Opinion
DOCKET NO. A-4907-13T1
11-12-2015
MARK LAGERKVIST, Plaintiff-Appellant, v. STATE OF NEW JERSEY and ROBERT MCGRATH, RECORDS CUSTODIAN FOR THE NEW JERSEY DIVISION OF CRIMINAL JUSTICE, Defendants-Respondents.
Donald M. Doherty, Jr., argued the cause for appellant. Eric S. Pasternack, Deputy Attorney General, argued the cause for respondents (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Pasternack, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Leone and Higbee. On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-464-13. Donald M. Doherty, Jr., argued the cause for appellant. Eric S. Pasternack, Deputy Attorney General, argued the cause for respondents (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Pasternack, on the brief). PER CURIAM
Plaintiff, Mark Lagerkvist, writes for a watchdog website as an internet journalist. This appeal arises from plaintiff's request for government documents from the State of New Jersey's Division of Criminal Justice (DCJ), regarding an alleged double-dipping pension scheme. Plaintiff's appeal challenges the trial court's decision that the State did not have to disclose three documents because of their confidential nature.
Plaintiff identifies a person who was receiving a Police and Firemen's Retirement System (PFRS) pension. This person then accepted a job at the Monmouth County Sheriff's Office. According to plaintiff, the person's new job title was listed as one covered by the PFRS but then changed to a similar title not covered by PFRS to circumvent the law. Plaintiff asserts that, once the person became employed in the new position, the person's original pension benefits should have been cancelled and only reinstated upon retirement from the Monmouth County Sheriff's Office. N.J.S.A. 43:16A-15.3(a) (stating "if a former member of the retirement system who has been granted a retirement allowance . . . becomes employed again in a position which makes him eligible to be a member of the retirement system, his retirement allowance . . . shall be canceled until he again retires.").
The DCJ investigated the allegations at the request of the PFRS Board. On May 2, 2011, the situations of that person and two other persons were considered in an open session of the PFRS Board. The Board's public minutes, available on the internet, stated that the Board had decided to "[s]end investigation [of three named individuals] to AG's office, copy DCJ."
In an attempt to investigate the issue, plaintiff made a government records request of all available documents regarding the DCJ's investigation. The record request was denied.
Plaintiff then filed suit against the State and Robert McGrath, the Records Custodian of the DCJ alleging claims under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and the common law right to access. The judge dismissed the OPRA claim. The State moved to dismiss plaintiff's common law right to access claim, but the judge denied that request and ordered defendants to produce a Vaughn index for plaintiff's review. After viewing the Vaughn index, plaintiff narrowed his records request to seventeen documents. The judge then conducted an in camera review of the requested documents and required defendants to provide some of them. However, as to seven records, she held the State's interest in confidentiality outweighed plaintiff's interest in disclosure. On appeal, plaintiff does not challenge the dismissal of his OPRA claim. Instead, plaintiff challenges the denial of his document request based on the common law right of access to three documents: DCJ001-003, DCJ772, and DCJ773-777.
A Vaughn index derives its name from Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977, 94 S. Ct. 1564, 39 L. Ed. 2d 873 (1974). A Vaughn index contains a detailed justification for the privilege claim asserted for each document. Paff v. Div. of Law, 412 N.J. Super. 140, 161 n.9 (App. Div.), certif. denied, 202 N.J. 45 (2010). --------
We apply a deferential standard of review when determining whether access to public documents is appropriate under the common law right of access when the trial court conducts an in camera review of documents and balances the competing disclosure and confidentiality interests. N. Jersey Media Grp., Inc. v. Twp. of Lyndhurst, 441 N.J. Super. 70, 89 (App. Div. 2015). A trial court is better able to balance parties' interests when analyzing a common law right to access claim. Shuttleworth v. City of Camden, 258 N.J. Super. 573, 588 (App. Div.), certif. denied, 133 N.J. 429 (1992) (citing Phila. Newspapers, Inc. v. State of N.J., Dep't of Law and Pub. Safety, Div. of State Police, 232 N.J. Super. 458, 466 (App. Div. 1989)). Only if the judge abused her discretion after weighing the factors should the court reverse. Shuttleworth, supra, 258 N.J. Super. at 588 (citing State v. Milligan, 71 N.J. 373, 380-84 (1976) (stating where a balancing test at common law is used to determine whether an informant's identity should be revealed, the appropriate appellate standard of review is abuse of discretion)).
