Opinion
DOCKET NO. A-5446-11T3
05-01-2013
NORTH JERSEY MEDIA GROUP, INC., d/b/a THE RECORD, Plaintiff-Appellant, v. STATE OF NEW JERSEY, OFFICE OF THE GOVERNOR and AMY CATTAFI, SUPERVISORY CUSTODIAN OF RECORDS, Defendants-Respondents.
Samuel J. Samaro argued the cause for appellant (Pashman Stein, attorneys; Mr. Samaro, of counsel and on the brief). Lewis A. Scheindlin, Assistant Attorney General, argued the cause for respondents (Jeffrey S. Chiesa, Attorney General, attorney; Robert Lougy, Assistant Attorney General, of counsel; Mr. Scheindlin, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Hayden.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-737-12.
Samuel J. Samaro argued the cause for appellant (Pashman Stein, attorneys; Mr. Samaro, of counsel and on the brief).
Lewis A. Scheindlin, Assistant Attorney General, argued the cause for respondents (Jeffrey S. Chiesa, Attorney General, attorney; Robert Lougy, Assistant Attorney General, of counsel; Mr. Scheindlin, on the brief). PER CURIAM
Plaintiff North Jersey Media Group, doing business as The Record newspaper, appeals from an order entered by the Law Division on May 25, 2012, dismissing its complaint seeking the production of certain records pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to 13, and the common law. For the reasons that follow, we affirm.
I.
On January 26, 2012, The Record published a front-page article, which stated that Governor Chris Christie had recommended fifty individuals for positions at the Port Authority of New York and New Jersey in the two years since he took office. The article identified thirty-nine persons by name, with their hiring dates, current salaries and some biographical information.
Among other things, the article stated that eleven of the employees had donated to the Christie gubernatorial campaign or had an immediate family relative who did; five of the employees came directly from the Christie Administration; and others had "ties" to two of the Governor's "top appointees" at the Port Authority. The article did not identify eleven interns who also had been recommended by the Governor's Office and presumably hired by the agency.
On January 31, 2012, The Record published another front-page story, which indicated that the Governor had defended the referrals. In that article, the Governor was quoted as having stated that he made no apologies for "trying to put some people in place" who understood the Administration's views and would carry them out "in a way that's consistent with [his] policies." The article also quoted the Governor as having stated that the Port Authority had advertised the positions, he had "recommended people" for those positions and the "people got hired."
On January 30, 2012, Shawn M. Boburg, a reporter for The Record, submitted an OPRA request to the Governor's Office requesting copies of
1) Any document received, maintained, or sent by the Authorities Unit, from Jan. 1, 2010 to the present, that contains a recommendation or referral of potential job applicants or candidates for any position at the Port Authority of New York and New Jersey. This includes any lists of referrals, memos, letters, e-mails or any other record related to a referral for a Port Authority position. 2) Any document received, maintained, or sent by the Authorities Unit, from Jan. 1, 2010 to the present, that identifies the specific person who requested the recommendation or referral referenced in the previous request. 3) Any application, resume, cover letter or other document related to the qualifications of the potential candidate or applicant for any Port Authority position, received, maintained, or sent by the Authorities Unit from Jan. 1, 2010 to the present.
By letter dated February 8, 2012, Amy Cattafi, Supervisory Custodian of Records for the Governor's Office, denied plaintiff's OPRA request. In that letter, Cattafi stated that the records requested were protected from disclosure under various provisions of OPRA, including the exemption for personnel records.
In a letter dated February 14, 2012, plaintiff objected to the denial of its request because Cattafi had not identified the specific exemption that applied. In addition, plaintiff asked that Cattafi produce a Vaughn index for the documents requested. Cattafi replied in a letter dated February 21, 2012, and said that a Vaughn index was not required because the matter was not in litigation and because the records sought were exempt from disclosure under OPRA.
