The opinion of the Court was delivered by O'HERN, J.
In this case we are called upon to balance the citizen's right of access to official information with the government's need for confidentiality in the conduct of law-enforcement investigations. Here, the citizen seeks access to what is described as an Attorney General's audit of the confidential account of the Monmouth County Prosecutor. Such accounts are designed to enable a prosecutor to conduct undercover operations, reward informers, and perform other sensitive law-enforcement functions.
The plaintiff is a practicing attorney of Monmouth County. He had sought information from the Monmouth County Board of Freeholders with respect to disbursements made under the county prosecutor's confidential account and his petty-cash and confiscated-monies accounts. He learned that the Attorney General had conducted a review of the matters. He requested a copy of what is referred to as an audit of the account. The Attorney General declined to turn over the material on the ground that it was a confidential internal investigation, privileged from disclosure. The plaintiff brought suit in the Superior Court under the State's Right to Know Law, N.J.S.A. 47:1A-1 to -4, asserting that the document was a public record "required by law to be made, maintained or kept on file." N.J.S.A. 47:1A-2. Under the Right to Know Law, any citizen, without any showing of personal or particular interest, has an unqualified right to inspect such documents if they are, in fact, such public records. Irval Realty Inc. v. Board of Pub. Util. Comm'rs, 61 N.J. 366, 372-73 (1972).
The Attorney General moved to dismiss the plaintiff's complaint on the ground that the record of the confidential investigation of the accounts of the Monmouth County Prosecutor's
On appeal, the Appellate Division, in an unreported opinion, affirmed the trial court's ruling that the document or documents were not public records required by law to be made, maintained, or kept on file under the Right to Know Law. It reversed the judgment of the trial court, however, with respect to plaintiff's common-law interest in obtaining access to the materials. In view of the fact that plaintiff alleged a common-law right of inspection that was not clearly asserted in the trial court, the Appellate Division concluded that the claim should be first decided by the trial judge. It remanded the matter to that court to determine
The question of whether these records are public records at common law has been amply covered in prior decisions. See Nero v. Hyland, 76 N.J. 213, 221-22 (1978) (written memorials "made by public officers in the exercise of public functions" are common-law public records even though they may not be public records under Right to Know Law); Irval Realty, supra, 61 N.J. at 375 (records prepared by State agency are public records at common law even if they are not required by law and
We granted the Attorney General's petition to review whether the Appellate Division opinion calls for an automatic in camera review at the request of any claimant alleging citizen status, no matter how confidential the material. 101 N.J. 253 (1985). We think not, especially in view of the fact that, on a motion for rehearing, the Appellate Division clarified its decision, observing that the trial court "did not decide whether the documents were public records at common law and whether plaintiff has standing. Therefore, unless the trial judge answers these questions affirmatively there will be no in camera inspection." In view of the concerns expressed, we granted leave as well to the County Prosecutors' Association to be heard as amicus curiae.
In McClain v. College Hosp., 99 N.J. 346 (1985), we recently reviewed the citizen's common-law right to gain access to public records. There, we dealt with a patient's right of access to confidential investigative records relating to a licensing board's inquiry into a professional's acts. We described the balancing process that courts must make as being "concretely focused upon the relative interests of the parties in relation to these specific materials." Id. at 361. We also described the process as 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. We summarized it thus:
We believe that similar principles apply in this context. Nero v. Hyland, supra, 76 N.J. 213, does not, as asserted by the
Most of the cases that have discussed the standard for assessing the citizen's interest in access to confidential information have arisen in the context of a private need. See, e.g., Cashen v. Spann, 77 N.J. 138, 142 (1978) (quoting State v. Oliver, 50 N.J. 39, 47 (1967)) ("substantial showing of a need" for disclosure of informer's name required in civil action); River Edge Sav. and Loan Ass'n v. Hyland, 165 N.J.Super. 540, 544-45 (App. Div.), certif. denied, 81 N.J. 58 (1979) (no "compelling need" shown by plaintiff sufficient to outweigh possible harm of disclosure). Somewhat different but related considerations arise when the citizen seeks access to information to further a public good.
Ordinarily, only an assertion of citizen or taxpayer status is necessary for production of common-law records, subject to a showing of good faith. Justice (then Judge) Jacobs, sitting in the Appellate Division in Taxpayers Ass'n of Cape May v. City of Cape May, 2 N.J.Super. 27 (1949), after canvassing the common-law precedent, phrased the required showing of citizen need to examine tax records thus:
Thus, if the governmental need in confidentiality is slight or non-existent, citizen-taxpayer status will ordinarily warrant that the matters be disclosed. On the other hand, when the public interest in confidentiality is greater, the citizen's right of access is qualified.
