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                   KENNETH M. SERRANO, Petitioner-Respondent, v. SOUTH BRUNSWICK
                      TOWNSHIP, Respondent-Appellant, and MIDDLESEX COUNTY
                                PROSECUTOR'S OFFICE, Appellant.

                                              A-2708-02T5, A-3110-02T5

                        SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION

                             358 N.J. Super. 352; 817 A.2d 1004; 2003 N.J. Super. LEXIS 104

                                               March 11, 2003, Argued
                                               March 19, 2003, Decided



SUBSEQUENT HISTORY: [***1] Approved for Publication March 19, 2003. As Amended April 2, 2003.

PRIOR HISTORY: On appeals from a final determination of the New Jersey Government Records Council. (Case No.
2002-33).

DISPOSITION: Affirmed.

CASE SUMMARY:


PROCEDURAL POSTURE: Respondent township refused a request by petitioner newspaper reporter for access to a
911 tape, and the reporter appealed that decision to the New Jersey Government Records Council (GRC). The GRC
issued an order requiring respondent prosecutor to provide the reporter with access to the tape, and the township and
prosecutor sought judicial review.

OVERVIEW: A defendant allegedly killed his father three hours after he placed a 911 call to police. The newspaper
reporter learned about the 911 call and filed a request with the township, pursuant to the New Jersey Open Public
Records Act (OPRA), N.J. Stat. Ann. § § 47:1A-1 to 1A-13, seeking access to a recording of the call. Township
officials refused to release the tape, however, after they were advised by the prosecutor that it was part of an open
criminal investigation. The reporter appealed that decision to the GRC, and the GRC ordered the prosecutor to give the
reporter access to the tape. In the township and prosecutor's action seeking judicial review of the GRC's decision, the
appellate court held that (1) because the 911 tape fell within the definition of a "government record" under N.J. Stat.
Ann. § 47:1A-1.1, and state law required that 911 tapes be made and kept, the tape did not qualify as a criminal
investigatory record under the OPRA; (2) the 911 tape did not become cloaked with confidentiality simply because the
prosecutor declared that it was part of an open criminal investigation; and (3) the GRC ruled correctly that the tape was
releasable under the OPRA.

OUTCOME: The appellate court affirmed the GRC's decision.

LexisNexis (TM) HEADNOTES - Core Concepts:
                                                                                                                    Page 2
                                       358 N.J. Super. 352, *; 817 A.2d 1004, **;
                                           2003 N.J. Super. LEXIS 104, ***

COUNSEL: William F. Lamb, First Assistant Prosecutor of Middlesex County, argued the cause for appellant in
A-2708-02T5, Middlesex County Prosecutor's Office (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Mr.
Lamb of counsel and on the brief).

Donald J. Sears argued the cause for appellant in A-3110-02T5, South Brunswick Township (Busch and Busch,
attorneys; Mr. Sears, of counsel and on the brief).

Thomas J. Cafferty argued the cause for respondent Kenneth M. Serrano (McGimpsey & Cafferty, attorneys; Mr.
Cafferty of counsel and, with Arlene M. Turinchak, on the brief).

Barbara Conklin, Deputy Attorney General, argued the cause for respondent New Jersey Government Records Council
(Peter C. Harvey, Acting Attorney General of New Jersey, attorney; Patrick DeAlmieda, Deputy Attorney General, of
counsel (Ms. Conklin and Doreen Piligian, Deputy Attorney General, on the brief).

JUDGES: Before Judges Stern, Coburn, and Alley. The opinion of the court was delivered by ALLEY, J.A.D.
COBURN, J.A.D., concurring.

OPINIONBY: ALLEY

OPINION: [*355] The opinion of the court was delivered by

ALLEY, J.A.D. [**1006]
     We consolidate these appeals for purposes of this opinion. The appeals are from a final agency determination by the
Government Records Council (GRC), which was created to carry out the Open Public Records Act (OPRA), N.J.S.A.
47:1A-1 to -13. The GRC decision overturns a decision by South Brunswick Township (the Township) and provides a
newspaper reporter, Kenneth Serrano, with access to a tape of a 911 call made by a defendant in an ongoing murder
prosecution a few hours prior to the alleged homicide for which the defendant has been indicted. The agency's decision
would compel the current custodian of the tape, the Prosecutor of Middlesex County (prosecutor), to provide the
Township with sufficient access to accommodate Serrano's request. The Township also has the means of reproducing
the 911 call independent of the tape taken by the prosecutor. The prosecutor and the Township have appealed this final
agency decision to us after being denied a protective order in the Law Division. They sought a stay of the GRC order
from us on an emergent basis, and pending our determination of these appeals [***3] the GRC has agreed to forego
enforcement or implementation of its decision.

I

  [*356] The backdrop of these proceedings includes a pending homicide prosecution in Middlesex County, State v.
Michael Janicki, Indictment No. 02-08-00978. The indictment charges Janicki with, among other things, stabbing his
father, Ortwin Janicki, to death while the father slept in their South Brunswick home.
     An investigation by the prosecutor's office and Township police alleges the following sequence of events: At about
11:15 p.m., July 16, 2002, Michael Janicki dialed 911 from his home and reached South Brunswick Police headquarters.
Police and emergency medical service (EMS) units responded to Janicki's call, but he declined their assistance when
they arrived at his home. At 2:15 a.m. on July 17, 2002, Janicki, it is alleged, stabbed his father. His mother, Cheryl
Janicki, immediately placed a 911 call. Police officers from the Township arrived at the Janicki home ten minutes later,
beginning the criminal investigation. At 3:20 a.m., investigators from the prosecutor's office arrived at the scene and
took control of the investigation. By 3:00 p.m. defendant was found in Plainsboro, taken [***4] into custody, and later
that day, charged with murder.
     The crime and the criminal proceedings have been covered extensively in the media, particularly by the Home
News Tribune. Janicki's then counsel allegedly revealed to the public that he had placed a 911 call in the hours before
the crime. On or about July 23, 2002, after that disclosure, Kenneth Serrano, a reporter with the Home News Tribune,
filed a request with South Brunswick Township under OPRA seeking three items: (a) an audiotape of Janicki's
telephone call to 911 on July 16, 2002; (b) police reports regarding that call; and (c) EMS records concerning that call.
Township officials brought the request to the attention of First Assistant Middlesex County Prosecutor William Lamb
                                                                                                                     Page 3
                                       358 N.J. Super. 352, *; 817 A.2d 1004, **;
                                           2003 N.J. Super. LEXIS 104, ***

and denied the request on July 24, 2002, referring to Lamb's reliance on a "pending investigation." In late August
Serrano sought review of the Township's [**1007] denial by filing a complaint with the newly created GRC.
      [*357] A Preliminary Finding of the GRC's Acting Executive Director, dated November 27, 2002, characterized
the police reports as confidential because they qualified as "criminal investigatory records" under N.J.S.A. 47:1A-1.1
[***5] . These initial findings recommended, however, that the GRC find the 911 tape to be "publicly accessible in the
absence of any facts that the release of this information meets the criteria in the N.J.S.A. 47:1A-3(b) for withholding
records involved in an on-going criminal investigation." This report also noted the GRC had not received an explanation
as to why release of the tape "would 'jeopardize' an investigation in progress or be 'otherwise inappropriate to release'"
under N.J.S.A. 47:1A-3(b).
     The prosecutor responded to the GRC in a December 4, 2002 letter. He took the position that Rule of Professional
Conduct (RPC) 3.6 prohibited his office from making public any information about the identity or nature of physical
evidence expected to be presented at trial and cited a 1992 directive on this point from Chief Justice Robert N. Wilentz.
The prosecutor asserted that public release of the tape would "jeopardize[] the right to a fair trial" and would be "grossly
inappropriate," considering that the "Janicki defense had interposed an insanity/diminished capacity defense" and that
he anticipated Janicki's mental state would be [***6] "the outcome determinative issue in the case." He contended
release of the tape might make it impossible to find a jury in Middlesex County and might draw a defense motion for
change of venue. Further, he argued that a GRC directive to release the tape "would directly interfere with judicial
prerogatives[]" usurping the role of criminal court judges as "sole arbiters of controversies regarding access to discovery
material," citing R. 3:13-3 and Winberry v. Salisbury, 5 N.J. 240, 74 A.2d 406, cert. denied, 340 U.S. 877, 71 S. Ct.
123, 95 L. Ed. 638 (1950). Finally, he objected that the GRC proceedings failed to name as parties the prosecutor,
defense counsel, and the trial judge.

A letter submitted to the GRC on behalf of the Township noted the tape had been taken by the prosecutor on July 25 and
at that [*358] time the prosecutor ordered the Township not to release a copy to anyone. The Township relied on the
letter by the prosecutor and stated that, being subordinate to the County, the Township must comply with the position of
the prosecutor because he is the "foremost representative of the Executive Branch of government in law enforcement in
his [***7] county."

The GRC's Acting Executive Director prepared a document entitled "Finding and Recommendation" dated December 6,
2002. This document recommended that the GRC find the 911 tape to be "not publicly accessible" because he had
determined that "the County Prosecutor has provided sufficient evidence for the Council to conclude that the content of
the tape meets the criteria in N.J.S.A. 47:1A-3(a) for withholding records involved in an on-going criminal
investigation."
     Counsel for Serrano and the Home News Tribune then submitted a letter dated December 11, 2002, to the GRC,
whose arguments included the contention that because 911 tapes must be kept by law they do not qualify as "criminal
investigatory records" as defined in N.J.S.A. 47:1A-1.1. Thus, Serrano asserted that 911 tapes should not be covered by
the confidentiality accorded criminal investigatory records during ongoing criminal investigations.

