American Civil Liberties Union of New Jersey v. County Prosecutors Association of New Jersey

SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office
of the Clerk for the convenience of the reader. It has been neither reviewed nor
approved by the Court and may not summarize all portions of the opinion.

American Civil Liberties Union of New Jersey v. County Prosecutors Association
of New Jersey (A-33-22) (087789)

Argued October 10, 2023 -- Decided April 17, 2024

PATTERSON, J., writing for the Court.

In this appeal, the Court considers whether defendant the County Prosecutors
Association of New Jersey (CPANJ) is a public agency required to disclose records
pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and a
public entity subject to the common law right of access.

CPANJ is a nonprofit association whose members are the twenty-one county
prosecutors. It has no employees or office. The ACLU asserts that CPANJ
“regularly sends copies of its meeting minutes and agendas” to the Office of the
Attorney General and that the county prosecutors who comprise the membership of
CPANJ use the resources of their offices to conduct CPANJ business, including “the
development of agendas, the coordination of meetings and dinners, and the
administration of [CPANJ’s] scholarship program.” The ACLU states that CPANJ
participates as amicus curiae in trial and appellate matters and that it has filed
appearances in court. The ACLU asserts that CPANJ uses county prosecutors’
resources when it participates in court proceedings as amicus curiae.

On July 19, 2019, the ACLU served a records request on CPANJ’s president
pursuant to OPRA and the common law right of access. CPANJ denied the request,
stating that it was “quite simply not a public agency” as that term is defined by
N.J.S.A. 47:1A-1.1. CPANJ also denied the ACLU’s request for disclosure of the
records pursuant to the common law right of access.

The ACLU filed this action, alleging that CPANJ is a public agency under
N.J.S.A. 47:1A-1.1 because it is “an instrumentality created by a combination of
political subdivisions to facilitate cooperation between government agencies and
other political subdivisions.” The ACLU also asserted that the requested documents
are public records subject to public access under the common law.

The trial court dismissed the complaint, holding that CPANJ is not a public
agency within the meaning of N.J.S.A. 47:1A-1.1 and that, because CPANJ’s
1
records were not created under authority granted independently to each county
prosecutor, they do not constitute public records for purposes of the common law
right of access. The Appellate Division affirmed the dismissal of the ACLU’s
OPRA claims, and it concurred with the trial court’s rejection of the ACLU’s
common law right of access argument but on different grounds -- namely, that
CPANJ is not a public entity and is therefore not subject to the common law right of
access. 474 N.J. Super. 243, 268-72 (App. Div. 2022). The Court granted
certification. 253 N.J. 396 (2023).

HELD: 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.
2
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)

AFFIRMED.

JUSTICE WAINER APTER, dissenting, expresses the view that the facts
alleged about CPANJ, taken in the light most favorable to the ACLU, suggest that
CPANJ is simply another name for the county prosecutors themselves and that it
therefore meets the definition of “public agency” in N.J.S.A. 47:1A-1.1 in the same
way that the county prosecutors’ offices themselves do. Looking behind CPANJ’s
technical form, and construing OPRA “in favor of the public’s right of access,”
N.J.S.A. 47:1A-1, Justice Wainer Apter would hold that the trial court erred in
granting CPANJ’s motion to dismiss the ACLU’s OPRA claim. In addition, Justice
Wainer Apter writes, 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, because CPANJ maintains all documents in the
county prosecutors’ offices -- which are public offices under the common law --
CPANJ documents are by definition common law public records. Justice Wainer
Apter would therefore hold that the trial court also erred in dismissing the ACLU’s
claim under the common law.

CHIEF JUSTICE RABNER and JUSTICES SOLOMON, PIERRE-LOUIS, and
FASCIALE join in JUSTICE PATTERSON’s opinion. JUSTICE WAINER
APTER filed a dissent, in which JUSTICE NORIEGA joins.
3
 SUPREME COURT OF NEW JERSEY
A-33 September Term 2022
087789

American Civil Liberties
Union of New Jersey,

Plaintiff-Appellant,

v.

County Prosecutors
Association of New Jersey,

Defendant-Respondent.

On certification to the Superior Court,
Appellate Division, whose opinion is reported at
474 N.J. Super. 243 (App. Div. 2022).

Argued Decided
October 10, 2023 April 17, 2024

Karen Thompson argued the cause for appellant
(American Civil Liberties Union of New Jersey
Foundation, attorneys; Karen Thompson, Jeanne
LoCicero, Alexander Shalom, and Elyla Huertas, on the
brief).

Christopher J. Gramiccioni argued the cause for
respondent (Kingston Coventry, attorneys; Christopher J.
Gramiccioni, on the letter brief).

CJ Griffin argued the cause for amici curiae Libertarians
for Transparent Government and the Association of
Criminal Defense Lawyers of New Jersey (Pashman Stein
Walder Hayden, attorneys; CJ Griffin, on the briefs).

1
 Thomas H. Prol argued the cause for amicus curiae
Municipal Clerks’ Association of New Jersey, Inc. (Sills
Cummis & Gross, attorneys; Thomas H. Prol, on the
brief).

Vito A. Gagliardi, Jr. submitted a brief on behalf of
amicus curiae New Jersey State Association of Chiefs of
Police (Porzio, Bromberg & Newman, attorneys; Vito A.
Gagliardi, Jr., of counsel, and David L. Disler and
Thomas J. Reilly, on the brief).

Lawrence S. Lustberg submitted a brief on behalf of
amici curiae Salvation and Social Justice and Youth
Advocate Programs, Inc. (Gibbons and New Jersey
Institute for Social Justice, attorneys; Lawrence S.
Lustberg, Julia Bradley (Gibbons) of the New York bar,
admitted pro hac vice, Emily Schwartz, Yannick Wood,
Henal Patel, and Ryan P. Haygood, on the brief).

JUSTICE PATTERSON delivered the opinion of the Court.

In this appeal, we determine whether defendant the County Prosecutors

Association of New Jersey (CPANJ), a nonprofit organization whose members

are the twenty-one county prosecutors of New Jersey, is a public agency

required to disclose records pursuant to the Open Public Records Act (OPRA),

N.J.S.A. 47:1A-1 to -13, and a public entity subject to the common law right

of access.

Plaintiff American Civil Liberties Union of New Jersey (ACLU) sought

several categories of records from CPANJ pursuant to OPRA and the common

law right of access. CPANJ denied the request, asserting that it is not a public

2
agency for purposes of OPRA and is not a public entity subject to the common

law right of access. The ACLU filed this action, seeking an order compelling

production of the requested documents and other relief.

The trial court granted CPANJ’s motion to dismiss the complaint

pursuant to Rule 4:6-2(e). The ACLU appealed that determination, and the

Appellate Division affirmed the trial court’s judgment. The appellate court

found that the ACLU’s factual allegations did not support its contention that

CPANJ is a public agency under OPRA or its assertion that CPANJ is a public

entity subject to the common law. ACLU of N.J. v. Cnty. Prosecutors Ass’n of

N.J., 474 N.J. Super. 243, 256-72 (App. Div. 2022).

We concur with the Appellate Division that 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. We conclude that the ACLU’s factual allegations do not

support a claim against CPANJ under OPRA or the common law.

Accordingly, we affirm the Appellate Division’s judgment.

I.

A.

1.

We summarize the ACLU’s factual allegations based on the complaint

and its attachments.

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 CPANJ is a nonprofit association operating pursuant to Internal Revenue

Code § 501(c)(3). Its members are the twenty-one county prosecutors.

