**1 SYLLABUS**  **This syllabus is not part of the Court’s**  **opinion. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor**  **approved by the Court and may not summarize all portions of the opinion.**  American Civil Liberties Union of New Jersey v. County Prosecutors Association of New Jersey (A
- 33 -22 ) (08 7 789 ) Argued October 10, 202 3
-- Decided April 17 , 2024
PATTERSON , J. , writing for the Court. **In this appeal, the Court considers**  **whether defendant the County Prosecutors Association of New Jersey (CPANJ) is a public agency required to disclose records**  **pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A**

**- 1 to** 

**- 13, and a**  **public entity subject to the common law right of acce ss.**  **CPANJ is a nonprofit association whose**  **members are the twenty**

**- one county**  **prosecutors . I**  **t has no employees or office. The ACLU assert s**  **that CPANJ “regularly sends copies of its meeting minutes and agendas” to the Office of the**  **Attorney General and that**  **the county prosecutors who comprise the membership of CPANJ use the resources of their offices to conduct CPANJ business, including “the**  **development of agendas, the coordination of meetings and dinners, and the administration of [CPANJ’s] scholarship progr**  **am.” The ACLU state s**  **that CPANJ participates as amicus curiae in trial and appellate matters and that it has filed**  **appearances in court. The ACLU assert**  **s that CPANJ uses county prosecutors’**  **resources when it participates in court proceedings as amicus curiae. On July 19, 2019, the ACLU served a records request on CPANJ’s president**  **pursuant to OPRA and the common law right of access. CPANJ denied the request ,**  **stating that it was “quite simply not a public agency” as that term is defined by**  **N.J.S.A. 47:1A**

**- 1.1. CPANJ also denied the ACLU’s request for disclosure of the**  **records pursuant to the common law right of access. The ACLU filed this action, alleging that CPANJ is a public agency under**  **N.J.S.A. 47:1A**

**- 1.1 because it is “an instrumentality created by a combination of**  **political subdivisions to facilitate cooperation between government agencies and other political subdi**  **visions.” The ACLU also asserted that the requested documents are public records subject to public access under the common law.**  **The trial court dismissed the complaint, holding**  **that CPANJ is not a public agency within the meaning of N.J.S.A. 47:1A** 

**- 1.1**  **and that**  **, because CPANJ’s** **2**

**records were not created under authority granted independently to each county prosecutor, they do not constitute public records for purposes of the common law**  **right of access. The Appellate Division affirmed the dismissal of the ACLU’s**  **OPRA claims, and it concurred with the trial court’s rejection of the ACLU’s**  **common law right of access argument but on different grounds -- namely, that**  **CPANJ is not a public entity and is therefore not subject to the common law right of access.**  **474 N.J. Super. 243, 268**

**- 72**  **(App. Div. 2022)**

**. The Court granted**  **certification. 253 N.J. 396 (2023).**
HELD: **CPANJ is neither a public agency under N.J.S.A. 47:1A**

**- 1.1 nor a public**  **entity subject to the common law right of access. The**  **ACLU’s factual allegations do not support a claim against CPANJ under OPRA or the common law.** 
**1**

**. OPRA applies only if the entity to which a request is directed meets the statutory**  **definition of a public agency. For purposes of OPRA, the terms “public agency” or “agency” denote**  **the entities specified in N.J.S.A.**  **47:1A**

**- 1.1, which include “**  **any political subdivision of the State or combination of political subdivisions, and any**  **division, board, bureau, office, commission or other instrumentality within or created by a political subdivision of the State or combination of political**  **subdivisions, and any independent authority, commission, instrumentality or agency**  **created by a political subdivision or combination of political subdivisions.” The**  **term “political subdivision” denotes a division of a state that exists primarily to discharge some function of local government, such as a county or municipality, as**  **well as certain entities formed by counties and municipalities, such as parking authorities. The ACLU argues**  **that CPANJ is an instrumentality of the county prosecutors. Accordingly, the core question**  **in this appeal is whether a county prosecutor constitutes a “political subdivision” for purposes of OPRA** 

**. (pp. 14** 

**- 22)** 
**2. A county is indisputably a “political subdivision of the State” as defined in**  **OPRA, N.J.S.A. 47:1A**

**- 1.1. The status of the counties themselves as political**  **subdivisions under OPRA, however, has no bearing on the analysis. A county prosecutor is distinct**  **from the county that the prosecutor serves for purposes of OPRA’s reach.**  **A county prosecutor, like the Attorney General, is a constitutional**  **officer who serves by virtue of gubernatorial nomination and Senate confirmation. Although a county exercises**  **considerable control over the fiscal operations of the county prosecutor’s office, a county prosecutor’s law enforcement function is**  **unsupervised by county government or any other agency of local government. In**  **short, the county prosecutor is not the alter ego of the county itself, and does not constitute a “political subdivision” as that term is used in N.J.S.A. 47:1A** 

**- 1.1.**  **CPANJ, meanwhile, constitutes an organization in which the county prosecutors are**  **members and is not**  **the alter ego of the prosecutors themselves.**  **B ecause a**  **prosecutor does not meet the definition of a “political subdivision” under N.J.S.A. 47:1A** 

**- 1.1’s plain language, CPANJ**  **is not a public agency**  **for purposes of OPRA. 3** 

**T he ACLU’s factual allegations do not support its assertion that CPANJ is a public**  **agency within the meaning of N.J.S.A. 47:1A**

**- 1.1. Because the ACLU did not seek**  **the documents from a public agency in accordance with N.J.S.A. 47:1A**

**- 5 and** 

**- 6,**  **the Court does**  **not reach the question whether the documents identified in its request constitute “government records” under OPRA**  **. (pp. 22**

**- 26)** 
**3 . A public record under the common law is one that is made by a public official in**  **the exercise of the official’s 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.**  **Here, the ACLU identifies no statute, regulation, or other mandate requiring CPANJ to create or maintain the**  **requested documents**

