(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 March 27, 1995 -- Decided July 19, 1995
STEIN, J., writing for a unanimous Court.
The issue in this appeal is whether the press may obtain access to firearm permits and the underlying
applications for those permits.
In October 1989, Judith Thomas of the Courier-Post, which is owned and published by Southern New
Jersey Newspapers, Inc. (Southern), requested access to firearm permits issued by law enforcement officials in
Mt. Laurel. Her request was denied, which led to the filing of the within suit. Southern expanded its request
to include all documents relating to applications to purchase firearms other than handguns. Included were forms
in respect of mental health records, reference letters, and background-investigation checks.
Southern sought access to the records on several grounds. These included the Right to Know Law, the
common-law right of access, and a federal and state constitutional right of access. On cross-motions for
summary judgment, the trial court granted relief to Mt. Laurel and the other defendants. Southern appealed
to the Appellate Division.
The Appellate Division affirmed the denial of access but substituted its own reasoning for that of the
trial court. Southern filed a petition for certification with the Supreme Court. The Attorney General cross-petitioned for certification, arguing that the Appellate Division erred in determining that the Right to Know Law
requires local police chiefs or the Superintendent of the State Police to create summaries or statistical analyses
of government documents. The Supreme Court granted both petitions.
HELD: Although plaintiff's Right to Know Law request to obtain access to firearm permits and related
documentation has been rendered moot by a regulation of the Attorney General, the matter is remanded to the
trial court to conduct an appropriate balancing test under the common-law right of access.
1. Because the Attorney General readopted a regulation exempting from public disclosure background checks
and applications for the purchase of firearms, Southern's claim of access under the Right to Know Law is moot.
The Court does not, therefore, reach the question of whether the Right to Know Law requires public officials
to provide summaries or statistical analyses of government documents. The Court notes, however, that the
Appellate Division's decision on this issue appears to be inconsistent with prior interpretations of the Right to
Know Law. (pp. 14-17)
2. New Jersey courts have long-recognized a limited common-law right to inspect governmental records. The
citizen seeking the records must establish that he or she has an "interest" in the records. Furthermore, the
records must be "public records." If both requirements have been met, the court must then balance the
applicant's interest in the information against the public's interest in the confidentiality of the documents. As
a part of that balancing, the court may have to inspect the sought-after records privately ("in camera"). The end
result may be to release all of the records, none of the records, or an edited version of the records. (pp. 18-23)
3. Southern has a sufficient interest to request access to public records. The requested documents are public
records. The courts below, however, may have concluded prematurely that the State's interest in confidentiality
outweighed Southern's interest in access. The record insufficiently defines the public purpose to be advanced
by access to the documents. (pp. 23-25)
4. The matter is remanded to the trial court to conduct a new balancing test of the competing interests of the
parties. The record may be expanded by the parties. The trial court should give considerable weight to the
Attorney General's regulation regarding confidentiality and the Right to Know Law, although that regulation is
not dispositive of an application made under the common-law right of access. (pp. 25-27)
5. The information that the court releases will depend on Southern's actual interest in obtaining access to that
material. The court should attempt to provide only information that is responsive to the public interest at stake,
which may result in the use of redacted documents. (pp. 27-29)
6. The Court treats the request for access to the Consent for Mental Health Records Search form separately.
It refers the trial court to a statute (N.J.S.A. 30:4-24.3), which addresses the confidentiality of such forms, and
identifies the exemptions to such confidentiality. (pp. 29-30)
7. In light of its disposition, the Court does not reach Southern's constitutional claims.
The judgment of the Appellate Division is AFFIRMED as MODIFIED, and the matter is REMANDED
to the Superior Court, Law Division, for further proceedings consistent with the opinion.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, 0'HERN, GARIBALDI, and
COLEMAN join in JUSTICE STEIN's opinion.
SUPREME COURT OF NEW JERSEY
A-125/
126 September Term 1994
SOUTHERN NEW JERSEY
NEWSPAPERS, INC.,
Plaintiff-Appellant,
v.
THE TOWNSHIP OF MT. LAUREL,
THE POLICE DEPARTMENT OF THE
TOWNSHIP OF MT. LAUREL,
AND THE CUSTODIAN OF RECORDS
FOR THE POLICE DEPARTMENT OF
THE TOWNSHIP OF MT. LAUREL,
Defendants-Respondents,
and
ATTORNEY GENERAL OF NEW JERSEY,
Intervenor-Respondent
and Cross-Appellant.
Argued March 27, 1995 -- Decided July 19, 1995
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
275 N.J. Super. 465 (1994).
John C. Connell argued the cause for appellant
(Archer & Greiner, attorneys; George F.
Kugler, of counsel).
Michael L. Mouber argued the cause for
respondents.
Mark J. Fleming, Assistant Attorney General,
argued the cause for respondent and cross-appellant (Deborah T. Poritz, Attorney General
of New Jersey, attorney; Alexander P. Waugh,
Jr., Executive Assistant Attorney General, of
counsel; Carol Johnston, Deputy Attorney
General, on the brief).
Jean Hartman Culp, Assistant County Solicitor,
argued the cause for amicus curiae, Burlington
County Adjustor (Stephen J. Mushinski,
Burlington County Adjustor, attorney).
The opinion of the Court was delivered by
STEIN, J.
