May 26, 2010
TED M. ROSENBERG, PLAINTIFF-APPELLANT, AND GEORGE E. NORCROSS, III; MARK NEISSER; HENRY CHUDZINSKI; R. LOUIS GALLAGHER, II; JCA ASSOCIATES, INC.; PHILADELPHIA NEWSPAPERS, INC.; NEWARK MORNING LEDGER COMPANY, PUBLISHER OF THE STAR LEDGER; NEW YORK TIMES COMPANY; RECORD OF BERGEN COUNTY; BURLINGTON COUNTY TIMES AND COURIER-POST, PLAINTIFFS-INTERVENORS-RESPONDENTS,
STATE OF NEW JERSEY DEPARTMENT OF LAW AND PUBLIC SAFETY, DIVISION OF CRIMINAL JUSTICE AND STATE OF NEW JERSEY, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-147-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 3, 2010
Before Judges Lisa, Baxter and Coburn.
In Rosenberg v. New Jersey Department of Law and Public Safety, Division of Criminal Justice, 396 N.J. Super. 565, 581 (App. Div. 2007) (Rosenberg I), we remanded to the Law Division with instructions that the court should review anew the documents plaintiff Ted M. Rosenberg had sought from defendant, New Jersey Department of Law and Public Safety, Division of Criminal Justice (DCJ). We concluded that the judge's August 28, 2006 letter opinion upholding DCJ's refusal to provide the documents lacked specific factual findings and was so conclusory as to frustrate appellate review. Ibid. Consequently, we directed the judge upon remand to make detailed findings of fact concerning the contents of the documents, to apply the Loigman v. Kimmelman, 102 N.J. 98, 113 (1986), factors, and to provide specific reasons, on a document-by-document basis, explaining why each document was protected, or not protected, from disclosure. Rosenberg I, supra, 396 N.J. Super. at 581.
We agree with plaintiff's contention that the remand opinion issued on February 25, 2009, and adopted by order of August 11, 2009, falls short of satisfying the instructions we issued in Rosenberg I. Consequently, we remand again and direct the Law Division to issue an opinion that satisfies those instructions.
In our opinion in Rosenberg I, we set forth in considerable detail the events leading up to plaintiff's document request, made under the common law right to know doctrine, as well as DCJ's response to that request. Supra, 396 N.J. Super. at 570-75. We incorporate that discussion by reference here. For present purposes, it is sufficient to note that in 2000, plaintiff ran unsuccessfully for the position of Chair of the Burlington County Democratic Party. Id. at 570. At the time of the election, plaintiff was Solicitor of the Borough of Palmyra. Ibid. After the election, John J. Gural, Jr., a Palmyra councilman, notified plaintiff that he was being subjected to considerable pressure from two colleagues at the Moorestown engineering firm at which he worked to refuse to reappoint plaintiff as Palmyra Borough Solicitor when plaintiff's term expired. Ibid. Gural reported these events to DCJ and provided DCJ attorneys with secretly made tape recordings that supported his allegations. Ibid. DCJ's investigation, which spanned several years, ultimately resulted in the two initial targets of the investigation pleading guilty, but only to tax evasion. Id. at 571. The wider criminal investigation into whether highly placed political operatives in the Burlington County Democratic Party had engaged in a conspiracy to deny plaintiff reappointment as Solicitor was ultimately closed in February 2005, id. at 573, amid claims by the United States Attorney that DCJ had severely bungled the investigation, id. at 575.
On December 22, 2004, plaintiff served a written request upon DCJ's Records Custodian under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, for "'[a]ny and all recordings and transcripts of such recordings made by [DCJ] . . . of conversations between . . . Gural . . . and'" various individuals. Id. at 572 (second alteration added). Relying on N.J.S.A. 47:1A-1.1, DCJ denied the request on January 4, 2005. Ibid.
