Higg-A-Rella, Inc. v. County of Essex

628 A.2d 392, 265 N.J. Super. 616, 1993 N.J. Super. LEXIS 688
CourtNew Jersey Superior Court Appellate Division
DecidedMarch 31, 1993
StatusPublished
Cited by3 cases

This text of 628 A.2d 392 (Higg-A-Rella, Inc. v. County of Essex) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Higg-A-Rella, Inc. v. County of Essex, 628 A.2d 392, 265 N.J. Super. 616, 1993 N.J. Super. LEXIS 688 (N.J. Ct. App. 1993).

Opinion

OPINION

YANOFF, J.S.C.

t/a (Retired, on recall).

This matter comes before me on reciprocal summary judgment motions. There is no dispute as to the facts, so summary disposition is appropriate. The facts are as follows:

Plaintiff, Higg-a-Rella, Inc.,1 t/a State Information Service, is in the business of providing ready access to real estate tax assessment records. Its clients include real estate brokers and attorneys. It sells this information either in printout form or by modem, which is connected to plaintiffs’ computer. Plaintiffs have obtained this type of material from other counties for what seems to the court a nominal consideration. Plaintiffs bring this action to compel Essex County and defendant municipalities to provide it with a copy of the one-half inch mainframe computer tape on which is entered the real estate tax assessments of each municipality in Essex County, except Newark. The assessor of each [619]*619municipality is required by N.J.S.A. 54:4-35 to “file with the [county board of taxation] his complete assessment list, and a true copy thereof” by January 10 of each year. The Essex County Board of Taxation has contracted with the Essex County College to feed this information into a computer tape. This is used by the municipalities and the County Board.

At oral argument, plaintiffs’ attorney agreed, without concession, as to amount, or item, that reasonable compensation should be paid for the computer tape, and that this exceeded the cost of the tape itself.

The precise issue therefore is whether plaintiffs may compel delivery of the intellectual property which is crystallized in the tape to itself. It is agreed that plaintiffs are entitled to examine and copy all tax lists maintained by each municipality in the County, as well as the County Tax Board, under the Right to Know Act (N.J.S.A. 47:lA-2), and common law regarding public records. This includes the right to have the records photocopied. Moore v. Bd. of Freeholders of Mercer County, 39 N.J. 26, 186 A.2d 676 (1962).

The scope of the Right to Know Act (“RKL”) N.J.S.A. 47:lA-2, recently was examined by the Appellate Division in Shuttleworth v. City of Camden, 258 N.J.Suwper. 573, 610 A.2d 903 (App.Div.1992), a case in which a newspaper sought access to, and review of, police files and an autopsy report. In that case, Judge Stern, for the court, carefully defined rights under RKL and also the common law, writing:

A citizen has a common-law right to inspect public documents if they are public records, if the citizen has requisite interest to inspect the records, and if the interest in disclosure outweighs the need for confidentiality. The definition of “public record” in this context is broader than under the RKL; ...
These materials include almost every document recorded, generated, or produced by public officials, whether or not required by law to be made, maintained or kept on file[.] Ibid. 582-83, 610 A.2d 903. Citations omitted.

With regard to RKL, he continued:

If a document is a “public record” access to it is an absolute right unless a specific exception applies. Techniscan v. Passaic Valley Water, 113 N.J. 233, 236, 549 A.2d [620]*6201249 (1988); McClain v. College Hosp., 99 N.J. 346, 354, 492 A.2d 991 (1985). Unlike the right of access under the common law, “any citizen, without any showing of personal or particular interest, has an unqualified right to inspect public documents if they are, in fact, the statutorily-defined records” under the RKL. At 579, 610 A.2d 903.

Here, plaintiffs seek a tangible copy of the computer tape, although the information in it is available. No statute, ordinance or other mandate requires that the tape be made or maintained. It was created solely for the convenience of the municipalities. Clearly, relief cannot be granted under RKL.

The opinion in Shuttleworth continues:

The real issue before us, therefore, is only whether the public’s interest in disclosure outweighs the government’s need for confidentiality. In deciding that issue we must note that:
... the citizen’s common-law right to gain access to ... public records requires a balancing of interests. McClain v. College Hosp., 99 N.J. 346, 492 A.2d 991 (1985). “The balancing process must be concretely focused upon the relative interests of the parties in relation to these specific materials.” Id. at 361, 492 A.2d 991. The process should be “flexible and adaptable to different circumstances and sensitive to the fact that the requirements of confidentiality are greater in some situations than in others. Id. at 362, 492 A.2d 991. Techniscan v. Passaic Valley Water, supra, 113 N.J. at 236, 549 A.2d 1249. Id, at 584, 610 A.2d 903.

After analysis of the decisions in which the “balancing” required by common law is applied, it becomes apparent that categories have developed in which the public interest in obtaining the sought material is such that, unless strong countervailing considerations develop, disclosure is usually required. There are also categories in which the plaintiffs’ interest is personal, rather than public, in which disclosure usually is not required. Plaintiffs fall in the latter class, and I therefore rule jri favor of defendants.

In the favored category is the media, such as newspapers and television, because they perform an important component of our political process.2 Shuttleworth is such a case. It held that, [621]*621applying criteria pertinent to criminal investigations, the newspaper was entitled to some, but not all, of the material sought, and that the trial judge conduct an in camera review of the remaining material to determine what was to be furnished the newspaper.

Other cases cited by plaintiffs fall in that category. Asbury Park Press v. Dept. of Health, 233 N.J.Super. 375, 558 A.2d 1363 (App.Div.1989), cert. den. 117 N.J. 646, 569 A.2d 1344 (1989)— Department of Health statistics on spread sheet. United States v. Mitchell, 551 F.2d 1252 (D.C.Cir.1976); rev. sub nom Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.

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Related

Higg-A-Rella, Inc. v. County of Essex
660 A.2d 1163 (Supreme Court of New Jersey, 1995)
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637 A.2d 1261 (Supreme Court of New Jersey, 1994)

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Bluebook (online)
628 A.2d 392, 265 N.J. Super. 616, 1993 N.J. Super. LEXIS 688, Counsel Stack Legal Research, https://law.counselstack.com/opinion/higg-a-rella-inc-v-county-of-essex-njsuperctappdiv-1993.