Am. C.L. Union of N.J. v. Cty. Prosecutors Ass'n of N.J.

257 N.J. 87

312 A.3d 276

AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY, PLAINTIFF-APPELLANT, v. COUNTY PROSECUTORS ASSOCIATION OF NEW JERSEY, DEFENDANT-RESPONDENT.

A-33 September Term 2022

087789

Argued October 10, 2023—Decided April 17, 2024

On certification to the Superior Court, Appellate Division, whose opinion is reported at 474 N.J. Super. 243 (App. Div. 2022).

Karen Thompson argued the cause for appellant (American Civil Liberties Union of New Jersey Foundation, attorneys; Karen Thompson, Jeanne LoCicero, Alexander Shalom, and Elyla Huertas, on the brief).

Christopher J. Gramiccioni argued the cause for respondent (Kingston Coventry, attorneys; Christopher J. Gramiccioni, on the letter brief).

CJ Griffin argued the cause for amici curiae Libertarians for Transparent Government and the Association of Criminal Defense Lawyers of New Jersey (Pashman Stein Walder Hayden, attorneys; CJ Griffin, on the briefs).

Thomas H. Prol argued the cause for amicus curiae Municipal Clerks’ Association of New Jersey, Inc. (Sills Cummis & Gross, attorneys; Thomas H. Prol, on the brief).

Vito A. Gagliardi, Jr. submitted a brief on behalf of amicus curiae New Jersey State Association of Chiefs of Police (Porzio, Bromberg & Newman, attorneys; Vito A. Gagliardi, Jr., of counsel, and David L. Disler and Thomas J. Reilly, on the brief).

Lawrence S. Lustberg submitted a brief on behalf of amici curiae Salvation and Social Justice and Youth Advocate Programs, Inc. (Gibbons and New Jersey Institute for Social Justice, attorneys; Lawrence S. Lustberg, Julia Bradley (Gibbons) of the New York bar, admitted pro hac vice, Emily Schwartz, Yannick Wood, Henal Patel, and Ryan P. Haygood, on the brief).

JUSTICE PATTERSON delivered the opinion of the Court.

In this appeal, we determine whether defendant the County Prosecutors Association of New Jersey (CPANJ), a nonprofit organization whose members are the twenty-one county prosecutors of New Jersey, is a public agency required to disclose records pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and a public entity subject to the common law right of access.

Plaintiff American Civil Liberties Union of New Jersey (ACLU) sought several categories of records from CPANJ pursuant to OPRA and the common law right of access. CPANJ denied the request, asserting that it is not a public agency for purposes of OPRA and is not a public entity subject to the common law right of access. The ACLU filed this action, seeking an order compelling production of the requested documents and other relief.

The trial court granted CPANJ’s motion to dismiss the complaint pursuant to Rule 4:6-2(e). The ACLU appealed that determination, and the Appellate Division affirmed the trial court’s judgment. The appellate court found that the ACLU’s factual allegations did not support its contention that CPANJ is a public agency under OPRA or its assertion that CPANJ is a public entity subject to the common law. ACLU of N.J. v. Cnty. Prosecutors Ass’n of N.J., 474 N.J. Super. 243, 256-72, 287 A3d 777 (App. Div. 2022).

We concur with the Appellate Division that CPANJ is neither a public agency under N.J.S.A. 47:1A-1.1 nor a public entity subject to the common law right of access. We conclude that the ACLU’s factual allegations do not support a claim against CPANJ under OPRA or the common law. Accordingly, we affirm the Appellate Division’s judgment.

I.

A.

1.

We summarize the ACLU’s factual allegations based on the complaint and its attachments.

CPANJ is a nonprofit association operating pursuant to Internal Revenue Code § 501(c)(3). Its members are the twenty-one county prosecutors. According to CPANJ’s 2015 and 2016 Internal Revenue Service disclosure forms, attached to the ACLU’s complaint, the organization’s mission is to "maintain close cooperation between the Attorney General of the State of New Jersey, the Division of Criminal Justice of the State of New Jersey and the twenty-one (21) county prosecutors of the State of New Jersey," relating to "developing educational programs so as to promote the orderly administration of criminal justice within the State of New Jersey, consistent with the Constitution and the laws of the State of New Jersey." CPANJ represented in those disclosure forms that it does not compensate its members, who participate as volunteers; that it obtains revenue solely from membership dues, membership assessments, and educational conferences; that it grants scholarships to law students; and that it has no employees or office.

