September 4, 1997
ORAL ARGUMENT REQUESTED

Stanton Peele, Pro Se,

Plaintiff

Rutgers, The State University,

Defendant

SUPERIOR COURT OF NEW JERSEY
LAW DIVISION
MIDDLESEX COUNT
DOCKET NO. MID-L-4340-97
CIVIL ACTION

BRIEF IN SUPPORT OF ORDER TO SHOW CAUSE

I. DENIALS BY PUBLIC BODIES (SUCH AS RUTGERS) OF REQUESTS FOR DOCUMENTS SHOULD NOT AUTOMATICALLY BE ADJUDICATED IN THE VENUE OF THE DENYING BODY, SINCE THIS FRUSTRATES THE PUBLIC POLICY PURPOSES OF HOLDING THEM ACCOUNTABLE TO THE PUBLIC

II. DOCUMENTS FOR WHICH RUTGERS CLAIMS A BLANKET PRIVILEGE ARE DOCUMENTS AUTHORED BY AND SENT TO RUTGERS CENTER OF ALCOHOL STUDIES PERSONNEL ACTING IN THEIR OFFICIAL CAPACITIES AND ARE STRAIGHTFORWARD PUBLIC DOCUMENTS TO WHICH ACCESS IS GRANTED FOR THE PUBLIC POLICY PURPOSES OF HOLDING SUCH BODIES ACCOUNTABLE TO THE PUBLIC

A. SCIENTIFIC RESEARCH AND CLINICAL PRACTICE ARE SPECIAL AREAS IN WHICH PUBLIC BODIES HAVE AN EXCEPTIONAL DUTY TO DISCLOSE, AND THE PUBLIC TO KNOW ABOUT, FUNDING SOURCES AND THEIR POTENTIAL INFLUENCES

III. RUTGERS MUST REVEAL THE EXTENT TO WHICH (1) REQUESTS HAVE BEEN AND CONTINUE TO BE MADE TO RUTGERS FOR PUBLIC DOCUMENTS, (2) HOW RUTGERS HAS RESPONDED AND CONTINUES TO RESPOND TO THESE, AND (3) HOW MUCH RUTGERS HAS SPENT AND CONTINUES TO SPEND DEFENDING COURT CHALLENGES TO ITS REJECTIONS OF REQUESTS FOR DOCUMENTS

CONCLUSION

Procedural History

On March 21, 1997, Stanton Peele, Ph.D. and J.D., filed pro se a complaint in action in lieu of a prerogative writ to the Law Division, Superior Court of New Jersey, Morris County (MRS-L-919-97). The action sought to compel Rutgers University to provide Peele with documents from the Rutgers Center of Alcohol Studies (Center) concerning gifts from R. Brinkley Smithers (also the Smithers Foundation and Mrs. Adele Smithers) to the Center, as well as budgetary information from the Center. On April 8, 1997, Peele submitted an amended complaint, requesting information about Rutgers' legal fees in defending other access-to-public-documents actions concerning Rutgers.

On April 2, 1997, John Peirano, of Carpenter, Bennett and Morrissey, submitted on behalf of Rutgers a motion for change of venue from Superior Court, Morris County to Superior Court, Middlesex County, where Rutgers' main campus is located, with accompanying brief in support. On April 4, Peele submitted a brief in opposition to the motion to change venue. On April 22, Morris County Superior Court Assignment Judge Reginald Stanton granted the Rutgers motion, and the original Peele complaint was refiled in Superior Court, Middlesex County. On June 26, 1997, Plaintiff offered terms for a settlement for viewing the withheld documents. Exhibit 1. Defendant's counsel acknowledged the offer (Exhibit 2), but has not yet accepted or rejected it.

