County prosecutors’ group can continue its secrecy, New Jersey’s top court rules

In a new blow for transparency advocates, the state Supreme Court decreed Wednesday that the County Prosecutors Association of New Jersey is not a public agency and so doesn’t have to share its records with the public.

The American Civil Liberties Union of New Jersey has unsuccessfully fought the association since 2019 for its financials, meeting agendas and minutes, briefs filed in state or federal courts, and any policies or practices the association shared with county prosecutors.

The records fight evolved into a broader debate over whether the association — a nonprofit that’s wholly publicly funded and whose sole members are the 21 county prosecutors — is subject to public scrutiny under the state Open Public Records Act and common law right to access.

In a split ruling Wednesday, a majority of the court sided with the association’s bid to maintain secrecy, while two justices dissented.

Justice Anne Patterson, writing for the majority, largely focused on language in both OPRA and the common law that defines a public agency as one created by a “political subdivision” and a public record as one either made by a public official carrying out their official duties, required by law to be kept, or filed in a public office.

“The county prosecutor is not the alter ego of the county itself, and does not constitute a ‘political subdivision,’” Patterson wrote.

The association, she added, has no public office, no constitutional or statutory powers, and no authorization to investigate, arrest, or prosecute anyone, she added.

“If the prosecutors’ offices have CPANJ-related documents that are subject to the common law right of access, the ACLU can request those documents from the public entities that have them — the prosecutors’ offices,” Patterson wrote.

Chief Justice Stuart Rabner and Justices Lee Solomon, Fabiana Pierre-Louis, and Douglas Fasciale joined in Patterson’s decision, which affirmed rulings by trial and appellate judges.

A strong dissent

Justice Rachel Wainer Apter penned a sharply worded dissent that was joined by Justice Michael Noriega.

“Because no private citizens are members of CPANJ, every document recorded, generated, or produced by CPANJ is recorded, generated, or produced by a public official. And CPANJ itself says that it was created to promote ‘the orderly administration of criminal justice within the State and the fair and effective enforcement of the constitution and laws of this State’ — a governmental purpose of the highest order,” Wainer Apter wrote.

The public access New Jersey’s public records law guarantees to government records plays “a key role … in a vibrant democracy,” so any limitations on it should be decided in favor of public access, she added.

Wainer Apter also zeroed in on the association’s public funding, agreeing with the ACLU’s argument that it’s a public agency because its work is carried out by publicly funded county prosecutors and their staffs in their government offices using government resources.

“Public officials should not be permitted to hide behind organizational forms to utilize government resources to carry out government business in secrecy,” Wainer Apter wrote. “This means that county prosecutors’ offices should not be permitted to escape OPRA by labeling certain of their activities as occurring on behalf of CPANJ, rather than themselves, when the ACLU alleges that there is no functional difference between the two.”

Attorney Christopher Gramiccioni, who represented the association, did not respond to requests for comment. Bergen County Prosecutor Mark Musella, the association’s current president, said in a brief email he was “pleased” by the ruling.

Why it matters

The ACLU first asked for the records because of the powerful role the association plays in state criminal justice matters, said Jeanne LoCicero, the ACLU’s legal director.

The association meets monthly with the state Attorney General’s Office to mull matters around the enforcement of the state’s crime laws. It also has filed briefs weighing in court cases with widespread impact, including the pandemic releases of people in prisons and jails and the constitutionality of criminal statutes and searches and seizures.

“We thought New Jerseyans should have more information about how these public figures are operating and the decisions they are making about criminal justice policy in our state,” LoCicero said.

ACLU advocates are “disappointed” by the ruling, she added.

“As the dissent rightly points out, it’s hard to understand how they can continue to use state employees to work on behalf of a private nonprofit entity,” she said.

Attorney CJ Griffin filed a supporting brief in the case on behalf of Libertarians for Transparent Government and the Association of Criminal Defense Lawyers of New Jersey. Griffin also has represented the New Jersey Monitor in unrelated matters.

“This decision raises some red flags about how the ethics laws might be implicated and whether or not a private organization like this should be using government resources and government attorneys to defend it in court,” Griffin said.

Still, she and LoCicero said anyone looking to learn county prosecutors’ doings can still seek answers directly from the 21 prosecutors themselves.

“It requires more work. It’s going to take 21 requests and tracking it down and one agency saying: ‘I don’t have it,’ and the other one saying they don’t either, maybe lawsuits because they’re going to claim it’s a CPANJ record versus a county prosecutor record,” Griffin said. “I just have some worries there, especially in light of everything that just happened with the Warren County prosecutor.”

The state Attorney General’s Office took over the Warren County Prosecutor’s Office earlier this month and ousted prosecutor James Pfeiffer after state investigators found the office misused state funds meant for insurance fraud investigations.

The bigger picture

The ruling comes as state legislators are considering changes to the state public records law that critics warn would drastically restrict records access, making it much tougher for the public, press, and others to find out what public officials are doing.

Protests by community activists and transparency advocates derailed votes on the bill in the past month, and its fate remains uncertain, although legislators have said they are working on amendments.

Wednesday’s ruling, in the broader context of that legislative brouhaha, is “concerning,” Griffin said.

“The state is trending towards more systems that allow for secrecy and that make more records off limits, that allow government to operate more in darkness. And now, here’s an organization that’s really just the prosecutors calling themselves an organization sometimes when they meet and sometimes not,” she said. “So allowing that to remain in darkness is just concerning.”