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North Jersey Media Group, Inc. v. State

March 16, 2010

NORTH JERSEY MEDIA GROUP, INC. D/B/A THE RECORD, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
v.
STATE OF NEW JERSEY, DEPARTMENT OF LAW AND PUBLIC SAFETY, DIVISION OF STATE POLICE AND SFC LINDA LARGEY-WHITEHEAD, DEFENDANTS-APPELLANTS/CROSS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Mercer County, L-907-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 19, 2010

Before Judges Baxter, Alvarez and Coburn.

Plaintiff, North Jersey Media Group, Inc., is the publisher of a daily newspaper, The Record. It filed a timely action in lieu of prerogative writs to vindicate what it considered to be its right to have copies of State Police records under the Open Public Records Act, N.J.S.A. 47:1A-1 to -13 ("OPRA"), and the common law. The records relate to security services provided to dignitaries by the Executive Protection Bureau, a unit of the State Police. At the conclusion of a summary proceeding, the trial judge entered an order denying access to the records but directing that defendants create a new document containing certain information that might appear in those records.

Defendants appealed and plaintiff cross-appealed. We reverse the sections of the order directing defendants to create and provide a new document with information taken from the existing records, and we vacate and remand those parts of the order denying access to the records.

I.

The Executive Protection Bureau ("EPB"), formerly known as the Executive Protection Unit, provides security services to the Governor and his family and to other officials as directed by the Governor. It also protects visiting out-of-state or foreign dignitaries and former New Jersey governors. In a report issued on July 27, 2007, the Attorney General's State Police Executive Protection Unit Review Panel suggested that the provision of security to former governors, when not based on a specific threat, might be an unwise drain on resources.

Because of the Review Panel's report, plaintiff served the State Police with a written OPRA request for "a list of individuals who have been given details by the [EPB] from January 1, 2005, to July 27, 2007, including the name, date, and points traveled." That request was promptly denied in writing because "the requested list does not exist, and OPRA does not require a custodian to conduct a search[.]" About a week later, plaintiff submitted a second written request, which covered the same time period, this time seeking "records identifying individuals who have been given details by the [EPB][,] to include the person's name, date of detail and points traveled." (Emphasis added.) That request was denied. Counsel for both sides became involved, and a third request, which was identical to the second, was made. Defendants replied to that request by creating and providing a list respecting security services provided to former governors. For each date, the document included the name of the former governor and the towns or cities to which the security detail reported and transported the governor. Plaintiff objected to the list on the ground that it was not a copy of the records in question. By then, plaintiff had limited its request to records relating to former governors. Unfruitful negotiations then led to the filing of the complaint in court and the issuance of an order to show cause.

In response to the order to show cause, defendants submitted two certifications, one by a Deputy Attorney General ("DAG") and the other by Captain Debra Baker, head of the EPB.

The DAG certified that

This office determined that it could not disclose redacted copies of these records to the requestor with the non-responsive information deemed confidential by the EPB redacted because these records contained such extensive confidential material. Additionally, any such redacted records would have been so heavily redacted as to render such a response unduly burdensome and impractical for all parties.

Captain Baker's certification apparently was based on the assumption that plaintiff wanted records relating not only to former governors but to current officials and visiting dignitaries. Although the certification provides many sound points respecting current New Jersey officials and visiting dignitaries, it does not specifically address the issue of providing information respecting former New Jersey governors. Nor does it discuss whether release of the records relating to former governors would endanger them or compromise the security of the other dignitaries.

As directed by the trial judge, defendants later filed and served plaintiff with a "Vaughn Index." This procedural device was formulated in Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed. 2d 873 (1974). When, as here, a party contends that documents are especially sensitive, the Vaughn index may serve to avoid in camera review of the documents by the judge. But the party cannot rely on "'conclusory [or] generalized allegations of exemption[.]'" Loigman v. Kimmelman, 102 N.J. 98, 110 (1968) (quoting Vaughn, supra, 484 F.2d at 826). A court must require "'a relatively ...


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