Statement of Facts

Plaintiff Peele commenced an action in lieu of a prerogative writ, N.J.S.A. 4:69-1, to compel Rutgers, The State University (Rutgers), to comply with a request for access to public records according to the Right-to-Know Law, N.J.S.A. 47:1A-1 to -4, and the common-law right of access to public records. Plaintiff had originally written Rutgers University Counsel requesting documents from Rutgers in December 1992. Exhibit 2. In general, Plaintiff's desire was to see files concerning the relationship between a private donor, R. Brinkley Smithers and/or the Smithers Foundation (Smithers), for the purpose of learning whether Smithers attempted to influence Rutgers Center for Alcohol Studies research and treatment policies. These are questions with which Plaintiff has dealt with professionally and has a national reputation. Rutgers Counsel, Beckman Rich, denied Plaintiff's request. Exhibit 3. Plaintiff reformulated the request. Exhibit 4. Counsel Rich again rejected Plaintiff's request. Exhibit 5.

At about the same time in late 1992, Keddie, a Rutgers Professor, and the Rutgers Chapter of the American Association of University Professors (AAUP), applied for documents from Rutgers, a request which University Counsel also rejected. Keddie v. Rutgers, 286 N.J. Super. 285, 288 (App. Div. 1996). The trial court, appellate court, and Supreme Court all found in favor of Keddie and the AAUP that Rutgers was a public body for purposes of access to its records. Keddie v. Rutgers, A-34/35 September Term 1996 (N.J. March 6, 1997).

On learning of the appellate court decision and eventually that of the Supreme Court, Plaintiff requested again in January 1997 the documents he sought originally in 1992. Exhibit 7. Plaintiff repeated his request a month later when he did not hear from University Counsel. Exhibit 8. Plaintiff wrote a third letter in March. Exhibit 9. Plaintiff followed each letter with a phone call to University Counsel. Receiving no official response, Plaintiff finally filed a complaint on March 21, 1997 following the Supreme Court decision in favor of Keddie. Following this filing, and a phone conversation with Counsel Rich, Plaintiff wrote a sixth letter, requesting also information concerning billings by the firm of Carpenter, Bennett and Morrissey (Defendant's counsel in the current case) to defend Rutgers in the case of Keddie. Exhibit 10.

On April 2, 1997, Defendant's counsel filed a motion to Morris County Superior Court to change venue to Middlesex County, which Plaintiff opposed. On April 3, University Counsel responded that Rutgers was preparing documents which it might offer Plaintiff. Exhibit 11. On April 22, Judge Reginald Stanton, Morris County, granted Defendant's motion to change venue to Middlesex County. Exhibit 12.

On April 8, Plaintiff filed an amended complaint, requesting gross billings for Rutgers' expenditures in defending Keddie v. Rutgers from trial court to the New Jersey Supreme Court. Plaintiff also seeks information on all other requests for public documents from Rutgers, Rutgers' responses, court actions resulting from these requests and responses, and legal fees entailed as a result.

On May 1, 1997, University Counsel Rich made available a number of documents concerning Smithers' grant of $3.54 million in 1986 to Rutgers as part of a $6.7 million alcoholism grant. Exhibit 13. Subsequently, in May 1997, Dr. Peele -- with the assistance of a research associate -- reviewed in detail all these documents.

On June 11, Rutgers -- through counsel Peirano -- provided a list of approximately 130 memos and letters between Rutgers and Center staff and Brinkley Smithers/Smithers Foundation staff from 1984 to 1996 which were not a part of the documents examined by Dr. Peele and for which Rutgers was claiming privilege. Exhibit 14. One of the letters has as its topic Stanton Peele.

Summary of Argument

Plaintiff, Stanton Peele, seeks documents stored at Rutgers as a public body as required to be made available by New Jersey statute and by common law. Rutgers in the past has indicated that it is not a public body for this purpose, and even after the New Jersey Supreme Court held that Rutgers was a public body for the purposes of producing documents in 1997, Rutgers has not made such documents readily available. In the present case, after delay, Rutgers made available mostly documents already released to the public concerning the establishment and management of funding for academic research and programs at its Center of Alcohol Studies funded from a grant from R. Brinkley Smithers and the Smithers Foundation, while refusing to give Dr. Peele access to correspondence between Rutgers and Smithers. The nature of the documents Dr. Peele seeks are critical for establishing the independence and integrity of the work of a public academic and scientific institution. In addition, Rutgers -- as a public institution -- must provide indications of the extent of requests made on it for its documents and the pubic funds expended in order to deny access to these documents, in the case of Keddie v. Rutgers and in any other case Rutgers has received these requests.

