(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).
ATLANTIC CITY CONVENTION CENTER AUTHORITY V. SOUTH JERSEY PUBLISHING COMPANY,
INC., ET AL. (A-52-93)
Argued November 29, 1993 -- Decided March 23, 1994
O'HERN, J., writing for a unanimous Court.
The Atlantic City Convention Center Authority (Authority) operates the Atlantic City Convention
Center. As an agency of the State, the Authority conducts its meetings under the Open Public Meetings Act.
The Authority's principal responsibility is to oversee Convention Hall in Atlantic City. The Atlantic County
Improvement Authority currently owns Convention Hall, and the New Jersey Sports and Exposition Authority
leases it. The Authority operates the Atlantic City Convention and Visitors Bureau (Bureau) as one of its
activities. In 1988, Ted Bergman was the chief officer of the Bureau. Bergman resigned or was fired from the
Bureau that year. Pursuant to the Open Public Meetings Act, the Authority went into executive session (closed
session) to discuss Bergman's personnel performance. Details of that session are not known.
In May and June of 1991, the Authority developed a new position designed to increase business for non-casino hotels in Atlantic City. The Authority discussed that position in executive session and eventually hired
Bergman as an independent contractor to fill that position. The Authority's by-laws permitted tape recording
of those executive-session meetings to assist in preparation of the minutes that are required by law. The South
Jersey Publishing Company (the Press) requested that the Authority release the minutes of the executive sessions
dealing with the circumstances under which Bergman had left the Bureau and the circumstances under which
he had been rehired.
Bergman would not consent to a release of the requested executive-session minutes. Therefore,
the Authority sought direction from the court concerning disclosure of the executive-session minutes. The
Chancery Division, after reviewing the minutes for any confidential or privileged information, directed that the
Authority release the executive-session minutes dealing with Bergman's leaving the Bureau as well as the minutes
dealing with the Authority hiring Bergman as an independent contractor.
The Press also sought release of the audio tape recordings of the executive sessions. The Authority
voluntarily tape-recorded general sessions and executive sessions for its own convenience; the audio tapes made
the drafting of the required minutes easier and more accurate. The Authority opposed the release of these audio
tapes. The Chancery Division ruled that tape recordings of the executive sessions were not public records subject
to disclosure and that, even assuming they were public records, the privacy interests of Bergman and the interests
of the Authority and the integrity of the executive process outweighed the interests of the Press in the release
of the recordings.
On appeal, the Appellate Division affirmed the Chancery court, holding that the court had correctly
determined the tapes were not public records under the common law or the Right-to-Know Law. The Appellate
Division further held that the trial court did not need to balance the Press's interest in the release of the tape
recordings against the public and private interests in confidentiality because no legal requirement dictated that
the tapes should serve as public records. The Supreme Court granted certification.
HELD: Media representatives are entitled to access to audio tape recordings of a public bodies' closed
executive-session meetings during which personnel matters are discussed, subject before disclosure
to the removal of any confidential or privileged information that may be withheld under principles
of common-law access to public records or related principles of the Open Public Meetings Act.