Next, the GRC's Acting Executive Director issued a "Draft Amended Finding and Recommendation" dated January 8,
2003. Here, he concluded the tape must be handed over because it was "'open for [**1008] public inspection,
examination [***8] or copying' before the Prosecutor or the Police commenced investigation in this matter." Given
this conclusion, according to the GRC, the tape constituted a public record which was not protected as a criminal
investigatory record.
     A related proceeding thereafter took place before Judge Frederick DeVesa in Middlesex County, on short notice on
January 15, prior to the January 17 meeting of the GRC at which the matter was to be considered. The prosecutor sought
a protective order against disclosure of the tape under State v. Williams, 93 N.J. 39, 459 A.2d 641 (1983), and Judge
DeVesa heard argument on behalf [*359] of the prosecutor, the Home News Tribune, and defendant Janicki. The
GRC did not participate. The judge listened to the tape in camera and requested, through the parties, that the GRC allow
him time to research and to prepare his decision. The GRC did not accede to the judge's suggestion that additional time
would be appropriate. Judge DeVesa denied the protective order, placing the reasons for his decision in an oral opinion
and issuing an order in State v. Janicki on January 16, 2003.
    In his decision, Judge DeVesa stated that he gave "due deference" to [***9] the decision by Janicki's defense
counsel not to oppose release of the tape. According to the prosecutor, Janicki did not oppose release of the tape to the
                                                                                                                       Page 4
                                        358 N.J. Super. 352, *; 817 A.2d 1004, **;
                                            2003 N.J. Super. LEXIS 104, ***

media for "strategic reasons." Janicki's current defense counsel, William Fetky, gave notice he intended to use an
insanity/diminished capacity defense, and the prosecutor alleges that the content of the tape lies "at the heart of" that
defense. Materials submitted by Fetky refer to the content of the call, and Fetky stated before Judge DeVesa:
     I think if I oppose the release of that tape . . . it's going to appear that Defense Counsel and/or Michael Janicki is
trying to hide something. That is the last thing in the world that I want to do. Because, quite frankly, Judge, I have
listened to the tape. I have listened to the tape on several occasions. I think the tape bolsters my expert's opinion that
Michael Janicki is suffering from the serious mental illness of schizophrenia.
     The judge denied the protective order, determining that R. 3:13-3, a rule governing discovery, did not allow a
criminal judge to take extraordinary action such as issuing such an order unless there was a necessity "to protect the
rights of a defendant, particularly [***10] to a fair trial[.]" He concluded there was no such need on these facts where
the tape was not "so prejudicial to either the State or the defendant, that it would directly and clearly threaten the right
of a fair trial by either" and the tape was "highly likely" to be admitted into evidence at trial. n1 On these facts, Judge
DeVesa determined that the potential for prejudice was effectively limited to the potential to taint a juror or jury, and
[*360] he concluded "fair and impartial jurors" would be available even if the tape were released and that the criminal
process would be adequate to remedy any damage done by release of the tape. He also concluded that if the prosecutor
were accused of acting unethically by complying with an order by the GRC, the application for a protective order
should exonerate him.


          n1 Fetky and Lamb stated in the proceedings before Judge DeVesa that neither saw any reason to object to
       admission of the tape in State v. Janicki.

     Judge DeVesa commented, however, on "very serious concerns" [***11] he hoped the GRC would address. He
questioned the authority of the GRC to order release of evidentiary [**1009] materials from the police or prosecutor
during the pendency of a trial. He questioned the GRC's authority to order disclosure by a constitutional officer such as
the prosecutor where that officer was not a party to the proceedings before the GRC. He questioned whether, given that
911 tapes "have never been required to be permanently kept," the Legislature intended 911 tapes to be considered
government records, thus "open to public access and inspection under all circumstances." Finally, he concluded that the
tape had never been "open to public inspection" because it was made after business hours and immediately obtained in
an ongoing criminal investigation.
     Because Judge DeVesa determined that these concerns were "not really satisfactorily addressed" in the preliminary
findings by the GRC director, he ordered that a transcript of his decision be generated and submitted to the GRC for
consideration. The prosecutor obtained this transcript in New Brunswick when available at 9:30 a.m. on January 17, and
a member of the GRC staff indicated the transcript would be considered if received [***12] in Trenton by 10:30 a.m.
The transcript was faxed and driven to the GRC.

In a written "Final Decision" of January 17, 2003, the GRC (1) dismissed the portion of the complaint seeking police
and EMS reports; (2) found the audiotape of Janicki's 911 telephone call to be a "government record to which the
requester shall be provided access;" and (3) directed the prosecutor to "provide the Township Clerk with 'sufficient
access' to the audiotape to allow the Township Clerk to fulfill the request for access to the audiotape." The [*361]
decision stated any application for a stay must be filed with the GRC by the decision's effective date, January 31, 2003.

On January 30, 2003, the prosecutor filed with our Clerk a notice of appeal from the GRC final decision and order.
Although the prosecutor asserted that R. 2:4-1(b) allowed him "45 days from the date of service of the decision" to
institute appellate review, or until March 12, 2003, he pointed out the GRC extended the deadline for disclosure of the
tape until only February 13, 2003, to allow consideration at the GRC public meeting scheduled for that date.
     In an order dated February 13, the GRC denied the requested stay by a unanimous [***13] vote of the four
members present. The GRC based its denial on the determination "there was little likelihood of success on the appeal;"
the statutory mandate to interpret OPRA in favor of the public right to access (N.J.S.A. 47:1A-1); and Judge DeVesa's
ruling that release of the tape would not jeopardize defendant Janicki's right to a fair trial. The GRC gave the prosecutor
until February 20 to seek a stay of its decision from us stating:
                                                                                                                     Page 5
                                        358 N.J. Super. 352, *; 817 A.2d 1004, **;
                                            2003 N.J. Super. LEXIS 104, ***

     the Final Decision of January 17, 2003 was AMENDED to require access to the tape be provided the Complainant
no later than February 20, 2003 in order to provide the Prosecutor time to a [sic] request a stay from the Appellate
Division.
    After the prosecutor filed an application for emergent relief from this Court, seeking a stay based on the claim that
"compliance with the GRC order and disclosure of the Janicki tape to the Home News Tribune renders moot the
[prosecutor's] statutory right under N.J.S.A. 47:1A-7(e) [sic] to seek to have that decision overturned by the Appellate
Division," the parties stipulated by letter dated February 20, 2003 that the 911 tapes would not have to be released until
we decided the [***14] application for a stay.
     We note that a brief was filed in this matter on behalf of the GRC by the Attorney General, and that in response to
our [**1010] invitation to appear amicus the Division of Criminal Justice has represented to the court that it does not
take a position and deems [*362] the brief by the Attorney General to articulate the position of the Attorney General
only in its role as counsel to the GRC.

II
     We emphasize that our disposition is based on the particular circumstances with which we are confronted,
including the characteristics of the 911 call involved in this case, and in particular the caller's express lack of objection
to the disclosure. We do not predict what disposition may be appropriate in other cases involving 911 tapes. The tape
was made available to us in camera and we have considered its contents in connection with our determination of these
appeals. While we do not divulge what the tape contains, we can summarize what it does not contain. It does not contain
any admissions or statements concerning the homicide, which at the time had not occurred. It does not contain any
threats of violence against any person. It does not include any mention of [***15] the eventual victim of the homicide.
Its sole potential evidential use that we can foresee is with respect to the mental state of a homicide defendant a few
hours before the crime.

III
     We thus review the final determination of the GRC and conclude that the determination that this tape should be
available for review by the public is correct. Our review is subject of course to the principle that we review final agency
decisions with deference and that we will not ordinarily overturn such determinations unless they were arbitrary,
capricious or unreasonable, or violated legislative policies expressed or implied in the act governing the agency.
Campbell v. Dep't of Civil Service, 39 N.J. 556, 562, 189 A.2d 712 (1963).
     Appellants contend the GRC erroneously interpreted OPRA, alleging the GRC employed "hyper-technical"
statutory construction and disregarded an alleged legislative intent to exclude from OPRA 911 calls which set a criminal
investigation in motion and [*363] 911 calls which are "closely contemporaneous" to a crime and which "bear[] vital
evidentiary significance to that investigation."
     OPRA, codified at N.J.S.A. 47:1A-1 to-13, replaced the Right to Know Act of 1963, [***16] N.J.S.A. 47:1A-1
to -4, and became effective July 7, 2002, little more than a week before the subject 911 call. OPRA built on the State's
longstanding public policy favoring ready access to most public records. The interpretive context of the statutory
provisions we must construe in the course of this opinion is in no way murky, for in the statute itself the Legislature has
provided, with respect to the public's right of access:
    government records shall be readily accessible for inspection, copying, or examination by the citizens of this State,
with certain exceptions, for the protection of the public interest, and any limitations on the right of access accorded by
P.L.1963, c. 73 (C.47:1A-1 et seq.) as amended and supplemented, shall be construed in favor of the public's right of
access[.]
      [N.J.S.A. 47:1A-1.]
    This declaration is fully consistent with the approach under prior law, as to which our Supreme Court stated in
South Jersey Pub. Co. v. New Jersey Expressway Auth., [*364] 124 N.J. 478, 496, 591 A.2d 921 (1991), that "a court
should construe narrowly any possible [***17] exceptions to the Right to Know Law." The historical setting was
described by the Court as follows:
     [**1011] New Jersey has a history of commitment to public participation in government and to the
corresponding need for an informed citizenry. The New Jersey courts have long recognized a limited common-law right
                                                                                                                    Page 6
                                       358 N.J. Super. 352, *; 817 A.2d 1004, **;
                                           2003 N.J. Super. LEXIS 104, ***

to inspect governmental records. See, e.g., Ferry v. Williams, 41 N.J. L. 332 (Sup. Ct. 1879) (court recognized
common-law right of discovery of public documents); Casey v. MacPhail, 2 N.J. Super. 619, 65 A.2d 657 (Law Div.
1949) (citizen taxpayer granted access to voter registration lists). The Open Public Meetings Act, N.J.S.A. 10:4-6 to -21,
and the Right to Know Law, N.J.S.A. 47:1A-1 to -4, also reflect that tradition favoring the public's right to be informed
about governmental actions.
    [ 124 N.J. at 486-87.]

In its analysis in South Jersey Pub. Co., the Court quoted the following passage written by James Madison:
    A popular Government without popular information, or the means of acquiring it, is but a Prologue to a Farce or a
Tragedy; or perhaps both. Knowledge [***18] will forever govern ignorance. And a people who mean to be their own
Governors, must arm themselves with the power which knowledge gives.
    [ 124 N.J. at 491-92 quoting a letter to W.T. Barry, Aug. 4, 1822, in 9 Writings of James Madison 103 (G. Hunt ed.
1910).]

See also Polillo v. Deane, 74 N.J. 562, 570-71, 379 A.2d 211 (1977) (giving the background of the Open Public
Meetings or Sunshine Act of 1975, N.J.S.A. 10:4-6 et seq. and the former Right to Know Law of 1960, N.J.S.A. 10: 4-1
et seq.).
     Litigation over access to law enforcement information as alleged public records has been the subject of extensive
judicial consideration both under prior statutes and under the common law. See, for example, Shuttleworth v. City of
Camden, 258 N.J. Super. 573, 610 A.2d 903 (App. Div.), certif. denied, 133 N.J. 429, 627 A.2d 1135 (1992). We are
called upon in these appeals, however, to interpret a statute that at the time of the decision appealed from had been in
effect for little more than half a year.