The term Vaughn index is derived from Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973), cert. denied, 415 U.S. 977, 94 S. Ct. 1564, 39 L. Ed. 2d 783 (1974). See Paff v. Div. of Law, 412 N.J. Super. 140, 161 n. 9 (App. Div. 2010), certif. denied, 202 N.J. 45 (2010). A Vaughn index provides detailed justifications for the refusal to disclose documents claimed privileged. Ibid.
On March 26, 2012, plaintiff filed a verified complaint in the Law Division, naming the Governor's Office and Cattafi as defendants. In count one of the complaint, plaintiff demanded access to the requested records under OPRA and asserted that Cattafi's failure to produce a Vaughn index was a violation of OPRA. In count two, plaintiff alleged that it was entitled to production of the documents under the common law right of access to public records.
On March 28, 2012, the Law Division judge entered an order requiring defendants to show cause why the relief sought in the complaint should not be granted. Thereafter, defendants filed a motion to dismiss the complaint pursuant to Rule 4:6-2(e), arguing that plaintiff had not stated a claim upon which relief could be granted.
The judge considered the matter on May 25, 2012, and rendered a decision from the bench on that day. The judge concluded that the requested documents are personnel records that are exempt from disclosure under OPRA. The judge also determined that the provision of OPRA which requires disclosure of records showing that a worker has the minimal qualifications for employment did not apply because the Port Authority was the hiring agency, not the Governor's Office.
In addition, the judge determined that Cattafi was not required to produce a Vaughn index because the records were exempt from disclosure under OPRA, and in camera review of the records was not required because they fell within an OPRA exemption. The judge also found that plaintiff was not entitled to the records under the common law.
The judge memorialized the decision in an order entered on May 25, 2012, which dismissed plaintiff's complaint with prejudice. This appeal followed.
II.
Plaintiff argues that the Law Division judge erred by finding that the records are exempt from disclosure under OPRA. We do not agree.
The purpose of OPRA "is 'to maximize public knowledge about public affairs in order to ensure an informed citizenry and to minimize the evils inherent in a secluded process.'" Mason v. City of Hoboken, 196 N.J. 51, 64 (2008) (quoting Asbury Park Press v. Ocean County Prosecutor's Office, 374 N.J. Super. 312, 329 (Law Div. 2004)). To achieve that purpose, OPRA provides that "government records shall be readily accessible for inspection, copying or examination by" New Jersey's citizens, subject to certain exceptions. N.J.S.A. 47:1A-1.
The term "government record" is broadly defined to include
any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards thereof, or that has been received in
the ordinary course of his or its official business by any such officer, commission, agency, or authority of the State or of any political subdivision thereof, including subordinate boards thereof.
[N.J.S.A. 47:1A-1.1.]
OPRA provides, however, that certain "government records" are exempt from public access, including certain personnel records. OPRA states that
[p]ersonnel or pension records of any individual in the possession of a public agency, including but not limited to records relating to any grievance filed by or against an individual, shall not be considered a government record and shall not be made available for public access, except that:
an individual's name, title, position, salary, payroll record, length of service, date of separation and the reason therefore, and the amount and type of any pension received shall be a government record;
personnel or pension records of any individual shall be accessible when required to be disclosed by another law, when disclosure is essential to the performance of official duties of a person duly authorized by this State or the United States, or when authorized by an individual in interest; and
data contained in information which disclose conformity with specific experiential, educational or medical qualifications required for government employment or for receipt of a public pension, but not including any detailed medical or psychological information, shall be a government record.
[N.J.S.A. 47:1A-10.]
The OPRA exemption for personnel records "begins with a presumption of non-disclosure and proceeds with a few narrow exceptions." Kovalcik v. Somerset County, Pros. Office, 206 N.J. 581, 594 (2011). When interpreting the scope of this exemption, "courts have tended to favor the protection of employee confidentiality." McGee v. Twp. of East Amwell, 416 N.J. Super. 602, 615 (App. Div. 2010). See also N. Jersey Media Group v. Bergen County Pros. Office, 405 N.J. Super. 386, 390-91 (App. Div. 2009) (holding OPRA does not require disclosure of applications by prosecutors for outside employment and non-disclosure of those records protects the individuals' privacy interests).
