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

474 N.J.Super. 243

287 A.3d 777

AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY, Plaintiff-Appellant,

v.COUNTY PROSECUTORS ASSOCIATION OF NEW JERSEY, Defendant-Respondent.

DOCKET NO. A-2572-20

Superior Court of New Jersey, Appellate Division.

Argued November 29, 2022

Decided December 22, 2022

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

Christopher J. Gramiccioni argued the cause for respondent (Kingston Coventry LLC, attorneys; Joseph Paravecchia, of counsel and on the brief).

CJ Griffin argued the cause for amicus curiae Libertarians for Transparent Government (Pashman Stein Walder Hayden, PC, attorneys; CJ Griffin, on the brief).

Before Judges Sumners, Geiger and Susswein.

The opinion of the court was delivered by

GEIGER, J.A.D.

Plaintiff American Civil Liberties Union of New Jersey (ACLU) contends defendant County Prosecutors Association of New Jersey (CPANJ) is a public agency subject to records requests under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and the common law right of access. The ACLU requested CPANJ to produce documents regarding CPANJ's funding, the context and contents of its meetings and events (including dates, times, and locations), and the people performing its operating functions. CPANJ denied the records request in its entirety, contending it is "not a public agency subject to the dictates of OPRA or requests made under the common law right of access."

The ACLU filed this action to compel disclosure of the requested records, claiming that CPANJ violated OPRA and the common law right of access. In response, CPANJ filed a motion to dismiss the complaint for failure to state a claim upon which relief can be granted prior to any discovery being exchanged.

Following oral argument, the trial court issued an oral decision and order granting CPANJ's motion to dismiss the complaint. The court found CPANJ was not a public agency under OPRA and was not subject to the common law right of access. The ACLU appeals from that order. We affirm.

I.

CPANJ is a nonprofit association comprised of the twenty-one county prosecutors of New Jersey. It is organized under Section 501(c) of the Internal Revenue Code.¹ CPANJ does not compensate any of its members. It has no staff or office. According to its IRS Form 990 tax filings, CPANJ derives revenue solely from educational conferences and membership dues and assessments.

In support of its position that CPANJ's records are subject to disclosure under OPRA and the common law right of access, the ACLU's asserted:

• "CPANJ regularly meets with representatives of the Attorney General of New Jersey ... and is treated by the Office of the Attorney General [(OAG)] as a partner in implementing statewide criminal justice policy." For example, in February 1985, the Attorney General and CPANJ issued a joint "Policy Statement ... Regarding Prosecutorial Review of Search Warrant Applications."

• In March 2018, the OAG announced the availability of "$870,450 in funding to support training in the County Prosecutors' Offices ... under the ... STOP Violence Against Women Act (‘VAWA’) Grant Program" after "[t]he VAWA Advisory Committee, which includes representation of [CPANJ], identified the essential need for municipal and county prosecutor's training."

• "CPANJ describes its mission as ‘maintain[ing] close cooperation between the Attorney General of the State of New Jersey, the Division of Criminal Justice ... and the twenty-one (21) county prosecutors of the State of New Jersey relative to the developing [of] 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.’ "

• "Despite being classified as ‘volunteers’ in their 990 tax forms, all officers, trustees, and members of CPANJ are New Jersey county prosecutors, appointed by the Governor and paid by the State of New Jersey."

• "CPANJ regularly sends copies of its meeting minutes and agendas to the [OAG]."

• "CPANJ has a designated seat on the Department of Law and Public Safety Police Training Commission ( N.J.S.A. 52:17B-70 ) as well as on the New Jersey Parole Advisory Board. N.J.S.A. 30:4-123.47A."

• "County Prosecutors 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 its scholarship program."

• "CPANJ has appeared as amicus curiae and filed appearances using the government resources of various county prosecutors to do so." In such cases, CPANJ is represented by a county prosecutor or assistant county prosecutor.

• "CPANJ is operated entirely by government appointees who are paid with New Jersey taxpayer funds to perform legal duties on behalf of the State of New Jersey while using government resources to do so."

• "According to its 990 forms, CPANJ does not compensate any staff."