Three requirements must be met before confidential public documents are released. Keddie v. Rutgers, 148 N.J. 36, 50 (1997). First, the records must be public documents. Ibid. Second, the person seeking the records must have an interest in the material's subject matter. Ibid. Third, the person's right to access "must be balanced against the State's interest in preventing disclosure." Ibid. (citing Higg-A-Rella, Inc. v. Cty. of Essex, 141 N.J. 35, 46 (1995)). The documents should be reviewed individually to weigh the parties' interests. Id. at 54.
Here, there is no question that the records requested are public documents and that plaintiff has an interest in the documents' subject matter as a journalist. The disputed issue revolves around Keddie's third requirement.
The balancing test is an exquisite weighing process that is "flexible and adaptable to different circumstances." Loigman v. Kimmelman, 102 N.J. 98, 103, 108 (1986). In balancing the State's interest in confidentiality against the person's right to access, consideration must be given to "whether the demand for inspection is premised upon a purpose that tends to advance or further a wholesome public interest or a legitimate private interest." S. New Jersey Newspapers v. Twp. of Mt. Laurel, 141 N.J. 56, 72 (1995) (citations and internal quotations omitted). In balancing, the court may consider these factors and any other relevant factors in determining whether the confidential documents should be disclosed:
(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 decision making 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.
[Loigman, supra, 102 N.J. at 113.]
While it is true OPRA should not be construed as limiting the common law right of access, N.J.S.A. 47:1A-8; see Educ. Law Ctr. v. N.J. Dep't of Educ., 198 N.J. 274, 302 (2009), a court can still consider OPRA's exemptions in balancing under the common law "as expressions of legislative policy on the subject of confidentiality." Bergen Cty. Improvement Auth. v. N. Jersey Media Grp., Inc., 370 N.J. Super. 504, 520 (App. Div.), certif. denied, 182 N.J. 143 (2004).
Criminal investigation records are exempt from disclosure under OPRA. N.J.S.A. 47:1A-1.1. Similarly, outside the OPRA context, courts have recognized that the confidentiality of criminal investigatory records is at times crucial to effective law enforcement and that confidentiality may extend even if the investigation is closed. River Edge Sav. & Loan Ass'n v. Hyland, 165 N.J. Super. 540, 543, 545 (App. Div.), certif. denied, 81 N.J. 58 (1979). While OPRA does not control the common law public right to access, we find that this OPRA exclusion, and the similar common law principles on the right to access public documents, give guidance to the court when weighing the respective interests of the parties.
The fact that the investigation is closed or open is not decisive but should weigh heavily in the court's analysis; as we declared in Shuttleworth: "While there is a real need to deny access where there is an ongoing law enforcement investigation, or where the protection of witness information or a witness's identity is at stake, the same values do not survive a balancing after the investigation is closed." Shuttleworth, supra, 258 N.J. Super. at 585. While some information such as protecting the identity of a confidential informant may survive after an investigation is closed, the New Jersey Supreme Court in Keddie stated, "[t]he 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." Keddie, supra, 148 N.J. at 54.
Here, the judge conducted an in camera document-by-document review of the requested records. She analyzed the factors used in balancing, including the plaintiff's interest in the requested record, applied the Loigman factors, and then made a final determination on each of the documents.
As to documents DCJ001-003, DCJ772, and DCJ773-777, the judge, utilizing a spreadsheet outlining the factors considered in her assessment, found these documents need not be disclosed after balancing the interests of the parties and the public. The judge considered the State's general interest in maintaining the confidentiality of these criminal investigatory records. However, the judge determined that no information from informants was contained in these records, and that disclosure would not discourage citizens from providing information to the government. The judge believed the documents did not clearly reveal any techniques or methods of investigation, and that the investigation was closed. The judge found the public employees had a "low privacy interest." Nonetheless, the judge found the disclosure might chill decision-making, particularly intra-agency communications "in the sensitive area of public corruption investigations." Moreover, the judge noted that many of the facts about the underlying decisions were already known. Based on those considerations, and some individual characteristics of the three records, the judge found that plaintiff's "low interest" in each record was not sufficient to overcome the public's interest in confidentiality.
We cannot agree that the fact the investigation concerned possible sensitive issues of public corruption weighs against disclosure. In cases involving allegations of public corruption, transparency and the public's right to know are particularly important. The same general principles that apply to the common law right to access public records were the basis for the Legislature's decision to enact OPRA. We set forth the public policy considerations involved as follows:
[T]he purpose behind the Legislature's enactment of OPRA was to maximize public knowledge about public affairs in order to ensure an informed citizenry and to minimize the evils inherent in a secluded process. "With broad public access to information about how state and local governments operate, citizens and the media can play a watchful role in curbing wasteful government spending and guarding against corruption and misconduct."
