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Gannett New Jersey Partners v. County of Middlesex

July 13, 2005

GANNETT NEW JERSEY PARTNERS, LP, PLAINTIFF-APPELLANT,
v.
COUNTY OF MIDDLESEX AND MARGARET PEMBERTON, CUSTODIAN OF RECORDS, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2803-04.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS

APPROVED FOR PUBLICATION

Argued February 8, 2005

Before Judges Skillman, Grall and Riva.

This appeal involves the interpretation of various provisions of the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, which was enacted in 2002, L. 2001, c. 404, to take the place of the former Right to Know Law, N.J.S.A. 47:1A-2 to -4.

On or about February 27, 2004, the United States Attorney for New Jersey served grand jury subpoenas for production of documents upon the offices of the County Counsel, Freeholder Director and Business Administrator for Middlesex County. The service of these subpoenas as well as service of subpoenas for documents upon various State agencies, including the Governor's Office, were widely reported in the news media, including newspapers published by plaintiff Gannett New Jersey Partners, L.P. See Sandy McClure, "Feds Subpoena State Offices," Asbury Park Press, Mar. 6, 2004, at A1; Sandy McClure, "More Data Released in Probe into Fund-raiser," Asbury Park Press, Mar. 25, 2004, at A1.

These newspaper stories indicated that the documents sought by the subpoenas related to a controversy between the Township of Piscataway and the Halper family regarding Piscataway's proposed condemnation of the Halpers' seventy-five-acre farm, called the Cornell Dairy Farm. See "More Data Released in Probe into Fund-raiser," supra. One story stated that Middlesex County had offered to contribute $4 million towards Piscataway's acquisition of the property. Ibid. This story indicated that the federal investigation focused on whether a Democratic fundraiser named David D'Amiano had encouraged a Halper family member, Mark Halper, to make a $10,000 campaign contribution to the State Democratic Party in exchange for assistance from the McGreevey Administration in the family's efforts to retain ownership of the farm. Ibid. The story also reported that Mark Halper had made a direct appeal to Governor McGreevey for his help in retaining the farm in the Halper family. Ibid.

On March 18, 2004, Gannett sent an e-mail to Middlesex County requesting production under OPRA of the "federal subpoena[s] issued to the county and all information supplied to the U.S. Attorney or other federal authorities in response to the subpoenas." Middlesex County produced voluminous documents in response to this request. However, the County refused to produce copies of the federal subpoenas and certain other documents.

Gannett then filed this action in the Law Division to compel production under OPRA of the documents the County had refused to release. Gannett also sought production under the common law. The matter was brought before the trial court by an order to show cause.

Before the return date, the County submitted an index of the documents it had refused to produce together with a statement of its reasons for concluding that those documents are exempt from release under OPRA. The index indicated that the documents the County had not produced consisted of the federal subpoenas, telephone billing records of the County Administrator's Office, the Freeholder Director's computer index of addresses and telephone numbers, the County Counsel's and County Administrator's telephone message pad entries, County Counsel's appointment book, handwritten correspondence between County Counsel and his secretary, handwritten notes prepared by a county planner, Linda Busch, regarding certain meetings she had attended and letters to County Counsel.

After reviewing these documents, the court concluded in an oral opinion that none of the documents listed in the index were required to be released under OPRA or the common law. Accordingly, the court entered final judgment dismissing Gannett's complaint.

On appeal, Gannett argues that the federal subpoenas and other documents that the County refused to produce are public records that are not exempt from disclosure under any provision of OPRA. Gannett has abandoned its claims under the common law.

We conclude that OPRA does not require the County to release the subpoenas or the majority of other documents withheld from disclosure. However, the County has failed to show that Busch's handwritten notes or the letters to County Counsel are exempt from disclosure under OPRA. Accordingly, we affirm in part, reverse in part and remand to the trial court.

I.

Preliminarily, we question whether Gannett's request for "all information supplied to the U.S. Attorney or other federal authorities" in response to the grand jury subpoenas was a proper request for public records under OPRA. N.J.S.A. 47:1A-5(f) provides in pertinent part that "[t]he custodian of a public agency shall adopt a form for the use of any person who requests access to a government record held or controlled by the public agency," which "shall provide space for . . . a brief description of the government record sought." Thus, OPRA requires a party requesting access to a public record to specifically describe the document sought. See MAG Entm't, LLC v. Div. of Alcoholic Beverage Control, 375 N.J. Super. 534, 546-49 (App. Div. 2005). OPRA does not authorize a party to make a blanket request for every document a public agency has provided another party in response to an OPRA request or, in this case, a federal grand jury subpoena. Such a request seeks access not merely to public records but also into the nature and scope of a third party's inquiry to a government agency.

In addition to whatever interest a government agency may have in maintaining the confidentiality of its records, a party who requests access to public records also may have an interest in maintaining the confidentiality of its inquiry. This need for confidentiality is particularly strong when the party requesting the production of documents is a law enforcement agency such as the United States Attorney's Office. A United States Attorney's investigative inquiry through a grand jury subpoena is protected by federal law, Fed. R. Crim. P. 6(e); see United States v. Educ. Dev. Network Corp., 884 F.2d 737, 740-41 (3d Cir. 1989), cert. denied, 494 U.S. 1078, 110 S.Ct. 1806, 108 L.Ed. 2d 937 ...


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