The issue in this appeal is whether the press may obtain
access to firearm permits and the documentation supporting the
applications for those permits. The Courier-Post sought access to
all documents maintained by the Township of Mount Laurel Police
Department relating to applications to purchase firearms. The
trial court denied access to those records. The Appellate Division
affirmed, but granted the newspaper an opportunity to make limited
inquiries concerning whether the department had complied with the
statute authorizing issuance of firearm permits. We granted
certification.
139 N.J. 289 (1994).
The essential facts are undisputed. In October 1989, Judith Thomas, a reporter for the Courier-Post, a daily newspaper owned and published by plaintiff, Southern New Jersey Newspapers, Inc., requested access to records of permits for the sale and purchase of firearms issued by law-enforcement officials of defendant Township of Mount Laurel (Mount Laurel). Thomas sought access to those
records to obtain information relevant to her investigation of
Saunder Weinstein, the Director of Public Safety and Acting Chief
of Police of defendant Mount Laurel Police Department (Police
Department), asserting a general interest in determining whether
Weinstein had issued firearm permits without legal authority.
Police Department officials refused to grant access without a
formal demand letter from plaintiff's counsel.
Through counsel, plaintiff issued a written request to
Weinstein dated November 2, 1989, demanding the release of records
of firearm permits issued from January to October 1989. Because
Weinstein did not answer that demand letter, plaintiff's counsel
propounded another written request to Weinstein dated December 7,
1989, directing him to respond by December 12, 1989, or plaintiff's
demand would be deemed denied. Weinstein did not respond to that
request by December 12, 1989.
In January 1990, plaintiff filed a complaint in lieu of
prerogative writs, seeking access to the firearm-permit records
maintained by the Police Department pursuant to the firearms-licensing statute, N.J.S.A. 2C:58-1 to -16, and asserting three
grounds for entitlement to those records: the Examination and
Copies of Public Records statute (Right-to-Know Law), N.J.S.A.
47:1A-1 to -4, the common-law right of access, and a constitutional
right of access under the First Amendment of the United States
Constitution and under Article I, Paragraph 6 of the New Jersey
Constitution. Subsequently, plaintiff expanded its request to
encompass all documents maintained by the Police Department
relating to applications to purchase firearms, including reference
letters, background-investigation reports, and forms containing the
applicant's consent to search his or her mental-health records (if
any) and the result of that search. The demand, however, did not
extend to files on applications to carry a handgun.
Following discovery, plaintiff moved, and defendants, Mount
Laurel, the Police Department, and the Custodian of Records for the
Police Department, cross-moved for summary judgment. The
Burlington County Solicitor, appearing as amicus curiae on leave
granted on behalf of the Burlington County Adjustor, and the
Burlington County Prosecutor, appearing as intervenor of right on
motion granted, opposed plaintiff's motion. After an initial
hearing on November 8, 1991, the trial court ordered supplemental
briefing and argument on the jurisdictional and substantive effect
of a proposed State Police regulation,
23 N.J.R. 2258 (Aug. 5,
1991). That regulation, N.J.A.C. 13:54-1.15, which had become
effective on November 18, 1991,
23 N.J.R. 3525, barred disclosure
of "[a]ny background investigation conducted by the chief of
police, the Superintendent or county prosecutor of any applicant
for a license, permit, firearms identification card or registration
* * * except upon order of a court of competent jurisdiction."
In March 1992, the trial court granted defendants' cross-motion for summary judgment and denied plaintiff's motion for
summary judgment. In its ruling, the court listed the documents
that constituted a completed investigative file: (1) a completed
and signed application for either a firearms-purchaser
identification card or a handgun-purchase permit; (2) the Consent
for Mental Health Records Search form, which the applicant signs
and the county adjuster completes after searching its mental-health
records; (3) two answered reference letters; (4) a set of
fingerprints and any report issued by the State Police or the
Federal Bureau of Investigation regarding any comparison with
fingerprints on file; (5) a Criminal History Report (rap sheet);
and (6) a Firearms Applicant Investigation Report, which contains
a summary of the above five documents. In addition, the court
noted that if an applicant intends to purchase a handgun, the file
will eventually include a Permit to Purchase a Handgun and Form of
Register, which the applicant delivers in quadruplicate to the
handgun seller, who, after selling the applicant a handgun,
completes the permit and delivers the original to the
Superintendent of the State Police, and copies to the chief of
police of the municipality in which the applicant resides and to
the applicant, the seller retaining a copy. See N.J.S.A. 2C:58-3h.
(The file, however, does not contain either the original or a copy
of the Firearms Purchaser Identification Card, which the applicant
retains.)
The court found that the investigative-file documents
constituted public records that were required "to be made,
maintained or kept on file" within the meaning of the Right-to-Know
Law, N.J.S.A. 47:1A-2, because it viewed the firearms-licensing
statute, N.J.S.A. 2C:58-1 to -16, as "creating a detailed
regulatory scheme precedent to the retail sale of handguns and
other firearms * * * based upon a prescribed and written
application form and centered around a mandated investigation
[that] commences with information required by statute to be offered
by the applicant in writing." The court reasoned "that the entire
process is required by law and therefor[e] the paperwork generated
by the process reasonabl[y] necessary to its implementation lies
within the intent of the legislative definition of a public
record."