 We first consider whether the 911 tape is a "government record" for purposes of OPRA. That term is defined [***19]
broadly to mean:
     any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image
processed document, information stored or maintained electronically or by sound-recording or in a similar device, or
any copy thereof, that has been made, maintained or kept on file in the course of his or its official business by any
officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate
boards thereof, or that has been received in the course of his or its official business by any such officer, commission,
agency, or authority of the State or of any political subdivision thereof, including subordinate boards thereof. The term[]
shall not include inter-agency or intra-agency advisory, consultative, or deliberative material.
    [N.J.S.A. 47:1A-1.1.]
     We note that 911 calls are required by law to be recorded by a government agency and that these tapes must be
retained for "no less than 31 days." See N.J.S.A. 52:17C-1 and N.J.A.C. 17:24-2.4. From this, we conclude that the
subject 911 tape comes within the [***20] definition of a government record for purposes of N.J.S.A. 47:1A-1. See
also Asbury Park Press v. Lakewood Township Police Department, 354 N.J. Super. 146, 804 A.2d 1178 [**1012]
(Law Div. 2002) (construing the former Right to Know Law to determine that the tape of a 911 call constituted a public
record [*365] and thus was available to the public because it did not fall into one of the exceptions articulated in the
Right to Know Law.)
      Asbury Park does not interpret the exact statute as is before us, but as to certain issues it provides a useful road
map for the present case. The court's conclusion that 911 tapes are records required to be made by law lends support to
the GRC's similar determination here. Asbury Park also is instructive about the weight that potential increased size of a
jury pool or a possible change of venue should have in view of public's right to know. The evils of which the prosecutor
complains in this case-that it may be difficult to choose a jury, and that the defense may move for a change of venue-are
precisely the types of concerns Asbury Park concluded must be subordinated to the public's right to know. The same
reasoning [***21] may be applied in the present circumstances to conclude that the "mere speculation and unease
concerning the release of the tapes at this posture of the proceeding should not undermine the public's right to know."
Asbury Park, supra, 354 N.J. Super. at 162-63.
                                                                                                                         Page 7
                                         358 N.J. Super. 352, *; 817 A.2d 1004, **;
                                             2003 N.J. Super. LEXIS 104, ***

The current statute defines at N.J.S.A. 47:1A-1.1 several categories of confidential materials not to be considered to be
"government records" accessible under OPRA. One of these categories is "criminal investigatory records," which OPRA
defines as "a record which is not required by law to be made, maintained or kept on file that is held by a law
enforcement agency which pertains to any criminal investigation or related civil enforcement proceeding." N.J.S.A.
47:1A-1.1. Because the tape falls within the definition of a "government record" in N.J.S.A. 47:1A-1.1, and because the
law requires that such tapes be made and kept, it does not qualify as a "criminal investigatory record."
     The prosecutor argues that OPRA deprives the criminal court of its authority over the disposition of evidence in
criminal trials. This concern is refuted, [***22] however, by the language in N.J.S.A. 47:1A-1.1 which recognizes
that "information kept confidential pursuant to court order" is not made accessible by OPRA. Indeed, the GRC January
13 preliminary finding and recommendation [*366] advised that the prosecutor might seek a protective order from
the court.
    N.J.S.A. 47:1A-3(a) allows (but does not mandate) confidentiality of records where an "investigation in progress"
causes the release of particular records to be "inimical to the public interest," but it adds the further limitation that this
confidentiality does not extend to records previously "open for public inspection." That provision begins:
     Notwithstanding the provisions of P.L.1963, c. 73 (C.47:1A-1 et seq.) as amended and supplemented, where it shall
appear that the record or records which are sought to be inspected, copied, or examined shall pertain to an investigation
in progress by any public agency, the right of access provided for in P.L.1963, c. 73 (C.47:1A-1 et seq.) as amended and
supplemented may be denied if the inspection, copying or examination of such record or records shall be inimical to the
public interest; provided, [***23] however, that this provision shall not be construed to allow any public agency to
prohibit access to a record of that agency that was open for public inspection, examination, or copying before the
investigation commenced.

The tape that is the subject of this appeal was created hours before the police investigation began. If it was a public
record [**1013] when created, then it would remain accessible to the public under N.J.S.A. 47:1A-3(a) even if its
release would be inimical to the public interest.
     We are unpersuaded by the prosecutor's reliance on the fortuity that the Township's offices happened to be closed at
the time of the 911 call as the predicate for an argument that the tape thereby was not "open for public inspection" under
N.J.S.A. 47: 1A- 3(b). The term "open" refers to the record, not the office. It is thus the record, not the office, that is
"open for public inspection." The place where a record could be provided might be anywhere. It is not limited to the
government office where it was made, maintained, or filed or, indeed, to any government office. Furthermore, even if
the prosecutor could be said to have raised an ambiguity in the statute as [***24] to whether he could so limit
production of the tape, it is plain that, as we have already noted, doubts on whether a limitation to access exists must be
resolved "in favor of the public's right of access[.]" N.J.S.A. 47:1A-1.
     [*367] Assuming the tape was a public record when created, it did not become retroactively confidential simply
because the prosecutor obtained the tape. This result is specifically decreed by the language of OPRA, N.J.S.A.
47:1A-3(a), which states that:
    whenever a public agency, during the course of an investigation, obtains from another public agency a government
record that was open for public inspection, examination or copying before the investigation commenced, the
investigating agency shall provide the other agency with sufficient access to the record to allow the other agency to
comply with requests made pursuant to P.L.1963, c.73 (C.47:1A-1 et seq.).

Additionally, we note that inasmuch as it was acknowledged during oral argument before us that the Township retains
the means of reproducing the contents of the tape, this record was not rendered unavailable to the public from the
Township's records simply [***25] because the prosecutor obtained one copy of it.
     Were we to conclude that the tape is not "open for public inspection," the prosecutor would still lose because
release of the tape in this case would not be "inimical to the public interest[.]" N.J.S.A. 47:1A-3(a). This government
record does not become cloaked with confidentiality simply because the prosecutor declares it so. Insofar as the public
interest is concerned, and given the caller's consent, the public has a greater interest in the release of this particular tape
than in its suppression. Given the stated public policy in OPRA that records should be readily accessible, a weighty
concern indeed should be advanced to counterbalance that interest. The considerations raised in this case, however, such
as posited difficulties of impaneling a jury and a possible change of venue, are unpersuasive. Even if they occur, they
may be inconveniences to the prosecutor, but without more, that does not make the production "inimical to the public
                                                                                                                       Page 8
                                        358 N.J. Super. 352, *; 817 A.2d 1004, **;
                                            2003 N.J. Super. LEXIS 104, ***

interest[.]" Our review of the tape leaves no doubt as to the clear lack of potential for prejudice to the State that could
result from its release. In reaching that conclusion, [***26] we emphasize, however, the defense attorney's
non-assertion of a position that release of this tape would deprive the defendant of a fair trial.
     [*368] Before moving from the subject of OPRA, for the sake of completeness we mention another of its
provisions, although it was not the focus of the parties' briefs in these appeals or of the GRC's final decision. We refer to
the portion of the third paragraph of N.J.S.A. 47:1A-1, which, [**1014] read together with the section's introductory
clause, is as follows:
     The Legislature finds and declares it to be the public policy of this State that . . . a public agency has a
responsibility and an obligation to safeguard from public access a citizen's personal information with which it has been
entrusted when disclosure thereof would violate the citizen's reasonable expectation of privacy[.]
     Although Judge Serpentelli's opinion in Asbury Park Press v. Lakewood Township Police Department, supra, 354
N.J. Super. at 159, is pre-OPRA, it is noteworthy that he discussed a privacy issue that becomes even more significant
in light of this OPRA provision. He stated, for example:
     The Attorney General also argues that [***27] Bowling v. Brandenburg, 37 S.W.3d 785, 788 (Ky.Ct.App. 2000),
supports its claim that the release of the tapes will have a chilling effect. The Kentucky Open Records Act contains a
provision which exempts from disclosure a record containing "information of a personal nature where the public
disclosure thereof would constitute a clearly unwarranted invasion of personal privacy." KRS 61.878(1)(a). The release
of the tape was requested by the appellant, who had allegedly made a threat to kill his wife and other family members.
A family member called 911 to report the threat. The court in Bowling found that the request for the tape was made for
the specific purpose of determining the identity of the caller, which was "precisely why the Act exempts calls of a
personal nature . . . to prevent the disclosure of a 911 caller's identity." Bowling, 37 S.W.3d at 788.

In comparison to the Kentucky statute, Judge Serpentelli observed, under the New Jersey statute then in effect, "there is
no comparable exemption in New Jersey's Right to Know Law." Ibid. Moreover, under the facts in the Kentucky case,
"even if there were such a provision, the identity [***28] of the caller in this case has been made known both by the
Prosecutor and the media." Ibid.
     With the enactment of OPRA, it is reasonable to anticipate that its declaration of the "public policy" respecting the
"citizen's reasonable expectation of privacy" will be considered extensively by the GRC and the courts. The provision
does not confront us here, however, because no privacy claim has been asserted. To [*369] the contrary, as we have
already mentioned, and as the GRC stated:
     It is important to note that Janicki's attorney . . . was present for the [protective order] motion and has also been
copied on the Director's Findings recommending release of the tape. At no point has . . . [this attorney] indicated to the
Prosecutor, the GRC or Judge DeVesa that his client, who made the 911 call, has any objection to release of the content
of tape to the Home News Tribune.
     [January 17, 2003 "Supplement to Amended Finding and Recommendation of [the Acting] Executive Director."]
     In the absence of a privacy claim with respect to the subject 911 tape, we leave for other occasions interpretation of
the "citizen's reasonable expectation of privacy" declared in N.J.S.A. 47:1A-1 [***29] . Plainly, the issues presented
on such occasions could be complex and challenging, and we recognize that they might entail a consideration and
balancing of the interests, not only of those who call 911 or who utilize other police or emergency communications
services, but of others who are mentioned in or affected by the calls; the adequacy and fairness of procedures that may
be adopted to protect and accommodate their privacy, including with respect to issues [**1015] concerning their
rights to notice and a hearing before issuance of an order for the release of information; and the extent and nature of the
interplay, if any, between the "citizen's reasonable expectation of privacy" and the mandate, also set forth in N.J.S.A.
47:1A-1, to "construe[] in favor of the public's right of access" any limitations in the statute on that right.

IV
    We also reject the prosecutor's assertion that, given RPC 3.6(a), the GRC must defer to a prosecutor's ethical
obligation to refrain from commenting upon statements made by a criminal defendant and/or the evidence to be used
against the defendant. The rule provides:
                                                                                                                    Page 9
                                       358 N.J. Super. 352, *; 817 A.2d 1004, **;
                                           2003 N.J. Super. LEXIS 104, ***

     A lawyer shall not make an extrajudicial statement [***30] that a reasonable lawyer would expect to be
disseminated by means of a public communication if the lawyer knows or reasonably should know that it will have a
substantial likelihood of materially prejudicing an adjudicative proceeding.
     [RPC 3.6(a).]
      [*370] We conclude that the GRC decision does not compel unethical behavior on the part of the prosecutor.
Under RPC 3.6(c)(2) the prosecutor, notwithstanding the other strictures in RPC 3.6(a) and (b)(1)-(5), may "state
without elaboration . . . the information contained in a public record." Even if the Rules of Professional Conduct and the
direction of the former Chief Justice did not allow the prosecutor to do so, we consider persuasive Judge DeVesa's
conclusion that the prosecutor has fulfilled any ethical obligation by bringing this matter to the attention of the court.
Furthermore, because the GRC is an agency created by law, obedience to its lawful directives under the statute would
have the same effect. The prosecutor has been vigorous and resourceful in his contentions, and his vigor may be seen as
evidence of his commitment to act ethically.

