The opinion of the court was delivered by FUENTES, J.A.D.
Plaintiff Courier News moves, under R. 2:5-6(a), for leave to appeal the decision of the Law Division denying its application made pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. Plaintiff seeks access to tape recordings of all 911 calls made on February 14, 2002, in connection with the death of Costas Christofi at the home of Jayson Williams. These recordings are in the custody of defendant Hunterdon County Prosecutor's Office as evidence in the case of State v. Jayson Williams. On March 4, 2003, we granted the motion of the New Jersey Press Association to intervene as amicus curiae. Williams did not participate in the proceedings before the Law Division and did not make an application to intervene here. On March 12, 2003, we heard oral argument on plaintiff's motion. We now grant leave to appeal
In the early morning hours of February 14, 2002, an emergency 911 telephone call was placed from the home of former professional athlete Jayson Williams in connection with the death of Costas Christofi. Immediately thereafter, law enforcement authorities concluded that the death was a homicide and seized the tape recording of the 911 call as evidence in the criminal investigation. On May 1, 2002, a Grand Jury indicted Williams on various criminal charges including aggravated manslaughter, hindering apprehension, tampering with a witness and tampering with evidence.
On July 8, 2002, a Courier News reporter formally requested a copy of the 911 tape from the Hunterdon County Prosecutor's Office. On July 10, 2002, defendant denied the request based on the following reasons:
By letter dated October 22, 2002, counsel for the Courier News again requested from defendant a copy of the 911 tapes. Defendant again denied the request.
On December 18, 2002, plaintiff filed an action in lieu of prerogative writs and an order to show cause with verified complaint seeking access to the 911 tape as a government record under OPRA.
II
On the return date of the order to show cause, the court construed plaintiff's application as one seeking "a mandatory preliminary injunction." Invoking the authority of Crowe v. De Gioia, 90 N.J. 126, 447 A.2d 173 (1982), the court then concluded that plaintiff had not shown irreparable harm because: "Defendants do not take the position that they refuse to release the 911 tapes, but indicated that the tapes will be released very shortly when one of the tapes will be admitted in evidence [in the criminal trial]." The court also found that granting plaintiff's request would alter the status quo.
The court denied plaintiff's application "without prejudice," but indicated that plaintiff retained the right to pursue the relief requested by filing a summary judgment motion under R. 4:69-2.
III
Both plaintiff and amicus curiae intervenor argue that the Law Division judge erred when he failed to apply the procedural mechanism outlined in OPRA. We agree.
Under OPRA,
....
[N.J.S.A. 47:1A-6 (emphasis added).]
This statutory language requires a trial court to proceed under the procedures prescribed in Rule 4:67. R. 4:67-1(a). The action is commenced by order to show cause supported by a verified complaint. R. 4:67-2(a). At the initial hearing, if the court is "satisfied with the sufficiency of the application, [it] shall order defendant to show cause why final judgment should not be rendered for the relief sought." Ibid. The court must try the case at the return date of the order to show "or on such short day as it fixes." R. 4:67-5. The Rule also clearly sets out the procedural framework governing the trial.
[Ibid.]
A summary action is not a summary judgment motion. In a proceeding conducted under R. 4:67-5, a court must make findings of facts, either by adopting the uncontested facts in the pleadings after concluding that there are no genuine issues of fact in dispute, or by conducting an evidentiary hearing. Moreover, a party in a summary action proceeding is not entitled to favorable inferences such as those afforded to the respondent in a summary judgment motion. O'Connell v. New Jersey Mfrs. Ins. Co., 306 N.J.Super. 166, 172, 703 A.2d 360 (App.Div.1997).
IV
We begin our analysis by emphasizing the public policy of this State expressed in OPRA:
[N.J.S.A. 47:1A-1.]
The custodian of the government record has the burden of proving that the denial of access is authorized by law. N.J.S.A. 47:1A-6.
Defendant does not dispute that the 911 tape is a "government record" within the meaning of N.J.S.A. 47:1A-1.1.
N.J.S.A. 47:1A-3a provides:
Thus, as noted by Judge Serpentelli in Asbury Park Press v. Lakewood Twp. Police
Criminal Investigation
Here, defendant asserts that the 911 tape is a record "pertaining to" its ongoing investigation in the case of State v. Jayson Williams. Defendant bases its argument on its continuing discovery obligations to defense counsel under R. 3:13-3(g), which provides in pertinent part that:
Thus, based only on its duty to disclose to the defense newly discovered additional evidence, defendant argues that the 911 tapes fall within the N.J.S.A. 47:1A-3a exemption as a record pertaining to "an investigation in progress." Defendant's position is untenable. It is axiomatic that a 911 tape obtained by defendant over a year ago cannot constitute "newly discovered evidence." Acceptance of defendant's argument would seal every government record associated with a criminal investigation until the trial has been completed and all potential appeals have been exhausted. Such a prospect would directly contravene the citizen's right of access to government records embodied in OPRA.
Impact on Jury Selection
Defendant argues that release of the 911 tape to plaintiff, and thereafter to the general media, would likely result in the tape being played and transcribed repeatedly, creating an "extreme risk" of tainting the jury pool in a county of "modest population" like Hunterdon.
Our Supreme Court has long recognized that "pervasive pretrial publicity does not necessarily preclude the likelihood of an impartial jury." State v. Koedatich, 112 N.J. 225, 268, 548 A.2d 939 (1988), cert. denied, sub nom., Koedatich v. New Jersey, 488 U.S. 1017, 109 S.Ct. 813, 102 L.Ed.2d 803 (1989); State v. Biegenwald, 106 N.J. 13, 35, 524 A.2d 130 (1987). As noted by the Court in State v. Timmendequas, 161 N.J. 515, 567, 737 A.2d 55 (1999), cert. denied, sub nom., Timmendequas v. New Jersey, 534 U.S. 858, 122 S.Ct. 136, 151 L. Ed.2d 89 (2001),
In cases involving strong media interest, our courts strike a delicate balance, accommodating both the defendant's right to a fair trial and the public's right of
Juror Confusion
Defendant plans to introduce into evidence in the Williams trial an electronically enhanced version of the 911 tape. Through this enhancement process, defendant expects to highlight background conversations and focus the jurors' attention on alleged inculpatory evidence not otherwise audible. In this light, defendant claims that:
In the course of oral argument, we repeatedly asked defendant's counsel for specific evidence supporting this assertion. None was proffered. Under OPRA, a public agency seeking to restrict the public's right of access to government records must produce specific reliable evidence sufficient to meet a statutorily recognized basis for confidentiality. Absent such a showing, a citizen's right of access is unfettered. Moreover, in assessing the sufficiency of the proofs submitted by the public agency in support of its claim for confidentiality, a court must be guided by the overarching public policy in favor of a citizen's right of access. N.J.S.A. 47:1A-1. Here, defendant's fears of potential juror confusion are purely speculative and fail to meet the statutory burden of proof.
V
The judgment of the Law Division dismissing plaintiff's verified complaint is summarily reversed. Defendant is ordered to immediately provide plaintiff with a copy of the sound recording of the 911 emergency telephone call made on February 14, 2002 from the home of Jayson Williams.
Reversed.
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