Nevertheless, the court observed that N.J.S.A. 47:1A-2 permits
Right-to-Know-Law records to be exempted by "statute, resolution of
either or both houses of the Legislature, executive order of the
Governor, rule of court, any Federal law, regulation or order, or
by any regulation promulgated under the authority of any statute or
executive order." The court thus determined that the Division of
State Police's adoption of N.J.A.C. 13:54-1.15, which prohibits
disclosure of "background investigation" materials, exempted the
following documents: the "answered application forms, answered
Mental Health Search form, answered reference letters, fingerprints
and any report of comparisons, the Criminal History Report and the
internal Firearms Applicant Investigation Report." Although noting
that neither the firearms statute, N.J.S.A. 2C:39-1 to -15, nor the
firearms-licensing statute expressly granted rule-making authority
to the Superintendent or to the Division of State Police, the court
"conclude[d] [that] the regulation [was] within the reasonably
implied scope of regulatory powers of the Division of State
Police."
However, in respect of issued firearms-purchaser
identification cards and handgun-purchase permits, the court
determined that those records did not fall within the N.J.A.C.
13:54-1.15 exemption because "[t]hey [were] not part of the
investigation itself but its end product." (As previously noted,
the investigative file does not contain issued firearms-purchaser
identification cards, which are retained by the applicant.)
Nevertheless, the court stated that it "would [have] order[ed]
inspection of" the handgun-purchase permits "but for [its] analysis
of the common law."
Turning to plaintiff's common-law claim, the trial court found
that the investigative-file documents were common-law public
records because they were records made by a public official in the
exercise of public functions. However, the court noted that
plaintiff had "not demonstrated a sufficiently particularized or
compelling need for the background file--including the [handgun-purchase] [p]ermit--[that] outweigh[ed] the State's interest in
confidentiality in the highly sensitive personal material likely to
be contained in the typical file or in the fact that a [p]ermit has
been approved." Characterizing plaintiff's interest in disclosure
as "a generalized interest in whether the gun control laws [had
been] properly administered in Mount Laurel," the court concluded
that plaintiff's interest was outweighed by the State's interest in
obtaining candid responses from the applicants and their character
references, in preventing an increase in black-market sales of
unregistered firearms, and in not deterring qualified persons from
applying for a permit or identification card.
Finally, addressing plaintiff's constitutional claim, the
court applied the two-pronged test articulated by the United States
Supreme Court in Press-Enterprise Co. v. Superior Court of
California,
478 U.S. 1, 8,
106 S. Ct. 2735, 2740,
92 L. Ed.2d 1,
10 (1986): (1) "whether the place and process have historically
been open to the press and general public"; and (2) "whether public
access plays a significant positive role in the functioning of the
particular process in question." The court rejected plaintiff's
constitutional claim because plaintiff had failed to prove the
existence of a tradition of public access to issued handgun-purchase permits or to the background-investigation file, and had
failed to demonstrate "that public access would have a positive
role in the functioning of the * * * careful regulatory grid
presently in place governing the sale and purchase of handguns."
While plaintiff's appeal was pending, the Appellate Division
granted the Attorney General's motion to appear as amicus curiae.
Also during the pendency of plaintiff's appeal, the Division of
State Police, Department of Law and Public Safety, proposed
revisions to N.J.A.C. 13:54-1.15 extending the regulation's
prohibition against disclosure beyond "background investigation"
materials to all documents sought by plaintiff, see
24 N.J.R. 3022
(Sept. 8, 1992), which the Superintendent of the State Police
adopted "without change." See
24 N.J.R. 4068 (Nov. 2, 1992).
After the Appellate Division had remanded this case to the Law
Division for reconsideration in light of N.J.A.C. 13:54-1.15 as
amended, the trial court issued a supplemental opinion, finding
that the amendment to N.J.A.C. 13:54-1.15 strengthened the
conclusions in its earlier opinion because "the new regulation * *
* [protectively] cloaked the entire [application] process."
The Appellate Division affirmed, rejecting the trial court's
reasoning and substituting its own rationale for denying access.
275 N.J. Super. 465 (1994). In respect of plaintiff's Right-to-Know-Law claim, the Appellate Division found, as a preliminary
matter, that only the following documents were required by law to
be made, maintained or kept: (1) applications for firearms-purchaser identification cards or handgun-purchase permits; (2)
firearms-purchaser identification cards; (3) handgun-purchase
permits; and (4) consent forms for mental-health records. Id. at
478-79. In contrast, it found that the background-investigation
reports and the reference letters were not Right-to-Know-Law
documents. Id. at 479.
Turning to the validity of N.J.A.C. 13:54-1.15, the court
rejected the trial court's ruling that that regulation exempted the
requested documents from the category of Right-to-Know-Law records,
explaining that because the Superintendent was not the head of a
principal department of State government, he had lacked the
authority to promulgate an administrative regulation denying access
to public records. 275 N.J. Super. at 483; see Executive Order No.
9 (Sept. 30, 1963) (delegating to head of each principal department
of Executive Branch authority to adopt regulations exempting
records from disclosure under Right-to-Know Law). Nevertheless,
the Appellate Division agreed with the trial court's conclusion
that
a weighing of [the] public interest properly
lead[] to rejection of plaintiff's unduly
broad and undifferentiated requests * * * ,
both [regarding] the records [that] [the
Appellate Division] * * * held were improperly
characterized as Right to Know records [the
background-investigation reports and reference
letters], and [regarding] material [that] the
Superintendent endeavored to remove from Right
to Know status by adoption of the regulation.
