JOHN PAFF v. BOROUGH OF CHATHAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2350-10T1

JOHN PAFF,

Plaintiff-Appellant,

v.

BOROUGH OF CHATHAM,

Defendant-Respondent.

________________________________________________________________

October 28, 2011

Argued September 21, 2011 Decided

Before Judges Graves and Koblitz.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1860-10.

Richard Gutman argued the cause for appellant.

James L. Plosia, Jr., argued the cause for respondent (Apruzzese, McDermott, Mastro & Murphy, P.C., attorneys; Mr. Plosia, of counsel and on the brief; Jonathan F. Cohen, on the brief.

PER CURIAM

Plaintiff John Paff has a blog1 on which he reviews New Jersey public employee disciplinary matters once or twice a year. This appeal arises from Paff's request for information regarding the length of a Chatham Police Officer's suspension. The Borough of Chatham refused to divulge that information, citing the confidentiality accorded personnel matters.

A Chatham police officer was disciplined for leaving a loaded .45 caliber gun and his police credentials in a backpack on a residential street in Westfield while under the influence of alcohol. He was demoted from sergeant to patrol officer by public resolution #10-156 on April 10, 2010. The parties agreed that demotion of a law enforcement officer in Chatham can be accomplished only in this non-confidential manner.2 The local press reported the officer's demotion.

After learning from both the Chatham Police Chief and the borough's labor attorney that the officer was also suspended, the press reported that disciplinary action as well. However, details about the length of the suspension and whether it was with or without pay were not revealed.

On December 3, 2010, after reviewing the officer's disciplinary records in camera, the trial judge denied Paff's motions for summary judgment and reconsideration3 and granted defendant Chatham's cross-motion for summary judgment. Paff appeals the trial judge's order. After reviewing the record in light of the contentions advanced on appeal, we affirm.

When evaluating summary judgment orders, we use the same standard as the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We must decide first whether there exists a genuine issue of material fact. Ibid. If, as here, no genuine issue exists, we then determine whether the trial judge properly applied the law. Walker v. Alt. Chrysler Plymouth, Inc., 216 N.J. Super. 255, 258 (App. Div. 1987). We defer to a trial court's factual findings concerning whether to disclose public documents under the common law right to access, although the court's legal conclusions are reviewed de novo. Drinker Biddle & Reath LLP v. N.J. Dep't of Law & Pub. Safety, 421 N.J. Super. 489, 497 (App. Div. 2011) ("We review de novo the . . . court's legal conclusions with respect to whether access to public records is appropriate under the common-law right of access."); Shuttleworth v. City of Camden, 258 N.J. Super. 573, 588 (App. Div.) (citing Loigman v. Kimmelman, 102 N.J. 98 (1986)), certif. denied, 133 N.J. 429 (1992)).

The parties agree that the information requested by Paff would not be accessible under the Open Public Records Act (OPRA) because of the provision excluding public employees' personnel records from disclosure. See N.J.S.A. 47:1A-10. Paff argues that, as a member of the public, the common law right to access entitles him to information regarding the length of the officer's suspension.

The threshold consideration under the common law right to access is whether the plaintiff has standing. S. N.J. Newspapers v. Twp. of Mt. Laurel, 141 N.J. 56, 71 (1995). Newspapers are afforded standing as entities that collectively represent the public interest. See Home News v. State Dep't of Health, 144 N.J. 446, 454 (1996) ("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." (quoting S. Jersey Publ'g Co., Inc. v. N.J. Expressway Auth., 124 N.J. 478, 496 (1991)). Both parties agree that Paff's sporadic blogging activity does not qualify him as a journalist. See Too Much Media, LLC v. Hale, 206 N.J. 209, 237 (2011). Thus, his interest in the subject matter at issue is not that of a news source. Nevertheless, the Supreme Court has clarified that "a citizen's concern about a public problem is a sufficient interest for purposes of standing." Home News, supra, 144 N.J. at 454; see also S. N.J. Newspapers, supra, 141 N.J. at 71 (citing Irval Realty Inc. v. Bd. of Pub. Util. Comm'rs, 61 N.J. 366, 372 (1972)). "Ordinarily [] only an assertion of citizen or taxpayer status is necessary . . ., subject to a showing of good faith." Loigman, supra, 102 N.J. at 104-05.

The second inquiry when evaluating a right to access claim is whether the documents sought to be disclosed fit within the common law definition of "public records." See Nero v. Hyland, 76 N.J. 213, 221-22 (1978) (quoting Josefowicz v. Porter, 32 N.J. Super. 585, 591 (App. Div. 1954)). As neither party disputes that the information sought by Paff are public records, we will refrain from discussing this component of the analysis.

The final step in determining whether disclosure is appropriate under the common law requires the trial judge to engage in an "exquisite weighing process." Loigman, supra, 102 N.J. at 108 (quoting Beck v. Bluestein, 194 N.J. Super. 247, 263 (App. Div. 1984)). In doing so, "'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.'" S. N.J. Newspapers, supra, 141 N.J. at 72 (alteration in original) (quoting S. Jersey Publ'g Co., supra, 124 N.J. at 488). In Loigman, the Court explained that "if the governmental need in confidentiality is slight or non-existent, citizen-taxpayer status will ordinarily warrant that the matters be disclosed. On the other hand, when the public interest in confidentiality is greater, the citizen's right of access is qualified." Loigman, supra, 102 N.J. at 105.

