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Vasil Kovalcik v. Somerset County Prosecutor's Office

June 21, 2011

VASIL KOVALCIK, PLAINTIFF-RESPONDENT,
v.
SOMERSET COUNTY PROSECUTOR'S OFFICE, DEFENDANT-APPELLANT.



On certification to the Superior Court, Appellate Division.

The opinion of the court was delivered by: Justice Hoens

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

Vasil Kovalcik v. Somerset County Prosecutor's Office

(A-43-10) (066529)

Argued May 4, 2011 -- Decided June 21, 2011

HOENS, J., writing for a unanimous Court.

In this appeal, the Court considers the scope and application of two of the provisions of the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, that create exemptions applicable to the more general requirement that government records be disclosed. The first of those provisions exempts from disclosure government records that have been deemed to be confidential by a court order, N.J.S.A. 47:1A-1.1. The second provision at issue exempts personnel records from disclosure, N.J.S.A. 47:1A-10.

Following a criminal investigation, the specifics of which are not relevant to the Court's analysis, plaintiff Vasil Kovalcik was indicted for a number of crimes. The investigation had been conducted in part by two detectives from defendant Somerset County Prosecutor's Office, Kristin Houck and Jorge Ramos. In October 2008, as a part of the pre-trial proceedings in the criminal matter, Kovalcik filed a motion seeking to compel the Prosecutor's Office to produce certain documents relating to the two detectives that he had not been able to secure by consent. Specifically, he sought to force the Prosecutor's Office to produce the detectives' curricula vitae, as well as a list of any courses relating to interrogation and confessions that Ramos and Houck had taken.

The motion was denied orally by the criminal division judge, but before that decision was embodied in a written order, Kovalcik served an OPRA request on Barbara Lucas, Custodian of Records for Somerset County, in which he sought the identical records that had been the subject of his motion to compel. Daniel J. Livak, the Administrator and Custodian of Records for the Prosecutor's Office, responded to the request, explaining that there were no documents that were responsive to the request but also advised that to the extent that the requested documents were personnel records, they were exempted from OPRA's disclosure requirements.

Kovalcik then instituted this action, proceeding by way of Order to Show Cause and Verified Complaint and seeking to compel release of the requested documents. In opposition to the Order to Show Cause, Livak, who by that time had left his position as the records custodian, certified that he had searched for documents responsive to the OPRA request and had found none. Prior to the return date, however, Daniel White, Livak's successor, located documents that he concluded were responsive to the OPRA request. When the parties appeared on the return date, the Prosecutor's Office argued that the documents were exempt from disclosure either because the order of the criminal division judge denying the motion to compel brought them within the language of the exemption relating to orders of confidentiality or because they were exempted personnel records that did not meet the exception relating to required training courses. During the hearing, the judge quickly rejected the assertion that the criminal judge's order denying the motion to compel discovery served as an order of confidentiality that exempted the documents from disclosure. The judge then addressed the personnel records exemption. After hearing from the parties, the judge denied Kovalcik's request for an order directing that the documents be disclosed.

Kovalcik appealed. The Appellate Division affirmed in part and reversed in part. Although agreeing with the trial court that the document was not protected by an order of confidentiality, the panel rejected the argument by the Prosecutor's Office that it was an exempt personnel record.

The Supreme Court granted the petition for certification that was filed by the Prosecutor's Office.

HELD: The judgment is affirmedto the extent that it concluded that the documents are not exempt as protected by an order of confidentiality. The judgment is reversed to the extent that it held that the documents are also not exempted personnel records. That aspect of the matter is remanded to the trial court for further proceeding during which the parties shall be given an adequate opportunity to marshal sufficient proofs as to the nature of the contentsof the particular documents and the specific educational requirements for employment as a detective in the Prosecutor's Office to enable the court to apply the statute in accordance with the analysis the Court has set forth.

