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North Jersey Media Group, Inc. v. Bergen County Prosecutor's Office

March 3, 2009

NORTH JERSEY MEDIA GROUP, INC., D/B/A THE RECORD, PLAINTIFF-APPELLANT,
v.
BERGEN COUNTY PROSECUTOR'S OFFICE AND JEFFREY ZIEGELHEIM, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-6332-07.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted November 18, 2008

Before Judges Wefing, Parker and LeWinn.

Plaintiff North Jersey Media Group, Inc., d/b/a The Record (The Record) appeals from an order entered on December 17, 2007 denying its request, pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, to inspect records of defendant Bergen County Prosecutor's Office (BCPO) employees who sought approval for employment outside the office. We affirm.

Specifically, plaintiff requested

(1) Any and all documents relating to outside employment of any employee of the Bergen County Prosecutor's Office since May 2002. This includes, but is not limited to, records of any disclosure, request, approval, denial, waiver, notice pertaining to outside employment, as required by the Code of Ethics in the Criminal Justice Act of 1970, N.J.S.A. 52:17B-97 et seq., or any other applicable state or county statute, resolution, code, or guideline. Please also include any correspondence, including e-mails and memoranda, concerning same.

(2) Any employee handbook, guidelines, or code of ethics promulgated by the County of Bergen or the prosecutor's office that is applicable to the employees of Bergen County Prosecutor's Office. Also, please include any other document that explains the process by which requests for outside employment are reviewed and approved.

When the BCPO declined to produce the documents, plaintiff filed a complaint demanding production of the documents pursuant to OPRA. The trial court found that it is "not a good idea to tell people the names and . . . places of people who are working for the Prosecutor's Office, or the FBI, or the Secret Service."

After plaintiff agreed to narrow its request, the court indicated that it "would be very happy . . . to review those [requested] documents only where . . . outside jobs were granted to see if [it] could come up with a redaction which would satisfy the needs of The Record, and which would protect the employee." The court limited its in camera review to the "300 people who received permission for outside jobs and the information concerning that."

On November 29, 2007, the trial court rendered a letter opinion in which it stated that after reviewing the requested documents, it "determined that these documents cannot be redacted in a manner sufficient to protect the privacy interests and personal interests of the individual and business entities therein." The court concluded that the documents were personnel records exempt from disclosure and that the public interest in disclosing the information was outweighed by "the individual public servant's rights to protect their privacy and security."

On December 17, 2007, the court dismissed the complaint with prejudice and on February 6, 2008, after plaintiff filed a notice of appeal, the trial court submitted a memorandum, pursuant to Rule 2:5-1(b), in which it noted that the question presented was whether the requested documents were properly labeled "personnel records," which are exempt from disclosure. In the supplemental memo, the court explained:

While these documents may not be personnel records by name, they bear many of the indicia of personnel files. They pertain to the general subject matter of one's employment, are proffered in furtherance thereof, and are made pursuant to the employee manual. Under the maxim of ejusdem generis, these documents are of the sort that [are] so similar to personnel files -- if not actually personnel files -- that they deserve protection as such. The same legislative intent embodied in the general exemption of personnel files from disclosure -- one that aims to protect personal information disclosed to ...


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