V
    We note our concern over potential procedural issues presented by GRC's [***31] operations regarding this
matter. These include whether proper notice and other procedural protections, such as an adequate opportunity to be
heard in connection with the results of the protective order proceeding in the Law Division, were accorded the
prosecutor as a clearly interested party. We do not make any determinations herein with respect to these potential issues,
however. This is because the parties' ultimate positions were developed and because, based on representations to us by
GRC's counsel at oral argument, we anticipate that the GRC will take prompt measures, including the adoption of
appropriate regulations, designed to avoid a rush to judgment that might result in the unfortunate erroneous release of
criminal investigatory records truly inimical to the public interest, and designed to provide an orderly and fair
procedural setting for presentations to the GRC and for the consideration and review of the GRC's actions.

VI
    We affirm in each appeal the final agency determination of the GRC. We grant the motion to supplement the
record. In view of [*371] the affirmance on the merits, we deny the application for an emergent stay as moot.
     Affirmed.

CONCURBY: COBURN

CONCUR: [***32] COBURN, J.A.D., concurring.
 As Judge Alley notes in his carefully crafted and persuasive discussion of the points raised by the parties, this case
does not provide the opportunity for a definitive [**1016] ruling on the question of whether 911 tapes are public
records under OPRA. That is so because in this case the 911 caller had himself made the existence of the call part of the
public record in the pretrial proceedings of his criminal case and had expressly taken the position in these proceedings
that he did not object to release of the 911 tape.
     I write to emphasize that in approving publication of the tape here, where there happened to be no objection from
the caller, the court is not concluding that all 911 tapes are open to the public under OPRA. Rather, we have decided
only that under the circumstances of this case, the prosecutor was not entitled to withhold this 911 tape from the public.
     Unlike the former Right to Know Law, L. 1963, c. 73, discussed in Asbury Park Press, supra, the present law, as
Judge Alley notes, provides that "a public agency has a responsibility and an obligation to safeguard from public access
a citizen's personal information with which it has [***33] been entrusted when disclosure thereof would violate the
citizen's reasonable expectation of privacy." N.J.S.A. 47:1A-1. That provision is almost identical to the provision in
Kentucky's older right-to-know statute considered in Bowling v. Brandenburg, 37 S.W.3d 785 (Ky. Ct. App. 2000),
which expressly prohibits public access to:
     Public records containing information of a personal nature where the public disclosure thereof would constitute a
clearly unwarranted invasion of personal privacy[.]
     [Ky. Rev. Stat. Ann. § 61.878(1)(a) (2003),
                                                                                                                     Page 10
                                        358 N.J. Super. 352, *; 817 A.2d 1004, **;
                                            2003 N.J. Super. LEXIS 104, ***

quoted in Bowling, 37 S.W.3d at 786.]

Based on that provision, the Bowling court held that under its statute 911 calls were exempt from disclosure:
      [*372] Releasing the tapes of 911 calls seeking police assistance, particularly in instances of domestic violence,
would have a chilling effect on those who might otherwise seek assistance because they would become subject to . . .
retaliation, harassment, or public ridicule.
    [ 37 S.W.3d at 788.]

In Asbury Park, supra, 354 N.J. Super. at 159-60, the court declined to [***34] follow Bowling but only because our
statute did not then contain the language on which the Kentucky court relied. The statute we are considering now was
enacted after the Kentucky statute became law and after Bowling construed it.
     The critical provision in OPRA is patterned after the Kentucky statute. "When a statute is drafted on the pattern of
another jurisdiction, it is appropriate to consider interpretations in that jurisdiction." State v. Chew, 150 N.J. 30, 55,
695 A.2d 1301 (1997), cert. denied, 528 U.S. 1052, 120 S. Ct. 593, 145 L. Ed. 2d 493 (1999). Indeed, if the
interpretation is that of the other jurisdiction's highest court, we generally view our statute as adopting that construction.
Van Horn v. William Blanchard Co., 88 N.J. 91, 97, 438 A.2d 552 (1981). Although the Bowling court was an
intermediate court, at the minimum its construction has persuasive authority.
     In light of Asbury Park's discussion of Bowling, I would be inclined to the view that our Legislature found
Bowling's views on 911 tapes sound and worthy of adoption. Consider in that regard the following portion of Justice
Pfeifer's [***35] concurring opinion in State ex rel. Cincinnati Enquirer v. Hamilton County, 75 Ohio St. 3d 374,
1996 Ohio 214, 662 N.E.2d 334 (Ohio 1996), in which he explains why these highly sensitive and intensely personal
requests for aid should not be considered public records:
     Public records laws exist so that government may be open to the scrutiny of the [**1017] citizenry. To
accomplish that goal is it necessary for families to have their most tragic and personal moments broadcast for all to
hear? Does personal tragedy become a public spectacle simply because a person phones the police for aid? Are the
media unable to relate effectively the story of a crime or accident without playing a recording of a victim's or a witness's
plea for help? Have the rights of victims become subverted by our society's seemingly boundless morbid curiosity,
transforming a moment of despair into a Warholian fifteen minutes?
    While the quavering voice of a four-year-old pleading with a 911 operator to make daddy stop hitting mommy may
be some station manager's idea of "good television," the broadcast of that voice is not the product of good law.
    [ Id. at 339.]
       [*373] Because of our Legislature's adoption of the language [***36] borrowed in large part from the Kentucky
statute, it appears to me that both the contents of a 911 call and the caller's identity should be treated by the recipient as
confidential under N.J.S.A. 47:1A-1. In this case, the caller himself, by his submissions to the court in the criminal
proceedings, permitted his identity and the existence of his call to become a matter of public record. Absent such
disclosure, I would expect that the GRC would deny access to 911 records, without identifying the caller, unless
satisfied that the disclosure would not "violate the citizen's reasonable expectation of privacy." N.J.S.A. 47:1A-1. I find
it difficult to imagine any 911 call that would not be protected for that reason.
     Although 911 calls are protected by OPRA, they may be subject to examination under the common law, provided
of course that the applicant can meet the common law burden of showing some personal or particular interest in the
material sought. Irval Realty, Inc. v. Bd. of Pub. Util. Comm'rs, 61 N.J. 366, 372, 294 A.2d 425 (1972). A proceeding
under the common law, however, would have to be instituted in court [***37] and not before the GRC.
                                                    2 of 3 DOCUMENTS

                         COURIER NEWS, Plaintiff-Appellant, v. HUNTERDON COUNTY
                              PROSECUTOR'S OFFICE, Defendant-Respondent.

                                                        A-3353-02T2

                         SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION

                              358 N.J. Super. 373; 817 A.2d 1017; 2003 N.J. Super. LEXIS 105

                                                 March 12, 2003, Argued
                                                 March 19, 2003, Decided



PRIOR HISTORY: [***1] On appeal from Superior Court of New Jersey, Law Division, Hunterdon County,
L-736-02. Courier News v. Hunterdon County Prosecutor's Office, 2003 N.J. Super. LEXIS 97 (N.J. Super. Ct. App.
Div., Mar. 13, 2003)

DISPOSITION: Reversed.

CASE SUMMARY:


PROCEDURAL POSTURE: Plaintiff newspaper sought access, under the Open Public Records Act (OPRA), N.J.
Stat. Ann. § § 47:1A-1 to -13, to tape recordings of 911 calls made in connection with a homicide. The recordings were
in the custody of defendant prosecutor's office as evidence in a criminal case. The Superior Court of New Jersey, Law
Division, Hunterdon County, denied the application. The newspaper appealed.

OVERVIEW: An emergency 911 telephone call was made from the home of a former professional athlete, in
connection with a death. The athlete was charged with aggravated manslaughter. The prosecutor's office claimed that
release of the 911 tape would impair its investigation, the victim's constitutional rights, and the athlete's right to a fair
trial. The appellate court held that the trial court erred when he failed to apply the procedural mechanism outlined in
OPRA, and this error deprived the newspaper of its right to a summary adjudication of its OPRA application. The
year-old 911 tape did not fall within the N.J. Stat. Ann. § 47:1A-3a exemption as a record pertaining to "an
investigation in progress." The appellate court rejected the prosecutor's office's claim that if the 911 tape was released,
the tape would be played and transcribed repeatedly, creating an extreme risk of tainting the jury pool. That media
coverage might make it more difficult to select a fair and impartial jury was not a basis to deny access to government
records under OPRA. The prosecutor's office's fears of potential juror confusion were purely speculative and did not
satisfy its statutory burden of proof.

OUTCOME: The judgment was reversed and the prosecutor's office was ordered to immediately provide the
newspaper with a copy of the sound recording of the 911 emergency telephone call from the former athlete's home.

LexisNexis (TM) HEADNOTES - Core Concepts:


COUNSEL: John C. Connell argued the cause for appellant (Archer & Greiner, attorneys; Mr. Connell, William L.
Ryan and Kerri E. Chewning, on the brief).
                                                                                                                   Page 12
                                        358 N.J. Super. 373, *; 817 A.2d 1017, **;
                                             2003 N.J. Super. LEXIS 105, ***
Steven C. Lember, First Assistant Prosecutor, argued the cause for respondent (J. Patrick Barnes, Hunterdon County
Prosecutor, attorney; Mr. Lember, on the brief).

Thomas J. Cafferty argued the cause for amicus curiae, New Jersey Press Association (McGimpsey & Cafferty,
attorneys; Mr. Cafferty and Arlene M. Turinchak, on the brief).

JUDGES: Before Judges King, Lisa and Fuentes. The opinion of the court was delivered by FUENTES, J.A.D.

OPINIONBY: FUENTES

OPINION:
     [*375] The opinion of the court was delivered by

FUENTES, J.A.D. [**1018]
     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 [***2] 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 [*376] make an application to intervene here. On March 12, 2003, we heard oral argument on plaintiff's
motion. We now grant leave to appeal n1 and summarily reverse. R. 2:2-3(b); R. 2:8-3(b).


            n1 Although not dispositive of the issue, we take note that in the course of oral argument defendant
       indicated it was no longer opposing plaintiff's motion for leave to appeal.


I
      [**1019] 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 [***3] 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. n2


           n2 On March 4, 2003, the Hunterdon County Prosecutor's Office re-presented the case and obtained a
       superseding indictment.

    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:
           1. The release of the information requested will jeopardize the continuing investigation and
       prosecution of the pending, post-indictment case of State v. Williams, and
             2. The release of the information requested would be otherwise inappropriate because it is evidence
       in a pending criminal prosecution;
            3. The release of the information requested would be otherwise inappropriate because its release
       would impair the constitutional rights of victims. N.J. State [***4] Constitution, Article 1, Paragraph
       22, N.J.S.A. 52:4B-36.
                                                                                                                        Page 13
                                           358 N.J. Super. 373, *; 817 A.2d 1017, **;
                                                2003 N.J. Super. LEXIS 105, ***
             4. The release of the information requested would be otherwise inappropriate because its release
        might impair the right of the defendant to obtain a fair trial. N.J. State Constitution, Article I, Paragraph
        10.

 [*377] 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. n3 The Law Division judge entered the
order to show cause on December 18, 2002, and made it returnable on January 24, 2003.


            n3 Plaintiff also asserted a legal right of access under the Common Law, the First Amendment of the
        Constitution of the United States, and Article I, P6 of the New Jersey Constitution. Because we decide the case
        under OPRA, we do not reach any of the other legal grounds asserted by plaintiff.

