JOHN PAFF v. CAPE MAY COUNTY PROSECUTOR'S OFFICE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4604-14T1

JOHN PAFF,

Plaintiff-Respondent,

v.

CAPE MAY COUNTY

PROSECUTOR'S OFFICE,

Defendant-Appellant.

___________________________________

November 17, 2016

Argued September 22, 2016 Decided

Before Judges Hoffman and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-265-14.

James B. Arsenault, Jr., Cape May County Counsel, argued the cause for appellant.

Richard M. Gutman argued the cause for respondent.

PER CURIAM

Defendant Cape May County Prosecutor's Office (Prosecutor's Office) appeals from the May 8, 2015 Law Division order granting plaintiff John Paff access to documents he requested under the common law right of access to public records, as well as from the July 10, 2015 order awarding plaintiff $514.76 in costs and $45,176 in counsel fees. We remand for clarification of the court's findings.

We provide a brief background, reciting only those facts relevant to remand. On April 26, 2014, plaintiff requested from the Prosecutor's Office "all letters (or other forms of notification) made by the [Prosecutor's Office] of such exculpatory or favorable information to defendants concerning Wildwood Crest Officers . . . Captain Mayer [and] Lt Hawthorne." Plaintiff's request was made under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and the common law right of access to public records.

Defendant denied plaintiff's request, claiming the records were "exempt from production under N.J.S.A. 47:1A-1[] [because they involved] [i]nter-agency or intra-agency advisory, consulting or deliberating materials[;] [c]riminal investigating records[;] [and] [r]ecords generated on behalf of a public employee concerning a grievance by or against an employee." Plaintiff disputed these exemptions and again demanded the records. When defendant did not turn over the records to plaintiff, he filed an order to show cause and verified complaint alleging defendant wrongfully denied him access to the documents under OPRA and the common law.

On the return date of the order to show cause, defendant provided a Vaughn Index1 to the court and to plaintiff. Defendant also submitted the requested documents to the court under seal for its in camera review. The documents consisted of four letters from the prosecutor of Cape May County to the mayor of the Borough of Wildwood Crest (Wildwood Crest), in which the prosecutor references Captain David Mayer and Lieutenant Michael Hawthorne, two former officers of the Wildwood Crest Police Department.2

On August 21, 2014, the court determined the four letters were exempt under OPRA on the ground they contained inter-agency advisory communications between a prosecutor and a mayor. Specifically, as part of the prosecutor's "broad supervisory authority over the operation of municipal police departments," the prosecutor was informing the mayor in these letters about "major problems with the two mentioned officers ever testifying in a criminal proceeding, and that if they did, Brady[3] Letters would be issued."4

After considering additional documents submitted to it in camera, as well as the positions of Wildwood Crest and the two officers, on May 8, 2015, the court ultimately ordered the release of the letters under the common law right of access to public records. Defendant appeals from the May 8, 2015 order, as well as from the order awarding plaintiff costs and counsel fees.

We engage in de novo review of a trial court's legal decisions concerning access to public records under the common law. Drinker Biddle & Reath LLP v. N.J. Dep't of Law and Pub. Safety, 421 N.J. Super. 489, 497 (App. Div. 2011). "We apply a different and deferential standard of review when a court conducts an in camera review of documents and balances competing interests in disclosure and confidentiality in connection with a common-law-based request to inspect public records." North Jersey Media Grp., Inc. v. Twp. of Lyndhurst, 441 N.J. Super. 70, 89 (App. Div. 2015) (citing Shuttleworth v. City of Camden, 258 N.J. Super. 573, 588 (App. Div.), certif. denied, 133 N.J. 429 (1992)). In this matter, the court made its determinations after reviewing the documents in camera. Generally, we defer to a judge's determinations "[i]f there is a basis in the record to do so." Shuttleworth, supra, 258 N.J. Super. at 588.

Access to public documents under the common law reaches a broader class of documents than its statutory counterpart, OPRA. Higg-A-Rella, Inc. v. Cty. of Essex, 141 N.J. 35, 46 (1995). Nonetheless, that right must be balanced against the State's interest. Ibid. "The common-law right to access public records depends 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." Keddie v. Rutgers State Univ., 148 N.J. 36, 50 (1997) (citations and internal quotation marks omitted). Furthermore, because the common law right of access to public documents is qualified, "one seeking access to such records must establish that the balance of its interest in disclosure against the public interest in maintaining confidentiality weighs in favor of disclosure." Ibid. (citations omitted).