Insofar as access under the common-law balancing test was concerned, the Appellate Division found that the investigative-file documents were common-law public records, id. at 479, and adopted the trial court's analysis, adding that the "public interest evaluation has been confirmed by the two other branches of government. The Superintendent promulgated the confidentiality regulation, resting it on notions of privacy and public safety. The Legislature approved the regulation, thus endorsing its policy * * * ." Id. at 484. However, it stated that "[r]ecognition of the strong * * * public policy interest * * * does not alone
resolve this case [regarding] the documents [that] continue to
retain Right to Know status." Id. at 484-85. The court also
referred to N.J.S.A. 2A:84A-27, which prohibits disclosure of
official State or federal information if a court finds that
disclosure will be harmful to public interests. Denying access to
the Right-to-Know-Law documents, it held that "the public interests
enunciated by the Superintendent in promulgating N.J.A.C. 13:54-1.15, deemed approved by the Legislature, and embodied in the trial
[court]'s findings, fall within the contemplation of N.J.S.A.
2A:84A-27(b), at least [regarding] disclosures as broad and
undifferentiated as those sought by plaintiff." 275 N.J. Super. at
485.
The court added that any conflict between N.J.S.A. 2A:84A-27
and the Right-to-Know Law can be avoided by permitting "properly
limited inquiries":
Nothing we have said precludes the press from
asking the Superintendent or a local police
chief whether any handgun purchase permits or
firearms purchase identification cards have
actually been issued to persons with records
of institutional confinement, mental or
correctional, or to persons who have responded
affirmatively to the questions respecting drug
and alcohol dependency, past convictions, or
membership in organizations [that] seek to
overthrow the government or deny the
individual constitutional rights of others.
"An affirmative response to such inquiries may then be pursued in a more limited fashion, * * * and more easily amenable to devices such as redaction, protective orders, and in camera reviews, which
can be judicially tailored to the needs of the individual case,
while mindful of public interest considerations." Id. at 486.
Thus, because plaintiff had "not availed itself of the opportunity
to make such limited inquiries," the court granted plaintiff leave
to amend the pleadings "to make requests [that] are consistent with
this opinion." Ibid.
In respect of mental-health records, the court stated that
those records warranted independent treatment, and therefore
analyzed those records separately, determining that N.J.S.A. 30:4-24.3 prohibits "broad access" to those records. That statute
requires confidential treatment of "[a]ll certificates,
applications, records, and reports made pursuant to the provisions
of * * * Title [30] and directly or indirectly identifying any
individual presently or formerly receiving services in a
noncorrectional institution." However, that statute permits
disclosure of mental-health records that are "necessary for the
conduct of proceedings before it [when] th[e] failure to * * *
disclos[e] would be contrary to the public interest." N.J.S.A.
30:4-24.3(3). The court nonetheless reasoned that "[g]iven the
strong legislative policy of N.J.S.A. 30:4-24.3, the policy
considerations listed by the Superintendent during the rule-making
process, and the [trial court]'s common law balancing analysis, the
public interest prong clearly has not been satisfied," 275 N.J.
Super. at 480-81, and that "the Title 30 statutory prohibition, and
the public interest considerations * * * preclude[d] affording
broad access to the requested mental health records under [the]
common law." Id. at 481.
Lastly, the Appellate Division considered and rejected
plaintiff's constitutional-right-of-access claim, noting that
federal courts generally have refused to recognize such a right
"outside the arena of criminal trials." Id. at 486. Furthermore,
the court reasoned that
[g]iven reliance by applicants and the persons
solicited by investigators for background
information upon the State's longstanding
policy of privacy, reliance upon the published
regulation, and reasonable reliance upon the
previous privacy determinations of our courts,
we are further satisfied that there is no
basis for recognizing a paramount
constitutional right for press access in this
matter.
Plaintiff petitioned for certification on the issue whether it had a right of access to the investigative-file documents pursuant to the Right-to-Know Law, the common law, and the State and Federal Constitutions. The Attorney General cross-petitioned, contending that the Appellate Division erred in holding that under the Right-to-Know Law a local police chief or the Superintendent is required to respond to specific inquiries, which will result in the responsible official's searching through records to create summaries or statistical analyses of government documents.
In April 1995, the Attorney General readopted N.J.A.C. 13:54-1.15, effective May 1, 1995. 27 N.J.R. 1807 (May 1, 1995). That
regulation exempts from public disclosure "[a]ny background
investigation conducted" as well as
[a]ny application for a permit, firearms
identification card, or license, and any
document reflecting the issuance or denial of
such permit, firearms identification card, or
license, and any permit, firearms
identification card, license, certification,
certificate, form of register, or registration
statement[] maintained by any State or
municipal governmental agency.
