questioned whether, given that 911 tapes "have never been required to be permanently kept," the Legislature intended 911 tapes to be considered government records, thus "open to public access and inspection under all circumstances." Finally, he concluded that the tape had never been "open to public inspection" because it was made after business hours and immediately obtained in an ongoing criminal investigation.
Because Judge DeVesa determined that these concerns were "not really satisfactorily addressed" in the preliminary findings by the GRC director, he ordered that a transcript of his decision be generated and submitted to the GRC for consideration. The prosecutor obtained this transcript in New Brunswick when available at 9:30 a.m. on January 17, and a member of the GRC staff indicated the transcript would be considered if received in Trenton by 10:30 a.m. The transcript was faxed and driven to the GRC.
In a written "Final Decision" of January 17, 2003, the GRC (1) dismissed the portion of the complaint seeking police and EMS reports; (2) found the audiotape of Janicki's 911 telephone call to be a "government record to which the requester shall be provided access;" and (3) directed the prosecutor to "provide the Township Clerk with 'sufficient access' to the audiotape to allow the Township Clerk to fulfill the request for access to the audiotape." The decision stated any application for a stay must be filed with the GRC by the decision's effective date, January 31, 2003.
On January 30, 2003, the prosecutor filed with our Clerk a notice of appeal from the GRC final decision and order. Although the prosecutor asserted that R. 2:4-1(b) allowed him "45 days from the date of service of the decision" to institute appellate review, or until March 12, 2003, he pointed out the GRC extended the deadline for disclosure of the tape until only February 13, 2003, to allow consideration at the GRC public meeting scheduled for that date.
In an order dated February 13, the GRC denied the requested stay by a unanimous vote of the four members present. The GRC based its denial on the determination "there was little likelihood of success on the appeal;" the statutory mandate to interpret OPRA in favor of the public right to access (N.J.S.A. 47:1A-1); and Judge DeVesa's ruling that release of the tape would not jeopardize defendant Janicki's right to a fair trial. The GRC gave the prosecutor until February 20 to seek a stay of its decision from us stating: the Final Decision of January 17, 2003 was AMENDED to require access to the tape ...