TED M. ROSENBERG v. STATE OF NEW JERSEY DEPARTMENT OF LAW

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-6244-10T3

TED M. ROSENBERG,

Plaintiff-Respondent/

Cross-Appellant,

v.

STATE OF NEW JERSEY DEPARTMENT

OF LAW AND PUBLIC SAFETY,

DIVISION OF CRIMINAL JUSTICE,

and STATE OF NEW JERSEY,

Defendants-Appellants/

Cross-Respondents.

___________________________________

October 11, 2013

Argued October 24, 2012 - Decided

Before Judges Sapp-Peterson and Nugent.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-6404-10.

Frank Muroski, Deputy Attorney General, argued the cause for appellants/cross-respondents (Jeffrey S. Chiesa, Attorney General, attorney; Lisa Sarnoff Gochman, Deputy Attorney General, of counsel and on the brief).

TedM. Rosenberg,respondent/cross-appellant, arguedthe causepro se(Robert M.Rosenberg, of counseland onthe brief;Ted M.Rosenberg, onthe brief).

PER CURIAM

This is the third appeal we have considered in this access to government records litigation in which plaintiff continues his quest to obtain records maintained by the Division of Criminal Justice (DCJ). In the present matter, the State appeals from the trial court order directing the disclosure of documents DCJ has withheld from plaintiff on various grounds, including deliberative process, protection of third persons and attorney work product. We affirm.

The underlying facts surrounding the dispute were set forth in Rosenberg v. N.J. Dep't of Law and Pub. Safety, Div. of Criminal Justice, 396 N.J. Super. 565, 581 (App. Div. 2007) (Rosenberg I) and then summarized again in our unpublished opinion in Rosenberg v. N.J. Dep't of Law and Pub. Safety, Div. of Criminal Justice, Docket No. A-6440-08 (App. Div. May 26, 2010) (Rosenberg II). We incorporate our discussions in those two opinions by reference here. For our purposes, however, Rosenberg is the former solicitor for Palmyra Borough. He learned from a supporter, John J. Gural, who at the time was a councilman, that pressure was being exerted upon Gural by two of his colleagues from his engineering firm, JCA, not to reappoint him as solicitor for the upcoming term. When Gural reported these events to DCJ, it launched an investigation. Gural was subsequently wired and recorded approximately 300 hours of conversations between himself and his colleagues, as well as others. As a result of the investigation, two initial targets of the investigation were charged with unrelated criminal offenses, tax evasion. They entered into plea agreements and were granted immunity from any prosecution which might arise out of the investigation into Rosenberg's reappointment process.

After being denied access to records related to the investigation, which he sought pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to 13, Rosenberg sought access to these records under the common law "right to know" doctrine. DCJ denied Rosenberg's request, initially stating that he "failed to show an interest in the records requested" and also because there was pending litigation in both state and federal courts. Rosenberg I, supra, 396 N.J. Super. at 572.

Rosenberg filed a verified complaint in lieu of prerogative writs and an order to show cause in the Law Division seeking an order compelling DCJ to release the tapes Gural secretly recorded. The judge found that Rosenberg possessed the requisite interest in the tapes and that his interest outweighed the State's interest in non-disclosure. He ordered the State to produce the audio tapes in DCJ's possession and to transmit them to plaintiff. The State sought reconsideration and attached to that motion a Vaughn1 index. The State released some of the recordings in its possession and then sought leave to appeal the court's order as to the tapes it had not released. We granted leave and reversed the trial court order. We remanded the matter for the Law Division judge to conduct an in-camera review of DCJ's claim of its need to "protect innocent third parties and criminal investigative methods and techniques." Rosenberg I, supra, 396 N.J. Super. at 574.

In September 2005, Rosenberg filed a motion seeking the release of all investigative files relating to and surrounding the appointment of the Palmyra solicitor for 2001. DCJ produced a new Vaughn index, listing documents which it claimed were privileged and subject to confidentiality under the common law right to know doctrine. Over the next several months there were additional discovery issues addressed between the parties as well as further proceedings, including the State's production of a supplemental Vaughn index and DCJ receiving correspondence from the US Attorney for the District of New Jersey declining to initiate a federal prosecution,