Pursuant to Executive Order No. 9 (Sept. 30, 1963), the Attorney
General is one of the State-government officials specifically
authorized to adopt regulations exempting records from disclosure
under the Right-to-Know Law. As a consequence of the Attorney
General's readoption of N.J.A.C. 13:54-1.15, the investigative-file
documents clearly are exempted from public disclosure under the
Right-to-Know Law, which renders moot plaintiff's claim of access
to the documents pursuant to the Right-to-Know Law. See In re
Application of Madin/Lord Land Dev. Int'l,
103 N.J. 689, 695 (1986)
(holding that Pinelands Commission's new rules rendered moot the
issue whether local-planning agency of uncertified municipality had
right to seek Commission's reconsideration in development-application review process); In re "Plan For Orderly Withdrawal
From New Jersey" of Twin City Fire Ins. Co.,
248 N.J. Super. 616,
641 (App. Div. 1991) ("Whatever concerns we may have had [about]
whether the Commissioner should have proceeded under duly adopted
regulations rather than through an individual adjudicatory process
have been rendered moot by the Commissioner's adoption of
comprehensive regulations * * * ."), aff'd,
129 N.J. 389 (1992),
cert. denied, ___ U.S. ___,
113 S. Ct. 1066,
122 L. Ed.2d 370
(1993); In re N.J.A.C. 14A:20-1.1 Et Seq.,
216 N.J. Super. 297, 304
(App. Div. 1987) ("[The Department of Energy] was prohibited from
implementing and enforcing the regulations, not from readopting
them to moot the challenge to their validity on appeal.").
Because of that conclusion, we do not reach the issue whether
the Right-to-Know Law requires the responsible official to provide
summaries or statistical analyses of government documents.
Similarly, because we remand this case to the trial court to
conduct the common-law balancing test, we do not address whether
the common law mandates the responsible official to produce such
summaries. However, we note that the Appellate Division's
assumption that the responsible official is required to provide
summaries is inconsistent with our understanding that neither the
Right-to-Know Law nor the common law generally has been interpreted
to impose an affirmative obligation on custodians of records to
provide summaries of either Right-to-Know-Law or common-law
documents. See N.J.S.A. 47:1A-2 ("Every citizen of this State * *
* shall have the right to inspect [public] records * * * , to copy
such records by hand, and * * * to purchase copies of such
records."); Asbury Park Press, Inc. v. State, Dep't of Health,
233 N.J. Super. 375, 381 (App. Div.) (holding that summary analysis in
form of spread sheet was not Right-to-Know-Law document), certif.
denied,
117 N.J. 646 (1989). Accordingly, the general rule is that
public agencies are not required to produce new information even if
the documents available under the Right-to-Know Law and the common
law are unresponsive to a citizen's inquiry. Nevertheless, we note
that rigid adherence to that general rule might not necessarily be
appropriate in all cases, and observe that the Appellate Division
has ruled to that effect in Board of Education v. New Jersey
Department of the Treasury,
279 N.J. Super. 489, 500, 502 (holding
that claims-information data for specific municipality or State
agency constituted public records under Right-to-Know Law and
common law even though such data was not grouped by municipality or
agency but rather was compiled into two groups--State and local),
leave to appeal granted, ___ N.J. ___ (1995).
The requirements and procedures for issuance of firearm licenses and handgun permits are set forth in N.J.S.A. 2C:58-1 to -16 and N.J.A.C. 13:54-1.1 to -1.15. Under the statute, a person must obtain a permit to purchase a handgun or an identification card to purchase other types of firearms. N.J.S.A. 2C:58-3a and b. The chief of police of a full-time police department in which the applicant resides or the Superintendent of the State Police has the authority to issue handgun-purchase permits or firearms-purchaser identification cards to a "person of good character and good repute in the community in which he lives" unless one of the statutory
disqualifying conditions is present: (1) a criminal conviction; (2)
the applicant is drug dependent or a habitual drunkard, or is
confined for a mental disorder; (3) the applicant suffers from a
physical defect or disease that renders him or her unsafe to handle
firearms, has been confined for a mental disorder, or is an
alcoholic, "unless any of the foregoing persons produces * * *
satisfactory proof[] that he is no longer suffering from that
particular disability in such a manner that would interfere with or
handicap him in the handling of firearms"; (4) the applicant is
under the age of eighteen; or (5) "the issuance would not be in the
interest of the public health, safety or welfare." N.J.S.A. 2C:58-3c; see N.J.A.C. 13:54-1.5 to -1.6.
The application prescribed by the Superintendent requires that
the applicant provide his or her name, home and business address,
date of birth, occupation, gender, and physical description.
N.J.S.A. 2C:58-3e; see N.J.A.C. 13:54-1.4(a). The application
further requires the applicant to state whether he or she is
subject to any of the enumerated disqualifying conditions, or
whether he or she has been a member of an organization that
advocates or approves of the forceful overthrow of the United
States Government. N.J.S.A. 2C:58-3e; see N.J.A.C. 13:54-1.4(a).
The application also instructs the applicant to provide two
references. N.J.S.A. 2C:58-3e; N.J.A.C. 13:54-1.4(c). For the
purpose of complying with N.J.S.A. 2C:58-3e, the applicant
"waive[s] any statutory or other right of confidentiality relating
to institutional confinement." N.J.S.A. 2C:58-3e; N.J.A.C. 13:54-1.4(b). In addition, the applicant must allow the chief of police
or the Superintendent to obtain his or her fingerprints for
comparison to municipal, county, State, and federal records.
N.J.S.A. 2C:58-3e; N.J.A.C. 13:54-1.4(f).
