(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).
Argued October 22, 1996 -- Decided March 6, 1997
COLEMAN, J., writing for a unanimous Court
The issue addressed in this appeal is whether a citizen of this State who is also a professor at
Rutgers, the State University (Rutgers), has either a statutory right under the Right-to-Know Law (RTKL)
or a common-law right of access to "public records" concerning Rutgers' expenditures for outside legal
counsel in labor, civil rights, and employment related matters in which Rutgers is or has recently been a
party.
Rutgers is an instrumentality of the State for the purpose of operating the State University of New
Jersey. Wells H. Keddie is a citizen of New Jersey and a professor of Labor Studies at Rutgers. Rutgers
Council of American Association of University Professors Chapters (AAUP-Rutgers) is an unincorporated
association which, for purposes of collective negotiation, represents certain faculty members, teaching
assistants, and graduate assistants employed by Rutgers. At the time this lawsuit began, Keddie was
president of AAUP-Rutgers.
On September 23, 1992, Keddie and AAUP-Rutgers requested "public records" from Rutgers'
president relating to the expenditure of university funds for legal representation in labor relations, civil rights,
and other employment-related matters. Keddie and AAUP-Rutgers also requested copies of documents filed
with courts, agencies and arbitrable forums. The documents requested can be classified into three
categories: 1) attorneys bills; 2) documents Rutgers generated internally from the legal bills; and 3)
pleadings, briefs, affidavits, and other filings made with courts, agencies, and arbitrable forums and the
decisions or awards rendered (legal submissions).
University Counsel denied the requests, asserting that the legal submissions were available from
other sources, and that Rutgers was not required to disclose the other records requested.
On November 20, 1992, Keddie and AAUP-Rutgers filed suit, seeking access to the documents
pursuant to the common law and the RTKL. After considering cross-motions for summary judgment filed by
the parties, the trial court held that: 1) Rutgers is a public body and is therefore covered by the RTKL; 2)
none of the requested documents were public records under the RTKL; 3) the outside attorneys bills were
not common-law public records; and 4) the internally generated legal billing documents and the legal
submissions were public records within the common-law definition but were not accessible because Rutgers'
interests in nondisclosure manifestly outweighed Keddie's and AAUP-Rutgers' interests in disclosure. The
trial court did order Rutgers to: 1) provide Keddie and AAUP-Rutgers with an ongoing list of pending and
new cases in which Rutgers was involved that related to labor, employment, and civil rights matters; and 2)
forward to Keddie and AAUP-Rutgers a copy of any final decision or award and other relevant data.
On appeal, the Appellate Division reversed, finding that the attorneys bills and the internally
generated legal billing documents were public records under the RTKL. The Appellate Division also
reversed the trial court's order requiring Rutgers to provide periodic updates on pending and new matters,
concluding that Rutgers did not have an obligation to provide copies of legal submissions because they were
readily available from other sources.
The Supreme Court granted Rutgers' petition for certification.
HELD: The documents requested by Professor Keddie and AAUP-Rutgers are not public records under the
Right-to-Know Law because they are not explicitly required "to be made, maintained or kept on file"
by Rutgers. However, all of the requested documents are common-law public records.
