Non-Disclosure Affirmed

The New Jersey Supreme Court has held that the public records act does not apply to the County Prosecutors Association

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…

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.

The court here affirmed the lower court.

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.

Justice Norriega joined the dissent. (Mike Frisch)