New Jersey courts have long recognized a limited common-law right to inspect governmental records, South Jersey Publishing Co. v. New Jersey Expressway Auth., 124 N.J. 478, 487 (1991), which has not been abrogated or curtailed by the Right-to-Know Law. Irval Realty Inc. v. Board of Pub. Util. Comm'rs, 61 N.J. 366, 375 (1972). Under the common law, as a threshold condition for access to public records, a citizen must establish an interest in the subject matter of the material that he or she is seeking. South Jersey Publishing, supra, 124 N.J. at 487; Irval Realty, supra, 61 N.J. at 372. The interest does not have to be purely personal, but rather may be "one citizen or taxpayer out of many, concerned with a public problem or issue." Irval Realty, supra, 61 N.J. at 372. For example, a newspaper's interest in "`keep[ing] a watchful eye on the workings of public agencies'" is sufficient to accord standing under the common law. Red Bank Register, Inc. v. Board of Educ., 206 N.J. Super. 1, 9 (App. Div. 1985) (quoting Nixon v. Warner Communications, Inc., 435 U.S. 589, 598, 98 S. Ct. 1306, 1312, 55 L. Ed.2d 570, 579 (1978)).
After determining that a plaintiff has standing to assert a
right to inspect and examine government documents, a court must
determine if the records sought are "public records." South Jersey
Publishing, supra, 124 N.J. at 487. The common-law definition of
public record is broader than the Right-to-Know-Law definition.
Id. at 489; McClain v. College Hosp. & New Jersey College of
Medicine & Dentistry,
99 N.J. 346, 354 (1985). Under the common
law, a "public record" 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,
and that the officer be authorized by law to
make it * * * .'"
[Nero v. Hyland,
76 N.J. 213, 222 (1978)
(quoting Josefowicz v. Porter,
32 N.J. Super. 585, 591 (App. Div. 1954) (quoting 76 C.J.S.
Records § 1)).]
Simply stated, a common-law public record is a record "`made by
public officers in the exercise of public functions.'" North
Jersey Newspapers Co. v. Passaic County Bd. of Chosen Freeholders,
127 N.J. 9, 13 (1992) (quoting Nero, supra, 76 N.J. at 222).
However, the common-law right of access is not absolute.
Atlantic City Convention Ctr. Auth. v. South Jersey Publishing Co.,
135 N.J. 53, 60 (1994); South Jersey Publishing, supra, 124 N.J. at
488. Rather, after determining that a plaintiff has standing and
the documents sought are public records, "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."'" South Jersey Publishing, supra,
124 N.J. at 488 (quoting 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))); see Atlantic City
Convention Ctr. Auth., supra, 135 N.J. at 60. Where "reasons for
maintaining a high degree of confidentiality in the public records
are present, even when the citizen asserts a public interest in the
information, more than [the] citizen's status and good faith are
necessary to call for production of the documents." Loigman,
supra, 102 N.J. at 105-06; see also Atlantic City Convention Ctr.
Auth., supra, 135 N.J. at 60 (explaining that balancing 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'" (quoting McClain, supra, 99 N.J.
at 362)).
Conversely, we have stated that
"[a]s the considerations justifying
confidentiality become less relevant, a party
asserting a need for the materials will have a
lesser burden in showing justification. If
the reasons for maintaining confidentiality do
not apply at all in a given situation, or
apply only to an insignificant degree, the
party seeking disclosure should not be
required to demonstrate a compelling need."
[Techniscan Corp. v. Passaic Valley Water
Comm'n,
113 N.J. 233, 236 (1988) (quoting
McClain, supra, 99 N.J. at 362).]
In Loigman, we suggested several factors that a court may
consider in performing its balancing function:
(1) the extent to which disclosure will impede
agency functions by discouraging citizens from
providing information to the government; (2)
the effect disclosure may have upon persons
who have given such information, and whether
they did so in reliance that their identities
would not be disclosed; (3) the extent to
which agency self-evaluation, program
improvement, or other decisionmaking will be
chilled by disclosure; (4) the degree to which
the information sought includes factual data
as opposed to evaluative reports of
policymakers; (5) whether any findings of
public misconduct have been insufficiently
corrected by remedial measures instituted by
the investigative agency; and (6) whether any
agency disciplinary or investigatory
proceedings have arisen that may circumscribe
the individual's asserted need for the
materials.
"As we noted, the court should balance `[a]gainst these and any other relevant factors * * * the importance of the information sought to the plaintiff's vindication of the public interest.'" South Jersey Publishing, supra, 124 N.J. at 488 (quoting Loigman, supra, 102 N.J. at 113).
In its balancing, a court might find it necessary to compel production of the sought-after records and conduct an in camera review thereof. Ibid.; see Loigman, supra, 102 N.J. at 106 (stating that "implicit in the concept [of an in camera review] is a judicial weighing of that showing of standing against the need for confidentiality before proceeding to an automatic in camera review of the materials"). Indeed, the court might decide that releasing the records in a redacted form while editing out any privileged or confidential subject matter is appropriate. South Jersey Publishing, supra, 124 N.J. at 488-89. However, a "mere summary of the record is inadequate * * * where a more complete record reflecting the underlying facts is available and the plaintiff's need therefore outweighs any threat disclosure may pose to the public or private interest." Id. at 489.