In an August 28, 2006 preliminary oral decision, the judge denied plaintiff's request for the release of additional documents. In a September 26, 2006 written opinion, the judge expanded upon his oral decision. He explained that plaintiff had failed to make a clear showing that the release of the requested documents would advance the public interest. Plaintiff appealed, and we once again remanded the matter with instructions to the Law Division judge to review anew the documents plaintiff sought from DCJ. Rosenberg I, supra, 396 N.J. Super. at 581. Citing Loigman v. Kimmelman, 102 N.J. 98, 113 (1986), we concluded the judge "restated, in a conclusory fashion, the five Loigman factors he found applicable, without referencing particular documents by Bates numbers to which a particular [Loigman] factor applied, or making specific factual findings why the factor applied to the contents of particular documents." Ibid. We instructed the judge to "review anew the documents contained in the Vaughn index and render a decision making specific reference to particular documents or group of documents and provide his factual findings, if necessary, in the form of a separate sealed decision." Ibid.

Because of retirement the remand proceedings were presided over by a second judge, who undertook his review, which entailed grouping all of the documents into eleven categories and making findings of fact and conclusions of law with respect to each group of documents. The judge determined that "plaintiff has not established that his interests in public disclosure outweigh the State's interest in maintaining confidentiality." He elaborated:

The documents or groups of documents contained in 1-8 and 10 and 11 . . . consist of internal memorand[a] of various members of the Division of Criminal Justice. Disclosure of these documents would discourage witnesses from reporting actual or potential criminal activities, reveal self-critical analyses and recommendations which would result in a chilling effect on future agency activities, and most importantly as far as this court is concerned, the information sought could not be separated from personal observations, impressions, and strategies because this information is so intertwined so as to make redaction virtually impossible. The court therefore finds that disclosure of this internal information should not be ordered.

[Rosenberg II, supra, (slip op. at 13).]

The judge made a separate finding as to group nine, that "'the correspondence should not be disclosed because it pertains to individuals other than the plaintiff, and it is privileged, absent a waiver of the privilege[.]'"

On appeal from this ruling, plaintiff urged that once again the trial court failed to comply with the directive from this court that each document contained in the Vaughn index be reviewed anew, followed by specific factual findings considered under the Loigman standard. Ibid. We agreed that this second review, suffered from the same shortcomings we identified in Rosenberg I. Id. at 23. We therefore remanded for yet another review, with directions that the Law Division judge "issue an opinion that satisfied our earlier instructions." Id. at 3.

On remand, the matter was transferred from Burlington Countyto MonmouthCounty wherethe AssignmentJudge, LawrenceM. Lawson undertook the review. Judge Lawson first examined the Vaughn index only to discover that none of the documents referenced in it had accompanied the file when the case was transferred. Once the Burlington vicinage provided those documents Judge Lawson conducted his document-by-document review. Following his review, he ordered the release of certain documents. He prepared a detailed spreadsheet to facilitate appellate review if necessary. The spreadsheet, while provided to the State, was not released to plaintiff since the judge determined it contained un-redacted information which he deemed privileged.

The State filed the present appeal challenging Judge Lawson's determination that certain identified documents were not privileged and therefore subject to disclosure, while plaintiff filed his cross-appeal seeking disclosure of the spreadsheet. Plaintiff also filed a motion with this court seeking leave to review the spreadsheet in order to meaningfully respond to the State's appeal and to challenge Judge Lawson's determination as to those documents he ruled were privileged. We denied plaintiff's motion without prejudice to plaintiff renewing his application once the merits panel determined the propriety of Judge Lawson's order.

On appeal, the State raises the following point:

POINT I

JUDGE LAWSON IGNORED THE LAW OF THIS CASE AND HIS FACTUAL AND LEGAL FINDINGS ARE RIDDLED WITH ERROR; CONSEQUENTLY, THE LOWER COURT ABUSED ITS JUDICIAL DISCRETION IN DETERMINING THAT PLAINTIFF ROSENBERG'S INTEREST IN ACCESS TO PROTECTED DOCUMENTS IN THE STATE'S CRIMINAL INVESTIGATORY FILES OUTWEIGHS THE STATE'S STRONG INTEREST IN NON-DISCLOSURE OF THOSE DOCUMENTS.

A. JUDGE LAWSON IMPROPERLY IGNORED THE LAW OF THIS CASE.

B. JUDGE LAWSON'S FACTUAL DETERMINATIONS ARE ERRONEOUS.

C. JUDGE LAWSON FAILED TO CONSIDER SOME LEGAL PRINCIPLES AND MISAPPLIED OTHERS GOVERNING THE COMMON LAW "RIGHT TO KNOW" DOCTRINE.