1. A citizen who desires access to public records may assert his or her common-law right to inspect public
records; may resort to the Right-to-Know Law; or, if a litigant, may avail himself or herself of the broad civil
discovery procedures. At common law, citizens must demonstrate some personal or particular interest in the
material sought to be examined. Under the Right-to-Know Law, records subject to public inspection are those
records required by law to be made, maintained, or kept on file. Under the common law, if a court determines
that a party has both an interest and a need for a document, it must engage in a balancing process focused on
the relative interests of the parties in relation to the specific materials. Among the interests a court must
consider in balancing disclosure and non-disclosure is the extent to which disclosure would hinder frank and
independent discussion of policy during deliberations. (pp. 5-10)
2. The Authority was not required to tape-record its closed sessions. It used the audio tapes merely as
a convenience in preparing the official minutes that it must disclose under the Right-to-Know Law. As such, the
audio tapes were not records required to be made, maintained or kept and do not constitute Right-to-Know
records. However, the audio tapes are common-law records subject to balanced disclosure. An audio tape or
video tape, prepared to serve as a memorial of something said or done by a public officer or as a memorial of
a public proceeding or public business, should be considered a public record under the common law. (pp. 10-16)
3. Once having determined that the audio tapes constitute public record subject to the common-law right
of inspection, a balancing test must be applied to measure the public interest in access to the information against
the individual's privacy rights as reflected through the personnel exemption under the Right-to-Know Law and
against the Agency's deliberative-process privilege. Here, the trial court should conduct an in camera review of
the public records involved to ascertain whether they include confidential or privileged information that the court
should excise before disclosure. Also, the court must balance the public interest in fostering free and frank
exchange of views among the members without having the members fear disclosure of their deliberations.
Blanket access to the tapes would not be required. There would be limited access to those portions of the tapes
necessary to vindicate the public interest. The court would be free to redact portions of the tapes that constitute
either confidential or privileged information, that amount to an invasion of privacy, or that would unnecessarily
intrude on the deliberative process. (pp. 16-20)
4. Because the courts below may have been influenced by the determinations that the audio tapes sought
did not constitute common-law public records and because the trial court did not determine what portions of
the tapes could be released without interfering with the deliberative process of the agency involved, without
interfering with Bergman's privacy interests, or without imposing an undue burden on the court to review the
materials, the matter should be remanded to the Chancery Division. (pp. 19-21)
Judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Chancery
Division for further proceedings in accordance with this opinion.
CHIEF JUSTICE WILENTZ and JUSTICES CLIFFORD, HANDLER, POLLOCK, GARIBALDI and
STEIN join in JUSTICE O'HERN's opinion.
SUPREME COURT OF NEW JERSEY
A-
52 September Term 1993
ATLANTIC CITY CONVENTION CENTER
AUTHORITY, a body corporate politic,
Plaintiff-Respondent,
v.
SOUTH JERSEY PUBLISHING COMPANY, INC.,
t/a THE PRESS & SUNDAY PRESS,
Defendant-Appellant,
and
TED BERGMAN,
Defendant.
Argued November 29, 1993 -- Decided March 23, 1994
On certification to the Superior Court,
Appellate Division.
Nelson C. Johnson argued the cause for
appellant (Sills, Cummis, Zuckerman, Radin,
Tischman, Epstein & Gross, attorneys).
Fredric L. Shenkman argued the cause for
respondent (Goldenberg, Mackler & Sayegh,
attorneys).
Susan R. Oxford, Assistant Deputy Public
Advocate, argued the cause for amicus curiae
Public Advocate of New Jersey (Zulima V.
Farber, Public Advocate, attorney).
Grey J. Dimenna, Assistant Chief Deputy
Attorney General, argued the cause for amicus
curiae Attorney General of New Jersey (Fred
DeVesa, Acting Attorney General, attorney;
Joseph L. Yannotti and Mark J. Fleming,
Assistant Attorneys General, of counsel; Bruce
J. Solomon, Deputy Attorney General, on the brief).
The opinion of the Court was delivered by
O'HERN, J.
"Welcome to the electronic world." These
prophetic words were uttered in 1980 by one of
the attorneys arguing in United States v.
Myers (In re Application of National
Broadcasting Co.) -- the first case where
members of the broadcast media successfully
applied for judicial permission to copy and
broadcast videotapes admitted into evidence in
a criminal trial.
[David Marburger, In Defense of Broadcaster
Access to Evidentiary Video and Audio Tapes,
44 U. Pitt. L. Rev. 647, 647 (1983) (footnote
omitted).]
In this case the media seek to copy and publish audio tapes of
a public body's executive sessions (meetings closed to the public)
during which personnel matters were discussed. We hold that media
representatives are entitled to access to such records of official
public action, subject before disclosure to the removal of any
confidential or privileged information that may be withheld under
our principles of common-law access to public records or related
principles of the Open Public Meetings Act, N.J.S.A. 10:4-6 to -21.