According to CPANJ’s 2015 and 2016 Internal Revenue Service disclosure

forms, attached to the ACLU’s complaint, the organization’s mission is to

“maintain close cooperation between the Attorney General of the State of New

Jersey, the Division of Criminal Justice of the State of New Jersey and the

twenty-one (21) county prosecutors of the State of New Jersey,” relating to

“developing educational programs so as to promote the orderly administration

of criminal justice within the State of New Jersey, consistent with the

Constitution and the laws of the State of New Jersey.” CPANJ represented in

those disclosure forms that it does not compensate its members, who

participate as volunteers; that it obtains revenue solely from membership dues,

membership assessments, and educational conferences; that it grants

scholarships to law students; and that it has no employees or office.

Citing a 1985 joint policy statement between the New Jersey Attorney

General and CPANJ regarding prosecutorial review of search warrant

applications, as well as CPANJ’s involvement in a 2018 initiative to stop

violence against women, the ACLU alleged in its complaint that the Office of

the Attorney General views CPANJ as a “partner in implementing statewide

criminal justice policy.” The ACLU noted that pursuant to N.J.S.A. 52:17B-

4
70(b), CPANJ’s representative is a member of the Department of Law and

Public Safety Police Training Commission, and that under N.J.S.A. 30:4-

123.47a, CPANJ’s representative is a member of the Parole Advisory Board.

The ACLU asserted that CPANJ “regularly sends copies of its meeting minutes

and agendas” to the Office of the Attorney General.

The ACLU further alleged in its complaint that the county prosecutors

who comprise the membership of CPANJ use the resources of their offices to

conduct CPANJ business, including “the development of agendas, the

coordination of meetings and dinners, and the administration of [CPANJ’s]

scholarship program.” The ACLU stated that CPANJ participates as amicus

curiae in trial and appellate matters and that it has filed appearances in court.

The ACLU asserted that CPANJ uses county prosecutors’ resources when it

participates in court proceedings as amicus curiae.

2.

On July 19, 2019, the ACLU served a records request on CPANJ’s

president pursuant to OPRA and the common law right of access. The ACLU

requested five categories of records for the period between January 1, 2017,

and July 19, 2019: (1) CPANJ meeting agendas; (2) CPANJ meeting minutes;

(3) records reflecting funding received by CPANJ; (4) briefs filed in state or

5
federal courts by CPANJ; and (5) policies or practices shared with county

prosecutors through CPANJ.

By letter sent from its president to the ACLU on September 18, 2019,

CPANJ denied the request. CPANJ stated that it was “quite simply not a

public agency” as that term is defined by N.J.S.A. 47:1A-1.1, and that it

instead constitutes “a private association” comprised of the twenty-one county

prosecutors. It asserted that its goal is to promote “the orderly administration

of criminal justice within the State” and “the fair and effective enforcement”

of New Jersey’s Constitution and laws “through the cooperation of all law

enforcement agencies.” CPANJ further contended that even if it were to meet

OPRA’s definition of a public agency, the requested records would be exempt

from disclosure on confidentiality grounds, as inter-agency advisory,

consultative, or deliberative materials, or as records pertaining to a criminal

investigation or related civil enforcement proceeding that are not “required by

law to be made, maintained or kept on file.” It took the position that it could

not comply with the ACLU’s OPRA request because it lacked “a physical

office, location or even an online presence.”

CPANJ also denied the ACLU’s request for disclosure of the records

pursuant to the common law right of access. Maintaining that the ACLU had

failed to identify its interest in the request for purposes of the common law

6
balancing analysis, CPANJ contended in its response to the ACLU’s request

that it was not subject to the common law right of access and that the requested

documents did not meet the common law definition of a public document.

B.

1.

The ACLU filed this action, alleging that CPANJ is a public agency

under N.J.S.A. 47:1A-1.1 because it is “an instrumentality created by a

combination of political subdivisions to facilitate cooperation between

government agencies and other political subdivisions.” The ACLU also

asserted that the requested documents are public records subject to public

access under the common law. It sought a declaratory judgment stating that

CPANJ is subject to OPRA and the common law, and that CPANJ violated the

law by rejecting the ACLU’s request for documents. The ACLU also

requested an injunction requiring production of the disputed documents, or, in

the alternative, an in camera review of those documents followed by

disclosure. It sought an award of attorneys’ fees and costs.

CPANJ filed a motion to dismiss the complaint for failure to state a

claim pursuant to ----
Rule 4:6-2(e). It asserted that it is not a public agency under

N.J.S.A. 47:1A-1.1 and is not subject to the common law right of access.

7
 The trial court held that CPANJ is not a public agency within the

meaning of N.J.S.A. 47:1A-1.1. It rejected the ACLU’s claim that because

county prosecutors comprise CPANJ’s membership, CPANJ cooperates with

the Attorney General on certain law enforcement issues, and CPANJ is

represented in the governing bodies of certain public organizations, it should

be viewed as a public agency for purposes of OPRA. The trial court found that

CPANJ’s amicus curiae appearances, which further the orderly administration

of criminal justice, do not support the ACLU’s contention that CPANJ is a

public agency under OPRA.

The trial court also found that because CPANJ’s records were not

created under authority granted independently to each county prosecutor, they

do not constitute public records for purposes of the common law right of

access. The court noted that although county prosecutors are invited to join

CPANJ, they are not required to do so, and that membership in the

organization is not mandated in order for prosecutors to fulfill their public

function.

The trial court entered an order dismissing the complaint.

8
 2.

The ACLU appealed the trial court’s judgment. 1 The Appellate Division

granted amicus curiae status to Libertarians for Transparent Government.

The Appellate Division agreed with the trial court that CPANJ does not

constitute a public agency as the Legislature defined the term in N.J.S.A.

47:1A-1. ACLU, 474 N.J. Super. at 257-68. The appellate court

acknowledged that a county is a political subdivision of the State under OPRA,

but rejected the contention that CPANJ was created by a combination of

political subdivisions, given the absence of any evidence “that the counties

directly created CPANJ or authorized its creation.” Id. at 261. The Appellate

Division recognized the distinction between a county and a county prosecutor,

who is a constitutional officer and “the foremost representative of the

executive branch of government in law enforcement in [the] county.” Id. at

262 (quoting Cherrits v. Ridgewood, 311 N.J. Super. 517, 528-29 (App. Div.

1998)). The appellate court concluded that “any entity created by the county

prosecutors is, at most, an instrumentality of instrumentalities or of offices,”

and that such an entity is not a public agency under OPRA. Id. at 263-64. The

1
The Appellate Division rejected a challenge by CPANJ to the court’s
jurisdiction to determine whether CPANJ is subject to OPRA. 474 N.J. Super.
at 256 (citing Paff v. State Firemen’s Ass’n, 431 N.J. Super. 278, 285-93 (App.
Div. 2013)). The jurisdictional question is not before us in this appeal.
9
Appellate Division accordingly affirmed the dismissal of the ACLU’s OPRA

claims. Id. at 268.

The Appellate Division also concurred with the trial court’s rejection of

the ACLU’s common law right of access argument but premised its decision

on different grounds than those on which the trial court relied. Id. at 268-72.

The appellate court noted that “a document cannot be a common [law] public

record if it is not ‘made by a public official in the exercise of . . . his public

function.’” Id. at 269 (quoting Keddie v. Rutgers, 148 N.J. 36, 49 (1997)).

Noting that the ACLU had proceeded against CPANJ, a nonprofit association,

“not the Attorney General, an individual county prosecutor, a county

prosecutor’s office, nor any other governmental entity,” the Appellate Division

found that CPANJ is not a public entity and is therefore not subject to the

common law right of access. Id. at 269-70. It affirmed the trial court’s

dismissal of the ACLU’s common law claim. Id. at 268-72.

3.

We granted the ACLU’s petition for certification. 253 N.J. 396 (2023).