In Casey v. MacPhail, 2 N.J.Super. 619 (Law Div. 1949), Justice Brennan, then a Superior Court judge, after reviewing Justice Jacobs' discussion of the question, allowed the voting lists of the City of Jersey City to be turned over to plaintiff in his capacity as a candidate for public office, since he had a legitimate interest in ascertaining that only those who legitimately have a right to vote in the municipal election should, in fact, vote. There was nothing to show that his interest was improper. Id. at 623-24. On the other hand, as to his application to have the information turned over to the police department of the City of Jersey City for investigation — a matter for which the Legislature had specified the circumstances and situations under which the list should be investigated — he concluded that it would not be proper to turn the materials over. Id. at 624-25. See also Red Bank Register, Inc. v. Board of Ed., 206 N.J.Super. 1 (App.Div. 1985) (news agency may have right of access to factual data in reports but further balancing required to disclose evaluative material); Moore v. Board of Freeholders, 76 N.J.Super. 396, 406-07 (App.Div.), modified, 39 N.J. 26 (1962) (plaintiffs had sufficient status to inspect and copy general public records of county, but not confidential records of the prosecutor's office).
From the standards and cases outlined above we derive that when reasons for maintaining a high degree of confidentiality in the public records are present, even when the citizen asserts a public interest in the information, more than
In evaluating the need for confidentiality of the records, we can inform our common-law principles by drawing upon concepts that have gained acceptance among the many jurisdictions that have codified the substantive standards governing disclosure of public records in comprehensive freedom-of-information acts. We refer to such codes only for the guidance they provide. McClain, supra, 99 N.J. at 356.
The most analogous provision usually contained in freedom-of-information acts is the exemption for law-enforcement and investigatory information. The federal Freedom of Information Act (FOIA), 5 U.S.C. § 552, contains the most frequently-referenced provision. The FOIA exemption is far from absolute; as a result of a 1974 amendment, it now covers
A second commonly-found exemption is similar to the privilege claimed here. It is the usual exception for inter- or intra-agency memoranda. See, e.g., 5 U.S.C. § 552(b)(5). This exception furthers the free and candid exchange of ideas and opinions between and within government agencies. See EPA v. Mink, 410 U.S. 73, 87-88, 93 S.Ct. 827, 836, 35 L.Ed.2d 119,
A third ground for exempting the material from disclosure is the general, common-law, qualified privilege, variously referred to as the "official information," "governmental," or "executive" privilege. Martinelli v. District Court, 199 Colo. 163, 612 P.2d 1083, 1088 (1980) (en banc) (citing Comment, "Discovery of Government Documents and the Official Information Privilege," 76 Colum.L.Rev. 142 (1976)). The privilege is expressed in our Rules and Code of Evidence. See Evid.R. 34; N.J.S.A. 2A:84A-27 (disclosure of "official information" of the State precluded if found "harmful to the interests of the public").
A final source of guidance is the nascent privilege of self-examination or self-critical analysis. A familiar example is a police department's investigation of a mishap in which one of its officers was involved. The Attorney General's investigation partakes of such a nature. The growing acceptance of this privilege among courts is a recognition that the public interest is furthered by the promotion of internal efforts to analyze problems and correct deficiencies. Note, "The Privilege of Self-Critical Analysis," 96 Harv.L.Rev. 1083, 1099-1100 (1983); see also Wylie v. Mills, 195 N.J.Super. 332, 337-38 (Law Div. 1984) (privilege prevents disclosure of confidential self-evaluative materials when public interest in promoting such materials outweighs individual's need for disclosure).
Each of these privileges concerning access to investigatory material is premised upon the government's need to conduct such affairs with skill, with sensitivity to the privacy interests involved, and in an atmosphere of confidentiality that encourages the utmost candor. That need is made explicit in N.J. Executive Order No. 48 (1968), reprinted in 1968 N.J. Laws 1718-19, directing that State Police investigative files or their contents are not to be turned over or divulged, absent court or executive order, so that the vital public interest in, among other things, the success of criminal prosecutions and
Determining, then, the appropriate balance of public and private interests calls for an "exquisite weighing process by the trial judge." Beck v. Bluestein, 194 N.J.Super. 247, 263 (App. Div. 1984). Given the legislative determination that such confidential accounts would ordinarily be subjected only to the scrutiny of the Attorney General, a judge must be convinced of a clear showing of advancement of the public interest to warrant disclosure.