In this case, the judge correctly determined that the records sought by plaintiff were personnel records exempt from disclosure under N.J.S.A. 47:1A-10. As we stated previously, the records requested pertain to applications for employment at the Port Authority and referrals made by the Governor's Office concerning those applicants. The exemption for personnel records in N.J.S.A. 47:1A-10 is not limited to records of persons employed by the State, its agencies or its political subdivisions. The exemption applies to personnel records of "any individual" that are in the possession of any government agency that is subject to OPRA. We are satisfied that the personnel records exemption applies to the documents plaintiff requested.
Our view of the scope of the statutory exemption is consistent with its purpose, which is to ensure that personnel records are maintained in confidence unless the documents are of the type specifically subject to disclosure under N.J.S.A. 47:1A-10. Kovalcik, supra, 206 N.J. at 592. Individuals have a privacy interest in seeing that their personnel records are not disclosed to the public.
Indeed, N.J.S.A. 47:1A-1 provides that government agencies have an obligation to protect a citizen's personal information from public access "when disclosure thereof would violate the citizen's reasonable expectation of privacy." Individuals undoubtedly have a reasonable expectation that their personnel records will remain confidential, except for records containing the limited information for which OPRA allows access.
Plaintiff argues, however, that the judge erroneously narrowed its document request to resumes and recommendation letters from the Governor's Office to the Port Authority. We disagree. The exemption for personnel records in N.J.S.A. 47:1A-10 applies not only to the individuals' resumes and recommendations or referrals made by the Governor's Office. The exemption applies as well to documents received or maintained by the Governor's Office pertaining to those referrals. Those documents are also personnel records within the scope of N.J.S.A. 47:1A-10. We are satisfied that the judge did not erroneously narrow plaintiff's document request and correctly found that all of the records requested by plaintiff were exempt from disclosure under OPRA.
In support of its contention that OPRA requires that it be given access to the requested records, plaintiff relies upon Milner v. Department of the Navy, ___ U.S. ___, 131 S. Ct. 1259, 179 L. Ed. 2d 268 (2011). In that case, Milner submitted a request under the federal Freedom of Information Act (FOIA), 5 U.S.C.A. § 552, seeking data and maps relating to the storage of explosives at a naval base. Id. at ___, 131 S. Ct. at 1262, 179 L. Ed. 2d at 274.
FOIA exempts from disclosure documents relating "to the internal personnel rules and practices of an agency." Id. at ___, 131 S. Ct. at 1262, 179 L. Ed. 2d at 274. The Court held that the requested documents were not "personnel rules and practices of an agency" exempt from disclosure under FOIA. Id. at ___, 131 S. Ct. at 1271, 179 L. Ed. 2d at 284-85.
Plaintiff's reliance upon Milner is misplaced. The FOIA exemption at issue in Milner is specifically limited to the "personnel rules and practices of an agency." The exemption under OPRA for personnel records is not similarly limited and extends to the personnel records of "any individual in possession" of a government agency subject to OPRA. N.J.S.A. 47:1A-10.
In addition, unlike the OPRA exemption for personnel records, the FOIA exemption at issue in Milner does not extend to an individual's personal information. As we noted previously, under OPRA, government agencies have an obligation to protect a citizen's personal information from public access when disclosure of that information would be inconsistent with a "citizen's reasonable expectation of privacy." N.J.S.A. 47:1A-1.
Plaintiff further argues that the judge erred by determining that defendants are not required to provide access to information they may have concerning the individual's "conformity with specific experiential, educational or medical qualifications[.]" However, as the judge noted in her decision from the bench, the Port Authority is the agency that establishes the qualifications required for its employees and also determines whether any particular individual it employs conforms to those qualifications.