We remand the matter to the Chancery Division for reconsideration
of its decision barring access to the tapes.
For purposes of this appeal, we accept generally the version of the case as set forth in the brief of the Atlantic City Convention Center Authority (the Authority).
The Authority operates the Atlantic City Convention Center pursuant to N.J.S.A. 52:27H-29. As an agency of the State, the
Authority conducts its meetings under the Open Public Meetings Act.
Its principal responsibility is to oversee the Convention Hall in
Atlantic City. The Atlantic County Improvement Authority now owns
the Convention Hall, and the New Jersey Sports and Exposition
Authority leases it. The Authority operates the Atlantic City
Convention and Visitors Bureau (Bureau) as one of its activities.
In 1988, before the Authority became involved with the
Atlantic County Improvement Authority or the New Jersey Sports and
Exposition Authority, Ted Bergman was the chief officer of its
Bureau. Bergman resigned or was fired from employment with the
Bureau that year. Pursuant to the Open Public Meetings Act, the
Authority went into executive session to discuss Bergman's
personnel performance; therefore, details of that session are not
known.
In May and June of 1991, the Authority developed a new
position designed to increase business for non-casino hotels in
Atlantic City. The Authority discussed the new position in
executive session, pursuant to N.J.S.A. 10:4-12(b)(8). The
Authority hired Bergman as an independent contractor for the
purpose of attracting convention business to the Atlantic City area
that would use non-casino hotels. The Authority's by-laws
permitted tape recording of those executive-session meetings to
assist in preparation of the minutes required by law. The South
Jersey Publishing Company (the Press) requested that the Authority
release the minutes of the executive sessions dealing with the
circumstances under which Bergman had left the Bureau and the
circumstances under which he had been rehired. The Authority asked
Bergman whether he would consent to the release of the executive-session minutes. He would not agree.
Considering itself on the horns of a dilemma in that the Press
might have been entitled to the executive-session minutes but
Bergman had retained his rights to privacy, the Authority began
these proceedings. It requested direction from the court
concerning disclosure of the executive-session minutes under the
standards set forth in the recently-decided case of South Jersey
Publishing Co. v. New Jersey Expressway Authority,
124 N.J. 478
(1991). The Chancery Division, after reviewing the minutes for any
confidential or privileged information, directed that the Authority
release the executive-session minutes dealing with Bergman's
leaving the Bureau as well as the minutes dealing with the
Authority hiring Bergman as an independent contractor. Shortly
before the return date of its own motion for disclosure of the
minutes, the Press sought release of the tape recordings of the
executive sessions as well. To make the drafting of the minutes
easier and more accurate and pursuant to Authority by-laws, the
Authority voluntarily tape-recorded general sessions and executive
sessions for its own convenience. The Authority opposed the
release of the audio tapes of the executive sessions. The Chancery
Division ruled that tape recordings of the executive sessions were
not "public records subject to disclosure" and that even assuming
they were public records, the privacy interest of Bergman and the
interests of the Authority in the integrity of the executive
process outweighed the interest of the Press in the release of the
recordings.
On appeal the Appellate Division, in an unpublished opinion,
affirmed the Chancery court, holding that the court had correctly
determined the tapes were not public records under the common law
or the Right-to-Know Law, N.J.S.A. 47:1A-2. Further, the Appellate
Division held that the trial court did not need to balance the
Press' interest in the release of the tape recordings against the
public and private interest in confidentiality because no legal
requirement dictated that the tapes should serve as public records.
We granted the Press' petition for certification,
134 N.J. 474
(1993).
In a long series of cases we have outlined the standards for access to public records. The gender references are a bit dated but the principles are unaffected. We summarize them briefly.
A person seeking access to public records may today consider at least three avenues of approach. He may assert his common law right as a citizen to inspect public records; he may resort to the Right to Know Law, N.J.S.A. 47:1A-1 et seq., or, if he is a litigant, he may avail himself of the broad discovery procedures for which our rules of civil practice make ample provision.
[Irval Realty Inc. v. Board of
Pub. Util. Comm'rs,
61 N.J. 366,
372 (1972).]
At common law, however, courts required citizens to
demonstrate some "personal" or "particular" interest in the
material sought to be examined. Ibid. In order to overcome that
requirement and make official governmental records available to the
general public for inspection and copying, the Legislature adopted
the Right-to-Know Law, N.J.S.A. 47:1A-1 to -4. However, that law
does not embrace a definition of a public record that is equivalent
to the common-law definition of a public record. Nero v. Hyland,
76 N.J. 213, 221 (1978). The Right-to-Know Law covers only those
records "required by law to be made, maintained or kept on file."
N.J.S.A. 47:1A-2. Thus, a limited class of records is
unqualifiedly available to all citizens under the statute, while a
much broader class of records is only qualifiedly available to the
public under the common law.
In addition, although our common-law definition of a public
record is broader than the Right-to-Know-Law definition, our courts
developed that common-law definition long before electronic means
of recording information were generally employed. Our cases had
held that
[a] public record under the common law is
"* * * one required by law to be kept, or necessary to be kept in the discharge of a duty imposed by law, or directed by law to serve as a memorial and evidence of something written, said, or done, or a written memorial made by a public officer authorized to perform that function, or a writing filed in a public office. The elements essential to constitute a public record are * * * that it be a written memorial, that
it be made by a public officer, that
the officer be authorized by law to
make it * * *"
[Nero, supra, 76 N.J. at 222 (quoting
Josefowicz v. Porter, 32 N.J. Super.
585, 591 (App. Div. l954).]
Finally, even if a party has a cognizable common-law interest in obtaining materials that are part of the public record, a court will not grant an absolute right to the documents. Once a court determines that a party has both an interest and a need for a document, the court must engage in a balancing process "concretely focused upon the relative interests of the parties in relation to [the] specific materials." McClain v. College Hosp., 99 N.J. 346, 361 (1985). That process is "flexible and adaptable to different circumstances and sensitive to the fact that the requirements of confidentiality are greater in some situations than in others." Id. at 362. We and other courts of the State have applied this standard in a number of settings. See North Jersey Newspapers Co. v. Passaic County, 127 N.J. 9 (1992) (considering media representative's interest in obtaining access to telephone numbers called by public officials); Loigman v. Kimmelman, 102 N.J. 98 (1986) (considering citizen's access to confidential records of prosecutor); McClain, supra, 99 N.J. 346 (considering injured person's interest in obtaining public hospital's record of evaluation of treatment); State v. Doliner, 96 N.J. 236 (1984) (considering government agency access to grand-jury minutes); Shuttleworth v. City of Camden, 258 N.J. Super. 573 (App. Div.) (considering media seeking access to police files and autopsy