D. JUDGE LAWSON ABUSED HIS DISCRETION IN WEIGHING THE COMPETING CONSIDERATIONS OF THE PARTIES.

I.

The State contends Judge Lawson "overstepped his bounds when he took it upon himself to conduct a de novo review of the documents . . . as if [the two other judges's] prior decisions in this very same matter did not exist," and that "Judge Lawson should have instead treated [the two other judges's] prior decisions as binding law of the case." We disagree.

Under the law of the case doctrine a "legal decision made in a particular matter 'should be respected by all other lower or equal courts during the pendency of that case.'" Lombardi v. Masso, 207 N.J. 517, 538 (2011) (quoting Lanzet v. Greenberg, 126 N.J. 168, 192 (1991) (citations omitted)). The rule is "non-binding" and "intended to 'prevent relitigation of a previously resolved issue.'" Ibid. (citing In re Estate of Stockdale, 196 N.J. 275, 311 (2008) (citing Pressler, Current N.J. Court Rules, comment 4 on R. 1:36-3 (2008)). Moreover, the doctrine only applies when "one court is faced with a ruling on the merits by a different and co-equal court on an identical issue." Id. at 583 (citations omitted).

In Rosenberg I, we stated the first judge's decision lacked specific factual findings and, the judge failed to reference particular documents by Bates numbers and for which a particular Loigman factor applied, thereby preventing effective appellate review. Rosenberg I, supra, 396 N.J. Super. at 581. In Rosenberg II, we noted that despite our instructions in Rosenberg I, the second judge's review fell "short of satisfying the instruction we issued in Rosenberg I." Rosenberg II, supra, (slip op. at 3). Consequently, given our clear and unambiguous rejection of the approaches taken by the two previous judges in undertaking their respective reviews of the documents at issue, there is absolutely no basis for the State to contend that the law of the case doctrine applies here.

II.

The State next contends Judge Lawson failed to consider some legal principles and misapplied others governing the common law "right to know" doctrine and abused his discretion in weighing the competing considerations. In its brief, the State lists what it characterizes as "numerous factual inaccuracies littering [the] spreadsheet[,]" and asserts that these factual errors "betray the judge's lack of familiarity with [the] matter and result in groundless conclusions of law." Because plaintiff was not provided a copy of the spreadsheet, he maintains that he is unable to provide a meaningful response to the State's contentions but does urge that unlike the previous judges who undertook their respective reviews, Judge Lawson in this instance undertook the document-by-document analysis and devoted a significant amount of time to his analysis.

We reject the State's contention. We are satisfied that Judge Lawson's review reflects a thoughtful and detailed document-by-document analysis and that any factual mistakes resulting from this review were minor.

We begin by noting that access to public records under the common law right to know doctrine is dependent on three requirements: "(1) the records must be common-law public documents; (2) the person seeking access must 'establish an interest in the subject matter of the material'; and (3) the citizen's right to access 'must be balanced against the State's interest in preventing disclosure.'" Rosenberg I, supra, 396 N.J. Super. at 577 (citing Keddie v. Rutgers, 148 N.J. 36, 50 (1997) (quoting S. Jersey Publ'g Co. v. N.J. Expressway Auth., 124 N.J. 478, 487 (1991))); Higg-A-Rella, Inc. v. Cty. of Essex, 141 N.J. 35, 46 (1995).

After establishing the first two prongs, a party seeking access must "establish that the balance of its interest in disclosure against the public interest in maintaining confidentiality weighs in favor of disclosure." Home News v. Dep't of Health, 144 N.J. 446, 454 (1996) (citing S. N.J. Newspapers v. Twp. of Mt. Laurel, 141 N.J. 56, 72 (1995)). "'In this balancing process, the 'focus must always be on the character of the materials sought to be disclosed.'" Rosenberg I, supra, 396 N.J. Super. at 579 (citing Techniscan Corp. v. Passaic Valley Water Comm'n, 113 N.J. 233, 237 (1988) (quoting Loigman, supra, 102 N.J. at 112)).

Under Loigman, the court should consider:

(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.]

The Loigman factors, however, are not exhaustive and other criteria may be examined. Educ. Law Ctr. ex rel. Burke v. N.J. Dep't of Educ., 396 N.J. Super. 634, 644 (App. Div. 2007), rev'd on other grounds, 198 N.J. 274 (2009).