Furthermore, OPRA does not require the custodian of records for the Governor's Office to undertake research in order to ascertain the Port Authority's specific job requirements and determine whether any individual referred for employment satisfied the agency's qualifications. OPRA does not require a government agency to conduct research, analyze or compile information for the requestor. MAG Entertainment, LLC v. Div. of Alcoholic Bev. Control, 375 N.J. Super. 534, 549 (App. Div. 2005).
We note that plaintiff sought information from the Port Authority regarding the employees in question pursuant to the agency's freedom of information policy. In response to that request, the Port Authority provided plaintiff with resumes for thirty nine individuals as well as the relevant job descriptions for some of these employees.
--------
Plaintiff also contends that the judge erred by failing to require defendants to prepare a Vaughn index and undertake an in camera review of the documents to determine whether they are exempt from disclosure under OPRA. Again, we disagree.
A Vaughn index "is used in circumstances where there is evidence that some of the documents may not in fact be privileged." Paff, supra, 412 N.J. Super. at 161. A Vaughn index was not required in this matter because the documents requested by plaintiff are clearly personnel records exempt from disclosure under OPRA. In addition, in camera review of the records was not required. The judge could readily determine from the document request that the records sought are not subject to disclosure under OPRA. Paff v. N.J. Dept. of Labor, Bd. of Review, 379 N.J. Super. 346, 355 (App. Div. 2005).
III.
Plaintiff additionally argues that the judge erred by concluding that the common law did not require defendants to produce the requested documents. Again, we disagree.
We note initially that a citizen may be entitled to access to public records under the common law, even though the records are not subject to disclosure under OPRA. Indeed, OPRA provides that it should not be construed as limiting the common law right of access to government records. N.J.S.A. 47:1A-8. See also Bergen County Improvement Auth. v. N.J. Media Group, Inc., 370 N.J. Super. 504, 516 (App. Div.) (noting that a citizen may seek access to public records under the common law, even if OPRA does not provide access to those records), certif. denied, 182 N.J. 143 (2004).
The common law provides citizens with broader access to public records than the access that is available under OPRA. O'Boyle v. Bor. of Longort, 426 N.J. Super. 1, 13, (App. Div. 2012) (citing Educ. Law Ctr. v. N.J. Dep't of Educ, 198 N.J. 274, 302 (2009)), certif. granted, 212 N.J. 431 (2012). Under the common law, a public record "is one that is made by a public official in the exercise of his or her public function, either because the record was required or directed by law to be made or kept, or because it was filed in a public office." Keddie v. Rutgers, the State Univ., 148 N.J. 36, 49 (1997).
However, "[b]ecause the common-law right of access to public records is not absolute, 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.'" Id. at 50 (quoting Home News v. State Dep't of Health, 144 N.J. 446, 454 (1996)). The balancing process must be "'concretely focused upon the relative interests of the parties in relation to [the] specific materials.'" Ibid. (quoting McClain v. College Hosp., 99 N.J. 346, 361 (1985)).
If the public's need for confidentiality is slight or non-existent, the citizen should ordinarily be granted access to the records. Loigman v. Kimmelman, 102 N.J. 98, 105 (1986). However, if the public has a greater interest in confidentiality, "the citizen's right of access is qualified." Ibid. The balancing process 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.'" Id. at 102 (quoting McClain, supra, 99 N.J. at 362).
We are satisfied that the judge properly balanced plaintiff's interest in disclosure against the public's interest in confidentiality. As we have explained, the public has a strong interest in maintaining the confidentiality of personnel records because those records contain an array of personal information, and individuals have a reasonable expectation that the records will not be disclosed to the public, except as required by OPRA. McGee, supra, 416 N.J. Super. at 615 (noting that courts tend to "favor the protection of employee confidentiality" when considering common-law requests for access to personnel records). The judge correctly determined that plaintiff's interest in disclosure did not outweigh the public's interest in confidentiality.
We have considered plaintiff's other arguments and conclude that they are without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION