The opinion of the Court was delivered by STEIN, J.
The issue before us is whether the public's right to know, as embodied in our common law, in the Right to Know Law, N.J.S.A. 47:1A-1 to -4, and in the Open Public Meetings Act, N.J.S.A. 10:4-6 to -21, requires the disclosure of the minutes and related documents of a governmental meeting properly held in executive session once the matter under discussion has been resolved fully.
South Jersey Publishing Company (the Press) sought disclosure of the minutes and a related Memorandum of Understanding (Memorandum) reached at an executive-session meeting of the New Jersey Expressway Authority (Authority) concerning
The facts of the case are undisputed. Donald B. Vass was Executive Director of the Authority from 1985 until March 16, 1989. During Vass's tenure, the Press published a series of articles reporting on Vass's allegedly improper conduct in his position as Executive Director. Prompted by the Press reports, the Authority conducted an investigation of the use of Authority credit cards by several of its employees, including Vass.
In January 1989, the Authority notified the affected employees about the investigation, informing them that a special meeting regarding the investigation would be held on January 27, 1989, and that the meeting would take place in executive session because it pertained to a personnel matter. See N.J.S.A. 10:4-12(b)(8). It further informed them of their right to request that the discussion take place in public. See ibid.
On January 26, 1989, Vass's attorney requested in writing that the discussion "be handled as any normal personnel matter would be in Executive Session." By consent of Vass and the Authority, the January 27th meeting was postponed and the matter scheduled for discussion at the regular Authority meeting on February 16, 1989. The Authority adopted a resolution in open session on that date authorizing the Commissioners to meet in executive session to discuss personnel matters involving
In early March, the parties negotiated the Memorandum, which set forth the terms and conditions of Vass's resignation. At the next regular meeting of the Authority on March 16, 1989, the Commissioners adopted a resolution in open session authorizing a second executive-session meeting concerning Vass's personnel matter, containing a disclosure provision identical to that set forth in the February 16th resolution. The Authority reviewed the Memorandum in executive session and subsequently adopted a resolution in open session authorizing the Authority to agree to its terms. The resolution described the following economic terms of the parties' agreement: (1) full salary to Vass through December 31, 1989; (2) pension, health- and life-insurance, and other relevant group-benefit coverage through December 31, 1989; and (3) compensation for all unused vacation and sick time accrued through March 16, 1989. By agreement between Vass and the Authority, the Memorandum was to remain a confidential part of Vass's personnel file. The resolution further provided that
In both the resolution and a public statement issued the same day, the Authority referred to its investigation of Vass's use of an Authority credit card for personal purposes and its belief that the "investigation and other related matters [had] diminished Mr. Vass's ability to manage the affairs of the Authority in the future." The public statement also indicated that the Attorney General had reviewed the matter and had found no criminal intent or action by Vass.
In April 1989, the Press commenced litigation against the Authority, four of its Commissioners, and Vass, seeking to compel the Authority to disclose the Memorandum and executive-session minutes pertaining to Vass's termination of employment and to void the Authority's agreement with Vass. The Press moved for summary judgment, contending that it was entitled to the documents pursuant to the Right to Know Law and the common law. The Authority and Vass cross-moved for summary judgment, claiming that the executive-session exception to the Open Public Meetings Act, N.J.S.A. 10:4-12(b), exempted the documents from disclosure requirements.
In granting the cross-motions for summary judgment, the trial court concluded that the personnel exception to the Open Public Meetings Act, N.J.S.A. 10:4-12(b)(8), was an implicit exception to the Right to Know Law's disclosure requirements. See N.J.S.A. 47:1A-2. The court then held that the Authority did not have to disclose the Memorandum and executive-session minutes, reasoning that to do so would circumvent the purpose of meeting in closed session. It did, however, limit its holding to disclosure at that time, noting that there may be circumstances warranting disclosure in the future. In an unpublished opinion, the Appellate Division affirmed substantially for the reasons expressed in the trial court's opinion, adding only that the nondisclosure could continue indefinitely.