We first observe that plaintiff has a sufficient interest under the common law to request access to public records. See South Jersey Publishing, supra, 124 N.J. at 496 (holding that newspaper "had a sufficient interest under the common law to request access" to minutes and related documents of governmental meeting held in executive session); Shuttleworth v. City of Camden, 258 N.J. Super. 573, 583 (App. Div.) (holding that newspaper had "sufficient interest to obtain access" to police investigative files and autopsy report regarding suspect who had been shot to death while in police custody), certif. denied, 133 N.J. 429 (1992); Red Bank Register, supra, 206 N.J. Super. at 9 (holding
that newspaper had sufficient interest to obtain curriculum-mapping
reports from municipal board of education).
As this Court recognized in South Jersey Publishing, supra,
124 N.J. at 497, the "press frequently has asserted rights of
access to public records, in the public interest, under the common
law." See, e.g., North Jersey Newspapers, supra, 127 N.J. at 11
(itemized telephone toll-billing records of county freeholders);
Shuttleworth, supra, 258 N.J. Super. at 583 (police investigative
files and autopsy report); Philadelphia Newspapers, Inc. v. State,
Dep't of Law & Pub. Safety,
232 N.J. Super. 458, 464-66 (App. Div.
1989) (flight logs to State-owned helicopters); Red Bank Register,
supra, 206 N.J. Super. at 7 (school curriculum-mapping reports).
In determining if a requested document is a "public record,"
we consider whether it is a "`written memorial made by a public
officer authorized to perform that function.'" Nero, supra, 76
N.J. at 222 (quoting Josefowicz, supra, 32 N.J. Super. at 591
(quoting 76 C.J.S. Records § 1)). We have no doubt that the
requested documents constitute public records as that term is
understood at common law.
Consistent with the trial court's and the Appellate Division's
determinations, we conclude that the requested documents are public
records, subject to the common-law right of access. However, we
are concerned that the trial court and the Appellate Division might
have concluded prematurely that the State's interest in
confidentiality outweighed plaintiff's interest in access. We find
that the record insufficiently defines the public purpose to be
advanced by access to the documents, and although plaintiff might
be partially responsible for that deficiency, we are certain that
an adequate and informed balancing of interests cannot be performed
if the public interest in access is not sufficiently disclosed.
Moreover, in determining whether partial access, redacted access,
or no access is the proper response, a careful evaluation of the
interest in disclosure is indispensable to an appropriate
resolution of the trial court's balancing function.
Accordingly, we remand this case to the trial court to balance
defendants' interest in confidentiality against the public interest
in disclosure of the requested documents. See South Jersey
Publishing, supra, 124 N.J. at 498. In balancing those interests,
the court will recognize that a basic element of the public
interest in disclosure is the desirability of informing the public
about the manner in which law-enforcement officers perform their
responsibility in licensing applicants from among the general
public to purchase handguns and rifles. Unquestionably, the proper
issuance of firearm licenses only to persons qualified to receive
them is a matter of fundamental public concern.
The court will balance the public interest, augmented by
whatever additional disclosures and allegations plaintiff might
proffer, against any competing interests that defendants have
advanced. Those interests include maintaining the confidentiality
of personal information in an applicant's investigative file,
preventing increased black-market sales of unregistered firearms,
ensuring the candor of an applicant and his or her references,
denying the criminal elements in our society the opportunity of
obtaining "shopping lists" of names and addresses of persons who
own firearms, and decreasing the chilling effect of public
disclosure on qualified persons who wish to purchase a firearm.
In performing its balancing function under the common-law
right of access, the trial court will also consider N.J.A.C. 13:54-1.15 and its Social Impact statement,
27 N.J.R. 305 (Jan. 17,
1995). Although that regulation is not dispositive of the issue
before us, it offers a significant insight into the Attorney
General's view that the relevant documents remain confidential. In
our view, the Attorney General's regulatory expression of the
importance of confidentiality weighs very heavily, but not
conclusively, in the balancing process. See Shuttleworth, supra,
258 N.J. Super. at 594 (stating that Executive Branch "regulation
by itself cannot control the common-law disposition," although "a
legitimate need for confidentiality and the policy behind [such a]
regulation can be considered as a factor in determining the common-law balance"); see also Higg-A-Rella, Inc. v. County of Essex, ___
N.J. ___, ___ (1995) (slip op. at 14) (stating that although not
determinative under common-law balancing test, "amendment [to the
Right-to-Know Law that restricted public access regarding public
records to receipt of only printed copies of records] is a factor
to be considered"); cf. South Jersey Publishing, supra, 124 N.J. at
489 (noting that Right-to-Know Law "did not curtail or affect the
common-law right to inspect and examine public records"); Irval,
supra, 61 N.J. at 373 (observing that Right-to-Know Law "was not
intended to diminish or in any way curtail the common law right of
examination. That right remains unaffected by this legislation.").
Considering the regulation as a significant factor to be weighed in
the balancing process is consistent with our view that the common
law offers a window of discretion for courts to balance the many
interests in resolving the question of access.
In balancing, the court must "concretely focus[] upon the
relative interests of the parties in relation to [the] specific
materials." McClain, supra, 99 N.J. at 361. In so doing, the
court should consider the Loigman factors. 102 N.J. at 113.