1. Under the RTKL, the narrow question is whether the disputed records are required by law "to be made,
maintained or kept on file." If so, the documents qualify as public records under the RTKL. Once
documents are found to be RTKL records, citizens of the State have an almost absolute right of access to
those documents. This Court has consistently held that the RTKL's definition of a public record is narrow
and is to be strictly construed. In this case, the statute governing the operation of Rutgers does not explicitly
require that the attorneys bills and the internally generated legal billing documents "be made, maintained or
kept on file," in order to satisfy auditors; therefore, those documents are not RTKL documents. (pp. 6-13)
2. A common-law record is one that is made by a public official in the exercise of his or her public
function, either because the record was required or directed by law to be made or kept, or because it was
filed in a public office. The right to access common-law records is a qualified one, depending on 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. The documents sought in this case are
common-law public records because they were created by, or at the behest of, public officers in the exercise
of a public function. (pp. 14-15)
3. One seeking access to common-law public records must establish that the balance of its interest in
disclosure against the public interest in maintaining confidentiality weighs in favor of disclosure. Where, as
here, common-law documents have been filed with courts, agencies and arbitrable forums without being
sealed, confidentiality is non-existent. That alone is sufficient to require disclosure unless otherwise
protected by an exception listed in the RTKL. The obligation for disclosure when confidentiality is
nonexistent is not lessened because the information is publicly available from another source or the
information has been disclosed to or by another entity. Here, the trial court erred in finding that the legal
submissions should not be disclosed under the common-law balancing-of-interests test. AAUP-Rutgers and
Keddie must bear the reasonable costs of copying, assembling and delivering the documents. (pp. 16-18)
4. The cost of document production and diversion of dedicated manpower are insufficient reasons under the
balancing test to prevent disclosure of the documents. Budgetary constraints cannot relieve Rutgers of its
obligation to produce the attorneys bills and the internally generated legal billing documents. However,
Rutgers may collect a reasonable fee to cover its reproduction and delivery expenses. (pp. 18-20)
5. The matter is remanded to the trial court to conduct, consistent with this opinion, a common-law
balancing test in respect of the attorneys bills, and a new balancing test in respect of the internally generated
legal billing documents. The documents are to be submitted in camera to the trial court and, as to each
individual document, the court must make factual findings as to why Keddie's and AAUP-Rutgers' interests
in disclosure are or are not outweighed by Rutgers' interest in nondisclosure. The availability of the
documents from other sources, the costs associated with reproduction, or the inconvenience to Rutgers are
not to be considered in the balancing test. The court may consider redaction to protect confidential or
privileged material. (pp. 20-22)
Judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court
to conduct a common-law balancing test in respect of the attorneys bills and the internally generated legal
billing documents in a manner consistent with this opinion.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI and
STEIN join in JUSTICE COLEMAN'S opinion.
SUPREME COURT OF NEW JERSEY
A-34/
35 September Term 1996
WELLS H. KEDDIE and the RUTGERS
COUNCIL OF AAUP CHAPTERS,
Plaintiffs-Respondents
and Cross-Appellants,
v.
RUTGERS, THE STATE UNIVERSITY,
Defendant-Appellant
and Cross-Respondent.
Argued October 22, 1996 -- Decided March 6, 1997
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
286 N.J. Super. 285 (1996).
John J. Peirano, Jr. argued the cause for
appellant and cross-respondent (Carpenter,
Bennett & Morrissey, attorneys; Mr. Peirano
and James P. Lidon, on the briefs).
Paul Schachter argued the cause for
respondents and cross-appellants (Reinhardt &
Schachter, attorneys; Denise Reinhardt, of
counsel; Ms. Reinhardt, Nancy M. Macirowski
and Susan J. Kraham, on the briefs).
Mark J. Fleming, Assistant Attorney General,
argued the cause for amicus curiae, Attorney
General of New Jersey (Peter G. Verniero,
Attorney General, attorney; Michael J. Haas,
Senior Deputy Attorney General, on the
brief).
The opinion of the Court was delivered by
COLEMAN, J.
The issue raised in this appeal is whether a taxpaying
citizen of this State who is also a professor at Rutgers, the
State University ("Rutgers"), has either a statutory or common-law right to access "public records" concerning Rutgers'
expenditures for outside legal counsel in labor, civil rights,
and employment-related matters in which Rutgers is or has
recently been a party. The trial court denied access under both
the common law and the Right-to-Know Law, N.J.S.A. 47:1A-1 to -4.
The Appellate Division reversed, holding that all of the
attorneys bills and the internally generated legal billing
documents requested were "public records" under the Right-to-Know
Law.
286 N.J. Super. 285, 297 (App. Div. 1996). The Appellate
Division also held that Rutgers was not obligated to provide
plaintiffs with either legal documents and decisions filed with
courts, agencies, and arbitral forums, or a list of pending legal
matters. Id. at 297-98.
We hold that none of the documents requested are "public
records" under the Right-to-Know Law because they are not
explicitly required "to be made, maintained or kept on file" by
Rutgers. N.J.S.A. 47:1A-2. We conclude, however, that all of
the documents are common-law-public records.
Plaintiff Wells H. Keddie is a citizen of New Jersey and a professor of Labor Studies at Rutgers. Plaintiff Rutgers Council of American Association of University Professors Chapters ("AAUP-Rutgers") is an unincorporated association which, for purposes of collective negotiation, represents certain faculty members,
teaching assistants, and graduate assistants employed by Rutgers.