**. It suggests no statutory or regulatory**  **mandates of any kind addressing the records at issue. The ACLU does not allege that CPANJ maintains public documents in a public office; indeed, it does not**  **dispute CPANJ’s assertion that it maintains no office at all. The ACLU identifies no precedential decision discussing, let alone upholding, a request for public documents**  **served on a private entity such as CPANJ. In short, the ACLU asserts no factual allegations that would suggest that CPANJ constitutes an entity up**  **on which a common law right of access request for documents may properly be served.**  **The Court does not reach the question**  **whether the documents that the ACLU requested from CPANJ would be considered common law public documents if requested from**  **a public entity . (pp. 26** 

**- 29)** 
AFFIRMED . JUSTICE WAINER APTER, dissenting , **expresses the view that the facts alleged about CPANJ, t**  **aken in the light most favorable to the ACLU, suggest that CPANJ is simply another name for the county prosecutors themselves and that it**  **therefore meets the definition of “public agency” in N.J.S.A. 47:1A**

**- 1.1 in the same**  **way that the county prosecutors’ o ffices themselves do. Looking behind CPANJ’s**  **technical form, and construing OPRA**  **“in favor of the public’s right of access,” N.J.S.A. 47:1A** 

**- 1,**  **Justice Wainer Apter would hold that the trial court erred in**  **granting CPAN J’s motion to dismiss the ACLU’s**  **OPRA claim**

**. In addition,**  **Justice Wainer Apter writes, b**  **ecause no private citizens are members of CPANJ, every document recorded, generated, or produced by CPANJ is recorded, generated, or**  **produced by a public official and, because CPANJ**  **maintains all documents in the county prosecutors’ offices** 

**-- which are**  **public offices under the common law**

**-- CPANJ documents are by definition common law public records. Justice Wainer**  **Apter would therefore hold that the trial court also**  **erred in dismissing the ACLU’s**  **claim under the common law**

**.** CHIEF JUSTICE RABNER and JUSTICE S SOLOMON, PIERRE
- LOUIS , and FASCIALE join in JU STICE PATTERSON’s opinion. JUSTICE WAINER APTER filed a dissent, in which JUSTICE NORIEGA joins .**1 SUPREME COURT OF NEW JERSEY**  **A- 33**  **September Term 20 22** 

**087789**

**American Civil Liberties Union of New Jersey**  **, Plaintiff** 

**- Appellant**  **,**

**v. County Prosecutors**  **Association of New Jersey**  **, Defendant** 

**- Respondent** 

**. On**  **certification to the Sup**  **erior Court, Appellate Division, whose opinion is reported at**  **474 N.J. Super. 243**  **(App. Div. 2022 ).**  **Argued October 10, 2023**  **Decided April 17, 2024** 
**Karen Thompson argued the cause for appellant**  **(American Civil Liberties Union of New Jersey Foundation, attorneys; Karen Thompson, Jeanne**  **LoCicero, Alexander Shalom, and Elyla Huertas, on the brief**  **). Christopher J. Gramiccioni argued the cause for**  **respondent (Kingston Coventry, attorneys; Christopher J. Gramiccioni, on the letter brief**  **). CJ Griffin argued the cause for amici curiae**  **Libertarians for Transparent Government and the Association of**  **Criminal Defense Lawyers of New Jersey (Pashman Stein Walder Hayden, attorneys; CJ Griffin, on the briefs).** **2 Thomas H. Prol argued the cause for amicus curiae**  **Municipal Clerks’**  **Association of New Jersey**  **, Inc. (Sills Cummis & Gross, attorneys; Thomas H. Prol, on the**  **brief). Vito A. Gagliardi, Jr. submitted a brief on behalf of**  **amicus curiae New Jersey State Association of Chiefs of Police (Porzio**  **, Bromberg & Newman, attorneys; Vito A. Gagliardi, Jr., of counsel, and David L. Disler and**  **Thomas J. Reilly, on the brief). Lawrence S. Lustberg submitted a brief on behalf of**  **amici curiae Salvation and Social Justice and Youth Advocate Programs, Inc. (Gibbons**  **and New Jersey Institute for Social Justice, attorneys; Lawrence S.**  **Lustberg, Julia Bradley (Gibbons) of the New York**  **b ar,**  **admitted pro hac vice, Emily Schwartz, Yannick Wood, Henal Patel, and Ryan P. Haygood, on the brief).** 

**JUSTICE PATTERSON**  **delivered the opinion of the Court.**
**In this appeal, we determine whether defendant the**  **County Prosecutors Association of New Jersey (CPANJ), a nonprofit organization whose members**  **are the twenty**

**- one county prosecutors of New Jersey, is a public**  **agency required to disclo**  **se records pursuant to the Open Public Records Act (OPRA),** 
**N.J.S.A. 47:1A** 

**- 1 to** 

**- 13,**  **and a public entity subject to the common law right**  **of access. Plaintiff American Civil Liberties Union of New Jersey (ACLU) sought**  **several categories of records from CPANJ**  **pursuant to OPRA and the common law**  **right of access. CPANJ denied the request, asserting that it is not a public 3** 

**agency for purposes of OPRA and is not a public entity subject to the common**  **law right of access. The**  **ACLU filed this action, seeking an order compel**  **ling production of the requested documents**  **and other relief**

**. The trial court granted CPANJ’s motion to dismiss the complaint**  **pursuant to Rule 4**  **:6**

**- 2(e).**  **The ACLU appealed that determination, and the**  **Appellate Division affirmed the trial court’s judgment. The appellate court found that**  **the ACLU**  **’s factual allegations did not support its contention that**  **CPANJ is a public agency under OPRA**  **or its assertion that CPANJ**  **is a public**  **entity subject to**  **the common law**

**. ACLU**  **of N.J.**  **v. Cnty. Prosecutors Ass**  **’ n of** 
**N.J. , 474**  **N.J. Super. 243, 256** 

**- 72 (App. Div. 2022).**  **We concur with the Appellate Division that CPANJ is neither**  **a public**
**agency under**  **N.J.S.A. 47:1A** 