ARGUMENT

I. DENIALS BY PUBLIC BODIES (SUCH AS RUTGERS) OF REQUESTS FOR DOCUMENTS SHOULD NOT AUTOMATICALLY BE ADJUDICATED IN THE VENUE OF THE DENYING BODY, SINCE THIS FRUSTRATES THE PUBLIC POLICY PURPOSES OF HOLDING THEM ACCOUNTABLE TO THE PUBLIC.

Rutgers has not been responsive to requests for public documents in this case. In his decision granting Rutgers' motion to change venue to Middlesex County, Morris County Superior Court Judge Reginald Stanton noted:

Judge Stanton:
. . . .the whole point of the public access to records is that if the records are public, the access should be given quickly and readily and without hassle. If they're not public, then there should be a quick explanation of why they're not public. . . .
Rutgers Counsel (Ms. Fliegel):
. . .we haven't officially denied access. . .
Judge Stanton:
You've denied him access. As far as I'm concerned, in terms of the predicate to bringing the lawsuit, you've denied him access because you haven't given him the records promptly. It's as simple as that. You haven't given him an explanation promptly, so that's denying him.... You know, [that is] my idea of public access to documents, after all, we give out hundreds of them around here every day. . . . Peele v. Rutgers, Motion to Change Venue Decision, pp. 2-3 (see Exhibit 12).

Rutgers has not been prepared to carry into effect the Appellate Court and the Supreme Court's decisions that it is subject to a public body's obligation to provide access to documents. Keddie v. Rutgers, A-34/35 September Term 1996 (N.J. March 6, 1997). In the present case, University Counsel only provided a written answer to Plaintiff's request for Center and Rutgers documents on April 3, 1997, 10 weeks after Plaintiff's request. But this response, denying billing records for legal fees paid to defend Keddie v. Rutgers, only alluded to which Center documents might be provided and which might be denied. Exhibit 11. Only on May 1 did University Counsel finally respond officially to Plaintiff's request of January 19, 1997 for public documents by offering access to some documents, but admitting no obligation to do so ("by making these documents available for your review, Rutgers does not concede, and is not waiving its right to assert, that any or all of these documents are not public records..."). Exhibit 13. Only on June 11, 1997, again disclaiming any obligation to follow public access law ("Rutgers does not concede or imply that you are entitled to such lists"), did Rutgers through attorney Peirano make available a list of documents being denied Plaintiff. Exhibit 14. It was only on June 11 that Rutgers indicated its policy was to deny access to all letters and memos between Rutgers/Center and Smithers although this policy had clearly been decided early on. Thus, Rutgers waited five months to provide, under protest, a list of documents it was withholding based on claims of privilege, and to indicate even the category of materials for which it was claiming privilege.

While withholding documents, pursuing dilatory tactics, and refusing to reveal which documents or types of documents it was withholding, Rutgers required Plaintiff to contest its policies in Superior Court in Middlesex County after he filed in Morris County. Defendant based this motion on Rule 4:3-2(a)(2) of the New Jersey Court Rules, stating the venue in the Superior Court is laid where "actions not affecting real property which are brought by or against municipal corporations, counties, public agencies or officials, in the county in which the cause of action arose;..."

Defendant contended in its Motion to Change Venue that the cause of action in this case arose "where the documents and those who decide whether or not documents should be produced are located." Defendant's Motion to Change Venue, p. 5. But this is a self-contradictory declaration. In this case, the documents sought and the University Counsel who rejected the request both reside in Middlesex County. But the jurisdiction of University Counsel extends to other Rutgers campuses where documents might be sought. For example, requests for documents sought on the Newark campus in Essex might by rejected by University Counsel located in Middlesex.