"When a New Jersey trial court reviews documents in camera, it must 'make specific determinations regarding plaintiff's access to them, including an expression of reasons for the court's rulings.'" Seacoast Builders Corp. v. Rutgers, 358 N.J. Super. 524, 542 (App. Div. 2003) (quoting Payton v. N.J. Tpk. Auth., 148 N.J. 524, 550 (1997)). Further, a trial judge must examine each document individually, explaining why each is privileged. Keddie, supra, 148 N.J. at 54 (holding that a trial judge must "examine each document individually and make factual findings with regard to why [a plaintiff's] interest in disclosure is or is not outweighed by [the State's] interest in nondisclosure."); see also Hammock, supra, 142 N.J. at 381-82 ("The need for secrecy must be demonstrated with specificity as to each document.")

Here Judge Lawson prepared a spreadsheet analyzing the 268 documents at issue. For each, he listed: in column A, the "Bates [n]umber"; column B, a "[d]ocument description"; column C, "[e]xtent to which disclosure will impede agency functions by discouraging citizens from providing information to the government"; column D, "[e]ffect disclosure may have upon persons who have given such information, and whether they did so in reliance that their identities would not be disclosed"; column E, "[e]xtent to which agency self-evaluation, program improvement, or other decision-making will be chilled by disclosure"; column F, "[d]egree to which the information sought includes factual data as opposed to evaluative reports of policymakers"; column G, "[w]hether any findings of public misconduct have been insufficiently corrected by remedial measures instituted by the investigative agency"; column H, "[w]hether any agency disciplinary or investigatory proceedings have arisen that may circumscribe the individual's asserted need for the material"; and column F, a "[p]rivileged [d]etermination".

In short, Judge Lawson analyzed each document individually under the factors enumerated in Loigman. Loigman, supra, 102 N.J. at 113. When he determined that a privilege existed, he gave a detailed analysis of the factors weighed and why one interest outweighed the other. He therefore complied with our directive.

Turning to the purported mistakes which the State raises as a basis to reverse the trial court order, it argues that Judge Lawson was mistaken as to the remaining parties in the litigation, and that plaintiff is the only individual seeking disclosure. It urges that this mistake would therefore lead the judge to "release a myriad of documents . . . in the mistaken belief that [certain persons] are seeking production of those documents[.]" The State then lists sixty-two documents it claims would be released in error because the interested individual is not seeking disclosure.

There is, however, no evidence that the individuals, who are likely to be identified if the documents are disclosed, object to such disclosure. Rather, what the record reveals is that those parties intervened in the federal action and when that action was dismissed, they took no position on the issues raised in the pending Law Division action, a proceeding about which they were completely aware. The State points to no documents or other evidence supporting the fact that any of the remaining individuals likely affected by disclosure object to disclosure.

The State next argues that Judge Lawson was mistaken in finding that plaintiff was in possession of transcripts from the Gural tapes and that based upon this mistaken belief he improperly noted that plaintiff was already in possession of the transcripts identified in the spreadsheet. This mistake is of no consequence. In a March 13, 2008 letter to the court the State wrote:

The Court should note that the set of documents originally submitted to the Court included DCJ intra-agency emails and transcripts of the recordings made by John Gural at DCJ's behest. As the [S]tate has explained, plaintiff has copies of the actual recordings themselves. Plaintiff has determined that he no longer seeks disclosure of the e-mails or the transcripts.

Thus, because plaintiff was in possession of the recordings themselves, there was nothing impermissible in releasing the transcripts of those tapes because the source of the transcripts, the recordings, had already been released.

The State calls special attention to nine items about which it claims Judge Lawson made "glaring factual errors which call into question the soundness of his legal conclusions[.]" For items 2-8, the State notes the judge's confusion regarding "F Bird". The State contends the judge assumed "F Bird" is the name of a person, when in fact "F-Bird" refers to a digital recording device. However, the record reflects that Judge Lawson qualified his finding on this issue by stating that if "F Bird" was in reference to a person, that part of the document could be redacted before disclosure. Further, it had no substantive impact on his analysis.

In item 38, the State contends the judge made the wrong assumption of the identity of "Louise" referenced in documents, when the reference was actually to an assistant attorney general. Finally, as to item 253, the State clarifies that recordings made independently by Gural are not DCJ recordings. The Vaughn Index designates Item 253, Bates Numbers 10218-10231, as "transcripts of recordings made independently by John Gural." The judge's spreadsheet designates the recordings as made independently by Gural.