**- 1.1**  **nor a public entity subject to the common**  **law right of access. We conclude that**  **the ACLU’s factual allegations do not**  **support a claim against CPANJ**  **under OPRA or the common law. Accordingly, we affirm the Appellate Division’s judgment.** 
**I.**
**A.**
**1.**
**We summarize**  **the ACLU’s factual allegations based on the**  **complaint and**  **its attachments** 

**. 4** 

**CPANJ is a nonprofit association operating pursuant to Internal Revenue Code §**  **501(c)(3). Its members are the twenty** 

**- one county prosecutors.**  **According to CPANJ’s**  **2015 and 2016 Internal Revenue Service disclosure forms**  **, attached to**  **the ACLU’s**  **complaint ,**  **the organization’s mission is to**  **“maintain close cooperation between the Attorney General of the State of New Jersey, the Division of Criminal Justice of the State of New Jersey and the**  **twenty**

**- one (21) county prosecutors of the State of New Jersey,” relating to** 

**“ developing educational programs so as to promote the orderly administration**  **of criminal justice within the State of New Jersey, consistent with the Constitution and the laws of the State of New Jersey.” CPANJ represented in**  **those disclos ure forms**  **that it d**  **oes not compensate its members,**  **who participate as volunteers**  **; that it obtain**  **s revenue**  **solely from**  **membership dues, membership assessments, and educational conferences**  **; that it grant**  **s scholarships to law students**  **; and**  **that it ha**  **s no employees**  **or office. Citing a 1985 joint policy statement between the New Jersey Attorney**  **General and CPANJ regarding prosecutorial review of search warrant applications, as well as CPANJ’s involvement in a 2018 initiative to stop**  **violence against women, the**  **ACLU allege d**  **in its complaint that the Office of the Attorney General views CPANJ as a “partner in implementing statewide**  **criminal justice policy.” The**  **ACLU note d**  **that pursuant to N.J.S.A.**  **52:17B**

**- 5** 

**70 (b)**  **, CPANJ**  **’s representative is a member of the Department of Law and Public Safety Police Training Commission, and that under N.J.S.A.**  **30:4**

**- 123.47a**  **, CPANJ’s representative is a member of the Parole Advisory Board. The ACLU**  **a sserted**  **that CPANJ “regularly sends copies of its meeting minutes and agendas” to the Office of the Attorney General.**  **The ACLU further**  **alleged in its complaint**  **that the county prosecutors**  **who comprise the membership of CPANJ use the resources of their offices to conduct CPANJ business, including “the development of agendas, the**  **coordination of meetings and dinners, and the administration of [CPANJ’s] scholarship progr**  **am.” The ACLU**  **stated that CPANJ participates**  **as amicus curiae in trial and appellate matters and that it has filed appearances in court** 

**. The**  **ACLU asserted that**  **CPANJ use s**  **county prosecutors’ resources when i t**  **participates in court proceedings as amicus curiae**

**. 2.**  **On July 19, 2019, the**  **ACLU served a records request on CPANJ’s** 
**p resident pursuant to OPRA and the common law right of access.**  **The ACLU**  **requested five categories of records for the period between January 1, 2017 ,**  **and July 19, 2019**  **: (1) CPANJ meeting agendas; (2) CPANJ meeting minutes;**  **(3) records reflecting funding received by CPANJ; (4) briefs filed in state or 6** 

**federal courts by CPANJ; and (5) policies or practices shared with county prosecutors through CPANJ.**  **By letter sent**  **from its**  **p resident to**  **the ACLU on**  **September 18, 2019, CPANJ denied the request. CPANJ stated that it was “quite simply not a**  **public agency” as that term is defined by N.J.S.A.**  **47:1A**

**- 1.1,**  **and that it instead**  **constitutes “a private association” comprised of the twenty** 

**- one county**  **prosecutors**

**. It asserted that its**  **goal is to promote “the orderly administration**  **of criminal justice within the State ”**  **and “the fair and effective enforcement” of New Jersey’s Constitution and laws “through the cooperation of all law**  **enforcement agencies.” CPANJ further contended that even if it were to meet OPRA’s definition of a public agency, the requested records would be exempt**  **from disclosure on confidentiality grounds, as inter**

**- agency advisory,**  **consultative, or deliberative materials, or as records pertaining to a criminal investigation or related civil enforcement proceeding that are not “required by**  **law to be made, maintained or kept on file .”**  **It took the position that it could**  **not comply with the**  **ACLU’s OPRA request because it lacked “a physical**  **office, location or even an online presence.” CPANJ also denied**  **the ACLU’s request for disclosure of the records**  **pursuant to the common law right of access. Maintaining that the**  **ACLU had failed to identify its interest in the request for purposes of the common**  **law 7** 

**balancing analysis, CPANJ contended in its response to**  **the ACLU’s request**  **that it was not subject to the common law right of access and that the requested**  **documents did not meet the common law definition of a public document**

**. B.** 
**1. The ACLU filed**  **this action , alleging**  **that CPANJ is a public agency under**  **N.J.S.A. 47:1A** 

**- 1.1**  **because it is “an instrumentality created by a combination of political subdivisions to facilitate cooperation between**  **government agencies and other political subdivisions .”**  **The ACLU**  **also asserted**  **that the requested documents are public records subject to public access under the common law.**  **It sought a declaratory judgment stating that**  **CPANJ is subject to OPRA and the common law ,**  **and that CPANJ violated the law**  **by rejecting the**  **ACLU’s request for documents**

**. The**  **ACLU also**  **requested an injunction requiring production of the disputed documents, or, in**  **the alternative, an in camera review of those documents followed by**  **disclosure . It**  **sought an**  **award of attorneys’**  **fees and costs**

