Szczech v. Carluccio

665 A.2d 798, 284 N.J. Super. 470, 1995 N.J. Super. LEXIS 485
CourtNew Jersey Superior Court Appellate Division
DecidedMay 17, 1995
StatusPublished

This text of 665 A.2d 798 (Szczech v. Carluccio) 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
Szczech v. Carluccio, 665 A.2d 798, 284 N.J. Super. 470, 1995 N.J. Super. LEXIS 485 (N.J. Ct. App. 1995).

Opinion

SERPENTELLI, A.J.S.C.

This case involves a novel issue concerning citizen access to documents pursuant to the Right to Know Law, N.J.S.A. 47:1A-1 to 4, and the New Jersey common law. Under what circumstances, if any, may a citizen require the county prosecutor to disclose the contents of criminal investigation files?

In May 1993, the Ocean County Prosecutor’s Office was advised of an auditor’s report indicating that proceeds were missing from the operation of a county-owned facility known as the Forge Pond Golf Course (Forge Pond). The Prosecutor was notified that two county employees, Camille Musto and Joseph Juliano, had been confronted with the audit findings. He was told that they were under investigation and had been suspended. Musto was the cashier at Forge Pond. Juliano was the manager of county golf operations.

On January 4, 1994, Musto entered a not guilty plea to an accusation charging her with the theft of $7,500. She applied for enrollment in the Pretrial Intervention Program (PTI) pursuant to R. 3:28. She resigned her position, waived all rights and entitlements of her employment and agreed to make full restitution.

Musto was admitted to PTI on February 22 for a three-year term. An order of postponement was signed by this court. She remains in PTI to this date. If she successfully completes the program, the charges against her will be dismissed on February 22, 1997.

[474]*474The Prosecutor’s investigation apparently failed to develop sufficient evidence against Juliano to support criminal charges. However, Juliano’s attorney offered to have his client resign his position, relinquish any employee benefits and make a payment of $20,000 for losses suffered by the county. The proposal was accepted and no criminal charges were brought against Juliano.

On January 4, 1994, the Prosecutor and a Freeholder held a joint news conference regarding the Forge Pond investigation. Both made public statements as to the results. The conference was widely reported in the media. On September 16, over nine months after the outcome of the investigation was revealed, plaintiff Szczech sought to review the Prosecutor’s files concerning the probe. Plaintiff Goldberg subsequently made a similar request. Neither sought a specific document but, rather, wanted the unlimited opportunity to review all files.

When access was denied, plaintiffs filed a complaint on October 11, “individually and as Democratic Candidates for Ocean County Freeholder.” An amended complaint was filed on October 13, followed by a second amended complaint on October 24 which joined Musto and Juliano as additional defendants.

As noted, plaintiffs’ action originally sought relief under both statutory and common law. At oral argument, plaintiffs’ counsel admitted that there was no statutory provision requiring production of the documents. This concession is important in light of the differing relief afforded under statutory and common law. N.J.S.A. 47:lA-2 provides:

[A]U records which are required by lau> to be made, maintained or kept on file by any board, body, agency, department, commission or official of the State or of any political subdivision thereof ... shall, for the purposes of this act, be deemed to be public records____ (emphasis added)

Thus, the statute gives a citizen, without showing a personal particular interest, an unqualified right to inspect public documents if they are, in fact, documents required by law to be made, maintained or kept on file. Techniscan v. Passaic Valley Water, 113 N.J. 233, 236, 549 A.2d 1249 (1988).

[475]*475By contrast, under the common law, a citizen’s right to examine public documents rests upon a showing of some personal or particular interest in the material sought. Irual Realty, Inc. v. Board of Pub. Util Comm’rs, 61 N.J. 366, 372, 294 A.2d 425 (1972). However, even the existence of such an interest does not give an absolute right to obtain the documents. Rather, the court must engage in a balancing test to determine whether the individual’s right to the information outweighs the public’s interest in confidentiality of the material. Nero v. Hyland, 76 N.J. 213, 224, 386 A.2d 846 (1978).

The balancing process must be concretely focused upon the relative interests of the parties in relation to the specific information sought. McClain v. College Hosp., 99 N.J. 346, 361, 492 A.2d 991 (1985). 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.

Our Supreme Court has noted that most cases concerning a citizen’s right to inspect documents have arisen in the context of a private need. Loigman v. Kimmelman, 102 N.J. 98, 104, 505 A.2d 958 (1986). The Court said that “[s]omewhat different but related considerations arise when the citizen seeks access to information to further a public good.” Ibid. Plaintiffs allege that those considerations are present in this case.

Loigman summarized the basic principles applicable to a request for disclosure of documents based upon a claim that the public would benefit. It held that, ordinarily, only an assertion of citizen status is necessary for the production of common law records, subject to a showing of good faith. Ibid. When the governmental need in confidentiality is slight or nonexistent, citizen status will ordinarily warrant disclosure. Id. at 105, 505 A.2d 958 (citing Taxpayers Ass’n of Cape May v. City of Cape May, 2 N.J.Super. 27, 31, 64 A.2d 453 (App.Div.1949)). However, when the interest in confidentiality is great, the right of access must be qualified. In those circumstances, more than citizen status and [476]*476good faith are necessary to require production of documents. Loigman stressed that a clear showing of a public need does not exist merely because it is claimed that there may be something corrupt which should be exposed for public benefit. The court must be mindful of any negative effect that disclosure may have upon the public good. Id. at 108, 505 A.2d 958.

Therefore, determining the appropriate balance between public and private interests calls for an “exquisite weighing process by the trial judge.” Beck v. Bluestein, 194 N.J.Super. 247, 263, 476 A.2d 842 (App.Div.1984). A judge must be convinced that disclosing the record will advance a public interest.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Beck v. Bluestein
476 A.2d 842 (New Jersey Superior Court App Division, 1984)
Nero v. Hyland
386 A.2d 846 (Supreme Court of New Jersey, 1978)
McClain v. College Hospital
492 A.2d 991 (Supreme Court of New Jersey, 1985)
Techniscan Corp. v. Passaic Valley Water Commission
549 A.2d 1249 (Supreme Court of New Jersey, 1988)
Irval Realty Inc. v. Board of Public Utility Commissioners
294 A.2d 425 (Supreme Court of New Jersey, 1972)
Loigman v. Kimmelman
505 A.2d 958 (Supreme Court of New Jersey, 1986)
Taxpayers Association v. City of Cape May
64 A.2d 453 (New Jersey Superior Court App Division, 1949)

Cite This Page — Counsel Stack

Bluebook (online)
665 A.2d 798, 284 N.J. Super. 470, 1995 N.J. Super. LEXIS 485, Counsel Stack Legal Research, https://law.counselstack.com/opinion/szczech-v-carluccio-njsuperctappdiv-1995.