"'[A] trial court is better able than an appellate tribunal to . . . balance the parties' interests when that must be done to determine whether there is a common-law right of access.'" Shuttleworth v. City of Camden, 258 N.J. Super. 573, 588 (App. Div.) certif. denied, 133 N.J. 429 (1992) (quoting Philadelphia Newspapers, Inc. v. Dept. of Law, 232 N.J. Super. 458, 466 (App. Div. 1989)). So, generally, "[i]f there is a basis in the record to do so, [the appellate court] must . . . defer to the trial judge's determination." Ibid.; see also Hammock v. Hoffmann-LaRoche, Inc., 142 N.J. 356, 380 (1995) ("The questions whether to seal or unseal documents are addressed to the trial court's discretion.")

Judge Lawson reviewed approximately 905 pages. The factual errors the State notes can hardly be characterized as glaring. The errors referenced were not the sole determinative factor informing his decision relative to the numerous documents. He weighed the six factors, as well as other factos, before coming to his conclusions, which he supported with detailed findings as to each document.

The State additionally argues Judge Lawson failed to consider legal principles governing the common law "right to know" doctrine, including protection of attorney work product, protection of innocent third parties, and lack of relevance. Specifically, the State asserts that what was "[m]ore egregious" was his "outright contempt for the attorney work product privilege." To support this contention, the State lists 173 items it contends should have fallen into one of the listed categories.

Although Judge Lawson did not explicitly analyze the importance of the protection of innocent third parties, such an analysis is implicit in his findings, because he ruled that portions of documents identifying third parties could easily be redacted. The judge also considered the relevance of the documents sought. He discussed the issues within the context of the investigation, an investigation which DCJ closed in February 2005 and which the US Attorney's Office declined to pick up, as indicated in its January 24, 2006 letter to the then Acting New Jersey Attorney General. Judge Lawson additionally noted that certain files would be "unrelated to DCJ's investigation that is being questioned in the instant matter."

Contrary to the State's position, Judge Lawson did not disregard protection of attorney work product as a basis to withhold disclosure. The judge examined whether notes were mostly factual or contained no facts, concluding that those prepared for anticipated interviews were privileged, as well as those notes which reflected decision-making as to what portions of a conversation constituted strong evidence. Thus, our review of the spreadsheet convinces us that despite not being separately listed as categories, protection of third parties, relevance, and protection of attorney work product were all considered throughout the entirety of the judge's analysis.

III.

In his cross-appeal plaintiff contends he has been unable to fully defend the appeal because the State has had access to the spreadsheet prepared by the trial judge, while he has not. Therefore, plaintiff argues he does not know which documents were granted and which were not.

"[A]n agency's interest in the confidentiality of the materials can be preserved pending an appeal by sealing the descriptive index and, if necessary, the documents themselves for purposes of appellate review." Loigman, supra, 102 N.J. at 98; Rosenberg I, supra, 396 N.J. Super. at 581 ("[W]here a judge is unable to reveal factual findings without disclosing the confidential material sought, the disclosure of those factual findings can be sealed for appellate review, thus permitting a meaningful determination by [the appellate division] whether the judge correctly exercised his or her discretion.")

The judge's spreadsheet was sealed to protect the confidentiality of the materials. Having determined there is no basis in the record to disturb the trial judge's decision, we now direct the release of the spreadsheet to plaintiff, subject to DCJ redacting those portions of the spreadsheet Judge Lawson determined were not subject to release because of applicable privileges. In place of these redactions, DCJ should "describe the nature of the document, communications or things not produced or disclosed[,]" in accordance with Judge Lawson's order, "in a manner that, without revealing information" Judge Lawson deemed privileged or protected, will enable [plaintiff], if he elects to do so, to seek reconsideration of the judge's determination as to those documents. R. 4:10-2(e)

Affirmed. However, we remand for release of the spreadsheet to plaintiff in accordance with this opinion. We do not retain jurisdiction.

1 Vaughn v. Rosen, 484 F.2d 820, 826-828 (D.C. Cir. 1973). A Vaughn index is a procedure utilized by courts to analyze, without exhaustive review, the essence of documents and to determine whether a particular document or documents should be disclosed. Atl. City Convention Ctr. Auth. v. South Jersey Publ'g Co., 135 N.J. 53, 68 (1993).