**. CPANJ filed a motion to dismiss the complaint for failure to state a**  **claim pursuant to Rule 4:6** 

**- 2(e)**  **. It asserted**  **that it is not a public agency**  **under**
**N.J.S.A. 47:1A** 

**- 1.1 and is not subject to the common law right of access** 

**.**

----**8**

**The trial court held that CPANJ is not a public**  **agency within**  **the meaning of**  **N.J.S.A. 47:1A** 

**- 1.1**  **. It rejected the**  **ACLU’s claim that because county prosecutors comprise**  **CPANJ’s membership, CPANJ cooperates with the Attorney General on certain law enforcement issues, and CPANJ is**  **represented in the governing bodies of certain public organizations, it should be viewed**  **as a**  **public agency for purposes of OPRA. The trial court found that**  **CPANJ’s amicus curiae appearances, which further the orderly administration of criminal justice, do not support**  **the ACLU’s contention that CPANJ is a**  **public agency under OPRA.** 
**T he trial court**  **also found that because CPANJ’s records were not**  **created under authority granted independently to each county prosecutor, they do not constitute public records**  **for purposes of the common law right of access. The court noted that although county prosecutors are invited to join**  **CPANJ, they are not required to do so**  **, and that**  **membership in the organization is**  **not mandated in order**  **for prosecutors to fulfill their public function.**  **The trial court entered an order dismissing the complaint. 9**  **2. The**  **ACLU appealed the trial court’s judgment. 1**  **The Appellate Division granted amicus curiae status to Libertarians for Transparent Government.**  **The Appellate Division**  **agreed with the trial cour t**  **that CPANJ does not constitute a**  **public agency as the Legislature defined**  **the term in**  **N.J.S.A.**
**47:1A**

**- 1.**  **ACLU , 474**  **N.J. Super. at 257** 

**- 68.**  **The appellate court**  **acknowledged that a county is a political subdivision of the State**  **under OPRA ,**  **but rejected the contention that CPANJ was created by a combination of political subdivisions, given the absence of any evidence**  **“ that the counties**  **directly created CPANJ or authorized its creation.” Id.**  **at 261. The Appellate**  **Division recognized the distinction between a county and**  **a county prosecutor**  **, who is**  **a constitutional officer and**  **“the foremost representative of the executive branch of government in**  **law enforcement in [the]**  **county.” Id.**  **at 262 (quoting**  **Cherrits v. Ridgewood, 311 N.J. Super.**  **517, 528** 

**- 29 (App. Div.**  **1998)). The appellate court**  **concluded that “any entity created by the county prosecutors is, at most, an instrumentality of instrumentalities or of offices,”**  **and that such an entity is not a public agency**  **under OPRA. Id.**  **at 263**

**- 64. The** 

**1 The Appellate Division**  **rejected a**  **challenge by CPANJ**  **to the court’s**  **jurisdiction to determine whether CPANJ is subject to OPRA. 474 N.J. Super. at 256 (citing**  **Paff v. State Firemen’s Ass’n**  **, 431 N.J. Super. 278, 285**

**- 93 (App.**  **Div. 2013)). The jurisdictional question is not before us in this appeal. 10** 

**Appellate Division accordingly affirmed the dismissal of the**  **ACLU’s OPRA claims.**  **Id. at 268.**  **The Appellate Division also concurred with the trial court’s rejection of the**  **ACLU’s common law right of access argument but**  **premised its decision on different grounds**  **than those on which the trial court**  **relied**

**. Id.**  **at 268**

**- 72.**  **The appellate court noted that “**  **a document cannot be a common [**  **law ]**  **public record if it is not ‘made by a public official in the exercise of . . . his public**  **function.’” Id.**  **at 269 (quoting Keddie v. Rutgers, 148 N.J.**  **36, 49 (1997)). Noting that**  **the ACLU had proceeded against**  **CPANJ, a nonprofit association,**

**“ not the Attorney General, an individual county prosecutor, a county**  **prosecutor’s office, nor any other governmental entity,” the Appellate Division found that CPANJ is not a public entity and is therefore not subject**  **to the common law right of access.**  **Id. at 269** 

**- 70. It affirmed the trial court’s**  **dismissal of the**  **ACLU’s common law claim. Id.**  **at 268** 

**- 72.** 
**3. We granted**  **the ACLU’s petition for certification. 253**  **N.J. 396 (2023).**  **Libertarians for Transparent Government continued to participate as amicus**  **before this Court, joined by the Association of Criminal Defense Lawyers of New Jersey**  **. We also granted leave to participate as amici to Salvation and**  **Social Justice and**  **to Youth Advocate Programs, Inc.**  **(jointly represented) ,**  **to 11** 

**the Municipal Clerks’ Association of New Jersey, Inc., and to**  **the New Jersey State Association of Chiefs of Police** 

**. II.** 
**A. The**  **ACLU contends that CPANJ is a public agency under OPRA because it is an instrumentality of county prosecutors acting in a hybrid role as**  **“state actors” and “political subdivisions of the state,” and because CPANJ**  **relies almost entirely on public resources to perform a governmental function. It argues that CPANJ is also a public**  **entity for purposes of the common law**  **right of access, given its public role in formulating criminal justice policy** 

**. B.** 
**CPANJ asserts that**  **the ACLU failed to allege facts supporting the claim**  **that CPANJ is an instrumentality created by political subdivisions. It contends that its involvement in criminal justice policy and amicus curiae appearances**  **do not render it a public agency**  **as N.J.S.A.**  **47:1A**

**- 1.1 defines that term** 

**. CPANJ contends that**  **the ACLU**  **also failed to plead a factual basis for its**  **claim under the common law right of access.**
**C. Amici curiae Libertarians for Transparent Government and the**  **Association of Criminal Defense Lawyers of New Jersey agree with the ACLU** **12**