AAUP-Rutgers is an affiliate of the American Association of
University Professors, a national organization that has advocated
faculty participation in university budgetary matters. When the
present litigation began, Keddie was president of AAUP-Rutgers.
Rutgers is an instrumentality of the State for the purpose
of operating the State University of New Jersey pursuant to
N.J.S.A. 18A:65-1 to -73. The Board of Governors is the ultimate
governing authority for Rutgers. N.J.S.A. 18A:65-25. Rutgers
has five campuses in the New Brunswick area, as well as major
campuses in Newark and Camden.
On September 23, 1992, plaintiffs requested "public records"
from Rutgers' president. The requested documents related to the
expenditure of Rutgers' funds for legal representation in matters
related to labor relations, civil rights claims, and other
employment-related matters. They also requested copies of
documents filed with courts, agencies, and arbitral forums. The
documents requested can be classified in three categories: (1)
attorneys bills; (2) documents Rutgers generates internally from
the legal bills; and (3) pleadings, briefs, affidavits, and other
filings made with courts, agencies, and arbitral forums and the
decisions or awards rendered ("legal submissions"). University
Counsel denied the requests, asserting that the legal submissions
were available from other sources, and that Rutgers was not
required to disclose the other records that were requested.
Plaintiffs filed a complaint on November 30, 1992, seeking
access to the documents previously requested pursuant to the
common law and the Right-to-Know Law, N.J.S.A. 47:1A-1 to -4
("The RTKL"). An explanation of the legal billing procedure at
Rutgers is essential to an understanding of the types of
documents requested from Rutgers.
The standard procedure at Rutgers is that outside attorneys
send monthly bills to University Counsel, who then forwards the
bills to Rutgers' comptroller. The Comptroller's Department then
prepares a "bill head," consisting of the law firm's name,
address, due date, and the amount due. The legal bill and the
"bill head" are then attached and sent to a Rutgers accountant
for payment approval. Once approved by an accountant, the
documents are then sent to the Accounts Payable Department where
the information is entered into a database, and the hard copy is
archived for seven years. University Counsel also keeps copies
of the legal bills for two years before archiving them.
Biannually, a Rutgers accountant prepares a summary of the
outside legal expenses for University Counsel. That summary
contains the dollar amounts paid to particular law firms and
brief descriptions of the work performed.
Consistent with that explanation of the legal billing
process, plaintiffs sought access to attorneys bills and the
following internally generated payment information: bill heads,
semiannual summaries of legal expenses generated by the
accounting office, and the actual accounts payable database kept
by Rutgers' accountant. Plaintiffs also sought access to all of
the legal submissions.
After extensive discovery had been conducted, the parties
filed cross-motions for summary judgment. Plaintiffs argued that
the records pertaining to legal billings were public documents
under both the RTKL and the common law and that the legal
submissions were accessible under only the common law.
The trial court held that (1) Rutgers is a public body and
therefore covered by the RTKL; (2) none of the requested
documents were public records under the RTKL; (3) the outside
attorneys bills were not common-law-public records; and (4) the
internally generated legal billing documents and the legal
submissions were public records within the common-law definition
but were not accessible by plaintiffs because Rutgers' interest
in nondisclosure manifestly outweighed plaintiffs' interest in
disclosure. The trial court, however, ordered Rutgers to provide
plaintiffs with an ongoing list of cases it is involved in
concerning labor, employment, and civil rights matters. Rutgers
was also ordered to forward to plaintiffs a copy of any final
decision or award and other relevant data such as docket numbers
and venue on new cases.
The Appellate Division reversed, finding that the attorneys
bills and the internally generated legal billing documents were
public documents under the RTKL. 286 N.J. Super. at 297. The
Appellate Division reasoned that the billing documents were
public records under the RTKL because "Rutgers can[not]
realistically be prepared for an 'audit by the State at any time'
without maintaining such records." Ibid. (quoting N.J.S.A.
18A:65-25(d)). The Appellate Division also reversed the trial
court's order requiring Rutgers to provide periodic updates on
pending and new matters, concluding that Rutgers did not have an
obligation to provide copies of legal submissions because they
were filed at various clerks' offices of the courts or tribunals
involved. Id. at 297-98.