      [***5]

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. DeGioa, 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 pretrial media coverage has been extensive. To publish the transcripts of the tapes on the eve of jury selection
would have a potential to make it more difficult to select a fair and impartial [**1020] jury panel. The argument that
a foreign jury could be impaneled is one that does -- is not significant to this court.
     This is not a case where the defendants are refusing to provide the information. Their position is, to provide it at
this time so alters the status quo that the irreparable harm would not occur to the plaintiffs, but would occur to the
defendants and the survivors of the [***6] decedent.
     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
     [*378] 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,

        A person who is denied access to a government record by the custodian of the record, at the option of the
        requestor, may:
             institute a proceeding to challenge the custodian's decision by filing an action in Superior Court
        which shall be heard in the vicinage where it is filed by a Superior Court Judge who has been designated
        to hear such cases because of that judge's knowledge and expertise in matters relating to access to
        government records;
            ....
             Any such proceeding shall proceed in a summary or expedited manner. The public agency shall have
        the burden of proving that the denial of access is authorized by law. If it is determined that access has
        been improperly denied, the court or agency head shall order that access be allowed. A requestor who
        prevails in any proceeding shall be [***7] entitled to a reasonable attorney's fee.
                                                                                                                     Page 14
                                          358 N.J. Super. 373, *; 817 A.2d 1017, **;
                                              2003 N.J. Super. LEXIS 105, ***
               [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.
     If no objection is made by any party, or the defendants have defaulted in the action, or the affidavits show palpably
that there is no genuine issue as to any material fact, the court may try the action on the pleadings and affidavits, and
render final judgment thereon. If any party objects to such a trial and there may be a genuine issue as to a material fact,
the court shall hear the evidence as to those matters which may be genuinely in issue, and render final [***8]
judgment.
     [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 [*379] 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).
      [**1021] Here, the Law Division judge's procedural errors deprived plaintiff of its right to a summary
adjudication of its OPRA application. However, all of the legal issues have been fully briefed. We invoke our original
jurisdiction to decide the case and thereby vindicate the important public policy embodied in OPRA. N.J.S.A. 47:1A-1;
AAA Mid-Atlantic Ins. v. Prudential Ins., 336 N.J. Super. 71, 78, 763 A.2d 788 (App. Div. 2000); R. 2:10-5.

IV
     We begin our analysis by emphasizing the public policy of this State expressed in OPRA:
             government records [***9] shall be readily accessible for inspection, copying, or examination by
        the citizens of this State, with certain exceptions, for the protection of the public interest, and any
        limitations on the right of access accorded by [OPRA] shall be construed in favor of the public's right of
        access . . . .
               [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.
n4 Defendant [*380] nevertheless argues that the tape is exempt from public inspection under the provisions of
N.J.S.A. 47:1A-3a because it is part of an ongoing criminal investigation and its release to the media would be inimical
to the public interest because (1) it would make selecting an impartial jury more difficult; and (2) dissemination of the
tape will likely cause juror confusion. We reject these arguments because they are not supported by either facts or law.
n5


             n4 The statute defines "Government record" or "record" as "any paper, written or printed book, document,
        drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or
        maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made,
        maintained or kept on file in the course of his or its official business by any officer, commission, agency or
        authority of the State or of any political subdivision thereof, including subordinate boards thereof, or that has
        been received in the course of his or its official business by any such officer, commission, agency, or authority
        of the State or of any political subdivision thereof, including subordinate boards thereof. The terms shall not
        include inter-agency or intra-agency advisory, consultative, or deliberative material." (Emphasis added.) [***10]
                                                                                                                    Page 15
                                          358 N.J. Super. 373, *; 817 A.2d 1017, **;
                                               2003 N.J. Super. LEXIS 105, ***


           n5 Our legal analysis is limited to addressing defendant's specific grounds for confidentiality. We do not
       decide here whether all 911 tapes are open to public inspection under OPRA. We are aware that under N.J.S.A.
       47:1A-1a "a public agency has a responsibility and an obligation to safeguard from public access a citizen's
       personal information with which it has been entrusted when disclosure thereof would violate the citizen's
       reasonable expectation of privacy." Here, the 911 caller was Williams' brother. The call was made to summon
       emergency medical personnel to Williams' home in connection with the shooting of Christofi. No argument has
       been made in support of confidentiality based on the caller's reasonable expectation of privacy.

    N.J.S.A. 47:1A-3a provides:
           Notwithstanding the [other] provisions of [this Act], where it shall appear that the record or records
       which are sought to be inspected, copied, or examined shall pertain to an investigation in progress by any
       public agency, the right of access provided for in [OPRA] may [***11] be denied if the inspection,
       copying or examination of such record or records shall be inimical to the public interest . . . .

Thus, as noted by Judge Serpentelli in [**1022] Asbury Park Press v. Lakewood Twp. Police Dep't, 354 N.J. Super.
146, 158, 804 A.2d 1178 (Law Div. 2002), "In order to find a basis to deny access to the tapes, the court must find both
that they pertain to an investigation and that their release would be inimical to the public interest." n6

           n6 Although the court in Asbury Park Press was applying the Right to Know Law, the provisions in
       N.J.S.A. 47:1A-3a under OPRA remained the same.


Criminal Investigation
    Here, defendant asserts that the 911 tape is a record "pertaining to" its ongoing investigation in the case of State v.
Jayson [*381] 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:
           If subsequent to the compliance with [***12] a request by the prosecuting attorney or defense
       counsel or with an order issued pursuant to the within rule and prior to or during trial a party discovers
       additional material or witnesses previously requested or ordered subject to discovery or inspection, that
       party shall promptly notify the other party or that party's attorney of the existence thereof. (Emphasis
       added.)
     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, [***13] 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. n7


          n7 Defendant does not offer any facts to support this conclusion. However, according to the 2000 census,
       Hunterdon County's population includes 90,638 adults over the age of eighteen.

     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.,
                                                                                                                     Page 16
                                         358 N.J. Super. 373, *; 817 A.2d 1017, **;
                                              2003 N.J. Super. LEXIS 105, ***
Koedatich v. New Jersey, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989); State v. Biegenwald, [*382] 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),
[***14]

       The right to an impartial jury does not require that jurors be totally ignorant of the facts and issues
       involved in a given case. Indeed, "it is difficult to imagine how an intelligent venireman could be
       completely uninformed of significant events in his community." It is sufficient "if the juror can lay aside
       his impression or opinion and render a verdict based on the evidence presented in court." (Citations
       omitted.)
      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 [**1023] access. There are a number of means available to the criminal
trial judge to achieve this objective, e.g., a motion for a change of venue, to empanel a foreign jury, R. 3:14-2, and a
vigorous and comprehensive voir dire. Asbury Park Press v. Lakewood Twp Police Dep't, supra, 354 N.J. Super. at
162. The fact that media coverage may make it more difficult to select a fair and impartial jury is not a basis to deny
access to government records under OPRA.

Juror Confusion
     Defendant plans to introduce into evidence in the Williams trial an electronically enhanced version [***15] 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:
            To release the original 911 tape to the Press for interpretation and dissemination to the public will
       likely engender confusion between that which has been released to the Press and that which is admitted
       as evidence and played for the jury at trial. Again, confusion in an anticipated jury pool is "inimical" to
       the public interest.
     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 [*383] 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 [***16] 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.
                                                  3 of 3 DOCUMENTS

                    ASBURY PARK PRESS, Plaintiff, v. LAKEWOOD TOWNSHIP POLICE
               DEPARTMENT, CHIEF MICHAEL LYNCH, In His Official Capacity As Chief Of
               The Lakewood Police Department; OCEAN COUNTY PROSECUTOR'S OFFICE,
                E. DAVID MILLARD, In His Official Capacity As The Ocean County Prosecutor,
               Defendants, and STEVEN KELUSAK, CHRISTOPHER SPAGNUOLO, JOSEPH
               QUALIANO, III, Defendants-Intervenors, and THE STATE OF NEW JERSEY BY
                 THE ATTORNEY GENERAL, JOHN J. FARMER, JR.; THE NEW JERSEY
                PRESS ASSOCIATION; THE SOCIETY OF PROFESSIONAL JOURNALISTS;
                  THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, Amici
                                                 Curiae.

                                          DOCKET NO. OCN L-2777-01 PW

                  SUPERIOR COURT OF NEW JERSEY, LAW DIVISION, OCEAN COUNTY

                      354 N.J. Super. 146; 804 A.2d 1178; 2002 N.J. Super. LEXIS 392; 30 Media L.
                                                     Rep. 2454

                                                 April 2, 2002, Decided



SUBSEQUENT HISTORY: [***1]
    Approved for Publication August 19, 2002.

DISPOSITION:
    Order issued directing release of 911 tapes but denying disclosure of police reports.

CASE SUMMARY:


PROCEDURAL POSTURE: Plaintiff newspaper filed an action in lieu of prerogative writs to compel defendant
police department, its chief, a prosecutor's office, and a former prosecutor, to release -- pursuant to the Right to Know
Law (Act), N.J. Stat. Ann. § 47:1A-1 et seq., and common law right to know principles -- a copy of 911 tapes and
police reports relating to a confrontation between police officers and a citizen.

OVERVIEW: Undercover officers chased the citizen. He allegedly thought they were "kids," and, fearful for his
safety, called 911 from his cell phone. He alleged that the officers stopped his car and beat him. They were indicted.
The court held that, as 911 tapes by law had to be kept for 31 days, they were "documents required by law to be kept on
file," and thus were subject to disclosure under the Act. Nor was their release barred by N.J. Stat. Ann. § 47:1A-3,
under which a court had to find both that they pertained to an ongoing investigation and their release would be inimical
to the public interest. Any negative effects of disclosure to the public (a chilling effect on the use of 911, prejudice to
prospective jurors) were slim. While precedent might have precluded disclosure in tape form under the Act, the tapes
had to be disclosed under the common law right to know, as the public's right to know outweighed any need for
confidentiality. But the police reports were not "required by law to be made," and thus were not subject to the Act.
Applying the balancing test of the common law right to know, the court found that the reports could not be released
until the trial was completed.
                                                                                                                  Page 18
                                          354 N.J. Super. 146, *; 804 A.2d 1178, **;
                                   2002 N.J. Super. LEXIS 392, ***; 30 Media L. Rep. 2454

OUTCOME: The court ordered the release of the 911 tapes, but denied disclosure of the police reports.

LexisNexis (TM) HEADNOTES - Core Concepts:


COUNSEL: John C. Connell, for plaintiff, (Archer & Greiner, ATTORNEYS.

Kevin B. Riordan, for defendant Ocean County Prosecutor's Office, (Berry, Sahradnik, Riordan, Kotzas & Benson,
ATTORNEYS).

Steven Secare, for defendant Lakewood Township Police Department, (Russo, Secare, Ford, Delanoy & Martino,
ATTORNEYS).

Charles Uliano, for Steven Kelusak, (Chamlin, Rosen, Uliano & Witherington, ATTORNEYS.