**that CPANJ is a public agency under OPRA, and argue in the alternative that**  **records that CPANJ provides to county prosecutors’ offices may be obtained from those offices pursuant to OPRA.** 
**D. Amici curiae Salvation and Social Justice and Youth Advocate**  **Programs, Inc. assert that a holding that CPANJ is a public agency would**  **further the objectives of OPRA and the common law right of access.**
**E. Amicus curiae the Municipal Clerks’ Association of New Jersey, Inc.**  **takes no position as to the specific dispute in this case**  **but argues that private organizations with no direct nexus to political subdivisions should not**  **, as a general matter,**  **be subject to OPRA or to the common law right of access.**
**F. Amicus curiae New Jersey State Association of Chiefs of Police asserts**  **that private entit ies**  **are neither public agencies under OPRA nor public entities required to maintain public documents under the common law, if they**  **are not**  **instrumentalities of**  **the State or its political subdivisions or formed under the**  **direct supervision of the State or its political subdivisions.** **13 III.** 
**A. We review de novo the trial court’s grant of CPANJ’s motion to dismiss**  **for failure to state a claim pursuant to Rule 4:6** 

**- 2(e)** 

**. Dimitrakopoulos v.**  **Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl, P.C., 237 N.J. 91, 108 (2019).**  **We apply the same**  **standard that governs the trial court in that inquiry, affording to the ACLU**  **“every reasonable inference of fact ,”**  **and searching the**  **complaint “in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim,**  **opportunity being given to amend if necessary.” Printing Mart** 

**- Morristown v.**  **Sharp Elecs. Corp. , 116 N.J. 739, 746 (1989)** 

**. However,**  **“i f the complaint**  **states no claim that supports relief, and discovery will not give rise to such a claim, the action should be dismissed.” Dimitrakopoulos, 237 N.J. at 107**  **; accord**  **Banco Popular N. Am. v. Gandi, 184 N.J.**  **161, 166 (2005). We review de novo**  **a court’s interpretation of**  **OPRA , which constitutes a**  **legal determination**

**. In re N.J. Firemen’s Ass’n Obligation, 230**  **N.J. 258, 273** 

**- 74 (2017).**  **In that inquiry, we a**  **pply familiar principles of statutory construction ,**  **striving “**  **to effectuate the Legislature’s intent.” W.S. v. Hildreth, 252 N.J. 506, 518** 

**- 19**  **(2023). “**  **We ascribe to the statutory words their ordinary 14** 

**meaning and significance and read them in context with related provisions so as to give sense to the legislation as a whole.” DiProspero v. Penn, 183**  **N.J. 477, 492 (2005) (citation omitted**  **). We resort to extrinsic evidence of the**  **Legislature’s intent only when the statute is ambiguous, or “**  **leads to more than**

**on e**  **plausible interpretation.” Id.**  **at 492**

**- 93. “When the plain language of a**  **statute is clear and unambiguous, we apply the law as written.” Hildreth, 252**
**N.J. at 518.** 
**B. Guided by those principles, we first determine whether**  **the ACLU has**  **pled factual allegations supporting a determination that CPANJ is a public** 
**agency subject to OPRA.** 
**1.**
**In OPRA,**  **“ the Legislature declare**  **[d] it to be the public policy of this**  **State that government records shall be readily accessible for inspection, copying, or examination by the citizens of t**  **h is State, with certain exceptions,**  **for the protection of the public interest.” N.J.S.A.**  **47:1A**

**- 1. “OPRA was**  **‘designed to promote transparency in the operation of government.’” Firemen’s Ass’n**  **, 230**  **N.J. at 276 (quoting Sussex Commons Assocs.**  **, LLC v.**  **Rutgers , 210**  **N.J. 531, 541 (2012)).**  **The Legislature sought “‘to maximize public knowledge about public affairs in order to ensure an informed citizenry** **15**

**and to minimize the evils inherent in a secluded process.’” Ibid. (quoting**  **Mason v. City of Hoboken, 196 N.J.**  **51, 64 (2008)). Consistent with that legislative goal**  **, OPRA applies only**  **if the entity to which a request is directed**  **meet s**  **the statutory definition of a public agency**

**. N.J.S.A.**  **47:1A**

**- 1,** 

**- 6;**  **see also Fair Share Hous**  **. Ctr., Inc. v. State**  **League of**
**Mun s.**  **, 207 N.J.**  **489, 501 (2011) (“ O**  **nly if the League of Municipalities**  **qualifies as a ‘public agency’ that maintains ‘government record [s]**  **’ under OPRA must it then respond to the document requests made by Fair Share**  **Housing Center, Inc.” )**  **(alteration in original) ).**  **For purposes of OPRA, the terms “public agency” or “agency” denote any of the principal departments in the Executive**  **Branch of State Government, and any division, board, bureau, office, commission or other instrumentality**  **within or created by such department; the Legislature of the State and any office, board, bureau or**  **c ommission within or created by the Legislative**  **Branch; and any independent State authority, commission, instrumentality or agency.**  **The terms also mean any political subdivision of the State or**  **combination of political subdivisions, and any division, board**  **, bureau, office, commission or other instrumentality within or created by a political**  **subdivision of the State or combination of political subdivisions, and any independent authority,**  **commission, instrumentality or agency created by a political subdivision or combination of political**  **subdivisions. [N.J.S.A. 47:1A** 

**- 1.1**  **.] 16** 

**The Legislature intended that definition to be broad, in light of OPRA’s “goal of making public records accessible and transparent.” Sussex Commons**  **, 210**  **N.J. at 544. Th**  **e definition must**  **“be construed in favor of the public’s**  **right of access.” N.J.S.A. 47:1A -1** 

**. T**  **he two sentences that comprise OPRA’s definition of**  **a public agency**  **address “distinct categories of public agencies.” Verry v. Franklin Fire Dist. No. 1, 230**  **N.J. 285, 294 (2017).**  **“ The first sentence captures a group of**  **public agencies in the Executive and Legislative Branches of State government, including subparts to and creations of the Executive and**  **Legislative branches, as well as various types of independent state entities.” Ibid.**  **The second sentence “designates certain other entities as public en tities**  **subject to OPRA, specifically political subdivisions of the State and bodies sharing a basic connection to those political subdivisions.” Ibid.**  **Two terms that appear in N.J.S.A. 47:1A**