Libertarians for Transparent Government continued to participate as amicus

before this Court, joined by the Association of Criminal Defense Lawyers of

New Jersey. We also granted leave to participate as amici to Salvation and

Social Justice and to Youth Advocate Programs, Inc. (jointly represented), to

10
the Municipal Clerks’ Association of New Jersey, Inc., and to the New Jersey

State Association of Chiefs of Police.

II.

A.

The ACLU contends that CPANJ is a public agency under OPRA

because it is an instrumentality of county prosecutors acting in a hybrid role as

“state actors” and “political subdivisions of the state,” and because CPANJ

relies almost entirely on public resources to perform a governmental function.

It argues that CPANJ is also a public entity for purposes of the common law

right of access, given its public role in formulating criminal justice policy.

B.

CPANJ asserts that the ACLU failed to allege facts supporting the claim

that CPANJ is an instrumentality created by political subdivisions. It contends

that its involvement in criminal justice policy and amicus curiae appearances

do not render it a public agency as N.J.S.A. 47:1A-1.1 defines that term.

CPANJ contends that the ACLU also failed to plead a factual basis for its

claim under the common law right of access.

C.

Amici curiae Libertarians for Transparent Government and the

Association of Criminal Defense Lawyers of New Jersey agree with the ACLU

11
that CPANJ is a public agency under OPRA, and argue in the alternative that

records that CPANJ provides to county prosecutors’ offices may be obtained

from those offices pursuant to OPRA.

D.

Amici curiae Salvation and Social Justice and Youth Advocate

Programs, Inc. assert that a holding that CPANJ is a public agency would

further the objectives of OPRA and the common law right of access.

E.

Amicus curiae the Municipal Clerks’ Association of New Jersey, Inc.

takes no position as to the specific dispute in this case but argues that private

organizations with no direct nexus to political subdivisions should not, as a

general matter, be subject to OPRA or to the common law right of access.

F.

Amicus curiae New Jersey State Association of Chiefs of Police asserts

that private entities are neither public agencies under OPRA nor public entities

required to maintain public documents under the common law, if they are not

instrumentalities of the State or its political subdivisions or formed under the

direct supervision of the State or its political subdivisions.

12
 III.

A.

We review de novo the trial court’s grant of CPANJ’s motion to dismiss

for failure to state a claim pursuant to Rule 4:6-2(e). Dimitrakopoulos v.

Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl, P.C., 237 N.J. 91, 108

(2019). We apply the same standard that governs the trial court in that inquiry,

affording to the ACLU “every reasonable inference of fact,” and searching the

complaint “in depth and with liberality to ascertain whether the fundament of a

cause of action may be gleaned even from an obscure statement of claim,

opportunity being given to amend if necessary.” Printing Mart-Morristown v.

Sharp Elecs. Corp., 116 N.J. 739, 746 (1989). However, “if the complaint

states no claim that supports relief, and discovery will not give rise to such a

claim, the action should be dismissed.” Dimitrakopoulos, 237 N.J. at 107;

accord Banco Popular N. Am. v. Gandi, 184 N.J. 161, 166 (2005).

We review de novo a court’s interpretation of OPRA, which constitutes a

legal determination. In re N.J. Firemen’s Ass’n Obligation, 230 N.J. 258, 273-

74 (2017).

In that inquiry, we apply familiar principles of statutory construction,

striving “to effectuate the Legislature’s intent.” W.S. v. Hildreth, 252 N.J.

506, 518-19 (2023). “We ascribe to the statutory words their ordinary

13
meaning and significance and read them in context with related provisions so

as to give sense to the legislation as a whole.” DiProspero v. Penn, 183 N.J.

477, 492 (2005) (citation omitted). We resort to extrinsic evidence of the

Legislature’s intent only when the statute is ambiguous, or “leads to more than

one plausible interpretation.” Id. at 492-93. “When the plain language of a

statute is clear and unambiguous, we apply the law as written.” Hildreth, 252

N.J. at 518.

B.

Guided by those principles, we first determine whether the ACLU has

pled factual allegations supporting a determination that CPANJ is a public

agency subject to OPRA.

1.

In OPRA, “the Legislature declare[d] it to be the public policy of this

State that 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.” N.J.S.A. 47:1A-1. “OPRA was

‘designed to promote transparency in the operation of government.’”

Firemen’s Ass’n, 230 N.J. at 276 (quoting Sussex Commons Assocs., LLC v.

Rutgers, 210 N.J. 531, 541 (2012)). The Legislature sought “‘to maximize

public knowledge about public affairs in order to ensure an informed citizenry

14
and to minimize the evils inherent in a secluded process.’” Ibid. (quoting

Mason v. City of Hoboken, 196 N.J. 51, 64 (2008)).

Consistent with that legislative goal, OPRA applies only if the entity to

which a request is directed meets the statutory definition of a public agency.

N.J.S.A. 47:1A-1, -6; see also Fair Share Hous. Ctr., Inc. v. State League of

Muns., 207 N.J. 489, 501 (2011) (“Only if the League of Municipalities

qualifies as a ‘public agency’ that maintains ‘government record[s]’ under

OPRA must it then respond to the document requests made by Fair Share

Housing Center, Inc.”) (alteration in original)).

For purposes of OPRA, the terms “public agency” or “agency” denote

any of the principal departments in the Executive
Branch of State Government, and any division, board,
bureau, office, commission or other instrumentality
within or created by such department; the Legislature
of the State and any office, board, bureau or
commission within or created by the Legislative
Branch; and any independent State authority,
commission, instrumentality or agency. The terms also
mean 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.

[N.J.S.A. 47:1A-1.1.]

15
 The Legislature intended that definition to be broad, in light of OPRA’s

“goal of making public records accessible and transparent.” Sussex Commons,

210 N.J. at 544. The definition must “be construed in favor of the public’s

right of access.” N.J.S.A. 47:1A-1.

The two sentences that comprise OPRA’s definition of a public agency

address “distinct categories of public agencies.” Verry v. Franklin Fire Dist.

No. 1, 230 N.J. 285, 294 (2017). “The first sentence captures a group of

public agencies in the Executive and Legislative Branches of State

government, including subparts to and creations of the Executive and

Legislative branches, as well as various types of independent state entities.”

Ibid. The second sentence “designates certain other entities as public entities

subject to OPRA, specifically political subdivisions of the State and bodies

sharing a basic connection to those political subdivisions.” Ibid.

Two terms that appear in N.J.S.A. 47:1A-1.1, “political subdivision of

the state” and “instrumentality,” are directly relevant to this appeal.

As the Legislature directed, we afford the term “political subdivision of

the State,” undefined in OPRA, its “generally accepted meaning, according to

the approved usage of the language.” See N.J.S.A. 1:1-1. 2 The term “political

2
The term “political subdivision” has been defined for purposes of other
statutes not relevant to this case. See, e.g., N.J.S.A. 52:27D-145(b) (defining
“political subdivision” as used in the Maintenance of Viable Neighborhoods
16
subdivision” denotes “a division of a state that exists primarily to discharge

some function of local government.” Black’s Law Dictionary 1402 (11th ed.

2019). “A county or municipality is a political subdivision of the state, created

as a convenient agency for the exercise of such of the governmental powers of

the state as may be entrusted to it by the legislative authority[.]” Camden

County v. Pennsauken Sewerage Auth., 15 N.J. 456, 470 (1954); see also

Verry, 230 N.J. at 297 (noting that a municipality is a political subdivision of

the State “and has long been understood as such”) (citing City of Jersey City v.

Martin, 126 N.J.L. 353, 361 (E. & A. 1941))); Headen v. Jersey City Bd. of

Educ., 420 N.J. Super. 105, 115 (App. Div. 2011) (“We generally associate the

term ‘political subdivision’ with a county, city, town, or municipality.”), aff’d

as modified, 212 N.J. 437 (2012).

