March 16, 2010
NORTH JERSEY MEDIA GROUP, INC. D/B/A THE RECORD, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
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.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
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 detailed analysis in manageable segments,'" including "specificity, separation, and indexing, the latter to provide manageable parts for judicial disposition." Ibid.
The Vaughn index submitted by defendants identifies two sets of documents: 361 "Battle Sheets," and 525 "Edaily" timekeeping sheets. A "Battle Sheet" is described as "a record created by the EPB for each day that an EPB detail is being assigned to any person." It "sets forth the details of the EPB's security details for a particular date." The "Edaily" timekeeping sheets consist of 163 pages. They are computer print-outs from the State Police's internal timekeeping program. They contain "detailed information regarding the relevant member's work shift." The Vaughn index, after so describing the documents, is then limited to a generalized legal argument that disclosure would adversely affect the State Police's ability to protect officials from harm. In passing, we note that the submission appears to be inconsistent with the legal requirements of a Vaughn index.
During the hearing before the trial judge, defendants' counsel orally provided further details respecting the Battle Sheets and Edaily records. Although we doubt that an informal submission of that kind meets the requirements of a Vaughn index, we take note of the representations made. Thus, it appears that the documents showed staffing levels, the identities of troopers, and other information that might well be too sensitive to publish.
The judge did not discuss the Vaughn index in detail or pass on the question of its adequacy. Nor did she ask to review the underlying documents in camera, despite plaintiff's request for that to be done. Instead, indicating that she was relying on the common law, she ordered defendants to create a document "to the extent that the information is contained within the records identified... as responsive to Plaintiff's underlying OPRA request." That newly created document was to provide the following information: the number of officers "assigned to" the EPB; a "general description of the identities of any persons who accompanied the dignitaries..."; the "total number of vehicles used for" the EPB "details relevant to this action"; and the "locations to which the... details travelled during these details." The order provided that if disclosure of particular locations would raise security concerns, the defendants could withhold the information if they "specifically provide the basis" for exclusion. Last, the order directed defendants to set forth the "cost of providing" the relevant DPB details. Implicitly, the order is limited to information regarding former governors.
We consider first the judge's determination ordering the defendants to extract information from the records in question and provide that information in a new record. In Southern New Jersey Newspapers, Inc. v. Township of Mt. Laurel, 141 N.J. 56, 69 (1995), the Court noted that "the general rule is that public agencies are not required to produce new information even if the documents available under the Right-to-Know Law and the common law are unresponsive to a citizen's inquiry." However, the Court also observed that "rigid adherence to that general rule might not necessarily be appropriate in all cases." Ibid. In Board of Education v. New Jersey Department of the Treasury, 145 N.J. 269, 281 (1996), the Court applied those principles, allowing discovery of insurance claims information because the information "is better characterized as a selective copying from the [State Health Benefits] Commission's existing data base." The Court also noted that providing the information would not burden the Commission. Ibid. In the instant case, we are not dealing with a computer data base but with numerous separate documents from which the requested information could only be obtained by painstaking labor. Consequently, we are satisfied that the general rule should govern. Cf. MAG Entm't, LLC v. Div. of Alcoholic Beverage Control, 375 N.J. Super. 534, 549 (App. Div. 2005) (holding that only "identifiable" government records are subject to disclosure under OPRA and that "[w]holesale requests for general information to be... compiled by the responding government entity are not encompassed therein"). Therefore, we are obliged to reverse that portion of the judge's order directing creation of a new document. We also note that the trial court's right to order creation of a new document or record is not supported by argument in plaintiff's brief. Thus, it appears that affirming the grant of that relief would give plaintiff something it does not even want.
Last, we consider the judge's decision not to review the documents in camera.
Under OPRA, which defendants concede is applicable, the objection to release of the documents is that they concern "security measures... which, if disclosed, would create a risk to the safety of persons, property, electronic data or software." N.J.S.A. 47:1A-1.1. The difficulty with defendants' position is that OPRA does not provide that such documents need not be disclosed; rather, it provides that "[a] government record shall not include" such information. Ibid. Ordinarily, the documents should be reviewed in camera for the purpose of determining what information should be deleted as confidential. See Paff v. N.J. Dep't of Labor, 392 N.J. Super. 334, 341-42 (App. Div. 2007); Philadelphia Newspapers, Inc. v. Dep't of Law and Pub. Safety, 232 N.J. Super. 458, 466-67 (App. Div. 1989). If defendants claim that the trial court should limit itself to review of a Vaughn index, they must satisfy the requirements set forth in Loigman, supra, 102 N.J. at 108-114, and the judge must rule on their claim.
Under the common law right of access to public documents, the same result obtains. A newspaper, as here, seeking government records to expose possible waste, clearly has sufficient interest to support its request. See Philadelphia Newspapers, supra, 232 N.J. Super. at 465. That interest must then "'be balanced against the State's interest in preventing disclosure.'" Mason v. City of Hoboken, 196 N.J. 51, 67-68 (2008) (quoting Keddie v. Rutgers, 148 N.J. 36, 50 (1997)). That balancing has not yet occurred with respect to the documents themselves.
Since the judge did not deal with the Vaughn index issues or review the documents in camera, we are obliged to remand for further proceedings.
Vacated and remanded.
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