On January 11, 2005, plaintiff modified his request for the Gural tapes, seeking access under the common law "right to know" doctrine. Ibid. DCJ denied this request on January 18, 2005, as plaintiff had "failed to show an interest in the records requested" and because state and federal litigation was pending regarding the records. Ibid.
On January 12, 2005, plaintiff filed, in state court, a verified complaint in lieu of prerogative writs and order to show cause for production of the documents he had requested from DCJ. Ibid. Plaintiff requested both the Gural tapes and "[a]ny and all investigative records, documents, or other information made or kept by DCJ relating to any criminal investigations involving the appointment of the Solicitor in Palmyra for the year 2001."
On March 4, 2005, the Law Division ordered DCJ to turn over the Gural tapes to plaintiff. The judge found that the tapes were common law public documents; that plaintiff possessed the requisite interest in the tapes as he was the primary focus of and reason for making the tapes; and that plaintiff's interest in the disclosure of the tapes outweighed the State's interest in non-disclosure because there was no ongoing investigation. Id. at 573.
On March 18, 2005, DCJ moved for reconsideration of the March 4, 2005 order. DCJ supported its motion by providing the judge with a Vaughn index*fn1 that listed the participants in each of the transcripts made from the Gural tapes. DCJ also provided the judge with a transcript of each of the taped conversations for in camera review. Ibid.
In a March 31, 2005 order, the judge granted intervenor status as plaintiffs to George Norcross III, Mark Neisser, Henry Chudzinski, R. Louis Gallagher II, and JCA Associates, Inc. for the purpose of obtaining the Gural tapes and transcripts should the court ultimately order them to be turned over to plaintiff. Ibid. The March 31, 2005 order also denied DCJ's motion for reconsideration and ordered DCJ to "produce all of the recordings and transcripts to the [p]laintiff . . . and to all interven[o]rs by 4:00 p.m. on March 31, 2005."
On May 12, 2005, by leave granted, we reversed the portions of the March 31, 2005 order that had required release of the tapes. We stated:
The State's claims of need to protect innocent third parties and criminal investigative methods and techniques . . . are remanded to the trial judge for an in camera proceeding limited to those claims.
The proceeding shall consist of a review of the Vaughn indices and transcripts which have been provided by the State.
On September 9, 2005, plaintiff filed the motion that is the subject of this appeal, seeking to compel DCJ to provide him with its entire investigatory file concerning the Palmyra Solicitor matter. In response to that motion, DCJ produced an expanded Vaughn index on December 2, 2005, which listed all documents alleged to be privileged and confidential. Id. at 575. The judge ordered DCJ to provide copies of the expanded Vaughn index to plaintiff and to intervenors. Ibid. DCJ simultaneously released to plaintiff copies of files it did not deem privileged, including correspondence between DCJ and plaintiff; plea agreements for Neisser, Chudzinski, and William Vukoder; legal research; and newspapers and internet articles. Ibid.
In response to our May 12, 2005 order, on August 28, 2006, the judge issued a preliminary letter opinion in which he listed the types of documents that were included in the box of materials DCJ had provided to him for in camera review. Included were emails, evidence vouchers, newspaper articles, notes of interviews and telephone calls, Gural recordings, legal memoranda, reports from DCJ detectives, reports of interviews and personal impressions, transcripts of previously released tape recordings made while Gural was wearing a body wire, correspondence between counsel, and numerous pages downloaded from NJPolitics.com. Id. at 576. On September 29, 2006, the judge issued a letter opinion in which he concluded that each of the items was protected from disclosure by one or more specific privileges. The judge reasoned:
Every document reviewed contained, in whole or in part, personal impressions, opinions, or observations of the authors and/or police investigative protocols or techniques, all of which were so intertwined with other factual material as to render redaction of the former an impossible task if some semblance of meaning were to remain for the unredacted portion of the document or set of documents.