report of arrestee who was shot while in custody), certif. denied,
133 N.J. 429 (1992); Asbury Park Press, Inc. v. State, Dep't of
Health,
233 N.J. Super. 375 (App. Div.) (considering media request
for spread sheet prepared by Department of Health consultant
analyzing factual data submitted by hospitals), certif. denied,
117 N.J. 646 (1989).
Superimposed on those principles of access to public records are the related principles of our Open Public Meetings Act. That Act expresses the public policy of the State of New Jersey with respect to the deliberations of public bodies. The Open Public Meetings Act requires adequate written notice of at least forty-eight hours to the public of all regularly-scheduled governmental meetings and any special meetings. N.J.S.A. 10:4-8(d), -9(a). The Act authorizes public bodies to go into closed sessions to discuss certain categories of matters, including personnel matters, N.J.S.A. 10:4-12(b)(8), but requires that each public body keep "minutes of all its meetings." N.J.S.A. 10:4-14. The Open Public Meetings Act does not, however, state what must go into the minutes or how much thereof a public body must disclose. Employees or appointees whose status may be adversely affected by such action may request "in writing" that their personnel matters be discussed at a public meeting. N.J.S.A. 10:4-12(b)(8). Presumably that request would have to be made before a meeting. In South Jersey Publishing, supra, our Court explained that a court assessing the
need to disclose minutes and records of otherwise confidential
personnel matters will
recognize that the public interest in
disclosure is intended to enable the public to
make a sound judgment about the reasonableness
of the Authority's decision regarding [the
employee], which authorized the expenditure of
public funds to continue his salary and
benefits for a substantial period of time * *
* and will balance that public interest
against any competing interests * * *,
including facilitation of public employee
investigations and the confidentiality of
personal information in an employee's
personnel file.
Finally, if disclosure of information concerning personnel matters
is warranted, then the court should conduct an in camera review of
specific materials and excise, if necessary, any personal
information regarding medical and psychological history. Ibid.
Among the interests that a court must consider in balancing
disclosure and nondisclosure of information is the extent to which
disclosure would hinder frank and independent discussion regarding
contemplated policies and decisions. The federal Freedom-of-Information Act, under exemption five,
5 U.S.C.A.
§552(b)(5),
relating to "inter-agency or intra-agency memorandums or letters
which would not be available by law to a party other than an agency
in litigation with the agency," reflects a policy in favor of an
unhindered deliberative process. Courts have sometimes referred to
that policy as affording protection from disclosure under the
government's "deliberative process privilege." Federal Trade
Comm'n v. Warner Communications, Inc.,
742 F.2d 1156, 1161 (9th
Cir. 1984). "This privilege permits the government to withhold
documents that reflect advisory opinions, recommendations and
deliberations comprising part of a process by which government
decisions and policies are formulated." Ibid. It is conceptually
similar to the evidentiary principle that forbids inquiring into
the thought processes of decision-makers. Catalpa Inv. Group, Inc.
v. Franklin Township Zoning Bd. of Adjustment,
254 N.J. Super. 270,
275 (Law Div. 1991). We may safely assume that that policy in
favor of frank and independent discussion underlies the legislative
decision to authorize closed-session discussions in certain
categories of matters.
We first discuss whether the audio tapes constitute Right-to-Know records. This Court has recognized a narrow but important distinction between Right-to-Know records and common-law records. See Techniscan Corp. v. Passaic Valley Water Comm'n, 113 N.J. 233 (1988). In South Jersey Publishing, supra, the provision of the Open Public Meetings Act that permits public agencies to consider personnel matters in closed session specifically requires that the agencies keep minutes of those meetings and that those minutes be disclosed to the public. 124 N.J. at 495. However, in this case, it was not a requirement for the Authority to tape-record the closed sessions. Although if the agency in this case had chosen simply to maintain electronic recordings, either audio or video, of
its executive sessions as the official minutes of the meetings,
presumably those recordings would be covered by the Right-to-Know
Law. In that circumstance, when the tapes serve (as they do in
certain court proceedings) as the official record, those tape
recordings would be the records "required by law to be made,
maintained or kept." N.J.S.A. 47:1A-2.
However, in this case, the Authority used the audio tapes
merely as a convenience for its own purposes in preparing the
official minutes that it recognizes it must disclose under the
Right-to-Know Law. The situation is as though a secretary had
taken shorthand notes of the meeting. The secretary's transcribed
notes, approved by the body, not the notes themselves, would
constitute the official record of the meeting. Simply because a
public agency uses an electronic note pad in place of a steno pad
as a method to prepare "reasonably comprehensible minutes" does not
establish that that electronic record constitutes a Right-to-Know
record. Techniscan Corp., supra, 113 N.J. at 236. Because the
audio tapes of these proceedings served only as a convenient means
to enable preparation of the official minutes and were not records
required to be "made, maintained or kept," N.J.S.A. 47:1A-2, the
audio tapes do not constitute Right-to-Know records.
