(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).
THE HOME NEWS V. STATE OF NEW JERSEY, DEPARTMENT OF HEALTH, ET AL. (A-103-95)
Argued February 13, 1996 -- Decided June 17, 1996
STEIN, J., writing for a unanimous Court.
This appeal requires the Court to determine whether the Right-to-Know Law, N.J.S.A. 47:1A-1 - 4,
or the common-law right to inspect public documents entitle The Home News (Home News) to receive
cause-of-death information on a death certificate.
In 1991, five-year-old Timothy Wiltsey disappeared from a fairground in Sayreville. His body was
found months later in a drainage area in Edison Township. The Wiltsey case generated significant public
interest and media coverage. In February 1994, Home News, a daily newspaper, requested a copy of
Timothy's death certificate from the Registrar of Vital Statistics of Edison (Registrar). N.J.S.A. 26:8-62
requires that State registrars or other custodians of vital records supply certified copies of records, including
records of death, to "any applicant." However, N.J.A.C. 8:2A-1.2 (the regulation) provides that information
concerning the cause of death is to be omitted from death certificates unless the applicant is on a short list
of persons that includes the decedent's executor, surviving spouse or parent, or one who receives the consent
of one of the listed persons, or when the applicant seeks the information for research or public-health
purposes.
The regulation was promulgated by the Department of Health (DOH) to effectuate the
confidentiality provisions of the Cancer Registry Act, the Acquired Immune Deficiency Syndrome (AIDS)
Assistance Act, and the Registration of Vital Statistics Act. The AIDS Assistance Act and the Cancer
Registry Act require that cases of those diseases be reported to DOH for purposes of research and
coordination of treatment programs. Sections of the Registration of Vital Statistics Act established the same
procedures for birth defects. Each of those statutes require that "personal and sensitive medical information"
be kept confidential. By limiting disclosure of cause-of-death information on death certificates, the
regulation protects the privacy of those persons who die of AIDS, cancer, or birth defects.
Because Home News was not one of the persons permitted by the regulation to receive the
information, the Registrar provided only a partial copy of the death certificate, omitting the information
concerning the cause of death. Home News filed a complaint and order to show cause, pursuant to the
Right-to-Know Law and the common-law right to inspect public documents, seeking a judgment setting aside
the regulation and compelling the disclosure of the complete death certificate.
The matter was transferred to the Appellate Division pursuant to Court Rule. The Appellate Division upheld the regulation and dismissed the complaint, finding that the regulation was a proper exercise of DOH's statutory authority to promulgate regulations necessary to enforce the laws relating to vital statistics. The court reasoned that the regulation achieved a compromise between the statutory duty to provide copies of death certificates and the mandate of the AIDS Assistance Act to protect the confidentiality of those with AIDS. The court recognized that Timothy Wiltsey's death was not AIDS related, but concluded that withholding the cause of death in all cases was a reasonable exercise of rulemaking authority because, if the cause of death are excluded only in AIDS cases, the recipient of a death certificate with an omitted cause of death would be able to deduce that the decedent had died of AIDS. Thus, in addition to the primary purpose of preventing direct disclosure of the cause of death of AIDS victims, the Appellate Division found a secondary, preventative interest that justified blanket non-disclosure. On the issue of the common-law right of access to public documents, the Appellate Division held that the
newspaper's interest must yield to the strong public policy for confidentiality identified in the AIDS
Assistance Act.
The Supreme Court granted Home News's petition for certification.
HELD: Under the common law right to inspect public documents, the interest of The Home News in
receiving the cause-of-death information on Timothy Wiltsey's death certificate outweighs the
importance of preserving the confidentiality of the death certificate it seeks; therefore, the complete
death certificate must be disclosed.
