The Supreme Court of New Jersey recently heard oral arguments in American Civil Liberties Union of New Jersey v. County Prosecutors Association of New Jersey. The closely-watched case involves whether the County Prosecutors Association of New Jersey (CPANJ), which is a nonprofit association comprised of the twenty-one county prosecutors of New Jersey, should be considered a public agency under the state’s Open Public Records Act (OPRA).
Appellate Division Decision
In response to an OPRA request by the American Civil Liberties Union of New Jersey (ACLU), CPANJ maintained that it is “not a public agency subject to the dictates of OPRA or requests made under the common law right of access.” The ACLU subsequently filed an action to compel disclosure of the requested records.
In support of its position that CPANJ’s records are subject to disclosure under OPRA and the common law right of access, the ACLU’s asserted, among other arguments, that CPANJ regularly meets with representatives of the Attorney General of New Jersey and is treated by the Office of the Attorney General [(OAG)] as a partner in implementing statewide criminal justice policy. It also maintained that despite being classified as ‘volunteers’ in their 990 tax forms, all officers, trustees, and members of CPANJ are New Jersey county prosecutors, appointed by the Governor and paid by the State of New Jersey.
CPANJ sought to dismiss the complaint, arguing that it is a private non-profit organization and not a public agency subject to the dictates of OPRA or to requests made under the common law right of access. The trial court granted CPANJ’s motion to dismiss the complaint, and the Appellate Division affirmed.
Citing OPRA’s statutory definition of “public agency” and New Jersey precedent interpreting it, the Appellate Division rejected the ACLU’s contention that CPANJ meets the definition of a public agency as an instrumentality “created by a . . . combination of political subdivisions.” In support, it emphasized that nothing in the record suggested that the counties directly created CPANJ or authorized its creation. “Any entity created by the county prosecutors is, at most, an instrumentality of instrumentalities or of offices,” the court wrote.
The Appellate Division also determined that CPANJ is not a public entity subject to the common law right of access. Accordingly, it held that CPANJ was not required to provide the requested documents and the ACLU’s common law right of access claims were properly dismissed. “The ACLU requested records from and brought this lawsuit against CPANJ, a nonprofit association, not the attorney general, an individual county prosecutor, a county prosecutor’s office, nor any other governmental entity,” the court wrote. “As we have stated, CPANJ was not created or authorized by statute or regulation. Membership in CPANJ is optional. While every county prosecutor is currently a member, for fellowship’s sake, nothing requires a county prosecutor to be a member of CPANJ.” It added: “The county prosecutors’ voluntary participation in CPANJ does not render the association a public agency where, as here, it was created through independent action, not governmental action.”
Issue Before the NJ Supreme Court
The New Jersey Supreme Court granted certification on March 24, 2023. The court agreed to consider the following question: “Is the County Prosecutors Association of New Jersey subject to the Open Public Records Act as a ‘public agency’ under N.J.S.A. 47:1A-1.1 and are its records subject to the common law right of access?”
At oral arguments held on October 10, 2023, the justices focused largely on OPRA’s definition of “public agency,” which includes: “Any of the principal subdivisions in the executive branch of state government, or and any division, board, bureau, office, commission, or other instrumentality withing, or created by such department, the Legislature of the State of New Jersey, and any office, or bureau, or commission within, or created by the legislative branch, and any independent State authority, commission, instrumentality or agency.” The term also includes any political subdivision of the State, or a combination of political subdivision, and any division, board, bureau, office, commission, or other instrumentality within, or created by a political subdivision of the State, or a combination of political subdivisions, and any independent authority, commission, instrumentality, or agency created by a political subdivision, or a combination of political subdivision.
In arguing that CPANJ should be considered a public agency, the ACLU’s attorney emphasized that all the association’s members and volunteers are county prosecutors or assistant county prosecutors. Additionally,CPANJ is supported exclusively by state funding.
“Most importantly — and it’s telling that both the Trial Division and the Appellate Division leapfrogged over this issue — is that the county prosecutors are completely dependent on the resources of the state to do their business and to do their work,” ACLU attorney Karen Thompson stated. Nonetheless, many of the justices questioned exactly which category under OPRA’s “public agency” definition CPANJ should fall. Meanwhile, CPANJ’s attorney argued the entity is a nonprofit comprised of voluntary members, akin to county prosecutors volunteering to serve on a Little League board. “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,” Christopher Gramiccioni said.