B.
Notwithstanding that the audio tapes do not constitute Right-to-Know records, we are satisfied that they are common-law records
subject to balanced disclosure. That our previous definition of a
common-law record was drawn from sources that spoke in terms of
traces of ink on paper does not limit its scope. The essence of
the common law is its adaptability to changing circumstances. We
are satisfied that audio tapes may constitute common-law public
records. For example, in Evidence Rule 801(e), we define a
"writing" to include "sounds, * * * set down or recorded by * * *
mechanical or electronic recording
* * * and preserved in a perceptible form."
Many jurisdictions have defined public records in terms that
specifically include electronic records of events. For instance,
Colorado's statute defining "public records" and "writings" states:
"Public records" means and includes all
writings made, maintained, or kept by the
state or any agency, institution, or political
subdivision thereof * * *. It does not
include criminal justice records * * *.
"Writings" means and includes all books,
papers, maps, photographs, cards, tapes,
recordings, or other documentary materials,
regardless of physical form or characteristics
* * *.
[Colo. Rev. Stat. Ann. § 24-72-202(6)-(7)
(West 1993).]
See also Save The Dolphins v. United States Dep't of Commerce,
404 F. Supp. 407, 411 (N.D. Cal. 1975) (holding that "[t]he term
`records' in common parlance includes various means of storing
information for future reference," and refusing to limit the term
"records" to written documents).
In interpreting the federal Freedom-of-Information Act,
5 U.S.C.A.
§552, the Supreme Court in Forsham v. Harris,
445 U.S. 169, 183,
100 S. Ct. 978, 985-86,
63 L. Ed.2d 293, 305-06 (1980),
has incorporated a definition of agency records set forth in the
related Disposal of Records Act:
"[R]ecords" includes all books, papers, maps,
photographs, machine readable materials, or
other documentary materials, regardless of
physical form or characteristics, made or
received by an agency of the United States
Government under Federal law or in connection
with the transaction of public business
* * *.
New Jersey's Destruction of Public Records Law (1953),
N.J.S.A. 47:3-8.1 to -32, defines a public record as
any * * * photograph, microfilm, sound-recording or similar device, or any copy
thereof which has been made or is required by
law to be received for filing, indexing, or
reproducing by any officer, commission, agency
or authority of the State * * * in connection
with the transaction of public business and
has been retained by such recipient or its
successor as evidence of its activities * * *.
Thus, the audio tapes made by the Authority of its executive-session meetings fall within that definition of a "public record."
Other courts considering right of access to audio and video tapes of criminal proceedings have usually concluded that media representatives are entitled, subject to the fair-trial rights of a defendant in particular cases, to access to electronically stored information in the form of audio or video tapes provided that the information has been offered into evidence in a public trial. See generally Jamie A. Grodsky, The Freedom of Information Act in the Electronic Age: The Statute is not User Friendly, 31 Jurimetrics J. 17 (1990) (urging amendment of the Freedom-of-Information Act to adapt to computer age). We are satisfied that an audio tape or a video tape, prepared to serve as a memorial of something said or done by a public officer or as a memorial of a public proceeding or public business, should be considered a public record under common law.
Although the Authority did not intend the audio tapes to be a permanent memorial of the proceedings to the extent that an official of the Authority preserved the tapes as an aid in the preparation of the required official minutes, we are satisfied that the tapes fall within the common-law definition of a public record. When we speak of memorial in this context of common law, we do not mean a record that is to be kept but rather one that provides a "`convenient, appropriate, or customary method'" of documenting official action. MacEwan v. Holm, 359 P.2d 413, 419 (Or. 1961) (quoting International Union, United Auto., Aircraft and Agric. Implement Workers v. Gooding, 29 N.W.2d 730, 735 (Wis. 1947)).