New Jersey has a history of commitment to public participation in government and to the corresponding need for an
Under the common law, the threshold condition for access to public records is that a citizen establish an interest in the subject matter of the material he or she is seeking. Irval Realty, Inc. v. Board of Pub. Util. Comm'rs, 61 N.J. 366, 372, 294 A.2d 425 (1972). The interest does not have to be purely personal, but rather "[a]s one citizen or taxpayer out of many, concerned with a public problem or issue, he might demand and be accorded access to public records bearing upon the problem, even though his individual interest may [be] slight." Ibid. For example, a newspaper's interest in "`keep[ing] a watchful eye on the workings of public agencies'" is sufficient to accord standing under the common law. Red Bank Register v. Board of Educ., 206 N.J.Super. 1, 9, 501 A.2d 985 (App.Div. 1985) (quoting Nixon v. Warner Communications, Inc., 435 U.S. 589, 598, 98 S.Ct. 1306, 1312, 55 L.Ed.2d 570, 579-80 (1978)).
After a court determines that a plaintiff has standing to assert a right to inspect and examine governmental documents, it must determine if the records sought are "public records." Under the common law, a "public record" is
The common-law right of access to public records is not absolute, however. See Beck v. Bluestein, 194 N.J.Super. 247, 260, 476 A.2d 842 (App.Div. 1984). Rather, after determining that a plaintiff has standing and the documents sought are public records, a court must balance the plaintiff's interest in the information against the public interest in confidentiality of the documents, including a consideration of 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.'" Loigman v. Kimmelman, 102 N.J. 98, 112, 505 A.2d 958 (1986) (quoting City of St. Matthews v. Voice of St. Matthews, Inc., 519 S.W.2d 811, 815 (Ky. 1974)). In Loigman, we suggested several factors a court may consider in performing its balancing:
As we noted, the court should balance "[a]gainst these and any other relevant factors * * * the importance of the information sought to the plaintiff's vindication of the public interest." Ibid.; see also Philadelphia Newspapers v. State Dep't of Law & Public Safety, 232 N.J.Super. 458, 557 A.2d 688 (App.Div. 1989) (court followed Loigman approach and found commonlaw public records subject to disclosure).
In its balancing, a court may find it necessary to compel production of the sought-after records and conduct an in camera review thereof. It may, indeed, decide that to release the records in a redacted form, editing out any privileged or confidential
In 1963, the Legislature supplemented the public's right of access to public records by enacting the Right to Know Law, N.J.S.A. 47:1A-1 to 47:1A-4, declaring the public policy of the State to be "that public records shall be readily accessible for examination by the citizens of this State, with certain exceptions, for the protection of the public interest." N.J.S.A. 47:1A-1. Although the Legislature did not curtail or affect the common-law right to inspect and examine public records, Irval Realty, supra, 61 N.J. at 373, 294 A.2d 425, it did eliminate the standing requirement for access; under the Right to Know Law, one need only be a citizen of the State to obtain access to public records. See N.J.S.A. 47:1A-2. Thus, the threshold issue in a Right-to-Know action is not standing but whether the record sought is a "public record."