Edward C. Bertucio, Jr., for Christopher Spagnuolo, (Hobbie, Corrigan, Bertucio & Tashjy, ATTORNEYS.

Eric J. Marcy, for Joseph Qualiano, III, (Wilentz, Goldman & Spitzer, ATTORNEYS).

Thomas J. Cafferty and Arlene M. Turinchak, for Amici Curiae, The New Jersey Press Association, The Society of
Professional Journalism, The Reporters Committee, (McGimpsey & Cafferty, ATTORNEYS).

Michael J. Williams, for Amicus Curiae, the State of New Jersey, by the Attorney General.

JUDGES: SERPENTELLI, A.J.S.C.

OPINIONBY: SERPENTELLI

OPINION: [**1181]         [*152]

SERPENTELLI, A.J.S.C.
     In this action in Lieu of Prerogative Writs, the Asbury [***2] Park Press (hereinafter "Press" or "plaintiff") seeks
to compel the Lakewood Township Police Department, its Chief, Michael Lynch, the Ocean County Prosecutor's Office
and its former Prosecutor, E. David Millard (hereinafter collectively referred to as "defendants," unless specifically
noted) n1 to release a copy of 9-1-1 (hereinafter 911) n2 tapes and police reports relating to a confrontation between
Lakewood Township police officers and Thomas Jacobs (hereinafter "Jacobs").



       n1 Since the filing of this action, Thomas F. Kelaher has become the Ocean County Prosecutor. The pleadings
       have not been amended but the Prosecutor's counsel has stipulated that the present Prosecutor will be bound by
       the result.n2 Both the enabling statute, N.J.S.A. 52:17C-1 et seq., and the implementing administrative
       regulations, N.J.A.C. 17:24-1.1 et seq., utilize "9-1-1" to describe the calls made to the Public Safety
       Answering Point system, but they are commonly referred to as "911" calls.

 [***3]
     Jacobs, while driving through Lakewood Township on July 6, 2001, was pursued and detained by undercover
Lakewood police officers. During the low speed chase, Jacobs allegedly believed he was being followed by "kids in a
van," and feared for his safety. He used his cellular phone to call 911 for assistance. Ultimately, Jacobs was stopped and
forcibly removed from his vehicle. According to Jacobs, he was thrown to the ground, kicked and punched. After the
incident was reported to the Ocean [**1182] County Prosecutor's Office, an investigation ensued which led to a
presentation to a Grand Jury. Lakewood Police Officers Steven Kelusak, Christopher Spagnuolo, and Joseph Qualiano,
III were indicted.
                                                                                                                        Page 19
                                           354 N.J. Super. 146, *; 804 A.2d 1178, **;
                                   2002 N.J. Super. LEXIS 392, ***; 30 Media L. Rep. 2454
     On August 31, 2001, the Press filed this action seeking release of the 911 tapes and police reports regarding the
July 6th incident. Subsequently, The New Jersey Press Association, The Society of Professional Journalists and The
Reporters Committee for Freedom of the Press (collectively referred to in their pleadings and here as the "Media") and
the Attorney General of New Jersey [*153] were granted intervention as amici curiae. Thereafter, on November 16,
2001, the three police officers were intervened as [***4] defendants.
    The Press contends that it is entitled to the tapes and reports both under the statutory Right to Know Law, N.J.S.A.
47:1A-1 et seq., and common law right to know principles. The defendants reluctantly acknowledged that the 911 tapes
may be public records pursuant to the statutory Right to Know Law but insist that their release is exempted pursuant to
Executive Order No. 69. As to the police reports, defendants contend that they are not statutory records and also cannot
be obtained under the common law because they are part of an ongoing investigation and because disclosure would
prejudice the rights of the parties in the pending criminal proceedings.
   The underlying principles regarding the statutory and common law right to know are well established. The Right to
Know Law defines "public records" as:

       . . . all records which are required by law to be made, maintained or kept on file by any board, body,
       agency department, commission or official of the State or any political subdivision thereof . . . [
       N.J.S.A.47:1A-2.]
     Except for those documents that are exempted from disclosure under the Right to Know Law, [***5] every citizen
of the State is entitled to inspect and copy any document included within the statutory definition of a "public record."
Clearly, the records involved in this case are made, maintained or kept either by the Township or the County. The
critical question to which the court will return, is whether the 911 tapes and police reports are records under the statute
which are "required by law to be made, maintained or kept on file."
     If plaintiff is not able to direct the court to any requirement that the tapes or reports be maintained, or if they are
exempted from disclosure under the Right to Know Law, the court must focus on plaintiff's claim founded on the
common law right to know. The common law definition of a public record is broader [*154] than that contained in
the Right to Know Law. A public record under the common law is:

       . . . one required by law to be kept, or necessary to be kept in the discharge of a duty imposed by law, or
       directed by law to serve as a memorial and evidence of something written, said, or done, or a written
       memorial made by a public officer authorized to perform that function, or a writing filed in a public
       office. The elements essential [***6] to constitute a public record are . . . that it be a written memorial,
       that it be made by a public officer, and that the officer be authorized by law to make it; . . .[Josefowicz v.
       Porter, 32 N.J. Super. 585, 591, 108 A.2d 865 (App. Div. 1954) (quoting 76 C.J.S., Records, § 1, p.
       112).]
     Whether the records are obtainable under statutory law or under common law [**1183] has a substantial impact
on the relief which is afforded. The Right to Know Law gives a citizen, without showing a personal or 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, unless they are exempted pursuant to the Right To Know Law. N.J.S.A. 47:1A-1 et seq.;
Techniscan Corp. v. Passaic Valley Water, 113 N.J. 233, 236, 549 A.2d 1249 (1988).
     By 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. Irval Realty, Inc. v. Board of Pub. Util. Comm'rs, 61 N.J. 366,
372, 294 A.2d 425 (1972). Furthermore, even the existence [***7] of such an interest does not translate into 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 the confidentiality of the material. Nero v.
Hyland, 76 N.J. 213, 223, 386 A.2d 846 (1978).
     The balancing process must be concretely centered 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.
      [*155] 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). In Loigman,
                                                                                                                      Page 20
                                           354 N.J. Super. 146, *; 804 A.2d 1178, **;
                                   2002 N.J. Super. LEXIS 392, ***; 30 Media L. Rep. 2454
the Court said that "somewhat different but related considerations arise when the citizen seeks access to information to
further a public good." Ibid. Plaintiff alleges [***8] 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 generally warrant disclosure. Id. at 105 (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 good 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. Loigman, 102 N.J. at 108. Therefore,
determining the appropriate balance [***9] 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.
    In evaluating the claim to examine the records, the courts are instructed by [**1184] the guidelines suggested in
Loigman, 102 N.J. at 112-113. In the balancing process the court should consider:

       (1) the extent to which disclosure will impede agency functions by discouraging citizens from providing
       information to the government; (2) the effect disclosure [*156] may have upon persons who have
       given such information, and whether they did so in reliance that their identities would not be disclosed;
       (3) the extent to which agency self-evaluation, program improvement, or other decision making will be
       chilled by disclosure; (4) the degree to which the information sought includes factual data as opposed to
       evaluative reports of policymakers; (5) whether any findings of public misconduct have been
       insufficiently corrected by remedial measures instituted by the investigative agency; and (6) whether any
       [***10] agency disciplinary or investigatory proceedings have arisen that may circumscribe the
       individual's asserted need for the materials. [Id. at 113.]
    With these tenets in mind, the court turns to an evaluation of the relief sought by the plaintiff. The two categories of
records will be considered separately.
    I. The 911 Tapes
     The plaintiff contends that the tapes made of Jacobs' cellular phone communications, which were logged through
the Public Safety Answering Point operated by Ocean County, are records obtainable under both the statutory and
common law right to know. They note that the New Jersey Administrative Code requires each Public Safety Answering
Point to maintain "recordings produced by the logging recorder and all documents or records related to 9-1-1 calls in a
secured area for no less than 31 days; . . ." N.J.A.C. 17:24-2.4(a)(1). Therefore, the tapes fit the statutory definition of
a document required by law to be made, maintained or kept on file. N.J.S.A. 47:1A-2. n3



       n3 The Ocean County Sheriff's Office has delivered the tapes to the Ocean county Prosecutor.