As we noted in Verry, the Legislature has on several occasions enacted

statutes “authorizing the formation of an entity by another form of legislatively

created entity, like a municipality or a county, to be both ‘a body corporate’

and ‘a political subdivision.’” 230 N.J. at 298. Those entities include county

Act of 1975, N.J.S.A. 52:27D-142 to -151, to denote “any unit or agency of
government deriving its authority directly or indirectly from the State of New
Jersey”); N.J.S.A. 27:5F-20(c) (defining “political subdivision” in the New
Jersey Highway Traffic Safety Act of 1987, N.J.S.A. 27:5F-1 to -43, to denote
“any local political subdivision of this State, including but not limited to a
municipality, a county, a township, a district, or a special district”).
17
or municipal parking authorities, N.J.S.A. 40:11A-4; beach erosion control

districts, N.J.S.A. 40:68-40; port authorities, N.J.S.A. 40:68A-7; solid waste

management authorities, N.J.S.A. 40:66A-38; environmental services

authorities, N.J.S.A. 40:66A-7; sewerage authorities, N.J.S.A. 40:14A-7; and

pollution control authorities, N.J.S.A. 40:37C-4(a). See Verry, 230 N.J. at 298

n.1.

The term “instrumentality,” also undefined in OPRA, is “variously

defined as ‘[a] thing used to achieve an end or purpose’ and, alternatively, as

‘[a] means or agency through which a function of another entity is

accomplished, such as a branch of a governing body.’” Fair Share Housing,

207 N.J. at 503 (alterations in original) (quoting Black’s Law Dictionary 814

(8th ed. 2004)); accord Verry, 230 N.J. at 299.

In three decisions, this Court explored the meaning of the statutory terms

at the heart of this appeal.

In Times of Trenton Pub. Corp. v. Lafayette Yard Community

Development Corp., we concluded that defendant Lafayette Yard Community

Development Corporation, a nonprofit corporation created to oversee a

redevelopment project on donated property in the City of Trenton, was a public

agency for purposes of OPRA. 183 N.J. 519, 534-36 (2005). Noting that

Trenton’s Mayor and City Council had “absolute control over the

18
membership” of the corporation’s board of trustees and that the corporation

“could only have been ‘created’ with their approval,” we deemed the

corporation to be “an ‘instrumentality or agency created by a political

subdivision’ under N.J.S.A. 47:1A-1.1.’” Id. at 534-35.

In Fair Share Housing, we applied OPRA’s definition of a public agency

to the New Jersey State League of Municipalities, “a nonprofit, unincorporated

association, today representing all of New Jersey’s 566 municipalities.” 207

N.J. at 494. Noting the League’s role in promoting the municipalities’

interests in the Legislature and in educating local officials, we concluded that

the League “is achieving an end and providing a function on behalf of all 566

of New Jersey’s municipalities.” Id. at 503-04. Because each municipality

constitutes a “political subdivision of the State” under N.J.S.A. 47:1A-1.1, and

the League of Municipalities is an “instrumentality” under OPRA, we held that

the League “is an ‘instrumentality’ of a ‘combination of political

subdivisions,’” and thus a public agency under OPRA. Id. at 504.

In Verry, we considered OPRA’s applicability to two distinct entities:

the Franklin Fire District No. 1, a fire district established pursuant to N.J.S.A.

40A:14-70, and the Millstone Valley Fire Department, a nonprofit volunteer

fire department that was a member of the Fire District. 230 N.J. at 296-302.

19
 We found in Verry that Franklin Fire District No. 1 constituted a public

agency under N.J.S.A. 47:1A-1.1 because it was the “creation of a

municipality,” which in turn was “undoubtedly a political subdivision” that

had exercised statutory authority to form the Fire District. Id. at 298-99. We

therefore deemed the Fire District to be “an instrumentality of a political

subdivision,” thus satisfying “the definition of public agency under the second

sentence of OPRA’s definition.” Id. at 299 (citing N.J.S.A. 47:1A-1.1).

We reached the opposite conclusion with respect to the volunteer fire

department, however. Id. at 299-302. Noting that N.J.S.A. 40A:14-70.1

authorizes a fire district to create or contract with volunteer fire companies, we

concluded that “a volunteer squad may be regarded as an instrumentality of a

fire district.” Id. at 300-01. We observed that

because the District itself is not a political subdivision,
but rather the instrumentality of one, the volunteer
company is only the instrumentality of an
instrumentality. Although OPRA provides that an
instrumentality of a political subdivision constitutes a
public agency, it does not provide that an
instrumentality of an instrumentality constitutes a
public agency. OPRA requires a direct connection to a
political subdivision.

[Id. at 301 (citing N.J.S.A. 47:1A-1.1).]

We also clarified language in our jurisprudence relying on “‘creation’ or

‘governmental-function’ tests when demarcating the boundaries of what

20
qualifies as a public agency.” Id. at 302 (citing League of Muns., 207 N.J. at

507). Observing that “such tests are useful only insomuch as they effectuate

application of the statutory language,” we reiterated that the plain language of

N.J.S.A. 47:1A-1.1 established that the District, an instrumentality of a

political subdivision, is a public agency subject to OPRA, and that the

volunteer company, although supervised by the District, “is not a public

agency as defined by OPRA.” Ibid.

2.

Guided by OPRA’s plain language and our prior case law construing that

language, and assuming the truth of the ACLU’s factual allegations in

accordance with Rule 4:6-2(e), we consider the ACLU’s argument that CPANJ

is a public agency as defined by N.J.S.A. 47:1A-1.1. 3 We conduct a fact-

sensitive inquiry, “look[ing] behind the technical form” of the entity at issue

“to consider its substantive attributes.” Paff v. State Firemen’s Ass’n, 431 N.J.

Super. 278, 288 (App. Div. 2013).

3
The factual allegations that a court must assume to be true in a motion to
dismiss under Rule 4:6-2 are the allegations set forth in the complaint. See,
e.g., Dimitrakopoulos, 237 N.J. at 107; Printing Mart, 16 N.J. at 746. A
party’s factual assertions in a trial brief, in an appellate brief, or at oral
argument, and the factual contentions of an amicus curiae, however, are not
assumed to be true for purposes the court’s inquiry. See ibid.

21
 The ACLU urges us to find that CPANJ is an instrumentality of the

county prosecutors, “state actors” who together comprise a “combination of

political subdivisions” under N.J.S.A. 47:1A-1.1. Accordingly, the core

question in this appeal is whether a county prosecutor constitutes a “political

subdivision” for purposes of OPRA. 4

A county is indisputably a “political subdivision of the State” as defined

in OPRA, N.J.S.A. 47:1A-1.1; accord Camden County, 15 N.J. at 470. The

status of the counties themselves as political subdivisions under OPRA,

however, has no bearing on the analysis. As the Appellate Division observed,

“[n]othing in the record before us suggests that the counties directly created

CPANJ or authorized its creation.” ACLU, 474 N.J. Super. at 261. Indeed,

the ACLU’s complaint is devoid of any allegation that the counties themselves

created CPANJ, or have ever controlled its operations. The ACLU’s

allegations center entirely on the county prosecutors’ authority over CPANJ.

A county prosecutor is distinct from the county that the prosecutor

serves for purposes of OPRA’s reach. Our State Constitution provides that

“[c]ounty prosecutors shall be nominated and appointed by the Governor with

the advice and consent of the Senate,” that the prosecutors’ “term of office

4
The parties agree that the county prosecutors themselves are subject to
OPRA.
22
shall be five years,” and that the prosecutors “shall serve until the appointment

and qualification of their respective successors.” N.J. Const. art. VII, § 2, ¶ 1.

