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John Paff v. Borough of Chatham

October 28, 2011

JOHN PAFF, PLAINTIFF-APPELLANT,
v.
BOROUGH OF CHATHAM, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1860-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 21, 2011

Before Judges Graves and Koblitz.

Plaintiff John Paff has a blog*fn1 on which he reviews New Jersey public employee disciplinary matters once or twice a year. This appeal arises from Paff's request for information regarding the length of a Chatham Police Officer's suspension. The Borough of Chatham refused to divulge that information, citing the confidentiality accorded personnel matters.

A Chatham police officer was disciplined for leaving a loaded .45 caliber gun and his police credentials in a backpack on a residential street in Westfield while under the influence of alcohol. He was demoted from sergeant to patrol officer by public resolution #10-156 on April 10, 2010. The parties agreed that demotion of a law enforcement officer in Chatham can be accomplished only in this non-confidential manner.*fn2 The local press reported the officer's demotion.

After learning from both the Chatham Police Chief and the borough's labor attorney that the officer was also suspended, the press reported that disciplinary action as well. However, details about the length of the suspension and whether it was with or without pay were not revealed.

On December 3, 2010, after reviewing the officer's disciplinary records in camera, the trial judge denied Paff's motions for summary judgment and reconsideration*fn3 and granted defendant Chatham's cross-motion for summary judgment. Paff appeals the trial judge's order. After reviewing the record in light of the contentions advanced on appeal, we affirm.

When evaluating summary judgment orders, we use the same standard as the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We must decide first whether there exists a genuine issue of material fact. Ibid. If, as here, no genuine issue exists, we then determine whether the trial judge properly applied the law. Walker v. Alt. Chrysler Plymouth, Inc., 216 N.J. Super. 255, 258 (App. Div. 1987). We defer to a trial court's factual findings concerning whether to disclose public documents under the common law right to access, although the court's legal conclusions are reviewed de novo. Drinker Biddle & Reath LLP v. N.J. Dep't of Law & Pub. Safety, 421 N.J. Super. 489, 497 (App. Div. 2011) ("We review de novo the . . . court's legal conclusions with respect to whether access to public records is appropriate under the common-law right of access."); Shuttleworth v. City of Camden, 258 N.J. Super. 573, 588 (App. Div.) (citing Loigman v. Kimmelman, 102 N.J. 98 (1986)), certif. denied, 133 N.J. 429 (1992)).

The parties agree that the information requested by Paff would not be accessible under the Open Public Records Act (OPRA) because of the provision excluding public employees' personnel records from disclosure. See N.J.S.A. 47:1A-10. Paff argues that, as a member of the public, the common law right to access entitles him to information regarding the length of the officer's suspension.

The threshold consideration under the common law right to access is whether the plaintiff has standing. S. N.J. Newspapers v. Twp. of Mt. Laurel, 141 N.J. 56, 71 (1995). Newspapers are afforded standing as entities that collectively represent the public interest. See Home News v. State Dep't of Health, 144 N.J. 446, 454 (1996) ("The press's role as 'the eyes and ears of the public' generally is sufficient to confer standing on a newspaper that seeks access to public documents."

(quoting S. Jersey Publ'g Co., Inc. v. N.J. Expressway Auth., 124 N.J. 478, 496 (1991)). Both parties agree that Paff's sporadic blogging activity does not qualify him as a journalist. See Too Much Media, LLC v. Hale, 206 N.J. 209, 237 (2011). Thus, his interest in the subject matter at issue is not that of a news source. Nevertheless, the Supreme Court has clarified that "a citizen's concern about a public problem is a sufficient interest for purposes of standing." Home News, supra, 144 N.J. at 454; see also S. N.J. Newspapers, supra, 141 N.J. at 71 (citing Irval Realty Inc. v. Bd. of Pub. Util. Comm'rs, 61 N.J. 366, 372 (1972)). "Ordinarily [] only an assertion of citizen or taxpayer status is necessary . . ., subject to a showing of good faith." Loigman, supra, 102 N.J. at 104-05.

The second inquiry when evaluating a right to access claim is whether the documents sought to be disclosed fit within the common law definition of "public records." See Nero v. Hyland, 76 N.J. 213, 221-22 (1978) (quoting Josefowicz v. Porter, 32 N.J. Super. 585, 591 (App. Div. 1954)). As neither party disputes that the information sought by Paff are public records, we will refrain from discussing this component of the analysis.

The final step in determining whether disclosure is appropriate under the common law requires the trial judge to engage in an "exquisite weighing process." Loigman, supra, 102 N.J. at 108 (quoting Beck v. Bluestein, 194 N.J. Super. 247, 263 (App. Div. 1984)). In doing so, "'a court must balance the plaintiff's interest in the information against the public interest in confidentiality of the documents, including a consideration of whether the demand for inspection is premised upon a purpose [that] tends to advance or further a wholesome public interest or a legitimate private interest.'" S. N.J. Newspapers, supra, 141 N.J. at 72 (alteration in original) (quoting S. Jersey Publ'g Co., supra, 124 N.J. at 488). In Loigman, the Court explained that "if the governmental need in confidentiality is slight or non-existent, citizen-taxpayer ...


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