The range of public records available under the Right to Know Law is narrower than under the common law. Specifically, the law defines a "public record" as follows:
In any event, the common-law and statutory rights are not mutually exclusive. The two complement each other, together embodying the State's strong commitment to access to public records. See Irval Realty, supra, 61 N.J. at 373, 294 A.2d 425
The State also evidenced its commitment to public participation in government in the Legislature's enactment of the Open Public Meetings Act in 1960. N.J.S.A. 10:4-1 to -5 (repealed by L. 1975, c. 231, § 17). (At the time, it was known as the "Right to Know Act".) Although the Act established the right of the public to attend any meeting of a public body at which "official action" was taken, see N.J.S.A. 10:4-2 (repealed by L. 1975, c. 231, § 17), information about governmental deliberations was limited as only the official vote, not the discussion leading thereto, was required to be conducted in public. See N.J.S.A. 10:4-3 (repealed by L. 1975, c. 231, § 17). In substantially amending the law in 1975, N.J.S.A. 10:4-6 to -21, the Legislature strengthened the public's right to attend meetings of public bodies by requiring that "all meetings * * * be open to the public at all times". N.J.S.A. 10:4-12(a). The Act permits executive sessions only for meetings concerning specifically-enumerated subjects of discussion, N.J.S.A. 10:4-12(b), the public discussion of which would endanger the public interest or cause an unwarranted invasion of personal privacy or other individual rights. N.J.S.A. 10:4-7; see also 10:4-12(b) (list of subjects for which executive session is authorized). Before the public is excluded from such a meeting, the public body must adopt a resolution at a public meeting stating generally the subject to be discussed and, "as precisely as possible, the time when and the circumstances under which the discussion conducted in closed session of the public body can be disclosed to the public." N.J.S.A. 10:4-13. The specific provision at issue involves the exception for
In the 1975 amendments, the Legislature included a statement of purpose in the body of the Act:
Significantly, to effect the enumerated policy behind the Act, the 1975 amendments to the Open Public Meetings Act require that all public bodies keep "reasonably comprehensible minutes of all [their] meetings * * * which shall be promptly available to the public to the extent that making such matters public shall not be inconsistent with [N.J.S.A. 10:4-12]." N.J.S.A. 10:4-14. Thus, the Legislature contemplated that the minutes of all meetings, including executive-session meetings, would be disclosed eventually unless their release otherwise would conflict with the legislative purpose in authorizing the executive-session meeting. Ibid.
As we observed in Polillo v. Deane, 74 N.J. 562, 379 A.2d 211 (1977), "[t]he current `Open Public Meetings Act' is in keeping with a strong tradition both in this State and in the nation favoring public involvement in almost every aspect of government." Id. at 569, 379 A.2d 211. As James Madison wrote:
Further, governmental secrecy
We must first examine the Authority's purpose for convening a closed meeting to discuss Vass's personnel matter, taking into consideration the principle that any exception to full disclosure under the Open Public Meetings Act should be strictly construed. Rice v. Union County Regional High School Teachers Ass'n, 155 N.J.Super. 64, 70, 382 A.2d 386 (App.Div. 1977), certif. denied, 76 N.J. 238, 386 A.2d 863 (1978); cf. Foudy v. Amherst-Pelham Regional School Comm., 402 Mass. 179, 521 N.E.2d 391 (1988) (once purpose for closed meeting is terminated, minutes must be released to public). The Authority contends that it met in executive session to encourage a frank and open discussion of all issues relating to Vass's employment and that to disclose the minutes at any time would have a chilling effect on such discussions in the future. Vass argues that an additional purpose of the closed meetings was to safeguard his privacy rights and that release of the minutes would invade such rights. Both respondents claim that treating the minutes of the executive session and the Memorandum as confidential is an extension of an employee's right to have personnel matters discussed in executive session. See N.J.S.A. 10:4-12(b)(8).
The Act specifically requires, however, that the public maintain "reasonably comprehensible minutes" of all meetings including executive sessions to be "promptly available" to the public unless inconsistent with the provisions of the Act authorizing the public body to meet in executive session. N.J.S.A. 10:4-14. The Legislature thereby expressed its strong policy favoring adequate disclosure of all actions taken by public bodies, whether at public meetings or executive sessions.