In declaring that the cause of action in a case involving public documents arises where the request for the documents was rejected, Defendant's counsel cited no cases to support Defendant's position. Id. Moreover, Defense counsel cited Engel v. Gosper, 71 N.J. Super. 573 (Law Div. 1962), without page reference, in support of the need to change venue. Defendant's Motion, p. 5. But this case does not provide support for the assertion that venue must be changed in the current case, to wit, Engel, at 579, declared:

No entirely satisfactory definition of a cause of action has as yet been enunciated but a generally accepted definition is that a cause of action is "that fact or facts which establish or give rise to a right of action, the existence of which affords a party a right to judicial relief." (citing 1 Am. Jur., Actions, p. 404. "Levey v. Newark Beth Israel Hospital," 17 N.J. Super. 290 (Cty. Ct. 1952))

Furthermore, in Engel and other cases cited in Defendant's motion, causes of action are specific tort claims, such as wrongful death, where a certain physical event unambiguously occurred at a certain locale. The submission and rejection of a request for a public document is of a different nature from these. Engel, at 580, further declared:

The question of the proper place of trial is essentially administrative in character * * *. The court should be free to decide according to the circumstances of the case with a view to giving each party a reasonably fair opportunity to present his proof. Intricate metaphysical reasoning as to the nature of actions and dogma as to jurisdiction should not be allowed to obscure this simple practical issue. * * *" (citing Foster, "Place of Trial -- Interstate Application of Intrastate Methods of Adjustment," 44 Harv. L. Rev. 41 (1930))

Defendant is litigating whether Plaintiff has right of access to the files Plaintiff has demanded. If this fundamental issue is to be litigated, it should be litigated where plaintiff resides (in this case, Morris County). To require every applicant for Rutgers documents to litigate this fundamental right, and moreover to litigate this right in Middlesex County no matter in which county such plaintiffs reside and make these requests (considering that Rutgers has major campuses in Newark and Camden, and branches throughout the State) effectively nullifies right of access to Rutgers documents as public records, in violation of State law. Indeed, this seems part of a strategy to deny documents rather than to comply with New Jersey law in regard to Rutgers' obligations to provide documents as a public body.

II. DOCUMENTS FOR WHICH RUTGERS CLAIMS A BLANKET PRIVILEGE ARE DOCUMENTS AUTHORED BY AND SENT TO RUTGERS CENTER OF ALCOHOL STUDIES PERSONNEL ACTING IN THEIR OFFICIAL CAPACITIES AND ARE STRAIGHTFORWARD PUBLIC DOCUMENTS TO WHICH ACCESS IS GRANTED FOR THE PUBLIC POLICY PURPOSES OF HOLDING SUCH BODIES ACCOUNTABLE TO THE PUBLIC.

There are two grounds on which citizens may claim access to documents from public bodies. The first is statutory, based on New Jersey's Right to Know Law. N.J.S.A. 47:1A-1 to -4. The law applies to documents required to be kept by law. Keddie, A-34/35 September Term 1996, 4 (N.J. March 6, 1997). Any citizen may have access to such documents. Id. The second ground is the common law right of access to public documents is broader. Id., p. 5. It pertains to all documents kept by public agencies. In common law access, the standing for a request is more stringent (requiring a showing of legitimate interest). Id. In addition, the interests of those seeking documents must be balanced against claims of privilege that the public is benefitted by maintaining the confidentiality of the documents. Id.

The current requests for documents fall under common law access, since the records are not required to be kept by law. Rutgers has sent a privilege log claiming privilege for all internal memos concerning Smithers and all letters to Smithers personnel by Rutgers staff and all letters to Rutgers staff from Smithers. Exhibit 14. Each such document is justified on primarily one of two general privileges: "Fundraising/ Fostering Donor Relations," and "Communication from Private Donor." Since Defendant provides none of these documents, it clearly indicates that any letter from a private donor, making any request or demand, whether contrary to public policy or even in violation of State or Federal law, would be privileged. In the current case, Defendant claims privilege for a letter listed as follows: "4/21/92 Letter from Peggy Baker, Development Officer, to Mr. Murphy of the Smithers Foundation re: Stanton Peele [i.e., Plaintiff], Fundraising/Fostering Donor Relations." Exhibit 14, p. 8. Clearly, Defendant is claiming an all-encompassing privilege which Defendant would apply, for example, to a slander claim.