Based upon my in camera review of the documents, I am convinced that a clear showing of advancement of the public interest has not been made such as to warrant disclosure. That conclusion results from consideration of the factors enumerated in [Loigman, supra, 102 N.J. at 113]: (1) that disclosure of the written material in this case could easily impede the primary functions of the DCJ by discouraging witnesses from reporting actual or potential criminal activities; (2) that such witnesses could be subject to ridicule and unwarranted legal actions by those whose names and activities were reported; (3) that many of the documents contained self-critical analyses and recommendations for improved investigative procedures which, if released, will be subjected to a chilling effect; (4) that, as noted, the factual data contained in the material sought is so intertwined with personal observations, impressions and strategies that meaningful redaction is made virtually impossible; and (5) that the investigation by the Attorney General's office was the subject of a report from the Office of Governmental Integrity that this court also declined to disclose for basically the same reasons that disclosure is deemed improper here.
To release the documents sought by plaintiff would, in this court's opinion, be the functional equivalent of allowing the plaintiff to participate with employees of the Attorney General's office in the actual investigation. Separation of facts from opinions cannot be accomplished in any meaningful way.
In our opinion in Rosenberg I, we held that the judge's September 29, 2006 letter opinion was insufficient and we remanded for "a more detailed articulation of reasons, focusing on either individual documents or groups of documents designated by Bates number in the privilege log (Vaughn Index) filed under seal by the State." Supra, 396 N.J. Super. at 569. We held:
[T]he judge restated, in a conclusory fashion, the five Loigman factors he found applied, without referencing particular documents by Bates numbers*fn2 to which a particular factor applied, or making specific factual findings why the factor applied to the contents of particular documents. We, therefore, remand the matter to the trial court with the directions to review anew the documents contained in the Vaughn index and render a decision making specific reference to particular documents or group of documents and provide his factual findings, if necessary, in the form of a separate sealed decision. [Id. at 581.]
We essentially held that without these factual findings, we were unable to determine whether the judge had abused his discretion in not releasing the documents plaintiff requested. Ibid. We therefore remanded for the preparation of a detailed statement of reasons. Ibid.
In the interim, the judge who issued the September 29, 2006 opinion had retired. Consequently, the task of preparing the remand opinion was assigned to a second judge, who filed a written opinion on February 25, 2009. The February 25, 2009 opinion began with a list, in the most general of terms, describing each of the documents he reviewed.*fn3
After listing the eleven items, the judge made the following findings of fact and conclusions of law about the documents in groups one through eight and ten and eleven. We quote his findings in their entirety:
It is this court's opinion that after a review of the above mentioned documents, the plaintiff has not established that his interests in public disclosure outweigh the state's interest in maintaining confidentiality. Loigman, supra, 102 N.J. at 112. The documents or groups of documents contained in 1-8 and 10 and 11 above consist of internal memorand[a] of various members of the Division of Criminal Justice. Disclosure of these documents would discourage witnesses from reporting actual or potential criminal activities, reveal self-critical analyses and recommendations which would result in a chilling effect on future agency activities, and most importantly as far as this court is concerned, the information sought could not be separated from personal observations, impressions, and strategies because this information is so intertwined so as to make redaction virtually impossible. The court therefore finds that disclosure of this internal information should not be ordered.
As to the documents in group nine, which consisted of correspondence, the judge made a separate finding, which we set forth in its entirety:
The court also finds that the correspondence should not be disclosed because it pertains to individuals other than the plaintiff, and it is privileged, absent a waiver of the privilege. The information should not be disclosed.
On August 11, 2009, because the second judge had also retired, a third judge issued an order adopting the second judge's February 25, 2009 opinion. It is from that opinion and order that plaintiff now appeals, raising a single argument. He contends that on remand, the trial judge failed to comply with this court's directive to review anew the documents contained within the Vaughn index and to make specific factual findings as to the applicability of the Loigman factors. In particular, plaintiff argues that the February 25, 2009 opinion fails to comply with this Court's directive in Rosenberg I because, in his written opinion, the judge made only "general, conclusory observations" and failed to "refer to specific documents by Bates numbers[,] . . . failed to render an opinion making the necessary findings of fact[,] . . . [and] failed to explain the rationale for each document he deemed privileged."