We granted Rutgers' petition for certification,
144 N.J. 377
(1996), and now reverse.
First, we focus on whether the attorneys bills and the
internally generated legal billing documents are public records
under the RTKL. The New Jersey Right-to-Know Law provides in
pertinent part:
Except as otherwise provided . . . , all records which are required by law to be made, maintained or kept on file by any board, body, agency, department, commission or official of the State or of any political subdivision thereof or by any public board, body, commission or authority created pursuant to law by the State or any of its political subdivisions, or by any official acting for or on behalf thereof (each of which is hereinafter referred to as the "custodian" thereof) shall, for the purposes of this act, be deemed to be public records. Every citizen of this State, during the regular business hours maintained by the custodian of any such records, shall have the right to inspect such records. Every citizen of this State shall also have the right,
during such regular business hours and under
the supervision of a representative of the
custodian, to copy such records by hand, and
shall also have the right to purchase copies
of such records.
[N.J.S.A. 47:1A-2.]
The RTKL has no standing requirement other than New Jersey
citizenship. Higg-A-Rella, Inc. v. County of Essex,
141 N.J. 35,
43 (1995). A citizen is not required to make a showing of
interest. Ibid. Under the RTKL, the narrow question is whether
the disputed records are required by law "to be made, maintained
or kept on file." N.J.S.A. 47:1A-2. If that requirement is
satisfied, the documents qualify as public records under the
RTKL. Once documents are found to be Right-to-Know records,
citizens of New Jersey have an almost absolute right to inspect,
copy, or purchase those documents. Higg-A-Rella, supra, 141 N.J.
at 43; North Jersey Newspapers Co. v. Passaic County Bd. of
Chosen Freeholders,
127 N.J. 9, 14 (1992). Inspection or copying
of Right-to-Know documents is subject only to reasonable controls
with respect to time, place, and reproduction costs. De Lia v.
Kiernan,
119 N.J. Super. 581, 585 (App. Div.), certif. denied,
62 N.J. 74 (1972); N.J.S.A. 47:1A-2. No balancing of interests is
permitted, so long as the documents are not intended to be used
for an inappropriate purpose.
Plaintiffs maintain that all of the documents pertaining to
the legal billings are Right-to-Know documents because they are
required by law to be made, maintained, or kept by Rutgers to
comply with State auditing requirements. All of Rutgers'
accounts are "subject to audit by the State at any time."
N.J.S.A. 18A:65-25(d). Plaintiffs argue that in order for
Rutgers to be prepared for a State audit, it must maintain
financial records sufficient to withstand such an audit. Rutgers
counters that N.J.S.A. 18A:65-25(d) does not explicitly require
that the attorneys bills and the internally generated legal
billing documents be made, maintained, or kept on file, and that
therefore the RTKL is not triggered. Rutgers argues that the
RTKL only encompasses records explicitly required to be
maintained. It asserts that the State's audit requirements only
implicitly require the attorneys bills and the internally
generated legal billing documents be maintained.
The question we must resolve is whether the RTKL implicitly
requires the attorneys bills and the internally generated legal
billing documents be made, maintained, or kept on file by Rutgers
in order to comply with the State's demand audits of Rutgers'
accounts. The broad question was posited, but not answered, in
Board of Education v. New Jersey Department of the Treasury,
145 N.J. 269 (1996): whether the underlying data that is needed to
create a statutorily required annual report is a public document
under the RTKL. Id. at 277-79.
In Board of Education, the Board of Education of Newark
("Board") was a participating employer in the State Health
Benefits Plan ("Plan"). Id. at 271. The Board requested that
the State Health Benefits Commission ("Commission") provide it
with information on medical claims paid by the Plan on behalf of
the Board's employees. Id. at 271-72. The New Jersey State
Health Benefits Program Act ("Act") requires that the Commission
prepare an annual report "showing the fiscal transactions of the
program for the preceding year and stating other facts pertaining
to the plan." N.J.S.A. 52:14-17.27. The Act, however, does not
require that the annual report list the claims paid for each
employer participating in the Plan. Nor is the Commission
required to compile the claims histories of each participating
employer to fulfill its statutory duties with respect to the
report.