• CPANJ has statutorily designated seats alongside public and private entities on the Department of Law and Public Safety Police Training Commission, N.J.S.A. 52:17B-70(b).

• CPANJ has appeared as amicus curiae in several cases before trial courts and the Supreme Court.

CPANJ also has a designated seat on the Domestic Violence Fatality and Near Fatality Review Board, N.J.S.A. 52:27D-43.17c. Similarly, one member of the Commission on Human Trafficking shall be "a county prosecutor, appointed by the Governor based upon the recommendation of [CPANJ]." N.J.S.A. 52:17B-237.

II.

On July 19, 2019, the ACLU submitted records requests to CPANJ pursuant to OPRA and the common law right of access. The requests sought production of meeting agendas and minutes, funding records, and briefs filed in state or federal courts by CPANJ, as well as any policies or practices shared with county prosecutors by CPANJ. On September 18, 2019, CPANJ sent a letter to plaintiff denying access to all the document requests under both OPRA and the common law. CPANJ stated it is "a private non-profit organization and not a public agency subject to the dictates of OPRA or to requests made under the common law right of access." CPANJ described itself as:

a non-profit society, organized pursuant to Section 501(c)(6) of the Internal Revenue Code, which covers business leagues, chambers of commerce, boards of trade, and similar organizations. It is a private association comprised of the [twenty-one] County Prosecutors and has as its goal the promotion of the orderly administration of criminal justice within the State and the fair and effective enforcement of the constitution and laws of this State through the cooperation of all law enforcement agencies ....

CPANJ stated its goals "are not binding upon any of [its] members" and it does not "assume the responsibilities of any of the member's [sic] individual duties." It further claimed "CPANJ does not fulfill a purpose or perform the duties of the prosecutors' offices, individually or as a whole" and that "a County Prosecutor is not required to be a member of the CPANJ."

CPANJ provided two additional bases for the denial. First, even if it were a public agency, the records sought would be exempt from production as confidential materials "which, if disclosed, would compromise an agency's ability to effectively conduct investigations," and/or as "inter-agency advisory, consultative, or deliberative materials" or "records ... related to criminal investigations."

Second, CPANJ claimed it could not execute plaintiff's request because CPANJ "does not ‘possess’ or ‘maintain’ records." CPANJ explained that it "does not have a physical office, location, or even an online presence" and that "records related to the CPANJ are scattered and possessed by [its] many members ... making possession by a custodian unrealistic." On its 990 tax forms, however, CPANJ lists the Fairfield address of a New Jersey accounting firm as its own address, and states that "the organization's books and records" are located at that address. To date, CPANJ has not provided the requested documents.

The ACLU stated it filed this action to obtain the requested records to:

(1) continue its investigation into how county prosecutors and their staff members coordinate their efforts on criminal justice policy; (2) determine if those efforts are in anyway financed by or supported with State funds or resources; and (3) adequately monitor prosecutorial transparency and accountability within the New Jersey criminal justice system.

The ACLU maintains the records it requested "are all ‘government records’ as that term is defined by OPRA because they were all ‘made, maintained or kept on file in the course of [CPANJ's] official business.’ " N.J.S.A. 47:1A-1.1. The ACLU contends the "documents are not exempt from production under any of OPRA's exceptions[,] ... are required to be kept in the regular order of business, were filed with the courts of this State, and disseminated by CPANJ to the Attorney General." It further contends it does not seek information that would compromise the CPANJ's investigatory capacities; rather, to the extent that the requested documents contain privileged or confidential information, redaction, not non-disclosure, is the proper response.

The ACLU alleged CPANJ violated OPRA by failing to: (1) make "the records requested ‘readily accessible for inspection, copying, or examination’ in violation of N.J.S.A. 47:1A-1"; (2) "grant access to government records within seven business days, in violation of N.J.S.A. 47:1A-5 ([i])"; (3) "prove that the denial of access is authorized by law, in violation of N.J.S.A. 47:1A-6"; (4) "designate a records custodian, in violation of N.J.S.A. 47:1A-1.1"; (5) "maintain an OPRA request form, in violation of N.J.S.A. 47:1A-5(f)"; and (6) lawfully allow "access to non-exempt portions of government records, in violation of...