## Facts

- The Atlantic City Convention Center Authority, a state agency, operated facilities and oversaw the Convention and Visitors Bureau and was subject to open-meetings and recordkeeping rules requiring minutes.
- In 1988, the Authority’s board discussed in closed session the circumstances surrounding Ted Bergman’s departure as chief officer of the Bureau.
- In 1991, the Authority discussed in closed session a new position to promote business for non-casino hotels and hired Bergman as an independent contractor for that role.
- The Authority’s by-laws permitted tape-recording closed sessions only to assist in preparing legally required minutes; no statute required audio recordings to be made or kept.
- A newspaper publisher requested (1) the executive-session minutes for the 1988 and 1991 discussions and (2) the audio tapes of those closed sessions.
- Bergman asserted a privacy interest in keeping the closed-session discussions confidential; the Authority contended the tapes were merely a convenience for preparing minutes and not disclosable records.

## Issues

1. Whether voluntarily made audio recordings of executive sessions are “public records” subject to disclosure under New Jersey’s statutory right-to-know scheme.
2. Whether the recordings are common-law public records and, if so, whether balancing the interests requires disclosure when the minutes have been ordered released.

## Decision

- The Supreme Court of New Jersey unanimously affirmed the judgment denying access to the audio tapes.
- The Court held the tapes were not disclosable under the statutory right-to-know law because the Authority had no legal duty to create or maintain them and they were outside the statute’s coverage.
- The Court treated the tapes as common-law public records but held the common-law balancing test favored nondisclosure.
- The Court left intact the order requiring release of the executive-session minutes following judicial review and any needed redactions.

## Legal Principles

- A statutory right-to-know law generally does not require a public agency to create records; materials voluntarily generated as work aids are not necessarily statutory “public records.”
- Under New Jersey common law, a “public record” broadly includes records made by public officers in the course of official functions, even if not covered by statute.
- Access to common-law public records depends on a balancing test that weighs the requester’s need and the public interest in disclosure against countervailing interests, including confidentiality of closed-session deliberations and individual privacy.
- When minutes of a closed session are released after review and redaction, the incremental value of verbatim audio may be insufficient to outweigh confidentiality and privacy interests in personnel-related executive sessions.

## Conclusion

The court concluded that executive-session audio tapes made only to help draft required minutes were not subject to statutory disclosure and, although reachable under the common law, were properly withheld because confidentiality and privacy interests outweighed the press’s need once reviewed minutes were available.


Atl. City Convention Ctr. Auth. v. S. Jersey Publ'g Co., 135 N.J. 53, 637 A.2d 1261 (N.J. 1994)