In accord with the constitutional provisions governing county prosecutors, the

Legislature has determined that

[t]here shall be appointed, for each county, by the
governor with the advice and consent of the senate to
serve for a term of 5 years and until the appointment
and qualification of his successor, some fit person who
shall have been admitted to the practice of law in this
state for at least 5 years, who shall be known as the
county prosecutor and who, except as otherwise
provided by law, shall prosecute the pleas of the state
in such county and shall have all of the powers and
perform all of the duties formerly had and performed
by the prosecutor of the pleas of such county. As the
term of the prosecutor of the pleas of any county shall
expire there shall be appointed in his place and stead
such county prosecutor.

[N.J.S.A. 2A:158-1.]

Accordingly, a county prosecutor, like the Attorney General, is a

constitutional officer who serves by virtue of gubernatorial nomination and

Senate confirmation. Morss v. Forbes, 24 N.J. 341, 369 (1957). “[C]ounty

prosecutors occupy a ‘hybrid’ role, serving both the county and the State . . . .”

Gramiccioni v. Dep’t of Law & Pub. Safety, 243 N.J. 293, 310 (2020).

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
23
government.’” Yurick v. State, 184 N.J. 70, 80 (2005) (quoting Wright v.

State, 169 N.J. 422, 452 (2001)). 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.

The ACLU’s reliance on CPANJ’s law enforcement functions and

relationship with the Attorney General is misplaced; 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’s role in law enforcement does not confer on it public

agency status for purposes of OPRA. See Verry, 230 N.J. at 302 (noting that

“creation” or “governmental-function” tests in determining public agency

status under N.J.S.A. 47:1A-1.1 are “useful only insomuch as they effectuate

application of the statutory language”). The ACLU does not allege facts

suggesting that CPANJ is a public agency in accordance with N.J.S.A. 47:1A-

1.1’s plain language. The terms of the statute control.

Notwithstanding the contention of our dissenting colleagues, CPANJ has

not identified itself as the organizational shorthand of the county prosecutors;

to the contrary, it stresses the distinctions between itself and the county

prosecutors. See post at ___ (slip op. at 9-12). Those distinctions are

fundamental. A county prosecutor, a constitutional officer, is “statutorily

endowed with powers that arm him or her to perform wide ranging

24
duties.” Yurick, 184 N.J. at 78-79 (citing Wright, 169 N.J. at 437). A

prosecutor “shall be vested with the same powers and be subject to the same

penalties, within his county, as the attorney general shall by law be vested with

or subject to,” and “shall use all reasonable and lawful diligence for the

detection, arrest, indictment and conviction of offenders against the

laws.” N.J.S.A. 2A:158-5. CPANJ, in contrast, has no constitutional or

statutory powers of any kind, and it is not authorized to investigate, arrest, or

prosecute anyone. It constitutes an organization in which the county

prosecutors are members. It is not the alter ego of the prosecutors

themselves. 5

We therefore concur with the Appellate Division that 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. The Appellate Division properly

affirmed the dismissal of the ACLU’s OPRA claim pursuant to Rule 4:6-2(e).

Because the ACLU did not seek the documents from a public agency in

5
Indeed, county prosecutors sometimes disagree with one another with respect
to criminal justice issues. See, e.g., State v. Gomes, 253 N.J. 4, 12-14, 34
(2023) (noting that the county prosecutors in the two cases before the Court
had taken opposing positions with respect to the question whether individuals
who received conditional discharges for marijuana offenses prior to the
Legislature’s adoption of the Cannabis Regulatory, Enforcement Assistance,
and Marketplace Modernization Act, N.J.S.A. 24:61-32 to -56, are statutorily
ineligible for admission into the pretrial intervention program).
25
accordance with N.J.S.A. 47:1A-5 and -6, we do not reach the question

whether the documents identified in its request constitute “government

records” under OPRA as defined in N.J.S.A. 47:1A-1.1, or whether those

documents are within one or more OPRA exemptions.

Our decision affirming the dismissal of the ACLU’s OPRA claim against

CPANJ does not preclude the ACLU from requesting the same categories of

documents from one or more public agencies subject to OPRA.

C.

We next consider the Appellate Division’s decision affirming the trial

court’s dismissal of the ACLU’s common law right of access claim.

1.

Long before the Legislature codified the right of access to certain public

documents, we recognized “that citizens have [a] common law right ‘to require

custodians of public records to make them available for reasonable inspection

and examination.’” Tarus v. Borough of Pine Hill, 189 N.J. 497, 507 (2007)

(quoting Irval Realty Inc. v. Bd. of Pub. Util. Comm’rs, 61 N.J. 366, 372

(1972)). The common law determination raises an issue distinct from the

statutory construction that governs our analysis of the ACLU’s OPRA claim.

“Although both paths raise similar considerations, OPRA does not limit the

right of access to government records under the common law.” Rivera v.

26
Union Cnty. Prosecutor’s Off., 250 N.J. 124, 143 (2022) (citing N. Jersey

Media Grp., Inc. v. Township of Lyndhurst, 229 N.J. 541, 578 (2017)); see

also N.J.S.A. 47:1A-8 (“Nothing contained in [N.J.S.A. 47:1A-1 to -13] shall

be construed as limiting the common law right of access to a government

record, including criminal investigatory records of a law enforcement

agency”).

“To constitute a common law public record, an item must ‘be a written

memorial . . . made by a public officer, and . . . the officer [must] be

authorized by law to make it.’” Rivera, 250 N.J. at 143-44 (alteration and

omissions in original) (quoting Nero v. Hyland, 76 N.J. 213, 222 (1978)). 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.” Keddie, 148 N.J. at 49.

To access public documents under the common law, “requestors must

make a greater showing than required under OPRA: (1) ‘the person seeking

access must “establish an interest in the subject matter of the material”’; and

(2) ‘the citizen’s right to access “must be balanced against the State’s interest

in preventing disclosure.”’” Mason, 196 N.J. at 67-68 (quoting Keddie, 148

N.J. at 50)). We have identified factors to guide that determination. See

27
Rivera, 229 N.J. at 144-49 (identifying factors addressing a common-law

request for police internal affairs materials); Loigman v. Kimmelman, 102 N.J.

98, 113 (1986) (setting forth factors for consideration in the balancing test).

2.

As the Appellate Division noted, “[t]he status of the party from whom

documents are requested is a threshold issue under the common law right of

access.” ACLU, 474 N.J. Super. at 269. In factual allegations that we assume

to be true for purposes of CPANJ’s motion to dismiss under Rule 4:6-2(e), the

ACLU asserts that CPANJ identifies itself in its disclosure forms as a

nonprofit, tax-exempt, unstaffed organization with a governing body

comprised of seven voting members. The ACLU identifies no statute,

regulation, or other mandate requiring CPANJ to create or maintain the

documents in dispute. 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

28
entity upon which a common law right of access request for documents may

properly be served.

We agree with the Appellate Division’s conclusion that “CPANJ is not a

public entity subject to the common law right of access” and that it

accordingly “was not required to provide the requested documents” to the

ACLU. Id. at 271. We concur with the appellate court’s determination that

the trial court properly dismissed the ACLU’s common law claims.

We do 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 subject to the common law right of access. 6 Nor

do we conduct the balancing test required if a public entity disputes a common

law request for access to public documents. If the ACLU serves a request for

the documents at issue in this appeal on one or more public entities subject to

the common law right of access, and that request is denied, the ACLU may

assert a claim against that entity under the common law.

6
Our dissenting colleagues state that any CPANJ documents stored at the
county prosecutors’ offices constitute common law public records. Post at ___
(slip op. at 2, 19). 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.