1. Under the Right-to-Know Law, New Jersey citizens have an absolute right to inspect, copy, or purchase
records required by law to be made, maintained or kept on file by public officials. Death certificates
constitute Right-to-Know records. However, the Court decides this case pursuant to the common-law right
of access to public documents. The common-law right to inspect documents is a qualified right. A written
memorial made by a public officer in the exercise of a public function constitutes a common-law public
record. A death certificate is a common-law public record. Under the common law, there is a threshold
standing requirement that the applicant have an interest in the subject matter of the material sought. In
addition, the applicant must establish that the interest in disclosure outweighs the public's interest in
maintaining confidentiality. (pp. 5-7)
2. To satisfy the standing requirement, the applicant's interest need not be personal; a citizen's concern
about a public problem is sufficient interest for purposes of the standing. The role of the press as "the eyes
and ears of the public" generally is sufficient to confer standing on a newspaper that seeks access to public
documents. A legitimate, private profit motive is also sufficient to confer standing. Thus, the
newsworthiness and commercial value of this public interest story cleary suffices to confer standing on Home
News under the common-law right of access. In balancing the applicant's interest in the public record
against the public's interest in maintaining confidentiality, courts will consider whether the applicant's interest
is premised on a purpose that tends to advance or further a wholesome public interest or a legitimate private
interest. Under the common law, the focus must always be on the character of the material sought to be
disclosed. (pp. 7-9)
3. The Appellate Division's ruling fails to take into account the circumstances of the information requested
and results in a form of blanket prohibition that is inconsistent with the balancing approach mandated by the
common law. There is no suggestion in the record that the cause of Timothy Wiltsey's death was AIDS,
cancer, a birth defect, or any other confidential medical condition that might be the focus of the policy
underlying the regulation. Timothy was most likely the victim of murder, a subject of conceded public
interest. Permitting disclosure in this case, where neither AIDS nor any other sensitive medical condition is
implicated, will not jeopardize the primary confidentiality interest identified in the applicable statutes and in
the regulation. (pp. 9-11)
4. Disclosure also will not jeopardize the secondary purpose of the regulation, which is to deny cause-of-death information in all cases in order to preclude the inference that only persons whose death certificates
lacking cause-of-death information died of AIDS or another confidential medical condition. Disclosure will
be based on the exceptional showing of the newspaper's common-law right of access that outweighs the
regulatory interest in confidentiality, in a context involving no suggestion of a confidential medical condition.
The public's interest in this story is undeniable. Home News has a legitimate business interest in the
information it seeks. (pp. 11-13)
Judgment of the Appellate Division is REVERSED and the matter is REMANDED to the New
Jersey State Registrar of Vital Statistics for further action consistent with this opinion.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI and
COLEMAN join in JUSTICE STEIN's opinion.
SUPREME COURT OF NEW JERSEY
A-
103 September Term 1995
THE HOME NEWS,
Appellant,
v.
STATE OF NEW JERSEY, DEPARTMENT OF
HEALTH and NEW JERSEY STATE
REGISTRAR,
Respondents.
Argued February 13, 1996 -- Decided June 17, 1996
On certification to the Superior Court,
Appellate Division.
Thomas J. Cafferty argued the cause for
appellant (McGimpsey & Cafferty, attorneys;
Mr. Cafferty and Arlene M. Turinchak, on the
briefs).
Mary C. Jacobson, Assistant Attorney General,
argued the cause for respondents (Deborah T.
Poritz, Attorney General of New Jersey,
attorney; Ms. Jacobson and Michael J. Haas,
Senior Deputy Attorney General, of counsel;
Ms. Jacobson and Patricia De Cotiis and
Donald M. Palombi, Deputy Attorneys General,
on the briefs).
The opinion of the Court was delivered by
STEIN, J.
This appeal requires the Court to determine whether the
Right-to-Know Law, N.J.S.A. 47:1A-1 to -4, or the common-law
right to inspect public documents entitle petitioner to receive
cause-of-death information on a death certificate. Respondent
Department of Health adopted a regulation, N.J.A.C. 8:2A-1.2,
that bars the release of such information in all but a limited
number of cases. The Appellate Division upheld the regulation
and ruled that petitioner was precluded from receiving the cause-of-death information. We granted certification,
142 N.J. 571
(1995), and now reverse.
In 1991, five-year-old Timothy Wiltsey disappeared from a
fairground in Sayreville. An intensive investigation followed
and the apparent tragedy generated significant public interest
and media coverage. Sadly, Timothy's body was found months later
in a drainage area in Edison Township.
In February 1994, petitioner, The Home News (Home News), a
daily newspaper with circulation in the central region of the
state, requested a copy of the boy's death certificate from the
Registrar of Vital Statistics of Edison (Registrar). N.J.S.A.
26:8-62 requires that state registrars or other custodians of
vital records supply certified copies of records, including
records of deaths, to "any applicant." However, N.J.A.C. 8:2A-1.2, which became effective in December 1993, provides that
information concerning the cause of death shall be omitted from
death certificates unless the applicant is on a short list of
persons that includes the decedent's executor, surviving spouse
or parent, or one who receives the consent of one of the listed
persons, or when the applicant seeks the information for research
or public-health purposes.