**- 1.1**  **, “political subdivision of the state” and “instrumentality**  **,” are directly relevant to this appeal.**  **As the Legislature directed, we afford the term “political subdivision of**  **the State, ”**  **undefined in OPRA, its “**  **generally accepted meaning, according to the approved usage of the language**  **.” See**  **N.J.S.A. 1:1**  **-1. 2**  **Th e**  **term “political** 

**2 The term “political subdivision” has been defined for purposes of**  **other statutes**  **not relevant to this case. See, e.g.**  **, N.J.S.A. 52:27D**

**- 145**  **(b) (defining**  **“political subdivision ”**  **as used in the**  **Maintenance of Viable Neighborhoods 17** 

**subdivision” denotes “a division**  **of a state that exists primarily to discharge some function of local government.”**  **Black’s Law Dictionary**  **1402 ( 11th**  **ed**

**. 2019**  **). “A county or municipality is a political subdivision of the state, created**  **as a convenient agency for the exercise of such of the governmental powers of the state as may be entrusted to it by the legislative authority[.]”**  **Camden County**  **v. Pennsauken Sewerage Auth., 15 N.J.**  **456, 470 (1954); see also Verry**  **, 230 N.J.**  **at 297 (noting that a municipality is a political subdivision of the**  **S tate “and has long been understood as such”**  **) (citing**  **City of Jersey City v. Martin**  **, 126 N.J.L.**  **353, 361 (E. & A. 1941))); Headen v. Jersey City Bd. of Educ.**  **, 420 N.J. Super. 105, 115 (App. Div. 2011) (“**  **We generally associate the**
**term ‘**  **political subdivision ’**  **with a county, city, town, or municipality. ”)**  **, aff’d**  **as modified, 212 N.J. 437 (2012)**

**. As we noted in**  **Verry , the Legislature has on**  **several occasions enacted**  **statutes “authorizing the formation of an entity by another form of legislatively created entity, like a municipality or a county, to be both ‘a body corporate’**  **and ‘a political subdivision.’” 230 N.J.**  **at 298**

**. Those entities include county** 

**Act of 1975,**  **N.J.S.A. 52:27D** 

**- 142 to** 

**- 151, to denote “**  **any unit**  **or agency**  **of government**  **deriving its**  **authority directly**  **or indirectly**  **from the**  **State of**  **New Jersey”);**  **N.J.S.A. 27:5F** 

**- 20(c)**  **(defining “political**  **subdivision ”**  **in the**  **New Jersey**  **Highway Traffic**  **Safety Act**  **of 1987,**  **N.J.S.A. 27:5F**  **-1 to**  **- 43,**  **to denote**  **“any local**  **political subdivision**  **of this**  **State ,**  **including but**  **not limited**  **to a**  **municipality, a**  **county, a**  **township, a**  **district, or**  **a special**  **district”)**

**. 18** 

**or municipal parking authorities, N.J.S.A.**  **40:11A**

**- 4;**  **beach erosion control districts**  **, N.J.S.A. 40:68** 

**- 40; port authorities,**  **N.J.S.A. 40:68**  **A- 7; solid waste**  **management authorities, N.J.S.A.**  **40:66A**

**- 38; environmental services**  **authorities, N.J.S.A.**  **40:66A**

**- 7; sewerage authorities,**  **N.J.S.A. 40:14A** 

**- 7; and**  **pollution control authorities, N.J.S.A.**  **40:37C**

**- 4(a).**  **See Verry**  **, 230 N.J.**  **at 298**
**n.1. The term “instrumentality,” a**  **lso undefined in OPRA, is “variously**  **defined as ‘[a] thing used to achieve an end or purpose’ and, alternatively, as ‘[a] means or agency through which a function of another entity is**  **accomplished, such as a branch of a governing body. ’**  **” Fair Share Housing**  **, 207**  **N.J. at 503 (alterations in original)**  **( quoting**  **Black’s Law Dictionary 814**  **(8th ed. 2004)) ;**  **accord Verry**  **, 230 N.J.**  **at 299.**
**In three**  **decisions ,**  **this Court explored the**  **meaning of the statutory terms at the heart of this appeal.** 
**In Times of Trenton Pub. Corp. v. Lafayette Yard Community**  **Development Corp. ,**  **we concluded that defendant Lafayette Yard Community**  **Development Corporation, a nonprofit corporation created to oversee a redevelopment project on donated property in the City of Trenton, was a**  **public**
**agency for purposes of OPRA. 183 N.J. 519, 534** 

**- 36 (2005). Noting that**  **Trenton’s Mayor and City Council had “absolute control over the 19** 

**membership” of the corporation’s board of trustees and that the corporation “could only have been ‘created’ with their approval,**  **” we deemed the**  **corporation to be “**  **an ‘**  **instrumentality or agency created by a political subdivision**  **’ under**  **N.J.S.A. 47:1A** 

**- 1.1.**  **’” Id.**  **at 534**

**- 35.** 
**In Fair Share Housing, we applied OPRA’s definition of a public agency**  **to the New Jersey State League of Municipalities, “a nonprofit, unincorporated association, today representing all of New Jersey’s 566 municipalities.” 207** 
**N.J. at 494. Noting the League’**  **s role in promoting the municipalities’**  **interests in the Legislature and in educating local officials, we concluded that the League “is achieving an end and providing a function on behalf of all 566**  **of New Jersey’s municipalities.” Id.**  **at 503**

**- 04.**  **Because each municipality constitutes a “political subdivision of the State” under N.J.S.A. 47:1A** 

**- 1.1, and**  **the League of Municipalities is an “instrumentality” under OPRA, we held that**  **the League “is an ‘instrumentality’ of a ‘combination of political subdivisions**  **,’” and thus a public agency under OPRA.**  **Id. at 504.**  **In Verry , we**  **considered OPRA’s**  **applicability to two distinct entities :**  **the Franklin Fire District No. 1, a fire district established pursuant to N.J.S.A.** 
**40A:14**

**- 70, and the Millstone Valley Fire Department, a nonprofit volunteer**  **fire department that was a member of the Fire District. 230 N.J.**  **at 296**