Moreover, the court must evaluate carefully the public interest
that plaintiff seeks to vindicate in requesting those documents and
the relevance "of the information sought to * * * plaintiff's
vindication of [that] public interest." Ibid. The information
that the court releases will depend on plaintiff's actual interest
in obtaining access to that information. See Higg-A-Rella, supra,
___ N.J. at ___ (slip op. at 12) ("The degree of interest
demonstrated by the person seeking access becomes important only in
the context of the [common-law] balancing test."). The court
should attempt to provide only information that is responsive to
the public interest at stake, which may include documents with
parts redacted.
For example, if plaintiff's interest is in ascertaining whether an official issued handgun-purchase permits without legal authority to do so, the court will provide responsive information by granting access to permits with all parts redacted except for the official's signature, title, and address, the permit number, and the date issued. If, however, plaintiff's interest is in determining whether an official issued firearms-purchaser identification cards to convicted felons, the court must tailor the information revealed to be responsive to the public interest involved in that request. In that event, disclosing responsive portions of the relevant documents might be appropriate provided the remaining parts of those documents are redacted to accommodate the State's interests in confidentiality and privacy. In the event that the public's interest is in knowing an applicant's identity, the court must determine if the interest in disclosure outweighs the State's interest in confidentiality. See Higg-A-Rella, supra, ___ N.J. at ___ (slip op. at 13) ("[T]o gain access, th[e] person's interest in disclosure of the document must outweigh the State's interest in non-disclosure."). If necessary, the court may compel production of sought-after documents and conduct an in camera review thereof. See South Jersey Publishing, supra, 124 N.J. at 488. In sum, the court must explore what information, if any, can be disclosed to plaintiff to vindicate the public interest while being cognizant of the State's interests in confidentiality and
privacy. We imply no view whatsoever on the disposition that the
trial court should reach on remand.
In respect of access to the Consent for Mental Health Records
Search form, we treat that issue separately and direct the trial
court to examine that question under N.J.S.A. 30:4-24.3. That
statute provides:
All certificates, applications, records,
and reports made pursuant to the provisions of
* * * Title [30] and directly or indirectly
identifying any individual presently or
formerly receiving services in a
noncorrectional institution under * * * Title
[30], or for whom services in a
noncorrectional institution shall be sought
under this act shall be kept confidential and
shall not be disclosed by any person, except
insofar as:
(1) the individual identified or his
legal guardian, if any, or, if he is a minor,
his parent or legal guardian, shall consent;
or
(2) disclosure may be necessary to carry
out any of the provisions of this act or of
[N.J.S.A. 2A:82-41]; or
(3) a court may direct, upon its
determination that disclosure is necessary for
the conduct of proceedings before it and that
failure to make such disclosure would be
contrary to the public interest.
We note that the second exception is not applicable because
N.J.S.A. 2A:82-41 pertains to the right to examine the hospital
records of a person asserting a personal-injury claim. We also
find that the first exception is inapplicable because applicants
have not consented to disclosure of their mental-health records
except to the chief of police or the Superintendent. Under
N.J.S.A. 2C:58-3e and solely "[f]or the purpose of complying with
th[at] subsection, [an] applicant [must] waive any statutory or
other right of confidentiality relating to institutional
confinement." Ibid. Consistent with the limitations of that
subsection is the Consent for Mental Health Records Search form,
which states:
I, _______, am aware of my rights under
N.J.S.A. 30:4-24.3, and consent to disclose
. . . my mental health records to the Chief
of Police, Superintendent of State Police or
their designees for the purpose of verifying
my firearms permit application and my fitness
to own a firearm under N.J.S.A. 2C:58-3.
Accordingly, an applicant waives his or her right to
confidentiality regarding only the chief of police and the
Superintendent and only to the extent necessary to determine the
applicant's fitness to own a firearm.
However, our observations still leave open the possibility
that plaintiff may obtain the consent form or certain information
contained therein either if it does not "directly or indirectly
identify[]" the applicant, see N.J.S.A. 30:4-24.3, or if the court
finds that disclosure "is necessary for the conduct of proceedings
before it and that failure to make such disclosure would be
contrary to the public interest." See N.J.S.A. 30:4-24.3(3).
Finally, although we acknowledge plaintiff's constitutional
claim of a right of access, in view of our disposition, we do not
reach that claim.
The judgment of the Appellate Division is affirmed as modified, and the case is remanded to the Law Division for proceedings consistent with this opinion.
Chief Justice Wilentz and Justices Handler, Pollock, 0'Hern, Garibaldi, and Coleman join in Justice Stein's opinion.
NO. A-125/126 SEPTEMBER TERM 1994
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
SOUTHERN NEW JERSEY
NEWSPAPERS, INC.,
Plaintiff-Appellant,
v.
THE TOWNSHIP OF MT. LAUREL,
THE POLICE DEPARTMENT OF THE
TOWNSHIP OF MT. LAUREL,
AND THE CUSTODIAN OF RECORDS
FOR THE POLICE DEPARTMENT OF
THE TOWNSHIP OF MT. LAUREL,
Defendants-Respondents,
and
ATTORNEY GENERAL OF NEW JERSEY,
Intervenor-Respondent
and Cross-Appellant.
DECIDED July 19, 1995
Chief Justice Wilentz PRESIDING
OPINION BY Justice Stein
CONCURRING OPINION BY
DISSENTING OPINION BY