DCJ argues that the February 2009 opinion satisfied this Court's instructions in Rosenberg I because it provides far more detail than the earlier 2006 opinion. In particular, according to DCJ, the 2009 opinion lists the documents reviewed and then applies the Loigman factors to each document or category listed.
A citizen requesting disclosure of documents pursuant to the common law right to know doctrine must satisfy three requirements: "(1) the records must be common-law public documents; (2) the person seeking access must establish an interest in the subject matter of the material; and (3) the citizen's right to access must be balanced against the State's interest in preventing disclosure." Keddie v. Rutgers, 148 N.J. 36, 50 (1997) (internal quotations and citations omitted). When evaluating prong three, the trial court should consider the siX factors set forth in Loigman, supra, 102 N.J. at 113. These factors are:
(1) the extent to which disclosure will impede agency functions by discouraging citizens from providing information to the government; (2) the effect disclosure may have upon persons who have given such information, and whether they did so in reliance that their identities would not be disclosed; (3) the extent to which agency self-evaluation, program improvement, or other decisionmaking will be chilled by disclosure; (4) the degree to which the information sought includes factual data as opposed to evaluative reports of policymakers; (5) whether any findings of public misconduct have been insufficiently corrected by remedial measures instituted by the investigative agency; and (6) whether any agency disciplinary or investigatory proceedings have arisen that may circumscribe the individual's asserted need for the materials. [Ibid.]
The Loigman factors, however, are not exhaustive and other criteria may be examined. Educ. Law Ctr. ex rel. Burke v. N.J. Dep't of Educ., 396 N.J. Super. 634, 644 (App. Div. 2007), rev'd on other grounds, 198 N.J. 274 (2009).
In making a decision whether to disclose the documents, the "trial court must examine each document individually and make factual findings with regard to why [a plaintiff's] interest in disclosure is or is not outweighed by [the State's] interest in non-disclosure." Keddie, supra, 148 N.J. at 54. Further, the trial court should "make specific determinations regarding plaintiff's access to [the records], including an expression of reasons for the court's rulings. The trial court must examine each document individually, and explain as to each document deemed privileged why it has so ruled." Seacoast Builders Corp. v. Rutgers, 358 N.J. Super. 524, 542 (App. Div. 2003) (internal quotations and citations omitted).
With these principles in mind, we turn to an analysis of the judge's February 25, 2009 opinion. As we have noted, DCJ urges us to affirm the order because, in keeping with our decision in Rosenberg I, the judge made reference to the specific documents he received. We reject DCJ's argument for several reasons.
First, as is evident from the judge's opinion, although the judge divided the documents into eleven groups, he made no effort to analyze the documents individually. Instead, he merely discussed them in the aggregate, commenting that "[t]he documents or groups of documents contained in 1 [through] 8 and 10 and 11 above consist of internal memorand[a] of various members of [DCJ]." Without an individualized discussion of each document, the February 2009 decision falls far short of the "document-by-document" analysis we required in Rosenberg I, supra, 396 N.J. Super. at 569. DCJ relies on the portion of our opinion that permitted the judge on remand to render a decision "making specific reference to particular documents or group of documents." Id. at 581 (emphasis added). However, DCJ's approach is not only unduly mechanical, but also takes the language of our opinion out of context.
As is evident from our opinion in Rosenberg I, we criticized the first judge for issuing an opinion that "referred generally to all the documents rather than a particular document by Bates number," id. at 580, and for restating the Loigman factors "in a conclusory fashion . . . without referencing particular documents by Bates numbers to which a particular factor applied," id. at 581 (emphasis added). Thus, DCJ's argument that the judge discussed the documents in the groups that we authorized in Rosenberg I elevates form over substance. We authorized the judge to refer to documents by "groups," but only if the documents shared common characteristics. Aggregating dozens of documents into one group, as the judge did in his February 2009 opinion, does not satisfy our instruction in Rosenberg I, ibid., that an individualized assessment be made of each document.