The criteria indicated in "Keddie v. Rutgers," A-34/35 September Term 1996, 5 (N.J. March 6, 1997) are: "A common-law record is one that is made by a public official in the exercise of his or her 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" (emphasis added). Clearly, letters and memos concerning fund-raising activities by a public body comprise such common-law public documents. The Court further indicated:

The right to access common-law records is a qualified one, depending on three requirements: 1) the records must be common-law public documents; 2) the person seeking access must establish an interest in the subject matter of the material; and 3) the citizen's right to access must be balanced against the State's interest in preventing disclosure. Keddie v. Rutgers, A-34/35 September Term 1996, 5 (N.J. March 6, 1997)

As for the first criterion, the documents of concern would not exist were it not for the needs of a public institution, and the communications were executed entirely either to or from individuals performing public roles. As for the second criterion, the Plaintiff has established his interest in the requested materials over literally decades, including: (1) a 1984 article by Plaintiff concerning topics related to the requested documents for the journal of the American Psychological Association, American Psychologist, for which the editor was Peter Nathan while he was director of the Center (Stanton Peele, "The Cultural Context of Psychological Approaches to Alcoholism," 39 American Psychologist 1337 (1984)); (2) an article about the Center's position on controlled-drinking therapy in alcoholism treatment and research and how it was influenced by the Smithers grant (Stanton Peele, "Alcoholism, Politics, and Bureaucracy," 17 Addictive Behaviors 49 (1992)); (3) Plaintiff requested the documents first in 1992 following Nathan's response to the article -- Peter Nathan, "Peele Hasn't Done His Homework Again," 17 Addictive Behaviors 63 (1992). (It should be noted that Dr. Peele also received the Center's prestigious 1989 Mark Keller Award, covering the years 1987-1988, presented by its renown Journal of Studies on Alcohol, "for an article that demonstrates scholarship as evidenced by research competence, and through its communicative style and broadly relevant implications contributes to innovative and provocative thinking as judged by the Award Committee.")

A prima facie case for Plaintiff's standing and interest in the topic and withheld documents is that, following the article, the Center felt a need to communicate about Plaintiff to Smithers in one of the withheld documents. Exhibit 14, p. 8. Here a state agency discussed a private citizen with a private financial donor, and Defendant claims this is privileged because it may offend the privacy interests of Defendant and its donors!

A. SCIENTIFIC RESEARCH AND CLINICAL PRACTICE ARE SPECIAL AREAS IN WHICH PUBLIC BODIES HAVE AN EXCEPTIONAL DUTY TO DISCLOSE, AND THE PUBLIC TO KNOW ABOUT, FUNDING SOURCES AND THEIR POTENTIAL INFLUENCES.

Defendant may claim privilege pursuant to the third criterion as stated in Keddie: "One seeking access to common-law public records must establish that the balance of its interest in disclosure against the public interest in maintaining confidentiality weighs in favor of disclosure." Keddie, A-34/35 September Term 1996, 5-6 (N.J. March 6, 1997). The documents at issue in this case concern funding for scientific endeavors and treatment of alcoholism, subjects for which Rutgers and the Center have been given a mandate by the State to study (in addition to State funding, Rutgers receives significant Federal grants to study the treatment of alcoholism). Attached to this brief is a letter from the distinguished alcoholism researcher, Professor Kaye Middleton Fillmore, of the University of California, San Francisco, emphasizing the importance of the issue and of the need to examine possible influences on the scientific integrity of research in this area. Dr. Fillmore claims that "Dr. Peele's interest in these documents is not 'limited.' " Dr. Fillmore urges that the Court "make these documents available to Dr. Peele and to any other credible scientist and/or historian." Exhibit 15.¹ (This exhibit includes Professor Fillmore's "Biographical Sketch." Please note she received her Ph.D. at Rutgers, where she was a research associate at the Center from 1965-1978. Dr. Fillmore worked closely with Seldon Bacon, the long-term Director of the Center, and wrote his obituary for the journal Addiction in 1993. Dr. Fillmore authored, with Bacon and several others, a history of the Center for the Journal of Studies on Alcohol in 1990.)