The regulation was promulgated to effectuate the
confidentiality provisions of the Cancer Registry Act, N.J.S.A.
26:2-107, the Acquired Immune Deficiency Syndrome (AIDS)
Assistance Act, N.J.S.A. 26:5C-7 to -13, and the Registration of
Vital Statistics Act, N.J.S.A. 26:8-40.22 to -40.23.
25 N.J.R. 3115(a) (July 19, 1993) (summarizing proposed regulation). The
AIDS Assistance Act and the Cancer Registry Act require that
cases of those diseases be reported to the Department of Health
for purposes of research and coordination of treatment programs.
See N.J.S.A. 26:5C-2; N.J.S.A. 26:2-104. Sections 40.20 to 40.26
of the Registration of Vital Statistics Act establish the same
procedures for birth defects. N.J.S.A. 26:8-40.20 to -40.26.
Each of those statutes requires that "personal and sensitive
medical information" be kept confidential.
25 N.J. Reg. 3115(a).
By limiting disclosure of cause-of-death information on death
certificates, the regulation protects the privacy of those
persons who die of AIDS, cancer, or birth defects. As an
additional source of authority for withholding cause-of-death
information, the respondent cites Executive Order Number 9
exempting from the Right-to-Know Law "[r]ecords concerning
morbidity, mortality and reportable diseases of named persons
required to be made, maintained or kept by any State or local
governmental agency." Exec. Order No. 9, § 3(c), 1
963 N.J. Laws 1153, 1157 (Sept. 30, 1963).
Because Home News was not one of the persons permitted by
the regulation to receive the information, the Registrar provided
only a partial copy of the death certificate, omitting the
information concerning the cause of death. Home News commenced
this action by way of a complaint and order to show cause
pursuant to the Right-to-Know Law, N.J.S.A. 47:1A-1 to -4, and
the common-law right to inspect public documents. The complaint
seeks a declaratory judgment setting aside the regulation and
compelling the disclosure of the complete death certificate. The
matter was transferred to the Appellate Division pursuant to Rule
2:2-3(a)(2) (governing appeal from final decision of
administrative officer).
In an unreported opinion, the Appellate Division upheld the
regulation and dismissed the complaint. The court held that the
regulation was a proper exercise of the Department of Health's
authority under N.J.S.A. 26:8-23, which permits the Department to
promulgate regulations necessary to enforce the laws relating to
vital statistics. The court determined that the regulation
achieved a compromise between the statutory duty to furnish
copies of death certificates and the imperative of the AIDS
Assistance Act to protect the confidentiality of AIDS sufferers,
noting that in that Act the Legislature "enunciated . . . a
compelling public interest to exclude cause-of-death information
from the [Right-to-Know Law]." Although recognizing the "clear
potential [that] Timothy Wiltsey's death may not have been AIDS-related," the court concluded that withholding the cause of death
in all cases was a reasonable exercise of rulemaking authority
because, if the cause of death were excluded only in AIDS cases,
the recipient of a death certificate that omitted the cause of
death would be able to deduce that the decedent had died of AIDS.
Thus, in addition to the primary purpose of preventing direct
disclosure of the cause of death of AIDS victims, the Appellate
Division discerned a secondary, prophylactic interest that
justified blanket non-disclosure.
The Appellate Division disposed of Home News's argument
based on the common-law right of access to public documents
without extended discussion, holding that "even the interest of a
newspaper must yield to the strong public policy for
confidentiality identified in the AIDS [Assistance] Act."
Only last term this Court restated the legal principles that
govern the public's common-law and statutory rights of access to
public records. See Southern New Jersey Newspapers, Inc. v.
Township of Mt. Laurel,
141 N.J. 56 (1995); Higg-A-Rella, Inc. v.
County of Essex,
141 N.J. 35 (1995). We need not revisit this
area of the law in detail to resolve the question posed by this
record.
Under the Right-to-Know Law, New Jersey citizens have an
absolute right to inspect, copy, or purchase records "required by
law to be made, maintained or kept on file" by public officials.
N.J.S.A. 47:1A-2; see Higg-A-Rella, supra, 141 N.J. at 43. Death
certificates constitute "Right-to-Know" records. See Home News
Publishing Co. v. State,
239 N.J. Super. 172, 180 (App. Div.
1990). The statute provides, however, that certain records may
be exempted from disclosure by various means, including
legislation, order of the Governor, or regulation, N.J.S.A.