**- 302.** **20**

**We found in**  **Verry that Franklin Fire District No. 1 constituted a public** 
**ag e**  **ncy under N.J.S.A. 47:1A**

**- 1.1 because it was the “creation of a**  **municipality,” which in turn was “undoubtedly a political subdivision” that**  **had exercised statutory authority to form the**  **F ire**  **D istrict.**  **Id. at 298** 

**- 99. We**  **therefore deemed the Fire District to be “an instrumentality of a political subdivision,” thus satisfying “the definition of public agency under the second** 
**sentence of OPRA’s definition.”**  **Id. at 299 (citing N.J.S.A. 47:1A** 

**- 1.1).**  **We reached the opposite conclusion with respect to the volunteer fire department, however.**  **Id. at 299** 

**- 302. Noting that**  **N.J.S.A. 40A:14** 

**- 70.1**  **authorizes a fire district to create or contract with volunteer fire companies, we concluded that “a volunteer squad may be regarded as an instrumentality of a**  **fire district.” Id.**  **at 300**

**- 01. We observed**  **that**

**because the District itself is not a political subdivision, but rather the instrumentality of one, the volunteer**  **company is only the instrumentality of an instrumentality. Although OPRA provides that an**  **instrumentality of a political subdivision constitut es a**  **public agency, it does not provide that an instrumentality of an instrumentality constitutes a**  **public agency. OPRA requires a direct connection to a political subdivision.**  **[ Id.**  **at 301 (citing N.J.S.A. 47:1A**

**- 1.1)**  **.] We also clarified language in our jurisprudence relying on**  **“‘creation’ or ‘governmental** 

**- function’ tests when demarcating the boundaries of what** **21**

**qualifies as a public agency.” Id.**  **at 302 (citing League of Muns**

**. , 207**  **N.J. at**  **507). Observing that “such tests are useful only insomuch as they effectuate application of the statutory language,” we reiterated that the plain language of** 
**N.J.S.A. 47:1A**

**- 1.1 established that the District, an instrumentality of a**  **political subdivision, is a public agency subject to OPRA, and that the volunteer company, although supervised by the District, “is not a public**  **agency as defined by OPRA.” Ibid.**
**2. Guided by OPRA’s plain language**  **and our**  **prior case law**  **construing that language**  **, and assuming the truth of the ACLU’s factual allegations in**  **accordance with Rule**  **4:6**

**- 2(e),**  **we consider the**  **ACLU’s argument that CPANJ is**  **a public agency as defined by N.J.S.A. 47:1A**

**- 1.1.**  **3 We conduct a fact** 

**** **sensitive inquiry, “look[ing] behind the technical form” of the entity at issue “to consider its substantive attributes.”**  **Paff v. State Firemen’s Ass’n, 431 N.J. Super. 278, 288 (App. Div. 2013).** 

**3 The factual allegations that a court must assume to be true in a motion to**  **dismiss under Rule**  **4:6**

**- 2 are the allegations set forth in the complaint.**  **See, e.g.**  **, Dimitrakopoulos**  **, 237 N.J. at 107; Printing Mart**  **, 16 N.J. at 746. A**  **party’s factual assertions in a trial brief, in**  **an appellate**  **brief ,**  **or at**  **oral argument**  **, and the factual contentions of an amicus curiae, however, are not**  **assumed to be true for purposes the court’s inquiry. See**  **ibid. 22** 

**The ACLU**  **urges us to find that CPANJ is an instrumentality of the**  **county prosecutors, “state actors” who together comprise a “combination of political subdivisions” under N.J.S.A. 47:1A** 

**- 1.1.**  **Accordingly, the core question in this appeal is whether a county prosecutor constitutes a “political**  **subdivision” for purposes of OPRA. 4**  **A county is indisputably a “political subdivision of the State” as defined in OPRA, N.J.S.A. 47:1A** 

**- 1.1;**  **accord Camden County, 15**  **N.J. at 470.**  **The status of the counties themselves as political subdivisions under OPRA,**  **however, has no bearing on the analysis. As the Appellate Division observed, “[n]othing in the record before us suggests that the counties directly created**  **CPANJ or authorized its creation.”**  **ACLU , 474 N.J. Super.**  **at 261. Indeed, the**  **ACLU’s complaint is devoid of any allegation that the counties themselves created CPANJ, or have**  **ever controlled its operations. The**  **ACLU’s allegations center entirely on the county prosecutors’**  **authority over CPA**  **NJ**

**. A**  **county prosecutor is distinct from the county**  **that the prosecutor**

**serves for purposes of OPRA’s reach. Our State Constitution provides that**  **“[c]ounty prosecutors shall be nominated and appointed by the Governor with the advice and consent of the Senate,” that**  **the prosecutors’ “**  **term of office**

**4 The parties agree that the county prosecutors themselves are subject to**  **OPRA. 23** 

**shall be five years,” and that the**  **prosecutors “shall serve until the appointment and qualification of their respective successors.” N.J. Const.**  **a rt. VII**  **, § 2**  **, ¶ 1.**  **In accord with th e**  **constitutional provisions governing county prosecutors, the**  **Legislature has determined that**

**[t]here shall be appointed, for each county, by the governor with the advice and consent of the senate to**  **serve for a term of 5 years and until the appointment and qualification of his successor, some fit person who**  **shall have been admitted to the practice of law in this**  **state for at least 5 years, who shall be known as the county prosecutor and who, except as otherwise**  **provided by law, shall prosecute the pleas of the state in such county and shall have all of the powers and**  **perform all of the duties formerly had and performed by the prosecutor of the pleas of such county.**  **As the term of the prosecutor of the pleas of any county shall**  **expire there shall be appointed in his place and stead such county prosecutor.**  **[N.J.S.A. 2A:158 -1.]**  **Accordingly, a county prosecutor, like the Attorney General, is a constitutional officer who serves by virtue of gubernatorial nomination and**  **Senate confirmation. Morss v. Forbes , 24 N.J.**  **341, 36 9**  **(1957)**