Second, by referring to documents as "1 [to] 8 and 10 and 11," the judge lumped together an enormous multitude of documents. The judge's approach caused DCJ, in its appellate brief, to devote nearly two single-spaced pages in a footnote to cross-referencing all of these documents to the Vaughn index, which is something the judge himself should have done. As but one example, DCJ's brief explains that group seven consists of "58 separate investigative reports by various criminal investigators," which "are found at page 37, row 2, through page 38, row 3." Group seven of the Vaughn index alone consumes pages 221-232 of plaintiff's appendix.
The Vaughn index itself is sixty-two pages long. It contains a total of 312 separate entries. It is highly unlikely that the same Loigman factors ("[d]isclosure . . . would discourage witnesses from reporting . . . criminal activities, reveal self-critical analyses and . . . [cause] a chilling effect on future agency activities") could possibly apply with equal force to 312 documents. For these reasons, we reject DCJ's contention that because the judge listed the documents he had reviewed, he complied with our instruction to conduct an individualized assessment of each document.
Another problem with the judge's February 2009 opinion is the absence of any description of the contents of the 312 documents the judge reviewed. Although the judge identified the author and the recipient of each letter or facsimile, he has told us nothing about their content. DCJ urges us to read the judge's list of documents in conjunction with the Vaughn index, because the Vaughn index provides more information about the documents. However, the only additional, substantive information provided by the Vaughn index is the identity of third parties who were mentioned in the document and which privilege DCJ was asserting as to the document; the Vaughn index provides no further insight into the content of the documents themselves. Without knowing more about the content, this court is unable to conduct any review, much less a thorough review, of plaintiff's claims.
In particular, and as an example, without knowing the content of the "internal investigative reports" referenced in group seven or of the "internal memoranda" from DCJ investigators to deputy attorneys general referenced in group six, our review of the judge's conclusions is impossible. How can we affirm or reverse the judge's conclusions that disclosure would "reveal self-critical analyses," thereby causing a "chilling" effect on future agency activities, or that disclosure would "discourage witnesses from reporting . . . criminal activities" if we are left completely in the dark about the content of the actual documents?*fn4
It was for this very reason, relying on Seacoast, supra, 358 N.J. Super. at 542, that we rejected the first judge's conclusory opinion in Rosenberg I. Supra, 396 N.J. Super. at 581. The February 2009 opinion suffers from identical shortcomings. It provides us with no description of the contents of the documents that were reviewed in camera on a document-by-document basis; it fails to explain which Loigman factors apply to which documents; and it fails to balance plaintiff's right of access against the State's purported interest in avoiding disclosure.
We note that DCJ has spent a substantial portion of its brief arguing that the judge's decision not to release the documents was not an abuse of discretion because plaintiff's interests in disclosure did not outweigh the State's interest in maintaining confidentiality. This issue is not before us given the posture of the present appeal. Plaintiff has appealed only as to the form of the judge's opinion and has argued that the judge failed to follow the directive of Rosenberg I. No argument has been made by plaintiff as to whether the substantive holding, that the documents should not be released, constitutes an abuse of discretion. Moreover, this issue is not currently ripe for this court's review in light of the deficiencies in the judge's February 2009 opinion that we have already discussed, and the absence of the documents from the record on appeal. Without the factual findings and rationales required by Rosenberg I, this court cannot proceed to the next stage of determining whether an abuse of discretion has occurred. See Shuttleworth v. City of Camden, 258 N.J. Super. 573, 588 (App. Div.) (observing that a judge's decision on release of documents is reviewed for an abuse of discretion), certif. denied, 133 N.J. 429 (1992).
We reverse the August 11, 2009 order that adopted the February 25, 2009 opinion. We remand for the issuance of the opinion we required in Rosenberg I.
Reversed and remanded.