47:1A-2, although this power must be exercised with discretion
and only to the extent "necessary for the protection of the
public interest." Irval Realty Inc. v. Board of Pub. Util.
Comm'rs,
61 N.J. 366, 374 (1972). Because of our disposition of
this case under the common-law right of access to public
documents, we do not determine whether the regulation is entirely
consistent with the authorizing statutes and properly exempts all
cause-of-death information from the Right-to-Know Law.
The common-law right to inspect documents extends to a wider
pool of public records than does the Right-to-Know Law, but the
right itself is a qualified one. Atlantic City Convention Ctr.
Auth. v. South Jersey Publishing Co.,
135 N.J. 53, 60 (1994). A
written memorial "made by public officers in the exercise of
public functions" will constitute a common-law public record,
Nero v. Hyland,
76 N.J. 213, 222 (1978), and death certificates
incontestably fall within that category. Unlike the statutory
right, however, there is a threshold standing requirement that
the applicant have an interest in the subject matter of the
material sought. Southern New Jersey Newspapers, supra, 141 N.J.
at 71. Moreover, the applicant must establish that the balance
of its interest in disclosure against the public interest in
maintaining confidentiality weighs in favor of disclosure. Id.
at 72.
To satisfy the standing requirement, the applicant's
interest need not be personal; thus, a citizen's concern about a
public problem is a sufficient interest for purposes of standing.
Id. at 71; Irval Realty, supra, 61 N.J. at 372. The press's role
as "the eyes and ears of the public" generally is sufficient to
confer standing on a newspaper that seeks access to public
documents. South Jersey Publishing Co. v. New Jersey Expressway
Auth.,
124 N.J. 478, 496-97 (1991); see Southern New Jersey,
supra, 141 N.J. at 71. Indeed, a legitimate, private profit
motive is also sufficient. Higg-A-Rella, supra, 141 N.J. at 47.
As a commercial entity, newspapers regularly pursue and print
stories based on their potential public interest and appeal, as
contrasted with news stories that inherently serve the public
interest; the newsworthiness and commercial value of such stories
clearly suffice to confer standing on a newspaper under the
common-law right of access.
In the next step of the analysis, the applicant's interest
in the public record in question is balanced against the public's
interest in maintaining confidentiality. In that context, the
applicant's interest is more closely scrutinized, and the courts
will consider whether it 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)). Thus, where substantial
justification exists for maintaining confidentiality,
considerably more than standing and good faith on the part of the
applicant is required before disclosure is warranted. Id. at
108. On the other hand, we have held that
[a]s the considerations justifying
confidentiality become less relevant, a party
asserting a need for the material 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.
[McClain v. College Hosp.,
99 N.J. 346, 362
(1985).]
See also Loigman, supra, 102 N.J. at 105 (holding that where
interest in confidentiality is "slight or non-existent," standing
will be sufficient to require disclosure, but when
confidentiality interest is greater, "the citizen's right of
access is qualified").
The existence of a regulation is not dispositive of whether
there is a common-law right to inspect a public record, but it
weighs "very heavily" in the balancing process as a determination
by the Executive Branch of the importance of confidentiality.
Southern New Jersey Newspapers, supra, 141 N.J. at 76. In the
context of the Right-to-Know Law, such regulatory exemptions
preempt the balancing of the interests and preserve
confidentiality on a categorical basis. See McClain, supra, 99
N.J. at 356 (discussing statutory exemptions). That approach is
not appropriate under the common law, where "the focus must
always be on 'the character of the materials sought to be
disclosed.'" Loigman, supra, 102 N.J. at 112 (quoting State v.
Doliner,
96 N.J. 236, 248 (1984)); see also Atlantic City, supra,
135 N.J. at 60 (holding that "court must engage in a balancing
process 'concretely focused upon the relative interests of the
parties in relation to [the] specific materials'") (quoting
McClain, supra, 99 N.J. at 361). Above all, the process is
flexible, and "sensitive to the fact that the requirements of
confidentiality are greater in some situations than in others."
McClain, supra, 99 N.J. at 362.
We believe that in considering Home News's qualified, common-law right of access to public documents, the Appellate Division erred in holding that Home News's interest in the cause-of-death information on Timothy Wiltsey's death certificate "must yield to the strong public policy for confidentiality identified in the AIDS [Assistance] Act." The court did not take into account the circumstances of the information request at issue here, and its ruling would apparently bar disclosure of cause-of-death information in all cases. That type of blanket prohibition
is not consistent with the balancing approach mandated by the
common law.
