Am. Civil Liberties Union of N.J. v. Cnty. Prosecutors Ass'n of N.J.

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American Civil Liberties Union of New Jersey, Plaintiff-Appellant, v. County Prosecutors Association of New Jersey, Defendant-Respondent.

No. A-33-22

Supreme Court of New Jersey

April 17, 2024

Argued October 10, 2023

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).

PATTERSON, J., writing for the Court.

In this appeal, the Court considers whether defendant the County Prosecutors Association of New Jersey (CPANJ) 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.

CPANJ is a nonprofit association whose members are the twenty-one county prosecutors. It has no employees or office. The ACLU asserts that CPANJ "regularly sends copies of its meeting minutes and agendas" to the Office of the Attorney General and 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 states that CPANJ participates as amicus curiae in trial and appellate matters and that it has filed appearances in court. The ACLU asserts that CPANJ uses county prosecutors' resources when it participates in court proceedings as amicus curiae.

On July 19, 2019, the ACLU served a records request on CPANJ's president pursuant to OPRA and the common law right of access. CPANJ denied the request, stating that it was "quite simply not a public agency" as that term is defined by N.J.S.A. 47:1A-1.1. CPANJ also denied the ACLU's request for disclosure of the records pursuant to the common law right of access.

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.

The trial court dismissed the complaint, holding that CPANJ is not a public agency within the meaning of N.J.S.A. 47:1A-1.1 and 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 Appellate Division affirmed the dismissal of the ACLU's OPRA claims, and it concurred with the trial court's rejection of the ACLU's common law right of access argument but on different grounds -- namely, that CPANJ is not a public entity and is therefore not subject to the common law right of access. 474 N.J.Super. 243, 268-72 (App. Div. 2022). The Court granted certification. 253 N.J. 396 (2023).

HELD: 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. The ACLU's factual allegations do not support a claim against CPANJ under OPRA or the common law.

1. OPRA applies only if the entity to which a request is directed meets the statutory definition of a public agency. For purposes of OPRA, the terms "public agency" or "agency" denote the entities specified in N.J.S.A. 47:1A-1.1, which include "any political subdivision of the State or combination of political subdivisions, and any division, board, bureau, office, commission or other instrumentality within or created by a political subdivision of the State or combination of political subdivisions, and any independent authority, commission, instrumentality or agency created by a political subdivision or combination of political subdivisions." The term "political subdivision" denotes a division of a state that exists primarily to discharge some function of local government, such as a county or municipality, as well as certain entities formed by counties and municipalities, such as parking authorities. The ACLU argues that CPANJ is an instrumentality of the county prosecutors. Accordingly, the core question in this appeal is whether a county prosecutor constitutes a "political subdivision" for purposes of OPRA. (pp. 14-22)

2. A county is indisputably a "political subdivision of the State" as defined in OPRA, N.J.S.A. 47:1A-1.1. The status of the counties themselves as political subdivisions under OPRA, however, has no bearing on the analysis. A county prosecutor is distinct from the county that the prosecutor serves for purposes of OPRA's reach. A county prosecutor, like the Attorney General, is a constitutional officer who serves by virtue of gubernatorial nomination and Senate confirmation. Although a county exercises considerable control over the fiscal operations of the county prosecutor's office, a county prosecutor's law enforcement function is unsupervised by county government or any other agency of local government. In short, the county prosecutor is not the alter ego of the county itself, and does not constitute a "political subdivision" as that term is used in N.J.S.A. 47:1A-1.1. CPANJ, meanwhile, constitutes an organization in which the county prosecutors are members and is not the alter ego of the prosecutors themselves. Because a prosecutor does not meet the definition of a "political subdivision" under N.J.S.A. 47:1A-1.1's plain language, CPANJ is not a public agency for purposes of OPRA.

The ACLU's factual allegations do not support its assertion that CPANJ is a public agency within the meaning of N.J.S.A. 47:1A-1.1. Because the ACLU did not seek the documents from a public agency in accordance with N.J.S.A. 47:1A-5 and -6, the Court does not reach the question whether the documents identified in its request constitute "government records" under OPRA. (pp. 22-26)

3. A public record under the common law is one that is made by a public official in the exercise of the official's 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. Here, the ACLU identifies no statute, regulation, or other mandate requiring CPANJ to create or maintain the requested documents. It suggests no statutory or regulatory mandates of any kind addressing the records at issue. The ACLU does not allege that CPANJ maintains public documents in a public office; indeed, it does not dispute CPANJ's assertion that it maintains no office at all. The ACLU identifies no precedential decision discussing, let alone upholding, a request for public documents served on a private entity such as CPANJ. In short, the ACLU asserts no factual allegations that would suggest that CPANJ constitutes an entity upon which a common law right of access request for documents may properly be served. The Court does not reach the question whether the documents that the ACLU requested from CPANJ would be considered common law public documents if requested from a public entity. (pp. 26-29)

AFFIRMED.

JUSTICE WAINER APTER, dissenting, expresses the view that the facts alleged about CPANJ, taken in the light most favorable to the ACLU, suggest that CPANJ is simply another name for the county prosecutors themselves and that it therefore meets the definition of "public agency" in N.J.S.A. 47:1A-1.1 in the same way that the county prosecutors' offices themselves do. Looking behind CPANJ's technical form, and construing OPRA "in favor of the public's right of access," N.J.S.A. 47:1A-1, Justice Wainer Apter would hold that the trial court erred in granting CPANJ's motion to dismiss the ACLU's OPRA claim. In addition, Justice Wainer Apter writes, because no private citizens are members of CPANJ, every document recorded, generated, or produced by CPANJ is recorded, generated, or produced by a public official and, because CPANJ maintains all documents in the county prosecutors' offices -- which are public offices under the common law --CPANJ documents are by definition common law public records. Justice Wainer Apter would therefore hold that the trial court also erred in dismissing the ACLU's claim under the common law.

OPINION

PATTERSON JUSTICE.

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...