N.J.S.A. 30:4-24.3 Does Not Allow a Developmentally Disabled Resident of a State Facility to Get Around Open Public Records Act Rules for Disclosure

Caliendo v. Velez, ___ N.J. Super. ___ (App. Div. 2012).  N.J.A.C. 10:41-3.2(b) is a Department of Human Services regulation that provides that incident reports prepared by the Division of Developmental Disabilities are not public records and may be relesaed only by court order.  Appellant, a resident of the Hunterdon Developmental Center, was left in his wheelchair in a helpless position, facing a wall, with the wheelchair tilted upward so that he could not move his feet to move the wheelchair.  When his family arrived to visit him, they released him from that predicament.  As a result of the family’s inquiry, the facility did an investigation that resulted in a written report.  That report concluded that what was done to appellant was wrong but could not identify the person who did that.  The family demanded to see the full report, but the facility refused. 

Appellant sued, claiming (among other things) that N.J.A.C. 10:41-3.2(b) was invalid as violative of N.J.S.A. 30:4-24.3.  That statute provided that “[a]ll … reports made pursuant to the provisions of Title 30 … and directly or indirectly identifying any individual presently or formerly receiving services in a non-correctional institution under Title 30 … shall be kept confidential and shall not be disclosed by any person, except insofar as the individual identified or his legal guardian … shall consent.”  Since this aspect of the case challenged an administrative regulation, the Law Division transferred it to the Appellate Division for resolution, as required by Rule 2:2-3(a)(2).

Writing for the panel, Judge Skillman rejected appellant’s argument.  The statute “does not give patients in state institutions any right of access to government reports.”  Rather, the statute limits disclosure to third parties, but that limitation “does not confer any right upon the patient to obtain access to that report.”  The Open Public Records Act, N.J.S.A. 47:1A-1 et seq. (“OPRA”), and/or the common law right of access to government documents might have provided appellant with the right to see the report.  “However, N.J.S.A. 30:4-24.3 does not give appellant an unfettered right of access to the report that circumvents the restrictions upon access to government records imposed under OPRA and the common law right of access.”

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