Southern New Jersey Newspapers, Inc. v. Township of Mt. Laurel

Page 56

141 N.J. 56

660 A.2d 1173

SOUTHERN NEW JERSEY NEWSPAPERS, INC., Plaintiff-Appellant, v. The TOWNSHIP OF MT. LAUREL, the Police Department of the Township of Mt. Laurel, and the Custodian of Records for the Police Department of the Township of Mt. Laurel Defendants-Respondents and Attorney General of New Jersey, Intervenor-Respondent and Cross-Appellant.

Supreme Court of New Jersey.

Argued March 27, 1995.

Decided July 19, 1995.

John C. Connell, Haddonfield, for appellant (Archer & Greiner, attorneys; George F. Kugler, of counsel).

Michael L. Mouber, Mount Laurel, for respondents.

Mark J. Fleming, Asst. Atty. Gen., for respondent and cross-appellant (Deborah T. Poritz, Atty. Gen. of N.J., attorney; Alexander P. Waugh, Jr., Executive Asst. Atty. Gen., of counsel; Carol Johnston, Deputy Atty. Gen., on the brief).

Jean Hartman Culp, Asst. County Solicitor, for amicus curiae, Burlington County Adjustor (Stephen J. Mushinski, Burlington County Adjustor, attorney).

The opinion of the Court was delivered by

STEIN, Justice.

The issue in this appeal is whether the press may obtain access to firearm permits and the documentation supporting the applications for those permits. The Courier-Post sought access to all documents maintained by the Township of Mount Laurel Police Department relating to applications to purchase firearms. The trial court denied access to those records. The Appellate Division affirmed, but granted the newspaper an opportunity to make limited inquiries concerning whether the department had complied with the statute authorizing issuance of firearm permits. We granted certification. 139 N.J. 289, 654 A.2d 470 (1994).

I

The essential facts are undisputed. In October 1989, Judith Thomas, a reporter for the Courier-Post, a daily newspaper owned and published by plaintiff, Southern New Jersey Newspapers, Inc., requested access to records of permits for the sale and purchase of firearms issued by law-enforcement officials of defendant Township of Mount Laurel (Mount Laurel). Thomas sought access to those records to obtain information relevant to her investigation of Saunder Weinstein, the Director of Public Safety and Acting Chief of Police of defendant Mount Laurel Police Department (Police Department), asserting a general interest in determining whether Weinstein had issued firearm permits without legal authority. Police Department officials refused to grant access without a formal demand letter from plaintiff's counsel.

Through counsel, plaintiff issued a written request to Weinstein dated November 2, 1989, demanding the release of records of firearm permits issued from January to October 1989. Because Weinstein did not answer that demand letter, plaintiff's counsel propounded another written request to Weinstein dated December 7, 1989, directing him to respond by December 12, 1989, or plaintiff's demand would be deemed denied. Weinstein did not respond to that request by December 12, 1989.

In January 1990, plaintiff filed a complaint in lieu of prerogative writs, seeking access to the firearm-permit records maintained by the Police Department pursuant to the firearms-licensing statute, N.J.S.A. 2C:58-1 to -16, and asserting three grounds for entitlement to those records: the Examination and Copies of Public Records statute (Right-to-Know Law), N.J.S.A. 47:1A-1 to -4, the common-law right of access, and a constitutional right of access under the First Amendment of the United States Constitution and under Article I, Paragraph 6 of the New Jersey Constitution. Subsequently, plaintiff expanded its request to encompass all documents maintained by the Police Department relating to applications to purchase firearms, including reference letters, background-investigation reports, and forms containing the applicant's consent to search his or her mental-health records (if any) and the result of that search. The demand, however, did not extend to files on applications to carry a handgun.

Following discovery, plaintiff moved, and defendants, Mount Laurel, the Police Department, and the Custodian of Records for the Police Department, cross-moved for summary judgment. The Burlington County Solicitor, appearing as amicus curiae on leave granted on behalf of the Burlington County Adjustor, and the Burlington County Prosecutor, appearing as intervenor of right on motion granted, opposed plaintiff's motion. After an initial hearing on November 8, 1991, the trial court ordered supplemental briefing and argument on the jurisdictional and substantive effect of a proposed State Police regulation, 23 N.J.R. 2258 (Aug. 5, 1991). That regulation, N.J.A.C. 13:54-1.15, which had become effective on November 18, 1991, 23 N.J.R. 3525, barred disclosure of "[a]ny background investigation conducted by the chief of police, the Superintendent or county prosecutor of any applicant for a license, permit, firearms identification card or registration * * * except upon order of a court of competent jurisdiction."