29
 IV.

The judgment of the Appellate Division is affirmed.

CHIEF JUSTICE RABNER and JUSTICES SOLOMON, PIERRE-LOUIS,
and FASCIALE join in JUSTICE PATTERSON’s opinion. JUSTICE WAINER
APTER filed a dissent, in which JUSTICE NORIEGA joins.

30
 American Civil Liberties
Union of New Jersey,

Plaintiff-Appellant,

v.

County Prosecutors
Association of New Jersey,

Defendant-Respondent.

JUSTICE WAINER APTER, dissenting.

According to the facts alleged in the American Civil Liberties Union of

New Jersey’s (ACLU) complaint and submitted by the County Prosecutors

Association of New Jersey (CPANJ), CPANJ consists only of the 21 sitting

county prosecutors. CPANJ has no staff; its work is completed by the county

prosecutors themselves, or by employees of the county prosecutors’ offices

across the state, including assistant prosecutors. It has no office; its documents

are maintained in the county prosecutors’ offices. And CPANJ receives no

private funding; it is funded only through government funding sources.

Taken in the light most favorable to the ACLU, as we must on a motion

to dismiss under Rule 4:6-2(e), those facts at least suggest that CPANJ is

simply another name for the county prosecutors themselves and that it
therefore meets the definition of “public agency” in N.J.S.A. 47:1A-1.1 in the

same way that the county prosecutors’ offices themselves do.

Looking behind CPANJ’s technical form, and construing the Open

Public Records Act (OPRA) “in favor of the public’s right of access,” N.J.S.A.

47:1A-1, I would hold that the trial court erred in granting CPANJ’s motion to

dismiss Count One of the ACLU’s complaint pursuant to ----
Rule 4:6-2(e).

In addition, even if the majority were correct on the ACLU’s OPRA

count, the records the ACLU requested from CPANJ are common-law public

documents. 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.

In any event, CPANJ conceded that it has no physical office, and it

maintains all documents in the county prosecutors’ offices. The county

prosecutors’ offices are public offices under the common law. Any CPANJ

documents stored at the county prosecutors’ offices are by definition common

law public records. I would therefore hold that the trial court also erred in

dismissing Count Two of the ACLU’s complaint.

2
 For those reasons, I respectfully dissent.

I.

All agree that the county prosecutors themselves are “public agenc[ies]”

subject to OPRA. Ante at ___ (slip op. at 21 n.3). Indeed, in many cases this

Court has assumed that county prosecutors and county prosecutors’ offices fall

under N.J.S.A. 47:1A-1.1’s definition of “public agency” and has simply

considered whether a specific OPRA exemption nonetheless shielded the

records in question from access. See, e.g., Rivera v. Union Cnty. Prosecutor’s

Off., 250 N.J. 124, 136-37, 141 (2022) (accepting, without discussion, that the

Union County Prosecutor’s Office is a “public agency” under N.J.S.A. 47:1A-

1.1 and considering whether the internal affairs reports at issue were exempt

from disclosure as a “personnel and/or internal affairs record”); Brennan v.

Bergen Cnty. Prosecutor’s Off., 233 N.J. 330, 332-33 (2018) (accepting,

without discussion, that the Bergen County Prosecutor’s Office is a “public

agency” under N.J.S.A. 47:1A-1.1 and considering whether successful bidders

at a public auction of government property had a reasonable expectation that

their names and addresses would remain private); Paff v. Ocean Cnty.

Prosecutor’s Off., 235 N.J. 1, 17-24 (2018) (accepting, without discussion, that

the Ocean County Prosecutor’s Office is a “public agency” under N.J.S.A.

3
47:1A-1.1 and considering whether the mobile video recordings at issue were

exempt as “criminal investigatory records”).

This makes sense, as county prosecutors are constitutional officers,

“appointed by the Governor with the advice and consent of the Senate.” Ante

at ___ (slip op. at 22) (quoting N.J. Const. art. VII, § 2, ¶ 1); see also ante at

___ (slip op. at 22-23) (quoting N.J.S.A. 2A:158-1).

There is also no dispute that the purpose of OPRA is “that government

records 1 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.” Ante at ___ (slip op. at 14) (quoting N.J.S.A. 47:1A-1). In

light of OPRA’s vital “goal of making public records accessible and

transparent,” the majority agrees that the Legislature intended N.J.S.A. 47:1A-

1’s definition of “public agency” to be broad. Ante at ___ (slip op. at 16)

(quoting Sussex Commons Assocs., LLC v. Rutgers, 210 N.J. 531, 544 (2012),

and N.J.S.A. 47:1A-1).

1
Government records are defined broadly to include “any paper . . . that has
been made, maintained or kept on file in the course of his . . . official business
by any officer . . . of the State or of any political subdivision thereof . . . or that
has been received in the course of his . . . official business by any such
officer.” N.J.S.A. 47:1A-1.1.
4
 It could hardly contend otherwise, as this Court has repeatedly

recognized both OPRA’s important public purpose and its corresponding

breadth.

In Fair Share Housing Center, Inc. v. State League of Municipalities, we

acknowledged the key role that OPRA’s access to government records plays in

a vibrant democracy: “Those who enacted OPRA understood that knowledge

is power in a democracy, and that without access to information contained in

records maintained by public agencies citizens cannot monitor the operation of

our government or hold public officials accountable for their actions.” 207

N.J. 489, 502 (2011). In Times of Trenton Publishing Corp. v. Lafayette Yard

Community Development Corp., we detailed OPRA’s purpose: “to maximize

public knowledge about public affairs in order to ensure an informed citizenry

and to minimize the evils inherent in a secluded process.” 183 N.J. 519, 535

(2005) (quoting Asbury Park Press v. Ocean Cnty. Prosecutor’s Off., 374 N.J.

Super. 312, 329 (Law Div. 2004)). And in Sussex Commons Associates, LLC

v. Rutgers, we discussed how OPRA “seeks to promote the public interest” and

“serve[s] as a check on government action” “by granting citizens access to

documents that record the workings of government.” 210 N.J. 531, 546

(2012); see also Rivera, 250 N.J. at 141 (“[W]ithout access to government

records, even the most engaged members of the public ‘cannot monitor the

5
operation of our government or hold public officials accountable.’” (quoting

Fair Share, 207 N.J. at 502)).

As to OPRA’s expansive scope, we have stated that it stems from the

statute’s prescription that “any limitations . . . shall be construed in favor of

the public’s right of access.” Fair Share, 207 N.J. at 501 (quoting N.J.S.A.

47:1A-1). Therefore, under OPRA, “‘all government records shall be subject

to public access unless’” they “fit within an enumerated exception.” Ibid.

(emphasis added) (quoting N.J.S.A. 47:1A-1).

Finally, the majority correctly notes that in determining whether an

entity is a “public agency” under N.J.S.A. 47:1A-1.1’s “broad” definition, we

“conduct a fact-sensitive inquiry, ‘look[ing] behind the technical form’ of the

entity at issue ‘to consider its substantive attributes.’” Ante at ___ (slip op. at

21) (quoting Paff v. State Firemen’s Ass’n, 431 N.J. Super. 278, 288 (App. Div.

2013)).

Looking behind CPANJ’s technical form, and construing “any

limitations . . . in favor of the public’s right of access,” N.J.S.A. 47:1A-1, I

would hold that CPANJ is a “public agency” under OPRA in the same way that

county prosecutors’ offices are, because the ACLU alleges it is simply another

name for the county prosecutors themselves.