1. The purpose behind the Legislature's enactment of OPRA was "'to maximize public knowledge about public affairs in order to ensure an informed citizenry and to minimize the evils inherent in a secluded process.'" Mason v. City of Hoboken, 196 N.J. 51, 64 (2008). OPRA is designed to advance this policy by broadly defining "government records," N.J.S.A. 47:1A-1.1, and by publicly declaring that they shall be accessible, N.J.S.A. 47:1A-1. Notwithstanding that sweeping declaration, the right to disclosure is not absolute; OPRA exempts numerous categories of documents and information from disclosure. Court Rules grant a criminal defendant an automatic post-indictment right to discovery, see R. 3:13-3(c), but impose limits on the materials that may be obtained through the available discovery mechanisms. To be sure, there is a difference between a decision to deny a motion to compel and one that would cloak the underlying material with the protections of confidentiality. Absent a demonstration that there is an order deeming the information in the documents to be confidential, the document would remain one that is subject to the disclosure obligation imposed by OPRA rather than one statutorily shielded from the public. There can be no doubt that the mere denial of a motion to compel discovery does not suffice as the sort of protective order contemplated by the statute. A similar analysis applies in the context of civil litigation. In the absence of some basis on which to conclude that the two are equivalent, there can be no argument that the denial of a discovery motion operates, for OPRA purposes, as an order of confidentiality. In addition, there is no support for the argument proffered by the Prosecutor's Office that there is a general impediment to the use of OPRA by criminal defendants. Suggesting that there is some broader limitation on disclosure that relates solely to criminal defendants, not included in OPRA itself, is akin to asking the Court to impose an added requirement upon OPRA. Thus, the order denying the motion to compel entered in the criminal proceeding does not suffice to exempt the contested documents from disclosure. (Pp. 9-14)

2. The Legislature has declared in the exemption provision relating to personnel records, N.J.S.A. 47:1A-10, that personnel records are, by definition, not classified as government records at all; any document that qualifies as a personnel record is therefore not subject to being disclosed notwithstanding the other provisions of the statute. However, a document otherwise classified as a personnel record becomes subject to disclosure if, and only if, it fits within one of the three exceptions to the general exemption for personnel records. Only the last of the three exceptions that are included within the broad exempting language is in issue in this appeal. That exception does not authorize disclosure of any and all documents that evidence an employee's educational background or even that evidence an employee's participation in educational pursuits generally. Rather, the Legislature chose to use the words "specific" and "required" in a manner that sharply limits the exception's scope. Those words effectively narrow the mandate of disclosure because they make it plain that only if there is a specific, or particular, educational qualification that is a prerequisite for the job and only if the record demonstrates compliance with that specific requirement is it subject to being disclosed pursuant to OPRA. The record in this case leaves the Court without any certainty about whether the document falls within the exemption, meaning that it is not to be disclosed, or within the exception, meaning that Kovalcik is in fact entitled to have it. Thus, the Court cannot and should not proceed but must remand the matter to the trial court for further proceeding during which the parties shall be given an adequate opportunity to marshal sufficient proofs as to the nature of the contents of the particular documents and the specific educational requirements for employment as a detective in the Prosecutor's Office to enable the court to apply the statute in accordance with the analysis the Court has set forth. (Pp. 14-20)

The judgment of the Appellate Division is AFFIRMED in part and REVERSED in part. The judgment is AFFIRMED to the extent that it concluded that the documents are not exempt as protected by an order of confidentiality. The judgment is REVERSED to the extent that it held that the documents are also not exempted personnel records, and that aspect of the matter is REMANDED to the trial court for further proceedings in accordance with the principles to which the Court has adverted.

CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, and RIVERA-SOTO join in JUSTICE HOENS's opinion.

Argued May 4, 2011

JUSTICE HOENS delivered the opinion of the Court.

In this appeal, we consider the scope and application of two of the provisions of the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, that create exemptions applicable to the more ...


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