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Rosenberg v. State

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,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

I.

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 ...


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