The Court held that the information that the Board
ultimately sought, the amount of claims paid on behalf of its own
employees, did not constitute a Right-to-Know document because it
was not required by law to be made, maintained, or kept on file.
Board of Educ., supra, 145 N.J. at 277. The Court decided not to
reach the issue of whether the unsegregated data of individual
claims, which are necessary to prepare the aggregate figures for
the annual report, were public documents under the RTKL. It so
decided because the Legislature had recently amended the RTKL,
codified at N.J.S.A. 47:1A-2.1, to limit public access to hard
copies of computerized records. Board of Educ., supra, 145 N.J.
at 277-79.
Notwithstanding the fact that the Board of Education case
left the burning issue unanswered, this Court has consistently
held that the Right-to-Know Law's definition of a public record
is narrow and is to be strictly construed. Higg-A-Rella, supra,
141 N.J. at 44. In Nero v. Hyland,
76 N.J. 213 (1978), this
Court rejected "any expansion of the plain wording of the
definition of public record under" the RTKL. Id. at 221.
In Nero, former Governor Byrne had considered appointing the
plaintiff to a position on the New Jersey Lottery Commission.
Id. at 216. When the appointment was not announced, Governor
Byrne was asked at a news conference why he had not appointed the
plaintiff. Id. at 217. The thrust of the Governor's response
was that the plaintiff had not been appointed because the then
Attorney General was concerned over certain information regarding
the plaintiff's background that was uncovered in the standard
background check. Ibid. Subsequently, the plaintiff sought
access to the background check information under the RTKL and the
common law. Ibid.
The Nero Court held that the trial court and the Appellate
Division incorrectly expanded the Right-to-Know Law's definition
of a public record to make that definition coextensive with the
definition of a public record found in the Destruction of Public
Records Law, N.J.S.A. 47:3-16. Nero, supra, 76 N.J. at 221.
That statute defines a public record as:
any paper, written or printed book, document
. . . that has been received by any such
officer, commission, agency or authority of
the State or of any political subdivision
thereof . . . and has been retained by such
recipient or its successor as evidence of its
activities or because of the information
contained therein.
[N.J.S.A. 47:3-16.]
Although the background check information would be considered a
public document under the Destruction of Public Records Law's
definition, that information was not required to be made,
maintained, or kept by a governmental body under the Destruction
of Public Records Law. Nero, supra, 76 N.J. at 220. Hence, the
Nero Court concluded that the background check information was
not a public document under the RTKL. Ibid.
Atlantic City Convention Center Authority v. South Jersey
Publishing Co.,
135 N.J. 53 (1994), held that audio tapes of a
closed session of the Authority were not Right-to-Know public
documents. Id. at 64. Under the Open Public Meetings Act,
N.J.S.A. 10:4-6 to -21, public agencies are required to keep
minutes of their meetings, but there is no requirement that the
sessions be tape-recorded. Atlantic City, supra, 135 N.J. at 63.
The fact that the Authority used the audio tapes merely as a
convenience for its own purposes in preparing the official
minutes did not convert the audio tapes into Right-to-Know public
documents. Ibid.
Similarly, in Higg-A-Rella the Court held that computer
tapes of municipal tax assessments were not Right-to-Know public
records because the defendants were required by law only to make
and maintain a hard copy of the list. Higg-A-Rella, supra, 141
N.J. at 44-45. Because no law required the defendants to make
the computer tape, the plaintiffs had a right to only a printed
copy generated from the computer tapes. Ibid.
In North Jersey Newspapers, the Court also concluded that
telephone bills and car-phone bills of the Passaic County Board
of Chosen Freeholders office were not public documents under the
RTKL. North Jersey Newspapers, supra, 127 N.J. at 15. The fact
that the Local Fiscal Affairs Law, N.J.S.A. 40A:5-1 to -42,
required a party submitting a voucher to include a detailed bill
of items sought to be paid did not make the telephone and car-phone bills public documents under the RTKL. North Jersey
Newspapers, supra, 127 N.J. at 14-15.
Many other cases have similarly construed the RTKL narrowly.