6
 That conclusion flows from the allegations in the ACLU’s complaint and

information submitted by CPANJ. See AC Ocean Walk, LLC v. Am. Guar. &

Liab. Ins. Co., 256 N.J. 294, 310-11 (2024) (“In evaluating motions to dismiss,

courts consider ‘allegations in the complaint, exhibits attached to the

complaint, matters of public record, and documents that form the basis of a

claim.’” (quoting Myska v. N.J. Mfrs. Ins. Co., 440 N.J. Super. 458, 482 (App.

Div. 2015))); Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739,

746 (1989) (in deciding a motion to dismiss, we afford plaintiff “every

reasonable inference of fact,” and “‘search[] the complaint in depth and with

liberality to ascertain whether the fundament of a cause of action may be

gleaned even from an obscure statement of claim, opportunity being given to

amend if necessary’” (quoting Di Cristofaro v. Laurel Grove Mem’l Park, 43

N.J. Super. 244, 252 (App. Div. 1957))); see also ante at ___ (slip op. at 13)

(referencing the Printing Mart standard).

In its complaint, the ACLU alleges that CPANJ consists of only the 21

county prosecutors themselves. Indeed, despite being classified as

“volunteers” on CPANJ tax forms, the ACLU explains that “all officers,

trustees, and members of CPANJ” are actually “New Jersey county

prosecutors, appointed by the Governor and paid by the State of New Jersey.”

Because CPANJ does not compensate any staff or have any offices, the

7
“County Prosecutors use the resources of their offices,” including Assistant

Prosecutors, detectives, clerical staff, computers, email addresses, and more,

“to conduct CPANJ business.” “Put simply . . . CPANJ is operated entirely by

government appointees who are paid with New Jersey taxpayer funds to

perform legal duties on behalf of the State of New Jersey while using

government resources to do so.”

CPANJ acknowledges this. In its responsive letter to the ACLU dated

September 18, 2019, then-CPANJ President, the Sussex County Prosecutor,

stated that CPANJ is “comprised of the 21 County Prosecutors,” and “does not

have a physical office, location, or even an online presence.”

At oral argument, counsel for CPANJ agreed that only sitting county

prosecutors can participate in CPANJ -- once a county prosecutor has resigned

or been removed, that individual can no longer participate. He also stated that

because CPANJ has no physical office, it maintains all documents in the

county prosecutors’ offices. And he conceded that CPANJ is funded only

through government resources (i.e., county prosecutors’ office resources) --

there are no private sources of funding.

In their briefing and at argument, the ACLU and amici Libertarians for

Transparent Government and the Association of Criminal Defense Lawyers

(together, LFTG) likewise assert that: (1) no private citizens are members of

8
CPANJ; (2) CPANJ funding appears to be derived entirely from county

prosecutors’ offices; and (3) CPANJ has no office, no email address, and no

staff of its own, and relies solely on government staff and government

resources, including email addresses, funds, and computers, to complete all of

CPANJ’s work. 2 In other words, “the overlap” between the county

prosecutors’ offices and CPANJ “is complete,” and CPANJ is simply

“organizational shorthand for the twenty-one county prosecutor’s offices.”

The majority states that CPANJ is a “private entity.” Ante at ___ (slip

op. at 28). But based on their actions, the county prosecutors see CPANJ as

“organizational shorthand” for themselves and their offices, not as any separate

private entity.

The relevant statutes prove the point. Pursuant to N.J.S.A. 2A:158-1.1,

“[a]ny person appointed to the office of county prosecutor” must “serve on a

full-time basis” and “shall not engage in the practice of law or other gainful

employment.” Similarly, assistant prosecutors may never engage in “outside

employment” that involves “the private practice of law or the provision of

other legal services.” N.J.S.A. 2A:158-15.1b. Yet the county prosecutors and

2
It is appropriate to consider the assertions set forth by the ACLU and their
amici in briefing and at oral argument because the ACLU has not yet had an
opportunity to amend its complaint, and leave to amend is to be freely granted.
See Printing Mart, 116 N.J. at 746.
9
assistant prosecutors regularly represent CPANJ in court, demonstrating that

they view CPANJ as the voice of the county prosecutors speaking together, not

as a private organization.

In this case, an Assistant Prosecutor from the Mercer County

Prosecutor’s Office represented CPANJ before the trial court and the Appellate

Division, using his county prosecutor’s office email address and resources to

do so.

In In re Request to Release Certain Pretrial Detainees, CPANJ

participated before this Court as a “party in interest,” urging the Court not to

compel the release of pretrial detainees in response to COVID-19. See 245

N.J. 218 (2021). CPANJ was represented by the then-President of CPANJ, the

Hudson County Prosecutor, and Assistant Prosecutors from the Morris County

Prosecutor’s Office, Warren County Prosecutor’s Office, and Somerset County

Prosecutor’s Office. Accompanying the brief was a certification from the First

Assistant Prosecutor for the Warren County Prosecutor’s Office explaining that

he had been tasked by CPANJ with authoring a portion of the brief and had

obtained data on COVID-19 from representatives of CPANJ, i.e., staff from

other county prosecutors’ offices.

LFTG provided a list of 29 published decisions of this Court for which

CPANJ participated as amicus curiae and was represented by assistant

10
prosecutors, dating back to 1986. And there are additional cases as well. For

example, in State v. Higginbotham, which is pending, CPANJ submitted an

amicus curiae brief to this Court defending the constitutionality of

amendments to the child endangerment statute, N.J.S.A. 2C:24-4. Listed as

counsel for CPANJ on the brief were then-President of CPANJ, the Cape May

County Prosecutor, and Assistant Prosecutors from the Mercer County

Prosecutor’s Office, Somerset County Prosecutor’s Office, Bergen County

Prosecutor’s Office, and Cape May County Prosecutor’s Office.

The county prosecutors thus see CPANJ as a convenient way to make

their collective views known to this Court -- when they agree, rather than

submit 21 amicus briefs, they submit one joint brief. In a certification in

support of CPANJ’s motion to appear as amicus curiae in State v. Smart, 253

N.J. 156 (2023), to defend the constitutionality of a particular search and

seizure, an Acting Assistant Prosecutor from the Monmouth County

Prosecutor’s Office explained why: “CPANJ is an organization whose

membership is comprised of the 21 county prosecutor’s offices in New Jersey,”

and it “serves to represent the interests of the assistant prosecutors employed

in the diverse prosecutor’s offices around the State.”

All of this points to CPANJ being indivisible from the county

prosecutors’ offices themselves.

11
 CPANJ conceded that the offices of the county prosecutors are public

agencies under OPRA. If county prosecutors’ offices are public agencies

under OPRA, and CPANJ is the county prosecutors’ offices by another name,

then CPANJ should likewise be a public agency subject to OPRA’s

requirements. I would therefore hold that the ACLU has asserted sufficient

facts to at least suggest that CPANJ is mere shorthand for New Jersey’s county

prosecutors’ offices, and meets the definition of “public agency” in N.J.S.A.

47:1A-1.1 in the same way that they do.

At the very least, the ACLU should have been entitled to discovery of

information uniquely in CPANJ’s possession that is relevant to whether it

meets the definition of public agency under N.J.S.A. 47:1A-1.1. CPANJ

possesses the facts that establish whether it and the county prosecutors’ offices

are actually one and the same, and yet it moved to dismiss this case without

disclosing that information. The Court should not countenance such an

approach. Cf. Cardali v. Cardali, 255 N.J. 85, 110-11 (2023) (one party cannot

be required to put forth information solely in the other party’s possession

without first having the opportunity to obtain that information through

discovery).

We have previously endorsed OPRA’s “underlying premise . . . that

society as a whole suffers when ‘governmental bodies are permitted to operate

12
in secrecy.’” Fair Share, 207 N.J. at 502 (quoting Asbury Park Press, 374 N.J.

Super. at 329). Public officials should not be permitted to hide behind

organizational forms to utilize government resources to carry out government

business in secrecy. 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.

