The Appellate Division today issued a precedential OPRA opinion. Deciding an issue of first impression, the court held that the County Prosecutors Association of New Jersey (CPANJ) is not a public agency under OPRA. ACLU v. CPANJ.

CPANJ is a 501(c) nonprofit made up of the 21 county prosecutors. The organization characterizes its goal as “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….” In its opinion, the Appellate Division describes CPANJ as a means by which the county prosecutors fulfill their obligation to aid the Attorney General, specifically by “participat[ing] as stakeholders in the drafting of directives and guidelines to be issued by the Attorney General, which
thereafter are binding on the prosecutors.”

The ACLU submitted OPRA requests for various records to CPANJ. The court held that CPANJ correctly denied the requests on the basis that it is not a public agency under OPRA. The crux of this holding is that CPANJ is not (per OPRA’s definition of a covered public body) an “instrumentality” created by “political subdivisions.” The court said that CPANJ was formed by prosecutors, not counties, and prosecutors are not political subdivisions. And CPANJ itself has no statutory powers. The Appellate Division concluded: “[W]hile CPANJ has a role in formulating criminal justice policy, it does so as a private entity that has no governmental authority.”

For these reasons, the court also held that records of CPANJ are not subject to the common law right of access to government records.

A puzzling aspect of this case, not addressed by the court, is why the ACLU even bothered to pursue this litigation. Since the ability already exists, under OPRA and the common law, for requestors to obtain information about prosecutors’ actions, there seems to be no need for public access to CPANJ records.

According to the court’s opinion, the ACLU sought records from CPANJ to investigate how prosecutors and their staff members “coordinate their efforts on criminal justice policy;” determine how these efforts are funded; and “monitor prosecutorial transparency and accountability….” But this is precisely the type of information that is obtainable from agencies that are subject to OPRA, such as prosecutors offices and the Attorney General’s Office.