Citing a 1985 joint policy statement between the New Jersey Attorney General and CPANJ regarding prosecutorial review of search warrant applications, as well as CPANJ’s involvement in a 2018 initiative to stop violence against women, the ACLU alleged in its complaint that the Office of the Attorney General views CPANJ as a "partner in implementing statewide criminal justice policy." The ACLU noted that pursuant to N.J.S.A. 52:17B-70(b), CPANJ’s representative is a member of the Department of Law and Public Safety Police Training Commission, and that under N.J.S.A. 80:4-123.47a, CPANJ’s representative is a member of the Parole Advisory Board. The ACLU asserted that CPANJ "regu- larly sends copies of its meeting minutes and agendas" to the Office of the Attorney General.

The ACLU further alleged in its complaint that the county prosecutors who comprise the membership of CPANJ use the resources of their offices to conduct CPANJ business, including "the development of agendas, the coordination of meetings and dinners, and the administration of [CPANJ’s] scholarship program." The ACLU stated that CPANJ participates as amicus curiae in trial and appellate matters and that it has filed appearances in court. The ACLU asserted that CPANJ uses county prosecutors’ resources when it participates in court proceedings as amicus curiae.

2.

On July 19, 2019, the ACLU served a records request on CPANJ’s president pursuant to OPRA and the common law right of access. The ACLU requested five categories of records for the period between January 1, 2017, and July 19, 2019: (1) CPANJ meeting agendas; (2) CPANJ meeting minutes; (3) records reflecting funding received by CPANJ; (4) briefs filed in state or federal courts by CPANJ; and (5) policies or practices shared with county prosecutors through CPANJ.

By letter sent from its president to the ACLU on September 18, 2019, CPANJ denied the request. CPANJ stated that it was "quite simply not a public agency" as that term is defined by N.J.S.A. 47:1A-1.1, and that it instead constitutes "a private association" comprised of the twenty-one county prosecutors. It asserted that its goal is to promote "the orderly administration of criminal justice within the State" and "the fair and effective enforcement" of New Jersey’s Constitution and laws "through the cooperation of all law enforcement agencies." CPANJ further contended that even if it were to meet OPRA’s definition of a public agency, the requested records would be exempt from disclosure on confidentiality grounds, as inter-agency advisory, consultative, or deliberative materials, or as records pertaining to a criminal investigation or related civil enforcement proceeding that are not "required by law to be made, maintained or kept on file." It took the position that it could not comply with the ACLU’s OPRA request because it lacked "a physical office, location or even an online presence."

CPANJ also denied the ACLU’s request for disclosure of the records pursuant to the common law right of access. Maintaining that the ACLU had failed to identify its interest in the request for purposes of the common law balancing analysis, CPANJ contended in its response to the ACLU’s request that it was not subject to the common law right of access and that the requested documents did not meet the common law definition of a public document.

B.

1.

The ACLU filed this action, alleging that CPANJ is a public agency under N.J.S.A. 47:1A-1.1 because it is "an instrumentality created by a combination of political subdivisions to facilitate cooperation between government agencies and other political subdivisions." The ACLU also asserted that the requested documents are public records subject to public access under the common law. It sought a declaratory judgment stating that CPANJ is subject to OPRA and the common law, and that CPANJ violated the law by rejecting the ACLU’s request for documents. The ACLU also requested an injunction requiring production of the disputed documents, or, in the alternative, an in camera review of those documents followed by disclosure. It sought an award of attorneys’ fees and costs.

CPANJ filed a motion to dismiss the complaint for failure to state a claim pursuant to Rule 4:6-2(e). It asserted that it is not a public agency under N.J.S.A. 47:1A-1.1 and is not subject to the common law right of access.

The trial court held that CPANJ is not a public agency within the meaning of N.J.S.A. 47:1A-1.1. It rejected the ACLU’s claim that because county prosecutors comprise CPANJ’s membership, CPANJ cooperates with the Attorney General on certain law enforcement issues, and CPANJ is represented in the governing bodies of certain public organizations, it should be viewed as a public agency for purposes of OPRA. The trial court found that CPANJ’s amicus curiae appearances, which further the orderly administration of criminal justice, do not support the ACLU’s contention that CPANJ is a public agency under OPRA.

The trial court also found that because CPANJ’s records were not created under authority granted independently to each county prosecutor, they do not constitute public records for purposes of the common law right of access. The court noted that although county prosecutors are invited to join CPANJ, they are not required to do so, and that membership in the organization is not mandated in order for prosecutors to fulfill their public function.

The trial court entered an order...