We do not diminish the importance of preserving the
confidentiality of sensitive medical information. Relieving
AIDS, cancer, and birth-defects sufferers and their survivors
from the fear of a post-mortem loss of privacy concerning
sensitive medical information is an interest of the highest
order. The regulation's secondary, prophylactic purpose of
preventing the identification of persons who died of AIDS by
barring access to cause-of-death information on all death
certificates is also valid and entitled to weight in the common-law balancing process. Even the more general privacy interest in
protecting cause-of-death information identified in Executive
Order Number 9 should be considered, notwithstanding the fact
that the Executive Order's effect is limited to the Right-to-Know
statute. Exec. Order No. 9, supra, § 4, 1963 N.J. Laws at 1157.
But whatever the cause of Timothy Wiltsey's death may have
been, there is no suggestion in this record that the cause of his
death was AIDS, cancer, a birth defect, or any other confidential
medical condition that might be the focus of the policy
underlying the regulation. On the contrary, the likely inference
from the record is that he was the victim of a homicide, a
subject of conceded public interest. Indeed, counsel for Home
News represented at oral argument that the prosecutor
investigating the Wiltsey case had made public statements
confirming that fact. Permitting disclosure in this case, where
neither AIDS nor any other sensitive medical condition is
implicated, will not jeopardize the primary confidentiality
interests identified in the applicable statutes and in the
regulation.
Nor will disclosure jeopardize the secondary purpose of the
regulation, which is to deny cause-of-death information in all
cases in order to preclude the inference that only persons whose
death certificates lack cause-of-death information died of AIDS
or another confidential medical condition. Because disclosure in
this case would be based on the exceptional showing of a
newspaper's common-law right of access that outweighs the
regulatory interest in confidentiality, in a context involving no
suggestion of a confidential medical condition, revelation of the
cause of death does not intrude on the regulatory policy of
general non-disclosure in order to protect the isolated cases in
which non-disclosure is mandatory. Persons interested in the
grounds for an exception from the regulation readily will
understand that neither the regulation's primary nor secondary
purpose is implicated here, and that the exception is based
solely on the newspaper's overriding right of access to the
cause-of-death information under circumstances that do not
threaten the achievement of the regulation's goals.
Favoring disclosure to the press is the public's interest in
the Wiltsey case. We do not imply that Home News's motive for
obtaining the cause-of-death information possesses the same
socially important attributes often associated with the term
"public interest." Unlike Shuttleworth v. City of Camden,
258 N.J. Super. 573, 577 (App. Div.), certif. denied,
133 N.J. 429
(1992), where the press sought information concerning a suspect
who died in police custody, or Red Bank Register, Inc. v. Board
of Educ.,
206 N.J. Super. 1, 5 (App. Div. 1985), where the press
sought evidence of mismanagement by school officials, here Home
News appears chiefly interested in satisfying the more mundane
curiosity of its readers for the details of a tragedy.
However, as we said in McClain, the interest in a public
record need not be compelling to justify disclosure when the
rationale for maintaining confidentiality does not apply or
applies in only an insignificant degree. See supra, 99 N.J. at
362. The public's interest in the story is undeniable. Home
News has a legitimate business interest in the information it
seeks. The purposes of preventing disclosure of sensitive
medical information will not be thwarted by disclosure of the
cause-of-death information in this case. Nor will allowing a
narrow exception to the blanket prohibition on disclosure defeat
the secondary, prophylactic purpose of the regulation. Only in
the unusual case will a request for cause-of-death information
weigh so clearly in favor of disclosure as do the facts presented
here.
We hold that Home News's interest in receiving the cause-of-death information outweighs the importance of preserving the
confidentiality of the death certificate it seeks, and that the
complete death certificate must be disclosed.
We reverse the judgment of the Appellate Division and remand
the matter to the New Jersey State Registrar of Vital Statistics
for further action consistent with this opinion.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN,
GARIBALDI and COLEMAN join in JUSTICE STEIN's opinion.
NO. A-103 SEPTEMBER TERM 1995
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
THE HOME NEWS,
Appellant,
v.
STATE OF NEW JERSEY, DEPARTMENT
OF HEALTH and NEW JERSEY STATE
REGISTRAR,
Respondents.
DECIDED June 17, 1996
Chief Justice Wilentz PRESIDING
OPINION BY Justice Stein
CONCURRING OPINION BY
DISSENTING OPINION BY