In recent years, the potential bias introduced by private funding sources has increasingly gained attention. For example, in 1997,

BASF A.G. of Germany said yesterday that its United States-based Knoll Pharmaceutical unit had agreed to pay $98 million to settle a class action lawsuit by thyroid patients who said the company suppressed a study saying its best-selling Synthroid drug was no better than generic versions. (Bloomberg News. "BASF Unit to Pay $98 Million to Settle Synthroid Suit." August 6, 1997, New York Times, p. D4)

This case settled a highly visible example of a funder who insisted on certain standards in funding clinical research that violated scientific and clinical standards of disclosure:

Suppression of a university scientist's findings about a common thyroid drug by a company that paid for the research has raised serious questions about how the growing link between industry and academia affects the reliability of information provided to doctors and the public about drugs and other medical therapies....

For several years Knoll had prohibited a team led by Dr. Betty J. Dong at the University of California at San Francisco from reporting a study showing that Synthroid was no more effective than less expensive generic versions of the drug. Dr. Dong signed a contract in 1987 giving Knoll's predecessor the right to veto any publication. The study was completed in 1990, but the findings were reported in The Journal of the American Medical Association on April 16 after Knoll relented. (Lawrence K. Altman, "Experts See Bias In Drug Data." April 29, 1997, New York Times, p. C1)

As an instance of how a funder (in fact the same funder as in the current case, Brinkley Smithers) may influence the conduct and goals of treatment and research, the materials on file at Rutgers in connection with Smithers' 1986 grant included an article which described a long-standing dispute R. Brinkley Smithers had with the St. Luke's-Roosevelt Hospital Center, to which he had originally pledged $10 million in 1971, and which used the funds to create the Smithers Alcoholism and Treatment Center. Smithers refused for some time to provide the second $5 million based on his dissatisfaction with the Roosevelt program. The article related how Smithers

disagreed with the way the center's program was run by Dr. LeClair Bissell.... Their dispute appeared focused on whom the center should treat, Mr. Smithers saying he was interested in helping people "from my walk of life" and employed alcoholics. He also insisted that "Rich people have more problems than poor people." Dr. Bissell, however, argued that "it was good for a variety of people to be in treatment together." (K. Teltesch, "$4.3 million is given for alcoholism program." January 29, 1984, New York Times, p. 24)

Bissell resigned in 1979 and eventually Smithers made good on the remainder of his gift.

Smithers' relationship with the Rutgers Center has been crucial and long-lived. In 1962, grants from Smithers personally and from the Smithers foundation were used to in order to move the Center from Yale to Rutgers. Stanton Peele, "Alcoholism, Politics, and Bureaucracy", 17 Addictive Behaviors 58 (1992). At Rutgers, the Center was housed in Christopher Smithers Hall, named for Brinkley's father. Some time after this, an unnamed prominent benefactor "proceeded to cut the ... [Center] out of his will" because of interest shown by the Center in controlled drinking therapy. This benefactor was identified by a Center employee to Plaintiff as Smithers. Peele, Id., p. 57; Mark E. Lender & J.K. Martin. Drinking in America, p. 193 (New York: Macmillan, 1982). When Peter Nathan assumed the directorship at the Center in 1983, the Rutgers-Smithers relationship was dormant. Nathan told Plaintiff that one of his needs was to rebuild Rutgers' relationship with Smithers. In 1986, Smithers donated $3.54 million to Rutgers. Rutgers University Press Release, April 23, 1986. (Exhibit 16).

The current list of withheld documents reveals that no letters were exchanged between Rutgers/Center and Smithers from 1993-1995. Exhibit 14. During this period, the Center developed a brief intervention clinic which accepted controlled drinking treatment goals. L.W. Foderaro. "The Moderate Tack: Can Big Drinkers Just Cut Back?" May 27, 1995, New York Times, p. 21.

Brinkley Smithers died in 1994. Plaintiff does not know if Rutgers has promised Smithers, either in the past or present (in the form of the Smithers Foundation, headed by Adele Smithers), not to conduct controlled-drinking research, or that Smithers made any such request, or that the issue was raised by Smithers. However, Rutgers was alerted (according to documents in its own files) that Smithers might renege on promised funds if he were dissatisfied with a grantee's actions, including who should legitimately be treated for alcoholism. Whether Smithers in fact applied pressure of this sort, or any other stated or implied conditions Smithers attached to his/its grants, are impossible to determine without access to the files Rutgers is withholding.

