Presented by the Public Entity & Civil Rights Litigation Practice Group

County Prosecutors Association of New Jersey Not a Public Entity and Not Subject to the Open Public Records Act

The plaintiff, the American Civil Liberties Union of New Jersey (ACLU), served the County Prosecutors Association of New Jersey (CPANJ) with a request to produce documents pursuant to the Open Public Records Act (OPRA). The CPANJ responded that it was not a public agency and, therefore, not subject to the dictates of OPRA. The ACLU filed an action to declare that CPANJ is a public entity and, consequently, had to respond to the OPRA request. The trial judge granted CPANJ’s motion to dismiss for failure to state a claim, holding that CPANJ was not a public agency under OPRA and not subject to the common law right of access. The ACLU appealed. The Appellate Division affirmed the decision (A-2572-20).

In support of its motion to dismiss, CPANJ described itself as a non-profit society organized pursuant to Section 501(c)(6) of the Internal Revenue Code, which covers business leagues. It is a private association comprised of 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 cooperation of all law enforcement agencies. The goals are not binding upon any of its members, and the organization does not assume the responsibilities of any member’s individual duties. It also does not fulfill a purpose or perform the duties of the prosecutors’ offices and membership is not required.

The court accepted these arguments and found that the CPANJ was not a political subdivision subject to the OPRA. The counties did not directly create CPANJ, distinguishing this from Fair Share Hous. Ctr., Inc. v. New Jersey State League of Municipalities, 207 N.J. 489 (2011), which found that the League was an instrumentality created by a combination of political subdivisions and, thus, a public entity subject to the OPRA. Moreover, the court found that county prosecutors’ law enforcement functions are independent of the counties they operate in and it cannot be assumed that the counties played any role in creating CPANJ. Moreover, CPANJ was not created pursuant to any state law. 

Please do not hesitate to contact me with any questions concerning this case or other issues that pertain to OPRA or the common law right of access. 

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