Obviously, many complex questions arise with respect to access to electronic data. See Forsham, supra, 445 U.S. 169, 100 S. Ct. 978, 63 L. Ed.2d 293 (considering whether information in abstract constitutes public records of agency); Higg-A-Rella, Inc. v. County of Essex, 265 N.J. Super. 616, 625 (Law Div. 1993) (holding that computer tape on which local tax assessments were kept is not Right-to-Know-Law record and county may ask reimbursement for "tremendous amount of data entry, at taxpayer expense").
In the absence of clear guidance, courts have threaded the needle between requirements that the government generate
information for those requesting it or that the government merely
provide access to information that has already been assembled in
the form of hard copy. "In several [Freedom-of-Information Act]
cases, the courts have expressed a need for Congress to clarify the
numerous gray areas left open by the statute in its application to
the new generation of computerized information." Grodsky, supra,
31 Jurimetrics J. at 45 (footnote omitted). We too have noted that
the conceptual models of our Right-to-Know Law do not seem readily
adaptable to data collected in this information age and that
lawmakers have been considering amendments to that law that would
better clarify the definition of records that have to be disclosed
and those that may remain confidential. S. 579, 205th Leg., 1st
Sess. (1992).
Once having determined that the audio tapes constitute public records subject to the common-law right of inspection, we must then apply the balancing test to measure the public interest in access to the information against the individual's privacy rights as reflected through the personnel exemption under the Right-to-Know Law and against the agency's deliberative-process privilege. No doubt exists about the public interest in access to the information. "Enlightened choice by an informed citizenry is the basic ideal upon which an open society is premised, and a free press is thus indispensable to a free society." Branzburg v. Hayes, 408 U.S. 665, 726, 92 S. Ct. 2646, 2672, 33 L. Ed.2d 626,
666 (1972) (Stewart, J., dissenting) (footnote omitted). In
keeping with that principle, the Supreme Court has held that the
right to publish and gather information "is central to the First
Amendment and basic to the existence of constitutional democracy."
Id. at 727, 92 S. Ct. at 2672, 33 L. Ed.
2d at 667. Justice Stein
reminded us in South Jersey Publishing, supra, that "`[a] popular
Government without popular information, or the means of acquiring
it, is but a Prologue to a Farce or a Tragedy; or, perhaps both.'"
124 N.J. at 491 (quoting Letter from James Madison to W.T. Barry
(Aug. 4, 1822), in 9 Writings of James Madison 103 (G. Hunt ed.
1910)).
As we noted in South Jersey Publishing, supra,
124 N.J. 478,
the requirement, then, is for a careful balancing of the
respondents' interest in confidentiality against the public
interest in disclosure. In that case we concluded that the Law
Division should conduct an in camera review of the public records
involved (there the minutes of the executive session and memorandum
of understanding between the employee and the agency) to ascertain
whether the records included confidential or privileged information
that the court should excise before disclosure. We believe that
those same principles generally apply to the analysis of access to
these audio tapes with the following added observations.
First, because the tape recordings disclose what may be in
graphic detail the deliberative processes of the members of the
public body while in approved executive sessions, the court must
balance as well the public interest in fostering free and frank
exchange of views among the members without having the members fear
disclosure of their deliberations. Often positions are tentatively
advanced or provocatively stated in the course of such
deliberations.
Second, because such tapes constitute (absent any question of
their authenticity) indisputable evidence of the record of the
public event, they tend to have a unique value. Hence, if disputed
issues of fact arise, the tapes assume considerable importance to
the public in assessing "the reasonableness of the Authority's
decision * * *." South Jersey Publishing, supra, 124 N.J. at 498.