In 1995, in response to efforts to conduct controlled-drinking treatment, Adele Smithers stated in a press release: "Millions of Americans have recently seen life-threatening stories in the media claiming that people with alcohol problems don't have to stop drinking completely to get better." Exhibit 17. Subsequent to this announcement, and the clear bias it indicates, current Center Director Robert Pandina (on 9/26/96) and Rutgers President Francis Lawrence (10/15/96) wrote to Mrs. Smithers in letters labeled "Fostering Donor Relations" (Exhibit 14, p. 9). Whether and what kind of understanding such correspondence implies, particularly if Smithers should choose to fund Rutgers additionally, is critical for the integrity of this State institution. The obligation for disclosure outweighs the needs for donor privacy when a public body accepting State and Federal support solicits additional funding from private donors who express biases in regard to critical research topics.

III. RUTGERS MUST REVEAL THE EXTENT TO WHICH (1) REQUESTS HAVE BEEN AND CONTINUE TO BE MADE TO RUTGERS FOR PUBLIC DOCUMENTS, (2) HOW RUTGERS HAS RESPONDED AND CONTINUES TO RESPOND TO THESE, AND (3) HOW MUCH OF STATE FUNDS RUTGERS HAS SPENT AND CONTINUES TO SPEND DEFENDING COURT CHALLENGES TO ITS REJECTIONS OF REQUESTS FOR DOCUMENTS.

Rutgers in the present case does not indicate a firm understanding of its obligations to act as a public body in producing documents as required by law as interpreted by the New Jersey Courts. Exhibit 12. Even as Rutgers has belatedly produced documents, or indicates its intention to do so, or reveals the types of documents it will provide or not, it continues to indicate: "Please be advised that by making these documents available for your review, Rutgers does not concede, and is not waiving its right to assert, that any or all of these documents are not public records or otherwise not required to be produced...." Exhibit 13. In a letter of March 24 (and also in his revised complaint), Plaintiff requested billings by the firm of Carpenter, Bennett & Morrissey for the purpose of litigating Keddie v. Rutgers. Exhibit 10. University Counsel refused this request, on the grounds that, "this information is not required to be disclosed by either New Jersey's Right to Know Law or the common law right to public access. We also object on the grounds that Keddie v. Rutgers is still an active matter, and producing such would interfere with this ongoing litigation." Exhibit 11.

In Keddie v. Rutgers, A-34/35 September Term 1996 1 (N.J. March 6, 1997), plaintiffs requested "(1) attorneys' bills, (2) documents generated internally from the legal bills, and (3) ... pleadings, briefs, affidavits, and other filings made with courts... and the decisions or awards entered." The Court made clear that,

The documents sought in the present case are public records because they were created by, or at the behest of, public officers in the exercise of a public function. They were created pursuant to Rutgers' procedure for payment of legal fees to outside attorneys or were filed with a court, agency, or arbitral forum. They are also writings filed in a public office. Keddie, as a citizen of New Jersey, a professor of Labor Studies at Rutgers, and president of AAUP-Rutgers, clearly has a cognizable common-law interest in accessing all of the documents. Indeed, only the balancing-of-interests element is contested in this case. Consequently, the trial court erred in finding that the attorneys bills were not common-law records. We hold that all of the documents sought are common-law records. (Id., at p. 26)

Information sought in the present case about Rutgers' payments of attorneys' fees in defending the Keddie suit is thus clearly a public record. In Keddie, specific itemized expenses were sought. In the present case, Plaintiff seeks only gross sums spent defending the Keddie case. Clearly, no issue of personal confidentiality is implicated. Rutgers can only argue that it does not want to be embarrassed by the extent of its expenses to prevent citizens, employees, and union officials from having documents. The Keddie requests referred to specific grievances pursued by Rutgers' employees, and thus might in some cases concern highly sensitive and private matters. Plaintiff's request for information about attorneys' fees in this case does not include internal billing records and would not identify any specific complainant. Furthermore, the plaintiffs in Keddie clearly at this point do not require confidentiality.