 [***11]
    The defendants counter claiming that, even if the tapes could be considered public records under the Right to Know
Law, they are exempted from disclosure by an executive order adopted pursuant to N.J.S.A. 47:1A-2 and also because
they constitute a record pertaining to an investigation in progress, which is exempted from disclosure by N.J.S.A.
47:1A-3.
     Executive Order No. 69 (1997) clarifies Executive Order No. 9 (1963), which excludes from the definition of a
public record, "fingerprint cards, plates and photographs and similar criminal [*157] investigation records that are
required to be made, maintained or kept by any State or local governmental agency." Executive Order No. 69, 29 N.J.
Reg. 2729(a) (1997). However, the Order does not constitute a defense to the plaintiff's claim in this case. First, on its
face, the exclusion of "fingerprint cards, plates and photographs and similar criminal investigation records" (emphasis
added), could not reasonably be read to contemplate 911 tapes. Furthermore, it cannot be said that the tapes are
produced for investigation purposes in the same sense as the other documents listed in [***12] the Executive Order.
                                                                                                                    Page 21
                                          354 N.J. Super. 146, *; 804 A.2d 1178, **;
                                  2002 N.J. Super. LEXIS 392, ***; 30 Media L. Rep. 2454
They are made because they are required by law to be made and maintained and they are generally made at a [**1185]
time when no investigation has commenced. Subsequently, they might become part of the investigation process, but
they can be distinguished from those documents exempted in Executive Order 69 both by a common sense reading of
the Order and because of the reason for which they are made. Cf.   State ex rel. Cincinnati Enquirer v. Hamilton
Cty., 75 Ohio St. 3d 374, 662 N.E.2d 334 (1996).
     Parenthetically, it should be noted that the 911 tapes do contain information which fits into a list of items that
Executive Order 69 requires to be disclosed. The Order directs that "information of the circumstances immediately
surrounding [an] arrest" shall be made available to the public within 24 hours of a request for such information.
Executive Order 69, 29 N.J. Reg. 2729(a)(1997). The Order delineates items that should be released, "including but not
limited to the time and place of the arrest, resistance, if any, pursuit, possession and nature and use of weapons and
ammunition by the suspect and by the police; ..." Ibid. The court has listened to the [***13] tapes in camera. They
relate, at least, to the circumstances surrounding the arrest including the time, place and pursuit. Indeed, the Prosecutor
acknowledged publicly that this case involves a pursuit, as well as allegations of resistance and the presence of a
weapon. Press Release, August 21, 2001.
     Finally, it should be acknowledged that the Appellate Division has cautioned that the executive orders adopted
pursuant [*158] to the Right to Know Law cannot be read, without more specific language, to provide an exception
to the disclosure requirements of the Act due to the "clear 'public policy'" embodied in N.J.S.A. 47:1A-1.
Shuttleworth v. City of Camden, 258 N.J. Super. 573, 592, 610 A.2d 903 (App. Div. 1992).
     Thus, the court concludes that the tapes are documents required to be maintained under the Right to Know Law
which are not exempted from disclosure under Executive Order 69. As noted, however, the defendants contend that the
tapes should be shielded by virtue of the provisions of N.J.S.A. 47:1A-3 because they "pertain to an investigation in
progress" and their release would be "inimical to the public interest. [***14] " It should be emphasized that the
statutory requirements are conjunctive. In order to find a basis to deny access to the tapes, the court must find both that
they pertain to an investigation in progress and that their release would be inimical to the public interest.
     The Attorney General argues that State v. Frankel, 341 N.J. Super. 594, 602, 775 A.2d 665 (App. Div. 2001), stands
for the proposition that release of the 911 tapes before the pending criminal proceedings have been resolved will likely
have a "chilling" effect on those seeking public assistance from law enforcement authorities. In Frankel, a 911 call was
received but no one seemed to be on the line. Id. at 597. The police responded to the address shown on the dispatcher's
computer and found the defendant. He denied making the call but he acted suspiciously and refused to allow the police
to enter the residence. Other unusual circumstances ultimately lead to a warrantless search during which the police
found marijuana. The defendant moved to suppress. Disclosure of the 911 tape was not at all at issue in the court's
decision. Instead, the Court discussed the need for prompt [***15] police action in response to 911 calls, even if they
are open-line calls. Id. at 602. In that setting, it found the 911 call provided part of the basis to invoke the so-called
emergency aid doctrine which, in turn, justified a warrantless search under the circumstances.
      [*159] [**1186] The Attorney General also argues that Bowling v. Brandenburg, 37 S.W.3d 785, 788 (Ky. Ct.
App. 2000), supports its claim that the release of the tapes will have a chilling effect. The Kentucky Open Records Act
contains a provision which exempts from disclosure a record containing "information of a personal nature where the
public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy." KRS 61.878(1)(a). The
release of the tape was requested by the appellant, who had allegedly made a threat to kill his wife and other family
members. A family member called 911 to report the threat. The court in Bowling found that the request for the tape was
made for the specific purpose of determining the identity of the caller, which was "precisely why the Act exempts calls
of a personal nature . . . to prevent the disclosure of a 911 caller's identity." Bowling, 37 S.W.3d at 788. [***16] There
is no comparable exemption in New Jersey's Right to Know Law. Even if there were such a provision, the identity of
the caller in this case has been made known both by the Prosecutor and the media.
     The Kentucky Court of Appeals made its ruling in the context of a domestic violence action and only after
engaging in a weighing process which balanced the competing interests of the 911 caller's right to privacy when seeking
public assistance against the public's right to know about the conduct of public agencies. The Court said, "releasing the
tapes of 911 calls seeking police assistance, particularly in instances of domestic violence, would have a chilling effect
on those who might otherwise seek assistance because they would become subject to, as the trial judge in this case
noted, retaliation, harassment, or public ridicule." Ibid. That potential is not nearly as significant in the setting of this
case. Jacobs, the alleged victim, could hardly be concerned about the future consequences of his call, when his primary
                                                                                                                      Page 22
                                           354 N.J. Super. 146, *; 804 A.2d 1178, **;
                                   2002 N.J. Super. LEXIS 392, ***; 30 Media L. Rep. 2454
motive was to protect himself from the "kids in a van." Fear of retaliation or retribution is not a significant factor in this
case.
    Finally, unlike our New Jersey [***17] law, the Kentucky statute apparently did not have the two-prong
requirement that the [*160] documents pertain to a criminal investigation and that their release be inimical to the
public interest. The Kentucky Court considered only its equivalent of the second prong.
    Defendants' arguments for the suppression of the 911 tapes are not supported by any New Jersey precedent. This
case is one of first impression in our State. However, other jurisdictions not having the "personal privacy" exception
contained in the Kentucky law have directed release of 911 tapes.
      The Ohio Supreme Court ruled that 911 tapes are public records that are not exempt from disclosure. State ex rel.
Cincinnati Enquirer v. Hamilton Cty, 75 Ohio St. 3d 374, 662 N.E.2d 334 (1996). Speaking specifically to 911 tapes
that become part of criminal investigations but encompassing all 911 tapes, the Court concluded that once a 911 call is
made, it becomes a public record. Id. at 378. The Court found that the 911 tapes were obviously not "confidential law
enforcement investigatory records" or "trial preparation records." Ibid. To the contrary, the Court stated that 911 calls
are not made for [***18] any investigative purposes. Ibid. Furthermore, the Court asserted that, even if the tapes
subsequently came into the control or possession of a prosecutor, law enforcement official or even a grand jury, they
still had to be disclosed. [**1187] Ibid. The Court held that "once clothed with the public records cloak, the records
cannot be defrocked of their status." Ibid. Other jurisdictions have reached the same result. State v. Gray, 741 S.W.2d
35, 38 (Mo. App. 1987); State v. Cain, 223 Conn. 731, 733, 613 A.2d 804 (1992).
     Indeed, a Michigan court has held that the fact that the release of the 911 tapes might have a chilling effect on a
citizen's willingness to use the 911 system is an insufficient reason to deny access to the tapes under the Michigan
Freedom of Information Act. Payne v. Grand Rapids Police Chief, 178 Mich. App. 193, 443 N.W.2d 481 (Mich. App.
1989). In that case, parents suspected foul play when police ruled their daughter's death a suicide. They sought access to
the 911 tapes, believing that their daughter might have called for help. The trial court refused to order release of [*161]
the tapes fearing that citizens might [***19] be unwilling to report possible criminal conduct out of concern for loss of
anonymity. The appellate court disagreed, and although it refused to adopt a per se rule regarding the status of 911 tapes
as public records, it declared that the threat to potential use of the system was inadequate to block disclosure. Id. at
200-201.
     In this case, the media has already reported the circumstances relating to the arrest and investigation. Much of that
reporting was based on information which the Prosecutor disclosed. Included in the Prosecutor's statement are
references to the contents of the 911 tapes. n4 Is there any real expectation of privacy in this context?



       n4 The Prosecutor's Press Release of August 21, 2001 says: "During [a low speed police pursuit] . . ., Mr. Jacobs
       dialed 911 reporting that he was being followed by several 'kids in a van.' He made several attempts to contact
       authorities to request police assistance in stopping the van which was following him and a second vehicle which
       was also chasing him."

 [***20]
     Again, no New Jersey decision has addressed this precise issue. In North Jersey Newspapers Co. v. Passaic County
Bd. of Chosen Freeholders, 127 N.J. 9, 601 A.2d 693 (1992), our Supreme Court found that the Right to Know Law did
not require the release of telephone records of public officials due to the expectation of privacy in telephone
communications. The Court concluded that the public need for the records did not outweigh the privacy interests
involved. Id. at 19. However, it is doubtful that the same expectation of privacy is present when a 911 call is made.
Indeed, it is more likely that the average person assumes that a tape is being made of the call. State ex rel. Cincinnati
Enquirer v. Hamilton Cty, 75 Ohio St. 3d 374, 662 N.E.2d 334 (1996) (finding an expectation that information provided
during a 911 call will be recorded and disclosed to public). Certainly, the victim here would likely hope that his calls
were recorded and that they would provide evidence of his alleged mistreatment.
      [*162] Furthermore, the possible negative effects of disclosure to the public are slim, when weighed against the
vindication of the public policy [***21] underlying the Right to Know Law . The argument that potential jurors in the
criminal prosecution of the police officers may be tainted by releasing the tapes are overstated and not supported by our
case law.
                                                                                                                      Page 23
                                           354 N.J. Super. 146, *; 804 A.2d 1178, **;
                                   2002 N.J. Super. LEXIS 392, ***; 30 Media L. Rep. 2454
     In light of the Prosecutor's public statement, prospective jurors who have been exposed to the media may already
know about the tapes and some of what is contained in them. They may even have [**1188] made some assumptions
based on the media reports about the incident. Jurors are exposed to pretrial publicity on a regular basis. To remedy this
situation and to ensure the right to an impartial jury, a comprehensive voir dire is required to establish that potential
jurors are able to set aside any knowledge of the incident or any opinion they have formed and render an unbiased
decision. State v. Timmendequas, 161 N.J. 515, 567, 737 A.2d 55 (1999) (citing State v. Williams, 113 N.J. 393, 429,
550 A.2d 1172 (1988) (Williams II)). The Timmendequas Court held that the right to a fair trial does not mean that the
jurors must be completely ignorant of the facts and issues in a case. Ibid.
     The pretrial publicity which disclosure of the tapes [***22] might generate is quite unlikely to be of the
magnitude that was involved in Timmendequas and Williams and yet, juries were successfully impaneled in those cases.
Our courts have said that parties involved in criminal proceedings tend to overestimate the reach of publicity. United
States v. Pageau, 535 F. Supp. 1031, 1033 (N.D.N.Y. 1982); United States v. Haldeman, 181 U.S. App. D.C. 254, 559
F.2d 31, 62-63 n.37(D.C. Cir. 1976). The court suspects that is occurring here particularly in light of the information
already released to the public. In the remote chance that any prejudice can be demonstrated from the disclosure of the
tapes, there is relief available through many devices such as augmenting the jury pool, use of so-called foreign jurors or
even a change of venue. In any event, mere speculation and unease concerning the release of the tapes at this [*163]
posture of the proceeding should not undermine the public's right to know.
     Finally, the Attorney General claims that even if the tapes are to be released under the Right to Know Law, the
plaintiff is only entitled to transcripts of the tapes, not the tapes themselves or copies of the tapes. [***23] The
argument is based upon a literal reading of N.J.S.A. 47:1A-2 and 2.1. It is suggested that section 2 of the Right to
Know Law speaks only to written documents and does not contemplate records in other formats. Section 2.1 was
adopted as an amendment to section 2 and relates to records created by data processing or imaging. It provides that a
citizen shall be entitled to receive printed copies of the records, if they are to be released, rather than duplicates of the
computer data or imaging. The Attorney General asserts that the Supreme Court in Higg-A-Rella, Inc. v. County of
Essex, 141 N.J. 35, 660 A.2d 1163 (1995), held that the amendment of section 2 shows the legislative intent to
circumscribe access to computer records sought under the Right to Know Law. However, while it is true that the Court
did not order release of computer tapes under the statutory Right to Know Law, it stated that it would not extend the
presumed legislative intent to computer records accessible under the common law. Therefore, it authorized the release
of a duplicate of the computer tapes under the common law.             Id. at 48. In this court's view, the same [***24] result
should be reached with the 911 tapes.
     While the court finds that release of the tapes, in the context of this case, would not be inimical to the public
interest, it appears that their format may preclude disclosure in tape form under the statute, in light of the Higgi-A-Rella
ruling. However, there is little doubt that the tapes should be disclosed under the common law right to know. Clearly
they fit the definition expressed above. They are a memorial, made by a public officer, authorized by law to make them.
Furthermore, an analysis [**1189] of the Loigman factors leads the court to the conclusion that they should be
revealed. First, as noted earlier, it is unlikely that disclosure will have a [*164] chilling effect on the likelihood that
citizens will make 911 calls and, therefore, it will not impede any agency function. Second, again, the court does not
believe that citizens calling 911 expect that their identities will be protected. Third, there is no evident impact on
self-evaluation, program improvement or other decision-making caused by release of the tapes. Fourth, the information
in the tapes is solely factual data as opposed to evaluative reports. Fifth, the tapes are part of the [***25] evidence
needed to determine, in the first place, whether there has been official misconduct. Last, the plaintiff's need for release
is a public need unrelated to any disciplinary or investigatory process regarding alleged police officer misconduct. In
short, the balance is clearly stricken in favor of release of the tapes. The public's right to know substantially outweighs
any claimed need for confidentiality.
    II. The Police Reports
     During oral argument, the plaintiff and the Media stipulated that the police reports were not public records under
the statutory Right to Know Law. Subsequently, the Media argued that they were public records required to be
maintained pursuant to N.J.S.A. 40:48-6. That statute, adopted in 1920, merely requires that when a municipality
maintains a municipal building or space for the conduct of municipal business, all records should be kept there in a
secure place. It is quite a leap to interpret this statute as requiring the maintenance of any records, not to mention that
there is no reference therein to police records. In truth, it does nothing more than say that the records of a municipality
pertaining to the operation [***26] of municipal business, if maintained at all, should be kept in a municipal building
                                                                                                                       Page 24
                                           354 N.J. Super. 146, *; 804 A.2d 1178, **;
                                   2002 N.J. Super. LEXIS 392, ***; 30 Media L. Rep. 2454
or other place of safe-keeping as designated by the governing body. The thrust of the statute is the secure storage of
municipal records. Cf.      Shuttleworth v. City of Camden, 258 N.J. Super. 573, 580, 610 A.2d 903 (App. Div. 1992).
     Clearly, the police reports are documents maintained by a political subdivision. The question is whether they are
"required by law to be made, maintained or kept on file" in the words of the [*165] statute. N.J.S.A. 47:1A-2. The
plaintiff is simply unable to cite the court to any authority that would satisfy that requirement. Defendants argue that
even if the plaintiff could provide statutory justification for their position, the records would be exempted under
Executive Order 69 excluding the release of "fingerprint cards, plates and photographs and similar criminal
investigation records that are required to be made, maintained or kept by any State or local governmental agency."
Executive Order No. 69, 29 N.J. Reg. 2729(a)(1977). The argument is tenuous, at best. On the face of it, the reports do
not fit into the category of [***27] records protected by the Executive Order. In any event, it is clear that the records
are not required to be maintained and, as such, are not public documents under the statutory Right to Know Law. n5