Third, the nature of electronic information is such that
difficult problems can surface in assembling the material for
review by a court. In the case of paper records, courts have
resorted to what is called a "Vaughn Index" of documents that will
often enable a court to analyze, without exhaustive review, the
essence of the documents and to determine whether they shall be
disclosed. Loigman, supra, 102 N.J. at 109-12. A review of a
series of audio tapes in order to sift out the necessary
information may greatly burden a court. The record in this case
reveals that the Authority made twenty-six hours of tapes, with but
a few minutes of those tapes relating to Bergman's work. A number
of possible solutions exist. One would be for the agency itself to
prepare a form of index of the tapes and a summary of their
contents. Another solution would be for the court to appoint a
master to review the tapes and to submit a report to the court
after which the court could view or listen to those selected
portions that concern the parties. For example, in this case the
need for disclosure would turn on whether anything in the tapes is
factually at variance with the official minutes of the meetings.
If the master were to report that the minutes, as summaries of the
tapes, accurately reflect the substance of the official action,
disclosure of the tapes would be unnecessary. Assessing the costs
of the master could abide the court's decision about the need for
disclosure.
Finally, blanket access to the tapes would not be required;
rather, access could be limited to those portions of the tapes
necessary to vindicate the public interest. Just as in South
Jersey Publishing, supra, if the tapes were necessary to determine
the "reasons for the earlier discharge," the Press might be
entitled to that information if it were not fully disclosed by the
minutes. And as in the case of documents, the court would be free
to redact portions of the tapes that constitute either confidential
or privileged information, that amount to an invasion of privacy,
or that would unnecessarily intrude on the deliberative process.
See Dixon v. Rutgers, The State Univ.,
110 N.J. 432 (1988)
(exploring how court may condition access to privileged academic
materials and allowing redaction of names or other identifying
material if disclosure of information would interfere with
confidentiality of peer-review process). Other jurisdictions take
that approach. The Iowa Open Public Meetings Act requires the tape
recording of closed sessions of public agencies. Iowa Code Ann. §
21.5.4 (West 1993). Public agencies must seal those recordings,
which shall not be public records open to public inspection.
However, by court order in an action to enforce Iowa's Open Public
Meetings Act, a public agency shall unseal the tape recordings and
the court shall examine them in camera.
The court shall then determine what part, if
any, of the minutes should be disclosed * * *.
In determining whether any portion of the
minutes or recording shall be disclosed to
such a party for this purpose, the court shall
weigh the prejudicial effects to the public
interest of the disclosure of any portion of
the minutes or recording in question, against
its probative value as evidence in an
enforcement proceeding. After such a
determination, the court may permit inspection
and use of all or portions of the detailed
minutes and tape recording by the party
seeking enforcement of this chapter.
See also United States v. Miracle Recreation Equip. Co.,
118 F.R.D. 100, 107-08 (S.D. Iowa 1987) (holding that court should examine
audio tapes of discussions between agency officials to determine
which portions are protected by deliberative-process privilege if
alternative sources prove inadequate).
In this case, because the courts below may have been
influenced by their determinations that the audio tapes sought did
not constitute common-law public records and because the trial
court did not determine what portions of the tapes could be
released without interfering with the deliberative processes of the
agency involved, without interfering with the privacy interests of
the employee, or without imposing an undue burden on the court to
review the materials, we conclude that the matter should be
remanded to the Chancery Division.
We do not contemplate the need for extended proceedings. The
Chancery Division may already be familiar with the contents of the
tapes; some discussions of the contents took place on the return
day of the motion to release the tape recordings. That court has
already made a complete analysis of the policy issues that go into
the common-law balancing test on the alternative assumption that
the tapes were common-law records. It may incorporate its previous
findings and review of the materials in making its final
adjudication. It need only relate those prior findings to any
issues of partial disclosure, or it may reaffirm that because the
minutes accurately reflect the substance of official action taken,
there is no need for disclosure of the otherwise confidential
discussions.
The judgment of the Appellate Division is reversed and the
matter is remanded to the Chancery Division for further proceedings
in accordance with this opinion.
Chief Justice Wilentz and Justices Clifford, Handler, Pollock, Garibaldi, and Stein join in this opinion.