Defendant does not dispute the letters are public documents or that plaintiff has the requisite standing to obtain a copy of the subject documents. Accordingly, we need only review the third factor: whether plaintiff's right to the documents outweighs the defendant's interest in preventing disclosure.

Once a plaintiff proves an interest in public records, "the State must then demonstrate that its need for nondisclosure outweighs the plaintiff's need for disclosure." O'Boyle v. Borough of Longport, 426 N.J. Super. 1, 13 (App. Div. 2012), aff'd, 218 N.J. 168 (2014) (citation omitted). If the trial court believes that an in camera inspection of the records is warranted, "it will thereafter make a final determination as to whether, by further excision or deletion of privileged and confidential materials, it can appropriately order the materials released." Loigman v. Kimmelman, 102 N.J. 98, 113 (1986).

Our Supreme Court has provided a list of factors the trial court is to consider in balancing the requester's needs against the public agency's interest in confidentiality. These are

(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.

[Ibid.]

Here, the trial court's findings on the first five Loigman factors were as follows

(1)[P]olice officers play a unique and fundamental role in preserving order in civilization; they are our society's social sanitation workers, handling problems no one else wants to tackle. In doing so, they have the authority to use deadly force and to arrest people, yet with such power comes a critical need for public oversight; (2) Hawthorne and Mayer were in leadership positions which heightens the need for oversight and release of these letters is something they should reasonably expect; (3) the letters do not discuss any other individuals and will not have a "chilling effect" on future internal affairs investigations; (4) because the facts of this situation are so idiosyncratic to Messrs. Mayer and Hawthorne, the disclosure of these letters will not impede the [Prosecutor's Office's] ability to perform its duties, including issuance of similar letters in the future; and finally (5) the public's interest in access to these letters outweighs both [Wildwood Crest's] and the [Prosecutor's Office's] interest in confidentiality.

The court did not make any findings about the sixth Loigman factor.

Although the trial court provided some comment on five of the Loigman factors, in our view, the court did not fully address or make clear what its findings were on these factors, and made no findings on the sixth factor. We appreciate the court was likely endeavoring to be discreet about the contents of the subject documents in the event its order to release the documents were reversed. Nevertheless, we need clarification of its findings.

For example, the first Loigman factor requires a court to consider the "extent to which disclosure will impede agency functions by discouraging citizens from providing information to the government." Ibid. The trial court's finding does not give us the benefit of its determination of how, if at all, disclosure of the letters will discourage members of the public from providing information to, and impair the functioning of, an agency.

The second Loigman factor requires consideration of the effect disclosure may have upon those who have provided information, and whether such persons did so in reliance that their identities would not be disclosed. The trial court's response does not directly address the effect disclosure would have upon those who provided information to an agency and whether those persons were informed their identities would not be disclosed. We need not specifically address the third, fourth, and fifth factors; it is sufficient to say we need to know the trial court's finding on the specific questions raised in all of the factors, without of course divulging any protected information.

Accordingly, we remand this matter to the trial court so that it may supplement its findings as directed in this opinion. The trial court shall have forty-five days to issue a supplemental opinion. The parties shall have ten days from the day they receive the supplemental opinion to file a letter brief, not to exceed ten pages, on the trial court's findings.

Remanded for further proceedings consistent with this opinion. We retain jurisdiction.

1 A "Vaughn Index" typically consists of "a detailed affidavit, the purpose of which is to permit the court system effectively and efficiently to evaluate the factual nature of disputed information." John Doe Agency v. John Doe Corp., 493 U.S. 146, 149 n.2, 110 S. Ct. 471, 474, 107 L. Ed. 2d 462, 469 (1989) (internal quotation marks omitted) (citing Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973), cert. denied, 415 U.S. 977, 94 S. Ct. 1564, 39 L. Ed. 2d 873 (1974)). See also Paff v. Div. of Law, 412 N.J. Super. 140, 161 n.9 (App. Div.), certif. denied, 202 N.J. 45 (2010).

2

When referencing the subject documents, we do not divulge any details which may be protected from disclosure under either OPRA or the common law right of access to public records. However, there are facets about these documents that are already known to plaintiff and thus we mention those details without reservation.

3 In Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 218 (1963), the Supreme Court held "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment." A prosecutor's office is obligated to produce evidence that "would tend to exculpate [a defendant] or reduce the penalty." See id. at 88, 1197, 219.

4 Neither party has appealed from the August 21, 2014 order.