Contrary to respondent's contentions, we find no inconsistency between the exemption allowing personnel matters to be discussed and debated in executive session and the Act's mandate that adequate minutes of all meetings be available to the public. The minutes are intended to recite and disclose any official decision or action taken by a public body, and necessarily must contain sufficient facts and information to permit the public to understand and appraise the reasonableness of the public body's determination. The purpose of the personnel exemption is to facilitate the process by which the public body
The salutary purposes for allowing confidential discussion are neither inconsistent nor in conflict with the strong public policy requiring comprehensible disclosure of the actions taken by public bodies. To the extent a cognizable privacy interest may be compromised by the required disclosure, the extent of disclosure may be modified appropriately, see Trenton Times Corp. v. Board of Educ., 138 N.J.Super. 357, 363, 351 A.2d 30 (App.Div. 1976), provided the public interest is not subverted. Especially when the issue concerns the conduct of a public official that potentially affects the expenditure of public funds — in this case, continued salary and benefits for more than nine months following Vass's resignation — the public body cannot withhold permanently the minutes from disclosure and the employee cannot require it to do so. The compelling public interest in favor of informing the public of the basis for governmental decision making mandates disclosure. Cf. Loigman v. Kimmelman, supra, 102 N.J. at 112, 505 A.2d 958 (under common-law right to disclosure, court "consider[s] whether the demand for inspection is `premised upon a purpose which tends to advance or further a wholesome public interest.'") (quoting City of St. Matthews v. Voice of St. Matthews, Inc., supra, 519 S.W.2d at 815 (citation omitted)). Stated simply, that public interest is in access to sufficient information
Our analysis of the purpose of the Open Public Meetings Act personnel exemption demonstrates that disclosure of the executive-session minutes is also required under the Right to Know Law. As the Open Public Meetings Act requires public bodies to keep minutes of their meetings, N.J.S.A. 10:4-14, the minutes are "public records" as defined by the Right to Know Law. See N.J.S.A. 47:1A-2. Respondents argue, however, that even if the minutes are Right to Know Law "public records," they are exempted from disclosure by the Open Public Meetings Act personnel exception, N.J.S.A. 10:4-12(b)(8). As we concluded, however, the Open Public Meetings Act does not absolutely prohibit the release of executive-session minutes, and we find no conflict between their release and the authorization that personnel matters be discussed in executive session. See ibid. Thus, the Open Public Meetings Act personnel exception does not excuse the Authority from disclosing the minutes of the executive sessions under the Right to Know Law. See N.J.S.A. 47:1A-2.
Respondents further contend that Executive Order No. 11 (Nov. 15, 1974) requires that the minutes be treated as confidential and thus exempts them from disclosure under the Right to Know Law. We note initially that respondents' reliance on that Executive Order would not relieve the Authority from its obligation to disclose the minutes under the Open Public Meetings Act. Moreover, Executive Order No. 11 replaced Executive Order No. 9 (Oct. 1, 1963), which had banned disclosure of any personnel records kept by a state or local government agency. Although Executive Order No. 11 maintains a general ban on release of personnel records, it authorizes specific disclosure of
Although the Open Public Meetings Act specifically entitles the public to attend governmental meetings and obtain the minutes of such meetings, it neither precludes nor authorizes the disclosure of related documents. Thus, we must look to right-to-know principles to determine whether the Authority must provide the Press with a copy of the Memorandum.
The parties describe the Memorandum as a "working document" containing the terms and conditions of Vass's termination of employment to which the parties agreed in executive session. In essence, the Memorandum embodies the results of the Authority's investigation of Vass's alleged improprieties. As the Memorandum was not "required to be kept" by the Open Public Meetings Act or any other law, it does not constitute a Right to Know Law "public record." See N.J.S.A. 47:1A-2.
The Press nevertheless is entitled to disclosure under the common law. First, the Press had a sufficient interest under the common law to request access to public records. See Red Bank Register v. Board of Educ., supra, 206 N.J. Super. at 9, 501 A.2d 985. Because most citizens do not attend public meetings of governmental bodies, the press acts as the eyes and ears of the public. Indeed, the Legislature specifically recognized the press's role in attending public meetings and reporting to the public. See L. 1975, c. 231 Introductory Statement
The press frequently has asserted rights of access to public records, in the public interest, under the common law and the Right to Know Law. See, e.g., Philadelphia Newspapers v. State Dep't of Law & Pub. Safety, supra, 232 N.J.Super. 458, 557 A.2d 688 (flight logs of State-owned helicopters subject to disclosure under Right to Know Law and common law); Red Bank Register v. Board of Educ., supra, 206 N.J.Super. 1, 501 A.2d 985 (school curriculum reports were common-law "public records" subject to Loigman-type balancing); Trenton Times Corp. v. Board of Educ., supra, 138 N.J.Super. 357, 351 A.2d 30 (newspaper's request for disclosure of letter concerning termination of employment of school superintendent denied under Right to Know Law and common law).
In determining whether the Memorandum is a "public record", we consider whether it is a "written memorial made by a public officer authorized to perform that function." See Nero v. Hyland, supra, 76 N.J. at 222, 386 A.2d 846. The record informs us that the Memorandum was an agreement entered into by Vass and the Authority and intended to set forth the precise terms and conditions of Vass's resignation. We have no doubt, in view of its purpose, that the Memorandum constitutes a public record as that term is understood at common law. Cf. Loigman v. Kimmelman, supra, 102 N.J. at 102, 505 A.2d 958 (State's audit of county prosecutor's accounts was common-law public record); Nero v. Hyland, supra, 76 N.J. at 222, 386 A.2d 846
Because we conclude that the Memorandum constitutes a public record, we remand this case to the trial court to balance respondents' interest in confidentiality against the public interest in disclosure of the Memorandum. In balancing those interests, the court will recognize that the public interest in disclosure is intended to enable the public to make a sound judgment about the reasonableness of the Authority's decision regarding Vass, which authorized the expenditure of public funds to continue his salary and benefits for a substantial period of time after his resignation had become effective. Without disclosure of the reasons for Vass's "voluntary separation" from the Authority, the public cannot intelligently make such an evaluation. See Note, supra, 75 Harv.L.Rev. at 1200-01 ("The people must be able to `go beyond and behind' the decisions reached and be apprised of the `pros and cons' involved if they are to make sound judgments on questions of policy and to select their representatives intelligently."). The court will balance that public interest against any competing interests respondents have advanced, including facilitation of public employee investigations and the confidentiality of personal information in an employee's personnel file. We note, however, that the parties' agreement to make the executive-session minutes and Memorandum part of Vass's confidential personnel file should not be determinative; rather, the court must "concretely focus upon the relative interests of the parties in relation to [the] specific materials." McClain v. College Hosp., 99 N.J. 346, 361, 492 A.2d 991 (1985). In any event, if the court determines that disclosure is warranted, then it should conduct an in camera review of the Memorandum and, if necessary, excise any personal information, such as medical and psychological history.
Accordingly, we hold that the Open Public Meetings Act requires disclosure of the minutes of the executive-session meetings leading to Vass's 1989 termination of employment by the Authority, there being no conflict between the requirement that the minutes be disclosed and the purpose for the executive session. The Law Division should conduct an in camera review of the minutes to determine whether they include any confidential or privileged information that should be excised before disclosure.
We further find that the Memorandum of Understanding is a public record under common-law right-to-know principles. We remand the matter to the Law Division to determine if disclosure of the Memorandum is warranted, see Loigman v. Kimmelman, supra, 102 N.J. 98, 505 A.2d 958, and if so, to conduct an in camera review of the Memorandum to ascertain whether redaction is necessary.
The judgment of the Appellate Division is reversed and the cause remanded to the Law Division for proceedings consistent with this opinion.
For reversal and remandment — Chief Justice WILENTZ and Justices CLIFFORD, HANDLER, POLLOCK, O'HERN, GARIBALDI and STEIN — 7.
Opposed — None.