I would hold the trial court erred in granting CPANJ’s motion to dismiss

the ACLU’s complaint pursuant to Rule 4:6-2(e). In my view, the court should

have either granted discovery on whether CPANJ is a “public agency” under

N.J.S.A. 47:1A-1.1, or considered CPANJ’s argument that the documents in

question were exempt from OPRA for various reasons. I therefore dissent

from the majority’s affirmance of the dismissal of Count One of the ACLU’s

complaint at this stage.

II.

Even if the majority were correct that the ACLU did not allege sufficient

facts that CPANJ meets the definition of “public agency” in N.J.S.A. 47:1A-

1.1 to survive a motion to dismiss, I would nonetheless hold that the ACLU

sufficiently alleged that the records it requested from CPANJ are common-law

13
public records. I therefore separately dissent from the majority’s affirmance of

the dismissal of Count Two of the ACLU’s complaint.

As the majority correctly explains, “OPRA does not limit the right of

access to government records under the common law.” Ante at ___ (slip op. at

25) (quoting Rivera, 250 N.J. at 143). The majority also acknowledges that

“[t]he definition of a public record under the common law is broader than

under OPRA.” Rivera, 250 N.J. at 143.

A common law public record “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.” Ante at ___ (slip op. at 27) (emphasis added) (quoting Keddie

v. Rutgers, 148 N.J. 36, 49 (1997)). The majority concludes that the requested

documents are not common law public records because “[t]he ACLU identifies

no statute, regulation, or other mandate requiring CPANJ to create or maintain

the documents in dispute,” and because “[t]he ACLU does not allege that

CPANJ maintains public documents in a public office.” Ante at ___ (slip op.

at 28). The first is not required; the second is incorrect.

As an initial matter, “written memorials made by public officers in the

exercise of public functions are common-law public records” “even if they are

not” “required by law to be made, maintained or kept on file.” Loigman v.

14
Kimmelman, 102 N.J. 98, 102 (1986) (citations and internal quotation marks

omitted); Shuttleworth v. City of Camden, 258 N.J. Super. 573, 582-83 (App.

Div. 1992) (quoting N.J.S.A. 47:1A-2). Common law public records thus

“include almost every document recorded, generated, or produced by public

officials.” Shuttleworth, 258 N.J. Super. at 582 (emphasis added).

The documents the ACLU requested were written by public officers

exercising public functions.

As earlier noted, CPANJ concedes that it consists of only the 21 sitting

county prosecutors. It concedes that it has no private citizens as members, and

no paid staff. Therefore, every document recorded, generated, or produced by

CPANJ must be recorded, generated, or produced by a public official; there is

simply no one other than public officials that can perform CPANJ work.

CPANJ disputes that the county prosecutors and their staff are exercising

any governmental function when acting on behalf of CPANJ. At oral

argument, counsel for CPANJ suggested that a county prosecutor’s

participation in CPANJ is similar to that prosecutor serving on their town’s

“little league board.” That is false. One must go no further than CPANJ’s own

words, and the statutes enacted by the Legislature, to see why.

15
 First, in its tax returns, CPANJ does not describe itself as a volunteer

organization with social, professional, or athletic aims. It describes itself as an

organization created to

maintain close cooperation between the Attorney
General of the State of New Jersey, the Division of
Criminal Justice of the State of New Jersey and the
twenty-one (21) county prosecutors of the State of New
Jersey relative to . . . developing educational programs
so as to promote the orderly administration of criminal
justice within the State of New Jersey, consistent with
the Constitution and the laws of the State of New
Jersey.

Similarly, in its September 18, 2019 response to the ACLU, CPANJ stated that

its goal is “the promotion of the orderly administration of criminal justice

within the State and the fair and effective enforcement of the constitution and

laws of this State through the cooperation of all law enforcement agencies.”

The promotion of the orderly administration of criminal justice within

the State, and the fair and effective enforcement of our criminal laws and our

constitution, is a governmental function of the highest order. How do we

know? Because the Legislature has declared it to be.

In 1970, the Legislature declared it

the public policy of this State to encourage cooperation
among law enforcement officers and to provide for the
general supervision of criminal justice by the Attorney
General as chief law enforcement officer of the State,
in order to secure the benefits of a uniform and efficient

16
 enforcement of the criminal law and the administration
of criminal justice throughout the State.

[N.J.S.A. 52:17B-98.]

But the Legislature did not simply leave the “administration of criminal justice

throughout the State” to the Attorney General. Instead, it statutorily mandated

that the county prosecutors “cooperate with and aid the Attorney General” in

this vital work. N.J.S.A. 52:17B-112(a). In order to facilitate that aid and

cooperation, it also provided that “[t]he Attorney General may, from time to

time, and as often as may be required, call into conference the county

prosecutors, . . . for the purpose of discussing the duties of their respective

offices with a view to the adequate and uniform enforcement of the criminal

laws of this State.” Id. at (c).

According to the ACLU, that is exactly what CPANJ does: provides a

convenient way for all 21 county prosecutors to cooperate with and aid the

Attorney General in the performance of his official duties regarding the fair

and effective enforcement of the criminal law of this State. That is true when

CPANJ submits amicus briefs to this court defending the constitutionality of a

criminal statute, see State v. Higginbotham, or a particular search and seizure,

see State v. Smart. It is true when CPANJ weighs in on the possible release of

pretrial detainees in response to COVID-19. See In re Request to Release

Certain Pretrial Detainees.
17
 And, the ACLU alleges, it is true when CPANJ meets with the Attorney

General to discuss the uniform and effective enforcement of this State’s

criminal laws. In its complaint, the ACLU alleges that CPANJ “regularly

meets with representatives of the Attorney General of New Jersey at the

Hughes Justice Complex in Trenton, New Jersey and is treated by the Office of

the Attorney General . . . as a partner in implementing statewide criminal

justice policy.” The Appellate Division similarly stated that “CPANJ’s

monthly meetings are a convenient forum for the Attorney General to meet

with the county prosecutors. Such meetings could be convened, of course,

without the existence of CPANJ.” ACLU of N.J. v. Cnty. Prosecutors Ass’n of

N.J., 474 N.J. Super. 243, 267 (App. Div. 2022).

Therefore, CPANJ’s documents are written by public officers exercising

public functions.

However, even if county prosecutors and their staff were somehow not

exercising public functions when acting on behalf of CPANJ, CPANJ records

would still meet the definition of common law public records. This is so

because any document “filed in a public office” is a common law public

record. Keddie, 148 N.J. at 49.

In Keddie, a Rutgers professor sought information from Rutgers about

work that private attorneys performed on civil rights claims and other matters.

18
Id. at 41. The professor specifically requested bills that the private attorneys

submitted to Rutgers for payment. Ibid. This Court held that the private

attorneys’ bills were common law public records because they were “writings

filed in a public office,” i.e., writings filed at Rutgers. Id. at 50.

Here, again, CPANJ has conceded that it has no physical office, and it

maintains any and all documents that it has in the county prosecutors’ offices.

The county prosecutors’ offices are, without question, public offices under the

common law. Therefore, any CPANJ documents stored at the county

prosecutors’ offices are common law public records.

Because CPANJ documents are common law public records, the trial

court should have assessed whether the ACLU “establish[ed] an interest in the

subject matter of the material” and then should have balanced the ACLU’s

“right to access” the materials against CPANJ’s “interest in preventing

disclosure.” Mason v. City of Hoboken, 196 N.J. 51, 67-68 (2008). It did not.

For this independent reason, I dissent from the majority’s affirmance of the

dismissal of Count Two of the ACLU’s complaint.

III.

For the foregoing reasons, I respectfully dissent.

19