New Jersey’s high court weighs whether prosecutors’ group is a public agency

The New Jersey Supreme Court will weigh whether a private nonprofit entirely staffed and funded by the government is subject to the state’s public records laws.

The case centers around the County Prosecutors Association of New Jersey’s denial of a records request filed by the American Civil Liberties Union of New Jersey, with the association claiming it is not a public agency.

The ACLU of New Jersey contends the association and county prosecutors are one and the same, noting that the state’s 21 county prosecutors make up the group’s full membership, staff from those offices account for its volunteers, and dues paid by the prosecutors’ offices encompass much of the association’s funding.

“If your entire process is just using government staff, if it’s using government funds to do the work, then how is that a private agency?” Karen Thompson, a senior staff attorney for ACLU of New Jersey, told the high court during oral arguments in the case Tuesday.

Christopher Gramiccioni, who argued on behalf of the association, charged the nonprofit is not a public agency, noting that while it issues criminal justice policy recommendations, the group does not use the law enforcement powers granted to its individual members.

State law, he added, allows prosecutors to engage in charity.

“A county prosecutor might volunteer to be on a little league board in their municipal town. It doesn’t mean they also hold those powers to be able to carry out those functions,” he said.

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The case stems from a 2019 Open Public Records Act request seeking meeting minutes, agendas, funding records, and other documents from the prosecutors’ group. The association denied the request, a Superior Court judge dismissed the ACLU of New Jersey’s initial records suit, and an appellate panel affirmed that decision.

Justices and attorneys for the ACLU of New Jersey and Libertarians for Transparent Government, which joined the case as a friend of the court, argue the closeness of the two groups belie the association’s claims, noting that assistant prosecutors had written legal briefs and argued on its behalf in court in apparent violation of a state law that bars prosecutors from providing outside legal services.

The association, the plaintiffs noted, also provides criminal justice policy recommendations to the state and has statutorily designated seats on state boards dedicated to police training and domestic violence. The group also administers scholarships and has joined legal cases as a friend of the court.

Justices questioned how the court could determine whether a meeting between the state’s attorney general and the 21 county prosecutors is a meeting between law enforcement officials, or a meeting between the attorney general and the association.

“On a substantive level, how are these meetings different from the perspective of the attorney general, the county prosecutors, and CPANJ? Does it turn on who initiates them?” said Chief Justice Stuart Rabner.

Gramiccioni said he believes it does, adding the content of a meeting typically differs depending on whether the association or the attorney general convenes it.

But Thompson countered: “We cannot just avoid the fact of this complete sameness of identity between the two organizations. I think CPANJ functions as shorthand for the 21 county prosecutors. If the attorney general wants to summon them, the bat signal is of CPANJ. It’s not of the individual county prosecutors.”

What is a public agency

Much of Tuesday’s arguments centered around whether the state’s definition of “public agency” covers the County Prosecutors Association of New Jersey.

Gramiccioni said it does not, charging the group is an instrumentality of county prosecutors, who are themselves an instrumentality of their home counties — one more degree of separation than the state’s definition allows.

In addition to state departments, the Legislature, and independent authorities, any agency created by the state or its political subdivisions — like a county or municipality — is a public agency under state law.

The plaintiffs argued prosecutors are a political subdivision of the executive branch because New Jersey’s constitution requires county prosecutors to be appointed by the governor with the advice and consent of the Senate. That would make the association an instrumentality of a political subdivision or, in simpler terms, a public agency, they argued.

Justices met both definitions with some skepticism.

“Prosecutors are constitutional offices. They have very specific responsibilities. Those responsibilities are not, in any way, the responsibilities of CPANJ. Prosecutors don’t do any of the things that CPANJ does, regardless that they’re the members,” Justice Lee Solomon said.

It’s not clear that a declaration that the association is not a public agency would actually curtail access to its records — it could expand that access instead.

Though the Open Public Records Law has broad exemptions for interagency records and other deliberative material, there are far fewer exemptions for government records produced when public agencies interact with private entities.

That could mean non-public memos and policy recommendations the association sends to prosecutors or the attorney general that might be shielded were it found to be a public agency would find those protections gone.

“I think they would be subject to OPRA with no exemption that I can think of, your honor,” Gramiccioni said of such documents.

It’s not clear when the justices will decide on this issue.