See, e.g., In re the Request for Solid Waste Util. Customer
Lists,
106 N.J. 508, 525 (1987) (holding that customer lists
filed with Board of Public Utilities pursuant to administrative
order were not Right-to-Know records); Home News v. Board of
Educ.,
286 N.J. Super. 380, 385-86 (App. Div. 1996) (holding that
working documents prepared by school officials in connection with
annual budget process were not public records under RTKL because
there was no legal requirement that particular documents sought
be made, maintained, or kept on file); Red Bank Register, Inc. v.
Board of Educ.,
206 N.J. Super. 1, 6-7 (App. Div. 1985) (holding
that because no law required school board to maintain or keep
curriculum reports on file, they were not Right-to-Know Law
documents); Beck v. Bluestein,
194 N.J. Super. 247, 258 (App.
Div. 1984) (stating that where "there is no statutory or
regulatory requirement which . . . mandates . . . an
investigatory record be made, maintained or kept," records are
not public records under Right-to-Know Law).
We hold that because N.J.S.A. 18A:65-25(d) does not
explicitly require that the attorneys bills and the internally
generated legal billing documents "be made, maintained or kept on
file," N.J.S.A. 47:1A:2, in order to satisfy auditors, those
documents are not Right-to-Know documents. We find no reason to
depart from our consistent holdings in the past. Therefore, the
Appellate Division erred when it ruled that the attorneys bills
and the internally generated legal billing documents were Right-to-Know documents.
Next, we address plaintiffs' claim that, independent of whether they are entitled to access the attorneys bills and the internally generated legal billing documents under the RTKL, they have a common-law right of access to those documents and the legal submissions as well. The Appellate Division did not decide whether plaintiffs should have access to any of the records under the common law. Implicitly, the Appellate Division reasoned that even if the legal submissions were common-law records, plaintiffs' demands should not be granted because the records are readily available through other means such as the "various clerks' offices of the courts or tribunals involved." 286 N.J. Super. at 297. The availability of the legal submissions
elsewhere caused the Appellate Division to conclude that no law
mandates that a public body provide such documents to a citizen
who "already has a direct and readily available means of access
to those documents." Id. at 298.
We granted plaintiffs' cross-petition for certification,
144 N.J. 377 (1996), to address whether plaintiffs should have access
to the documents under the common law.
Rutgers argues that because the trial court denied access to
the internally generated legal billing documents and the legal
submissions under the common-law balancing-of-interests test,
which was not overturned by the Appellate Division, the issue of
common-law access to those documents is not before the Court.
Nor did the Appellate Division address whether the trial court
erred in finding the attorneys bills were not common-law records.
Notwitstanding that omission, we will address the merits of the
common-law claims. R. 2:10-5; Bressman v. Gash,
131 N.J. 517,
528-29 (1993).
The common-law definition of a public record is broader than
the definition of a Right-to-Know document. Home News v. State
Dep't of Health,
144 N.J. 446, 453 (1996). A common-law record
is one that is made by a public official in the exercise of his
or her public function, either because the record was required or
directed by law to be made or kept, or because it was filed in a
public office. Higg-A-Rella, supra, 141 N.J. at 46; North Jersey
Newspapers, supra, 127 N.J. at 13; Nero, supra, 76 N.J. at 221-22. Thus, all RTKL documents are common-law records as well.
But not all common-law records are RTKL documents. Unlike RTKL
documents, the right to access common-law records is a qualified
one. Home News, supra, 144 N.J. at 453.
The common-law right to access public records depends on
three requirements: (1) the records must be common-lawpublic
documents; (2) the person seeking access must "establish an
interest in the subject matter of the material," South Jersey
Publ'g Co. v. New Jersey Expressway Auth.,
124 N.J. 478, 487
(1991); and (3) the citizen's right to access "must be balanced
against the State's interest in preventing disclosure." Higg-A-Rella, supra, 141 N.J. at 46.
The documents sought in the present case are public records
because they were created by, or at the behest of, public
officers in the exercise of a public function. Id. at 47. They
were created pursuant to Rutgers' procedure for payment of legal
fees to outside attorneys or were filed with a court, agency, or
arbitral forum. They are also writings filed in a public office.
Nero, supra, 76 N.J. at 222. Keddie, as a citizen of New Jersey,
a professor of Labor Studies at Rutgers, and president of AAUP-Rutgers, clearly has a cognizable common-law interest in
accessing all of the documents. Indeed, only the balancing-of-interests element is contested in this case. Consequently, the
trial court erred in finding that the attorneys bills were not
common-law records. We hold that all of the documents sought are
common-law records.
