New Jersey's Common Law Right To Know and OPRA - What Public Officials Must Know About the Public's Right To Documents

New Jersey – Municipal Liability

In order to run a governmental entity, public officials must understand the rights of the public to documents. The public's right to documents stems from both common law and statute. An important case entitled Paff v. City of Brigantine, Docket No. ATL-L-5038-10 provides public officials much needed guidance on what documents may be deemed privileged and what documents the public will have access to under either common law or statute.

Prior to the enactment of the Open Public Records Act (OPRA), N.J.S.A., 47:1A-1, et seq., New Jersey courts had a long-standing commitment to ensuring the public's right to access to records generated by people in government. In enacting the Open Public Meetings Act, N.J.S.A. 10:4-7, the Legislature announced, "Secrecy in public affairs undermines the faith of the public in government and the public's effectiveness in fulfilling its role in a Democratic society." However, the courts have recognized that the privacy rights of individuals must be balanced with the public interests right to the information.

With that legal backdrop, in Paff v. City of Brigantine, John Paff, a member of the Libertarian Party and an individual who seeks documents from public entities around the state, filed a lawsuit seeking a 15-page report written by an attorney hired by the City of Brigantine to investigate allegations that the former Chief of Police James Frugoli sexually harassed a female employee. Mr. Paff sought the document based on both the OPRA and the common law right to know.

In early 2010, the City of Brigantine learned of sexual harassment allegations against the Chief of Police, who had earlier announced his retirement (however, he was contemplating pushing back his retirement date). The City retained the services of an outside attorney to conduct an investigation to determine whether sexual harassment had occurred by the Chief upon the female employee. On March 22, 2010, a 15-page report detailing the investigation and her findings was produced to the City. The report concluded that there was a violation of the Brigantine Police Department Policy on Harassment in the Workplace.

The court held that the 15-page report was not a government record pursuant to N.J.S.A. 47:1A-1.1, which defines documents that are not government records as including any information generated by or on behalf of public employers or public employees in connection with any sexual harassment complaint filed with the public employer or with any grievance filed by or against an individual. Thus, the court correctly held that the sexual harassment report was exempt from production pursuant to the OPRA.

This, however, did not end the court's analysis. The court then had to determine if OPRA replaced the common law right to know. The court began this analysis looking to OPRA and legislative intent in enacting OPRA. The court found that in enacting OPRA, the Legislature made it clear that it did not want to supplant or replace the common law right to know. Thus, the common law right to know mandated that the document must be produced.

Judge Nelson, however, found that a balancing test must be performed. "Only in those circumstances where otherwise the public interests would be clearly endangered or the personal privacy or guaranteed rights of individuals would be clearly in danger of unwarranted invasion" should documents not be produced under the common law right to know.

Based on all of the above, the court found that the public had a right to the document under the common law. However, the court also held that the victim had a right to privacy. Thus, the court found that redaction of the victim's name would preserve his/her right to privacy and ordered the production of the redacted document. The court even went further and redacted the document itself and then forwarded the document to plaintiff's counsel directly.

In moving forward, public officials must realize that New Jersey's history in the public's right to documents is paramount. Public officials must not only review OPRA, but they must thereafter review case law as to the common law to determine if a document request from the public must be honored or whether an exception may exist.

*Matt is a shareholder who works in our Cherry Hill, New Jersey, office. He can be reached at 856.414.6048 or mjbehr@mdwcg.com.

Defense Digest, Vol. 17, No. 2, June 2011