[Livecchia v. Borough of Mount Arlington, 421 N.J. Super. 24, 33 (2011) (alteration in original) (quoting Burnett v. Cty. of Bergen, 198 N.J. 408, 414 (2009)) (other citation and internal quotation marks omitted).]
We also cannot agree it weighs against disclosure that many of the facts about the underlying decisions were already known. As the judge noted, "the extent to which the information may be available from other sources" is one of the facts courts consider in determining whether a plaintiff has a particularized need. Payton v. N.J. Tpk. Auth., 148 N.J. 524, 548 (1997). However, if as here it is conceded that the plaintiff has an interest in disclosure, and "only the balancing-of-interests element is contested," then "the availability of the documents from other sources" may not "be considered in the balancing of interest test." Keddie, supra, 148 N.J. at 50, 54.
Removing these two erroneous factors from the balance, we consider whether the trial court's balancing can nonetheless be sustained. We turn to the actual documents requested to see if the denial of their production was an abuse of discretion by the trial court. We emphasize that this investigation was closed by the DCJ at the time of the document request, there were no confidential informants to protect, and no special investigatory techniques or methods revealed in any of the documents.
DCJ001-003 is a three-page letter dated June 6, 2011, from the PFRS to the Attorney General requesting an investigation. The judge noted that the information was generally known to the public, and that it included "legal opinions and suggestions" and contained some "deliberate or advisory information" in addition to factual information. The court also noted the plaintiff had a low level of interest in the letter and disclosure could chill inter-agency decisions to request investigations, particularly in the "sensitive area of public corruption."
We find non-disclosure of this document was an abuse of discretion. It basically is a request for an investigation with the allegations presented. The only deliberation revealed is the Board's public decision at its May 2, 2011 meeting to request the investigation of named individuals. The only legal opinions are some paraphrases of the statutes governing PFRS. There are no other advisory materials, or suggested outcomes. The sensitive nature of allegations of government wrongdoing are of great interest to the public and are an area where transparency is critical. The plaintiff in this case is not requesting information for a private purpose, but for public disclosure about issues involving public officials. The State's general interest in maintaining the confidentiality of criminal investigatory records is lessened here where the investigation is closed and no investigative techniques or information from informants is disclosed.
As for DCJ772, it is a one-page letter dated June 21, 2012 from DCJ to PFRS on the status of the investigation. The court found it contained no deliberative information, only factual information, but again noted that it was in the "sensitive area of public corruption." For the same reasons set forth above, we reverse the decision to not disclose this document.
As to DCJ773-777, which was identified as a June 14, 2012 internal DCJ memo, the court found that the memo's disclosure could result in future decision-making being chilled. The judge found that plaintiff had a low level of interest in the document, despite the fact the information is not available from another source. The judge again pointed to the sensitive area of public corruption investigations as a reason for non-disclosure, which as noted above we reject.
However, the trial court also found that the memo contained numerous deliberative statements and legal conclusions, and discussed the analysis of the law as applied to the facts. We agree, and find these factors require this record not be disclosed. "The deliberative process privilege 'permits the government to withhold documents that reflect advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated.'" Educ. Law Ctr., supra, 198 N.J. at 285 (citation omitted). Protection of deliberative materials "is necessary to ensure free and uninhibited communication within governmental agencies so that the best possible decisions can be reached." Id. at 286. Thus, we hold that the trial court properly ruled that DCJ773-777 should not be disclosed.
We also hold that DCJ001-003 and DCJ772 cannot be wholly withheld from disclosure based on the reasons given by that court. However, two other concerns were raised about such records. First, the trial court noted that "although it is now public knowledge that DCJ conducted an investigation into pension-related concerns regarding [three named individuals], or the people appointing them, it is not known to the public whether those three named individuals were the actual targets of the investigation or the only targets of the investigation. Second, the court allowed redaction of the Vaughn index to remove the identity of individuals who served as investigators. Those concerns have not been addressed with regard to these two records particularly. Accordingly, we remand to the trial court to allow the parties to argue those issues only, before the court determines if any information related to those concerns should be redacted before the records are disclosed.
Affirmed in part, reversed in part, and remanded for consideration by the court in conformance with this decision. Disclosure is stayed pending the decision of the court which should be made within forty-five days.
Affirmed in part, reversed in part and remanded in part. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION