On December 22, 2022, the Appellate Division decided American Civil Liberties Union of New Jersey v. County Prosecutors Association of New Jersey (“ACLU”). This opinion was “approved for publication,” which means that the decision is binding on all lower courts in New Jersey and on the Government Records Council.
In ACLU, the Court held that the County Prosecutors Association of New Jersey (“CPANJ”), which is a private, non-profit association whose members consisted only of County Prosecutors was not subject to OPRA. According to the opinion, the CPANJ is comprised of New Jersey’s twenty-one county prosecutors, and is organized as a non-profit. CPANJ does not compensate its members. By law, the CPANJ has a seat on the Department of Law and Public Safety Police Training Commission, on the New Jersey Parole Advisory Board, and on the Domestic Violence Fatality and Near Fatality Review Board. The CPANJ also recommends a prosecutor for membership on the Commission on Human Trafficking. The CPANJ has sometimes participated in cases as amicus curiae (friend of the court). Prosecutors work for the CPANJ, and are not compensated by the CPANJ for doing so.
The Court rejected all of the plaintiff’s theories for applying OPRA to the CPANJ. First, the Court held that there was no evidence that various public agencies, such as New Jersey’s counties, came together to form the CPANJ. Second, the Court held that because County Prosecutors are sufficiently distinct from the counties themselves, the Court could not “assume” that the counties could have organized or created the CPANJ. Third, the Court held that even if the County Prosecutors had created the CPANJ, at most it would have been an “instrumentality of an instrumentality,” and thus not subject to OPRA.
In our view, this published decision will make it more difficult to subject similar professional organizations to OPRA.