Because the common-law right of access to public records is
not absolute, one seeking acess to such records must "establish
that the balance of its interest in disclosure against the public
interest in maintaining confidentiality weighs in favor of
disclosure." Home News, supra, 144 N.J. at 454. Thus, it has
been said that the balancing process is "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); Atlantic City, supra, 135 N.J. at 60 (quoting McClain,
supra, 99 N.J. at 361).
Generally, the public's interest in nondisclosure is based
on the need to keep the information confidential. Where a claim
of confidentiality is asserted, the applicant's interest in
disclosure is more closely scrutinized. In that context, courts
consider whether the claim of confidentiality is "`premised upon
a purpose which tends to advance or further a wholesome public
interest or a legitimate private interest.'" Loigman v.
Kimmelman,
102 N.J. 98, 112 (1986) (quoting City of St. Matthews
v. Voice of St. Matthews, Inc.,
519 S.W.2d 811, 815 (Ky. 1974)).
However, where the interest in confidentiality is "slight or non-existent," standing alone will be sufficient to require
disclosure to advance a legitimate private interest. Id. at 105;
see also McClain, supra, 99 N.J. at 362.
Rutgers asserts no claim of confidentiality in respect of
the legal submissions. Indeed, it could not. Those documents
have been filed with courts, agencies, or arbitral forums. A
common-law right of access attaches to unsealed records and
documents filed with courts and agencies in connection with
nondiscovery applications that are relevant to the disposition of
the matter. Hammock v. Hoffman-LaRoche, Inc.,
142 N.J. 356, 375-82 (1995). Once the records and documents were filed with
courts, agencies, and arbitral forums without being sealed,
Rutgers no longer retained any expectation of confidentiality in
them.
Rutgers argues, and the Appellate Division agreed, that
because the legal submissions are otherwise available, it should
not be required to make those documents available to plaintiffs.
Rather than asserting a claim of confidentiality, Rutgers argues
that document production will divert budgeted funds and dedicated
manpower and that those concerns should be considered under the
balancing test. In response, plaintiffs raise three arguments:
(1) the availability of documents elsewhere does not undermine
their interest in disclosure; (2) the right to access common-lawpublic records has traditionally favored full disclosure; and
(3) the legal submissions may in fact not be available elsewhere
because some arbitration cases are sealed for five years.
The availability of the legal-submissions documents
elsewhere is significant only with respect to demonstrating the
absence of any need to protect confidentiality. Where common-law
documents have been filed with courts, agencies, and arbitral
forums without being sealed, confidentiality is nonexistent;
standing alone is sufficient to require disclosure unless
otherwise protected by one of the exceptions articulated in the
RTKL. Loigman, supra, 102 N.J. at 105; Shuttleworth v. City of
Camden,
258 N.J. Super. 573, 579 (App. Div.), certif. denied,
133 N.J. 429 (1992). The obligation for disclosure of common-law
records when confidentiality is nonexistent is not diminished
simply because the information is publicly available from another
source or because the information has been disclosed to or by
another entity. See United States Dep't of Justice v. Tax
Analysts,
492 U.S. 136, 152,
109 S. Ct. 2841, 2852,
106 L. Ed.2d 112, 130 (1989) (interpreting the Freedom of Information Act);
Petroleum Info. Corp. v. United States Dep't of the Interior,
976 F.2d 1429, 1437 (D.C. Cir. 1992) (same); Yorkshire v. Internal
Revenue Serv.,
829 F. Supp. 1198, 1202 (C.D. Cal. 1993) (same),
aff'd,
26 F.3d 942 (9th Cir. 1994), cert. denied, __ U.S. __,
115 S. Ct. 487,
130 L. Ed.2d 399 (1994).
We conclude that the trial court erred in finding that the
legal submissions should not be disclosed under the common-law
balancing-of-interests test. Plaintiffs, however, must bear the
reasonable costs of copying, assembling, and delivering the
documents. Higg-A-Rella, supra, 141 N.J. at 53-55.
There remains the question whether plaintiffs are entitled
to access the attorneys bills and the internally generated legal
billing documents under the balancing test.