In March 1992, the trial court granted defendants' cross-motion for summary judgment and denied plaintiff's motion for summary judgment. In its ruling, the court listed the documents that constituted a completed investigative file: (1) a completed and signed application for either a firearms-purchaser identification card or a handgun-purchase permit; (2) the Consent for Mental Health Records Search form, which the applicant signs and the county adjuster completes after searching its mental-health records; (3) two answered reference letters; (4) a set of fingerprints and any report issued by the State Police or the Federal Bureau of Investigation regarding any comparison with fingerprints on file; (5) a Criminal History Report (rap sheet); and (6) a Firearms Applicant Investigation Report, which contains a summary of the above five documents. In addition, the court noted that if an applicant intends to purchase a handgun, the file will eventually include a Permit to Purchase a Handgun and Form of Register which the applicant delivers in quadruplicate to the handgun seller, who, after selling the applicant a handgun, completes the permit and delivers the original to the Superintendent of the State Police, and copies to the chief of police of the municipality in which the applicant resides and to the applicant, the seller retaining a copy. See N.J.S.A. 2C:58-3h. (The file, however, does not contain either the original or a copy of the Firearms Purchaser Identification Card, which the applicant retains.)

The court found that the investigative-file documents constituted public records that were required "to be made, maintained or kept on file" within the meaning of the Right-to-Know Law, N.J.S.A. 47:1A-2, because it viewed the firearms-licensing statute, N.J.S.A. 2C:58-1 to -16, as "creating a detailed regulatory scheme precedent to the retail sale of handguns and other firearms * * * based upon a prescribed and written application form and centered around a mandated investigation [that] commences with information required by statute to be offered by the applicant in writing." The court reasoned "that the entire process is required by law and therefor[e] the paperwork generated by the process reasonabl[y] necessary to its implementation lies within the intent of the legislative definition of a public record."

Nevertheless, the court observed that N.J.S.A. 47:1A-2 permits Right-to-Know-Law records to be exempted by "statute, resolution of either or both houses of the Legislature, executive order of the Governor, rule of court, any Federal law, regulation or order, or by any regulation promulgated under the authority of any statute or executive order." The court thus determined that the Division of State Police's adoption of N.J.A.C. 13:54-1.15, which prohibits disclosure of "background investigation" materials, exempted the following documents: the "answered application forms, answered Mental Health Search form, answered reference letters, fingerprints and any report of comparisons, the Criminal History Report and the internal Firearms Applicant Investigation Report." Although noting that neither the firearms statute, N.J.S.A. 2C:39-1 to -15, nor the firearms-licensing statute expressly granted rule-making authority to the Superintendent or to the Division of State Police, the court "conclude[d] [that] the regulation [was] within the reasonably implied scope of regulatory powers of the Division of State Police."

However, in respect of issued firearms-purchaser identification cards and handgun-purchase permits, the court determined that those records did not fall within the N.J.A.C. 13:54-1.15 exemption because "[t]hey [were] not part of the investigation itself but its end product." (As previously noted, the investigative file does not contain issued firearms-purchaser identification cards, which are retained by the applicant.) Nevertheless, the court stated that it "would [have] order[ed] inspection of" the handgun-purchase permits "but for [its] analysis of the common law."

Turning to plaintiff's common-law claim, the trial court found that the investigative-file documents were common-law public records because they were records made by a public official in the exercise of public functions. However, the court noted that plaintiff had "not demonstrated a sufficiently particularized or compelling need for the background file--including the [handgun-purchase] [p]ermit--[that] outweigh[ed] the State's interest in confidentiality in the highly sensitive personal material likely to be contained in the typical file or in the fact that a [p]ermit has been approved." Characterizing plaintiff's interest in disclosure as "a generalized interest in whether the gun control laws [had been] properly administered in Mount Laurel," the court concluded that plaintiff's interest was outweighed by the State's interest in obtaining candid responses from the applicants and their character references, in preventing an...