The criteria indicated by the Court in evaluating Rutgers' claims for confidentiality for attorneys' billings do not apply to the current case. In rejecting Rutgers' separate claim of confidentiality for court documents requested in Keddie, the Court indicated:

Generally, the public's interest in nondisclosure is based on the need to keep the information confidential. Where a claim of confidentiality is asserted, the applicant's interest in disclosure is more closely scrutinized. In that context, courts consider whether the claim of confidentiality is "premised upon a purpose which tends to advance or further a wholesome public interest or a legitimate private interest." Loigman v. Kimmelman, 102 N.J. 98, 112, 505 A.2d 958 (1986) (quoting City of St. Matthews v. Voice of St. Matthews, Inc., 519 S.W.2d 811, 815 (Ky. 1974)). However, where the interest in confidentiality is "slight or non-existent," standing alone will be sufficient to require disclosure to advance a legitimate private interest. Id. at 105; see also McClain, supra, 99 N.J. at 362.

Rutgers asserts no claim of confidentiality in respect of the legal submissions. Indeed, it could not. Those documents have been filed with courts, agencies, or arbitral forums. A common-law right of access attaches to unsealed records and documents filed with courts and agencies in connection with nondiscovery applications that are relevant to the disposition of the matter. Hammock v. Hoffmann-LaRoche, Inc., 142 N.J. 356, 375-82, 662 A.2d 546 (1995). Once the records and documents were filed with courts, agencies, and arbitral forums without being sealed, Rutgers no longer retained any expectation of confidentiality in them. Keddie, pp. 27-28.

Seeking total billings in no way compromises attorney work product or strategy, the protectable interests of plaintiffs or defendants, or any other recognized privilege. This claim of confidentiality is simply an effort by Rutgers to continue to dig in its heels to guard its strategy, actions, and expenditures in preventing public scrutiny of its records.

Rutgers has clearly not internalized its obligation to provide legitimate requests for public documents. In order to understand the extent of this problem, Plaintiff hereby also indicates his intention to request for the period covered (1) all records of requests for documents from Rutgers, (2) the disposition of these requests by Rutgers, (3) any court proceedings resulting from rejections of requests for public records, and (4) attorneys' fees and other costs required by Rutgers to defend against claims for documents.

Defendant and plaintiffs in Keddie are currently engaged in proceedings in Middlesex Superior Court to balance Rutgers' claims of confidentiality for internal billing records versus Plaintiff's common-law right to and need for this information. No rule of law will emerge from these ongoing proceedings, and any decisions will be irrelevant to Plaintiff's current requests.

Conclusion

In order to guarantee that Rutgers provides access to interested parties like the Plaintiff to documents of valid interest to the public and concerned professionals, for the reasons outlined, the Court should decide to grant Plaintiff access to the requested documents Rutgers is withholding. In addition, the Court must rule that Rutgers be required to provide information indicating the extent of requests for its documents, its disposition of these requests, and the costs of defending against such requests to ensure that Rutgers fulfills its obligations as a public agency to provide citizens and interested parties with documents as required by law.

The claim that Plaintiff's interest in documents is "limited" was contained in a letter from Rutgers University President Francis Lawrence to State Senator Gordon MacInnes, dated May 27, 1997. As of September, 82 months after receiving plaintiff's request for Rutgers documents, Rutgers has still not laid out its grounds for rejecting Plaintiff's request for such documents. However, after Plaintiff sent some of the court documents (including Judge Stanton's decision to change venue) to Senator MacInnes, of the Senate's education committee, Senator MacInnes wrote President Lawrence to inquire what criteria Rutgers used to refer requests for documents by New Jersey citizens to outside law firms to defend against. President Lawrence wrote to Senator MacInnes outlining Rutgers' case, which Mr. MacInnes in turn sent to Plaintiff. This is the only coherent presentation of Defendant's position that Plaintiff has seen. Dr. Fillmore based her comments on President Lawrence's letter. (Plaintiff decided not to include Lawrence's letter with this brief since it is a private communication to a third party and since defendant counsel will understandably wish to present its own version of Rutger's argument for privilege/withholding documents.)