Rutgers argues that those documents should not be disclosed
because under the balancing test the need for confidentiality
outweighs plaintiffs' interest in disclosure. Although the
Appellate Division found that the attorneys bills and the
internally generated legal billing documents were Right-to-Know
documents, it remanded the matter to the trial court to consider
disclosing only the biannual summaries of the legal expenses
rather than the bill heads and payment vouchers. That remand was
based on some "concern for any possibility of [disclosing]
information that might be the subject of attorney-client
confidentiality, as well as the cost of producing the documents."
286 N.J. Super. at 297. We granted plaintiffs' cross-petition
for certification in part to consider the propriety of the
remand.
We reject Rutgers' argument that the costs of document
production and diversion of dedicated manpower are sufficient
reasons under the balancing test not to compel it to produce the
documents. Budgetary constraints cannot relieve Rutgers of its
obligation to produce the documents. Moore v. Board of Chosen
Freeholders,
39 N.J. 26, 30-31 (1962). Rutgers is entitled,
however, to collect from plaintiffs a reasonable fee to cover its
reproduction and delivery expenses. Higg-A-Rella, supra, 141
N.J. at 53-55.
As we noted earlier, supra at ____ (slip op. at 7), once the
Appellate Division found that the documents were Right-to-Know
records, albeit incorrectly, the right to inspect and copy became
absolute, even if the documents contained confidential or
privileged information. However, under our conclusion that the
documents are not Right-to-Know records, that error was harmless.
Nonetheless, the Appellate Division's concerns about
confidentiality are important. Neither court below conducted a
common-law balancing test to determine whether the attorneys
bills should be disclosed. Consequently, a remand to the trial
court is required to conduct a common-law balancing test with
respect to the attorneys bills. We are also satisfied that the
trial court should conduct a new balancing test with respect to
the internally generated legal billing documents consistent with
this opinion.
On the remand, all of the attorneys bills and the internally
generated documents must be submitted to the trial court for an
in camera inspection to conduct a balancing of interest test.
The trial court must examine each document individually and make
factual findings with regard to why plaintiffs' interest in
disclosure is or is not outweighed by Rutgers' interest in
nondisclosure. Neither the availability of the documents from
other sources, the cost of reproducing those documents, nor the
inconvenience to Rutgers may be considered in the balancing of
interest test. The trial court on remand may "decide that to
release the records in a redacted form, editing out any
privileged or confidential subject matter, is appropriate."
South Jersey Publ'g, supra, 124 N.J. at 488-89. There is no need
to conduct a balancing test with respect to the legal submissions
because this Court has directed their disclosure.
The trial court also should consider whether the requested
documents relate to pending or closed cases. Obviously, the need
for confidentiality is greater in pending matters than in closed
cases. Even in closed cases, however, attorney work-product and
documents containing legal strategies may be entitled to
protection from disclosure. Similarly, some confidential
information may be shielded from public disclosure based on the
protection afforded by the attorney-client privilege. Here, too,
redaction must be considered as an alternative to nondisclosure.
Those and all other appropriate factors should be considered by
the trial court in the common-law balancing test.
We reverse the judgment of the Appellate Division insofar as it found that the attorneys bills and internally generated documents were Right-to-Know records. We also reverse the determination that Rutgers is not obligated to provide the legal submissions because they are available elsewhere. We hold that none of the records requested are Right-to-Know documents; all of
them are common-law documents. Rutgers is directed to provide
plaintiffs with copies of the legal submissions for a reasonable
fee. We remand the matter to the trial court to conduct a
common-law balancing test with respect to the attorneys bills and
the internally generated legal billing documents in a manner that
is consistent with this opinion.
Reversed and remanded to the Law Division.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN,
GARIBALDI and STEIN join in JUSTICE COLEMAN'S opinion.
NO. A-34/35 SEPTEMBER TERM 1996
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
WELLS H. KEDDIE and the RUTGERS
COUNCIL OF AAUP CHAPTERS,
Plaintiffs-Respondents
and Cross-Appellants,
v.
RUTGERS, THE STATE UNIVERSITY,
Defendant-Appellant
and Cross-Respondent.
DECIDED March 6, 1997
Chief Justice Poritz PRESIDING
OPINION BY Justice Coleman
CONCURRING OPINION BY
DISSENTING OPINION BY