A dilemma faces a court seeking to perform this delicate weighing process in the sensitive area of executive privilege if it calls for an immediate in camera review of the documents. That act alone may jeopardize the legitimate interests of the government, or of the parties sought to be protected by the privilege, in the confidentiality of the withheld documents. Cf. Stein v. Department of Justice & FBI, 662 F.2d 1245, 1255-56 (7th Cir.1981) (in camera inspection of confidential documents should not be employed automatically). Some of the information
For good or ill, society has concluded that, subject to due process of law, undercover police activities involving confidential informants are necessary to counter the organized activities of criminals. Similar needs for encouraging the flow of ideas by keeping the confidences of executive or legislative policy-makers, or protecting the privacy rights of individuals who may be mentioned in certain reports, may necessitate similar results. We therefore agree that a right to automatic in camera inspection is not warranted.
Other jurisdictions have solved the dilemma with a two-step process. When faced with what they call a "blanket" or "generic" claim of exemption, as, for example, the exemption available for records compiled for "law-enforcement" purposes, courts have fashioned a set of procedures that require the agencies making the claim to preliminarily classify, describe, and, in some cases, index the materials. Stein, supra, 662 F.2d at 1253. On the basis of that description the court lays the material against the exemption claimed to determine if the matter can be resolved without an in camera viewing. This procedure was formulated in Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974), from the requirements of EPA v. Mink, supra, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119, which provided
To deal with allegations that documents are exempt, federal courts have concluded, in the words of Vaughn, that they will "simply no longer accept conclusory and generalized allegations of exemptions * * * but will require a relatively detailed analysis in manageable segments." Vaughn v. Rosen, supra, 484 F.2d at 826 (footnote omitted). When faced with a blanket claim of exemption for documents, the federal courts have required specificity, separation, and indexing, the latter to provide manageable parts for judicial disposition. See id. at 827, 827 nn. 21 & 22. Such an analysis need not compromise the secret nature of the information and can ordinarily be composed without excessive reference to the actual language of the document. This two-tiered procedure has enabled federal courts to administer the federal Freedom of Information Act in a workable way. Thus, for example, in Moorefield v. United States Secret Serv., 611 F.2d 1021 (5th Cir.), cert. denied, 449 U.S. 909, 101 S.Ct. 283, 66 L.Ed.2d 139 (1980), with the claimant Moorefield twice convicted for threatening the life of the President,
Recognizing, however, that a detailed Vaughn index may in some cases enable astute parties to divine with great accuracy the names of confidential informers, sources, and the like, the procedure contemplates, in rare cases, an in camera submission of the Vaughn index. See, e.g., Kanter, supra, 433 F. Supp. at 820, 824-25. Jenks described an index appropriate for such a case:
Substantially the same approach was followed by the Michigan Supreme Court, interpreting its state Freedom of Information Act, in evaluating the propriety of a police department's blanket claim of exemption for reports of a homicide investigation. Evening News Ass'n v. City of Troy, 417 Mich. 481, 491-503, 339 N.W.2d 421, 426-32 (1983).
The analysis is similar to that of State v. Doliner, 96 N.J. 236 (1984). There we emphasized that the focus must always be on "the character of the materials sought to be disclosed." Id. at 248. Armed with a qualitative description by the agency, the trial court will be in a position preliminarily to balance the need for confidentiality exhibited by the description of the materials with the citizen's interest in the information and the potential adverse consequences of disclosure. In this determination, the trial court will want to consider whether the demand for inspection is "premised upon a purpose which tends to advance or further a wholesome public interest or a legitimate private interest." City of St. Matthews v. Voice of St. Matthews, Inc., 519 S.W.2d 811, 815 (Ky. 1974).
Therefore, after evaluating the detailed description of the material furnished to it by the Attorney General, and balancing the asserted need for confidentiality gleaned therefrom against the public interest alleged by the plaintiff as well
Finally, as a point of practicality, an agency's interest in the confidentiality of the materials can be preserved pending an appeal by sealing the descriptive index and, if necessary, the documents themselves for purposes of appellate review.
As noted at the outset, we are in the position of having to resolve a dispute between a citizen and another branch of
As modified, the judgment of the Appellate Division is affirmed.
For affirmance — Chief Justice WILENTZ and Justices CLIFFORD, HANDLER, POLLOCK, O'HERN, GARIBALDI and STEIN — 7.
For reversal — None.