The balancing test "must be 'flexible and adaptable to different circumstances and sensitive to the fact that requirements of confidentiality are greater in some situations than in others.'" Daily Journal v. Police Dep't of Vineland, 351 N.J. Super. 110, 127 (App. Div.) (quoting Loigman, supra, 102 N.J. at 103), certif. denied, 174 N.J. 364 (2002).

At times, such as here, a trial court will view the sought-after documents in camera before deciding whether disclosure is appropriate. Id. at 112-13. The Loigman Court provided six, non-exhaustive factors to consider when viewing the documents in camera.

(1) [T]he 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.

[Id. at 113.]

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." Ibid.

The trial judge found that factors three and four applied. Although the judge did not explicitly explain how disclosure in this case would have a chilling effect on agency self-evaluation, program improvement or decision-making, he commented that Chatham might have difficulty hiring personnel if it was known that disciplinary sanctions short of demotion would be made public. While this chilling effect is not precisely the same as that set forth in Loigman, it is nonetheless a valid consideration weighing against disclosure.

Factor four indicates that personnel evaluations, as opposed to factual information concerning specific instances of conduct, should not be readily disclosed. Certainly the length of the officer's suspension, although in itself a fact, was influenced by "evaluative reports." Ibid. The trial judge noted that in New Jersey a law enforcement agency must have a progressive discipline process. McElwee v. Borough of Fieldsboro, 400 N.J. Super. 388 (App. Div. 2008). Thus, the length of suspension would implicate the officer's prior disciplinary history, which both parties agree is a confidential personnel record.

The trial judge therefore found a "compelling privacy interest" because the length of the suspension would implicitly reveal other confidential information, such as the length of service, prior evaluations, prior infractions or commendations, and other mitigating circumstances. This type of information rises above mere "factual recitations" of the event that resulted in the officer's suspension. See Asbury Park Press, Inc. v. Borough of Seaside Heights, 246 N.J. Super. 62, 69, 71 (App. Div. 1990). Instead, it comprises an essential element of the "disciplinary action[] emanating from the event." Ibid. Thus, the trial judge correctly found that factor four weighed in favor of non-disclosure.

Furthermore, although not mentioned by the trial judge, the sixth factor indicates that the occurrence of disciplinary proceedings weighs against public disclosure. See Loigman, supra, 102 N.J. at 113; Asbury Park Press, supra, 246 N.J. Super. at 69.

Paff maintains that the public is entitled to know the length of the suspension, even if the specific reasons for its duration remain confidential. He argues that if the officer's suspension is extremely brief, such as one or two days, Chatham's residents would rightfully believe that their police department is not treating the officer's improper conduct with sufficient seriousness, regardless of the content of the officer's confidential personnel records. Under this logic, the duration of an officer's suspension would always be accessible to the public once the town has revealed the occurrence of a suspension.

Paff contends that by disclosing the imposition of a suspension, Chatham waived, or at least diminished, the confidential nature of the suspension's term. However, as Chatham points out in response, it is the officer as a public employee, and not the Borough, who has the right to rely on the confidentiality of his own personnel records.

New Jersey has a long-standing policy preventing access to such personnel actions under the common law. See Executive Order No. 11 (Byrne) (Nov. 14, 1975); Executive Order No. 9 (Hughes) (October 1, 1963); see also S. Jersey Publ'g Co., supra, 124 N.J. 478, 495 (discussing the Executive Order); Williams v. Bd. of Educ. of Atlantic City Pub. Schools, 329 N.J. Super. 308, 317 (App. Div. 2000) (same). To the extent that Chatham divulged information pertaining to the officer's suspension, it did not by its disclosure waive or diminish the employee's right to confidentiality.

We have directed disclosure of law enforcement incident reports when they were made in the regular course of law enforcement activities and did not "disclose disciplinary charges brought against any of the law enforcement officers involved or charges pending against anyone else who may have participated in the altercation." Asbury Park Press, supra, 246 N.J. Super. at 69. Paff does not seek such a report. Here, the length of the officer's suspension is a confidential personnel matter not available for public review and should not be made public by virtue of the town's disclosure that the officer was suspended.

1 Paff indicates that he is the chair of the New Jersey Libertarian Party's Open Government Advocacy Project, which seeks to make New Jersey's local governments "more open, transparent and accountable to the public." His blog is found at http://njpublicemployeediscipline.blogspot.com/

2 After oral argument, we sought the legal basis for the Borough's requirement that a demotion be accomplished by public resolution. Apparently, the Borough's general counsel so advised the Borough, relying on two sections of the Chatham Code. See Chatham Borough, N.J., Code 48-1, 48-5(A)(2005). We subsequently received a letter from Paff's counsel disagreeing with this interpretation of these ordinances. We do not address this disagreement. We accept the position of the parties as expressed to both the trial court and to us prior to our inquiry.

3 The trial judge initially heard the parties' motions for summary judgment on October 1, 2010, and indicated that he was inclined to rule in Chatham's favor. Paff then filed a motion for reconsideration. On October 8, 2010, the trial judge signed an order indicating he would review the disciplinary records in camera before making a final decision. After reviewing the records, he granted Chatham's summary judgment motion and simultaneously denied Paff's motion for summary judgment and reconsideration on December 3, 2010.