       n5 It should be noted in passing, that under the comprehensive revision of the Right to Know Law effective July
       8, 2002, there is an express provision exempting criminal investigatory reports from disclosure, which would
       appear to include police reports. P.L. 2001, c.404. At the end of this opinion, the court will briefly discuss what
       impact the new law would have on the outcome of this case.

  [**1190]
     The parties have stipulated that the police reports are records under the common law right to know. This court
agrees. Asbury Park Press v. Seaside Heights, 246 N.J. Super. 62, 586 A.2d 870 (Law Div. 1990). Thus, the citizen's
right to access rests upon a personal or particular interest in the material sought. Yet, as noted, even the existence of the
interest does not provide an absolute right to disclosure. [***28] Again, 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, 222-224, 386 A.2d 846 (1978); McClain v. College Hosp., 99 N.J. 346,
354-355, 492 A.2d 991 (1985).
     The records requested here consist solely of police reports concerning the chase, stop and arrest. The court has
reviewed them in camera and found that they are either first person accounts of those involved in the incident or
statements of other [*166] police officers who were informed of the event. Some of the reports include eyewitness
statements. All of the reports contain information which could be relevant to the investigation and prosecution of the
criminal charges against Jacobs and the three police officers. Indeed, they may be offered as evidence in either or both
of these proceedings.
     This case is a good example of the need to balance the Loigman factors, since some of them would justify the
release of the reports but one of them weighs more heavily in favor of precluding disclosure. Loigman v. Kimmelman,
102 N.J. 98, 104, 505 A.2d 958 (1986). [***29] First, it is not clear whether release of the records will impede agency
functions by discouraging citizens from providing information to the government. People routinely provide the police
with statements at the scene of accidents, even though criminal prosecution may ensue. Whether citizens would be less
likely to report incidents of police brutality out of fear of retribution is more uncertain. It should be noted that the
Prosecutor's press release makes reference to the fact that the entire incident was made known to the authorities by
independent witnesses to the alleged assault. The Prosecutor's disclosure was an open invitation to the media to find and
interview those witnesses. In fact, the record before the court includes Press articles containing eyewitness interviews.
Apparently the Prosecutor did not believe that his statement would have the potential of impairing agency functions by
discouraging citizen reporting or, for that matter, encouraging the discovery of the witnesses' identities.
     The second Loigman factor relates principally to those witnesses' expectation of privacy. Once again, the weight to
be given to this factor is debatable for the same reasons discussed [***30] concerning the first factor. Clearly, the
officers making the report cannot claim that they assumed the documents would be private. They know that the reports
can be used for investigation, discipline, self-evaluation and other purposes. As to the third factor, it is difficult to argue
that there would be a chilling effect on the agency in its self-evaluation or program improvement. The reports would
have been made whether or not they were used for [*167] self-critical analysis. Further, the defendants stipulated
they would be released in any event at the completion of the pending criminal case.
     The fourth criterion mentioned in Loigman, the degree to which the information [**1191] sought includes
factual data as opposed to evaluative reports of policy makers, is related to the third factor. As noted, the documents
                                                                                                                     Page 25
                                           354 N.J. Super. 146, *; 804 A.2d 1178, **;
                                   2002 N.J. Super. LEXIS 392, ***; 30 Media L. Rep. 2454
before the court are nothing more than incident statements relating the maker's observation of or involvement in the
affair. Since they are fact statements rather than evaluative reports, this consideration argues in favor of their release. As
to the fifth factor, to this date there has been no definitive finding of public misconduct. That is at the heart of the
criminal proceedings [***31] involving the three police officers. The court has not been informed of any pending
disciplinary proceedings. It is likely that agency review, if any, would await the outcome of the pending criminal
charges. It cannot be determined at this stage whether there was misconduct and, if so, whether remedial action was
adequate.
     The sixth factor, the pending investigation and criminal proceedings, bears heavily upon the outcome in this case. It
is the principal basis for the defendants' argument that the reports should not be disclosed. They assert that the police
reports constitute part of an ongoing investigation which will continue right up to the day of trial. Therefore, they
contend the plaintiff's right to see the reports should be circumscribed so as to delay release until the trial is completed.
     The defendants' argument finds support in our case law. In Shuttleworth v. City of Camden, 258 N.J. Super. 573,
610 A.2d 903 (App. Div. 1992), newspapers sought to review police files and an autopsy report concerning the shooting
of an arrestee who had been in police custody. The Appellate Division affirmed the trial court's decision to release the
autopsy report based [***32] on the trial court's common law balancing test. Id. at 594. n6 [*168] The appellate
court said that the "absence of any ongoing homicide investigation, and indeed precisely because the investigation was
closed without the filing of charges," was a major factor in its decision to release the report. Id. at 595. Similarly, our
Supreme Court has found that the main reason for non-disclosure is the need for confidentiality and that this concern is
"especially important in the context of criminal proceedings." State v. Marshall, 148 N.J. 89, 273, 690 A.2d 1 (1997). In
Keddie v. Rutgers, 148 N.J. 36, 54, 689 A.2d 702 (1997), our Court found that "the need for confidentiality is greater in
pending matters than in closed cases.



       n6 The issues concerning the disclosure of other police files were remanded to the trial court.

     The plaintiff's pursuit of the release of the tapes and records, in the public interest, relates to the potential of
revealing [***33] police misconduct and, perhaps, inefficiency in the 911 system and the Lakewood Police
Department. The defendants' interest in resisting disclosure is, as mentioned, its concern for the impairment of the
ongoing investigation and the deleterious impact on the pending criminal proceeding. Given the importance our courts
have placed on confidentiality while investigations are ongoing and criminal matters are pending, the court concludes
that the Press should wait for the police reports until prosecution is completed. The trial itself could disclose a great deal
of information concerning alleged police misconduct as well as alleged inadequacies or improprieties in the operation of
the 911 system and the Lakewood Police Department. In the interim, the Press will have [**1192] the 911 tapes to
assist in its evaluation of the system. The defendants agree that they will release the reports at the completion of the
criminal proceedings at which time the plaintiff can further address both the misconduct charges and the 911 system.
     Finally, as noted earlier, the Legislature has adopted a comprehensive revision of the Right To Know Law most of
which becomes effective July 8, 2002. n7 P.L. 2001, c.404. [***34] The new statute [*169] would not change
substantially the result in this case. The revision reverses the presumption of the old statute. Under the existing law, a
public record is accessible only if it is required to be made, maintained or kept on file and, even then, the release is
subject to several exemptions. The amendment provides that all government records shall be subject to public access
unless they are exempted from disclosure under the prior act, by any other statute, resolution of either or both houses of
the Legislature, regulation promulgated under the authority of any statute, Executive Order of the Governor or under
federal law (other than the Federal Freedom of Information Act). P.L. 2001, c.404, § 1.



       n7 Sections 15 and 16, relating to the Privacy Study Commission and its funding became effective immediately
       upon passage on January 8, 2002.

     The new law provides that criminal investigatory records shall not be considered governmental records and shall be
deemed confidential. A "criminal investigatory [***35] record" is defined as a record not required by law to be made,
maintained or kept on file which is held by a law enforcement agency and pertains to any criminal investigation or
related civil enforcement proceedings. P.L. 2001, c.404 § 1.2. While the Act is not explicit, it seems clear that police
                                                                                                                  Page 26
                                          354 N.J. Super. 146, *; 804 A.2d 1178, **;
                                  2002 N.J. Super. LEXIS 392, ***; 30 Media L. Rep. 2454
reports would fall within this definition. However, the new legislation also declares that nothing contained therein shall
be construed as in any way affecting the common law right of access to the criminal investigatory records. That leaves
open the possibility that they may be released, particularly in the case of completed criminal prosecutions.
     The Act provides that where a request for disclosure pertains to records involved in an investigation in progress,
access can be denied if release would be inimical to the public interest provided that this exemption shall not allow a
public agency to prohibit access to a record that was open for public inspection before the investigation began. Id. at §
3. That would apparently mean that most 911 tapes would be accessible under the Act since they will likely be made
before any investigation is in progress. Finally, the Act directs that [***36] records maintained in a form other than
writing, including those maintained electronically or by sound-recording or in a similar device, are accessible, thus
resolving the [*170] issue discussed in Higg-A-Rella, 141 N.J. at 35. P.L. 2001, c.404. § 2. As a result, the plaintiff
would be entitled to copies of the tapes both under the new Act and at common law.
     Mr. Connell shall submit an order in conformity with this opinion directing release of the 911 tapes but denying
disclosure of the police reports.

				
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