CPANJ is neither a public agency under N.J.S.A. 47:1A-1.1 nor a public entity subject to the common law right of access. The ACLU’s factual allegations do not support a claim against CPANJ under OPRA or the common law.
1. OPRA applies only if the entity to which a request is directed meets the statutory definition of a public agency. For purposes of OPRA, the terms “public agency” or “agency” denote the entities specified in N.J.S.A. 47:1A-1.1, which include “any political subdivision of the State or combination of political subdivisions, and any division, board, bureau, office, commission or other instrumentality within or created by a political subdivision of the State or combination of political subdivisions, and any independent authority, commission, instrumentality or agency created by a political subdivision or combination of political subdivisions.” The term “political subdivision” denotes a division of a state that exists primarily to discharge some function of local government, such as a county or municipality, as well as certain entities formed by counties and municipalities, such as parking authorities. The ACLU argues that CPANJ is an instrumentality of the county prosecutors. Accordingly, the core question in this appeal is whether a county prosecutor constitutes a “political subdivision” for purposes of OPRA. (pp. 14-22)
2. A county is indisputably a “political subdivision of the State” as defined in OPRA, N.J.S.A. 47:1A-1.1. The status of the counties themselves as political subdivisions under OPRA, however, has no bearing on the analysis. A county prosecutor is distinct from the county that the prosecutor serves for purposes of OPRA’s reach. A county prosecutor, like the Attorney General, is a constitutional officer who serves by virtue of gubernatorial nomination and Senate confirmation. Although a county exercises considerable control over the fiscal operations of the county prosecutor’s office, a county prosecutor’s law enforcement function is unsupervised by county government or any other agency of local government. In short, the county prosecutor is not the alter ego of the county itself, and does not constitute a “political subdivision” as that term is used in N.J.S.A. 47:1A-1.1. CPANJ, meanwhile, constitutes an organization in which the county prosecutors are members and is not the alter ego of the prosecutors themselves. Because a prosecutor does not meet the definition of a “political subdivision” under N.J.S.A. 47:1A-1.1’s plain language, CPANJ is not a public agency for purposes of OPRA. The ACLU’s factual allegations do not support its assertion that CPANJ is a public agency within the meaning of N.J.S.A. 47:1A-1.1. Because the ACLU did not seek the documents from a public agency in accordance with N.J.S.A. 47:1A-5 and -6, the Court does not reach the question whether the documents identified in its request constitute “government records” under OPRA. (pp. 22-26)
3. A public record under the common law is one that is made by a public official in the exercise of the official’s public function, either because the record was required or directed by law to be made or kept, or because it was filed in a public office. Here, the ACLU identifies no statute, regulation, or other mandate requiring CPANJ to create or maintain the requested documents. It suggests no statutory or regulatory mandates of any kind addressing the records at issue. The ACLU does not allege that CPANJ maintains public documents in a public office; indeed, it does not dispute CPANJ’s assertion that it maintains no office at all. The ACLU identifies no precedential decision discussing, let alone upholding, a request for public documents served on a private entity such as CPANJ. In short, the ACLU asserts no factual allegations that would suggest that CPANJ constitutes an entity upon which a common law right of access request for documents may properly be served. The Court does not reach the question whether the documents that the ACLU requested from CPANJ would be considered common law public documents if requested from a public entity. (pp. 26-29)