**. “[C]ounty**  **prosecutors occupy a ‘hybrid’ role, serving both the county and the State**

**. . . .”**  **Gramiccioni v. Dep’t of Law &**  **Pub. Safety , 243**  **N.J. 293, 310 (2020).** 
**A lthough a**  **“ county**  **exercises considerable control over the fiscal operations of the county prosecutor’s office,” a county prosecutor’s “‘law enforcement**  **function is unsupervised by county government or any other agency of local 24** 

**government.’” Yurick v. State, 184**  **N.J. 70, 80 (2005) (quoting Wright v.** 
**State , 169**  **N.J. 422, 452 (2001)).**  **In short, the county prosecutor is not the alter ego of the county itself, and does not constitute a “political subdivision”**  **as that term is used in N.J.S.A. 47:1A**

**- 1.1.**  **The A CLU’s reliance on**  **CPANJ’s law enforcement functions and**  **relationship with the Attorney General is misplaced; because a prosecutor does not meet the definition of a “political subdivision”**  **under N.J.S.A. 47:1A**

**- 1.1’s**  **plain language, CPANJ**  **’s role in law enforcement does not confer on it**  **public**
**agency status for purposes of OPRA.**  **See Verry**  **, 230 N.J.**  **at 302 (noting that “creation” or**  **“ governmental** 

**- function” tests in determining public agency**  **status under N.J.S.A. 47:1A**

**- 1.1 are “useful only insomuch as they**  **effectuate application of the statutory language”)** 

**. The**  **ACLU does not allege facts suggesting that CPANJ is a public agency in accordance with N.J.S.A. 47:1A** 

**** **1.1’s plain language. The terms of the statute control.**  **Notwithstanding the contention of our dissenting colleagues, CPANJ has not ide**  **ntified itself as the organizational shorthand of the county prosecutors; to the contrary, it stresses the distinctions between itself and the county**  **prosecutors. See**  **post at ___ (slip op. at**  **9-12 ).**  **Those distinctions are fundamental.**  **A county prosecutor, a constitutional officer, is “statutorily endowed with powers that arm him or her to perform wide ranging** **25**

**duties.” Yurick**  **, 184 N.J. at 78**

**- 79 (citing Wright**  **, 169 N.J. at 437). A**  **prosecutor “shall be vested with the same powers and be subject to the same penalties, within his county, as the attorney general shall by law be vested with**  **or subject to,” and “shall use all reasonable and lawful diligence for the detection, arrest, indictment and conviction of offenders against the**  **laws.” N.J.S.A. 2A:158** 

**- 5.**  **CPANJ, in contrast, has no constitutional or statutory powers of any kind, and it is not authorized to investigate, arrest, or**  **prosecute anyone. It constitutes an organization in which the county**  **prosecutors are members. It is not the alter ego of the prosecutors**  **themselves. 5** 
**We therefore concur with the Appellate Division that**  **the ACLU’s factual allegations do not support its assertion that**  **CPANJ is**  **a public agency within the meaning of**  **N.J.S.A. 47:1A**

**- 1.1.**  **T he Appellate Division properly**  **affirmed the dismissal of the**  **ACLU’s OPRA claim pursuant to Rule 4:6** 

**- 2(e).** 
**Because the**  **ACLU did not seek the documents from a public agency in**

**5 Indeed, county prosecutors sometimes disagree with one another with respect**  **to criminal justice issues. See, e.g.**  **, State v. Gomes, 253 N.J. 4, 12** 

**- 14, 34**  **(2023) (noting that the county prosecutors in the two cases before the Court had taken opposing positions with respect to the question whether individuals**  **who received conditional discharges for marijuana offenses prior to the Legislature’s adoption of the Cannabis Regulatory, Enforcement Assistance,**  **and Marketplace Modernization Act, N.J.S.A. 24:61**

**- 32 to** 

**- 56, are statutorily**  **ineligible for admission into the pretrial intervention program). 26** 

**accordance with N.J.S.A.**  **47:1A**

**- 5 and** 

**- 6, we do not reach the question**  **whether the documents identified in its request constitute “government records” under OPRA as defined in N.J.S.A. 47:1A** 

**- 1.1**  **, or whether those documents are within one or more**  **OPRA exemptions**

**. Our**  **decision affirming the dismissal of**  **the ACLU’s OPRA claim against**  **CPANJ does not preclude the**  **ACLU from requesting the same categories of documents from one or more**  **public agenc ies**  **subject to OPRA.**
**C. We next consider**  **the Appellate Division’s decision affirming the trial court’s dismissal of**  **the ACLU’s common law right of access claim.** 
**1. Long before the Legislature codified the right of access to certain public**  **documents, we recognized**  **“ that citizens have [a] common law right ‘to require**  **custodians of public records to make them available for reasonable inspection and examination.’” Tarus v. Borough of Pine Hill, 189**  **N.J. 497, 507 (2007)**  **(quoting Irval Realty Inc. v. Bd. of Pub. Util. Comm’rs, 61**  **N.J. 366, 372**  **(1972)). The common law determination raises an issue distinct from the**  **statutory construction that governs our analysis of the**  **ACLU’s OPRA claim. “Although both paths raise similar considerations, OPRA does not limit the**  **right of access to government records under the common law.” Rivera v. 27** 

**Union Cnty. Prosecutor’s Off** 

**. , 250**  **N.J. 124, 143 (2022) (citing**  **N. Jersey Media Grp., Inc. v. Township of Lyndhurst, 229**  **N.J. 541, 578 (2017));**  **see also**  **N.J.S.A. 47:1A** 

**- 8 (“**  **N othing contained in [**  **N.J.S.A. 47:1A** 

**- 1 to** 

**- 13] shall**  **be construed as limiting the common law right of access to a government record, including criminal investigatory records of a law enforcement**  **agency”)**

**. “To constitute a common law public record,**  **an it**  **em must ‘**  **be a written memorial** 

**. . . made by a public officer**  **, and . . . the officer [must] be**  **authorized by law to make it. ’**  **” Rivera**  **, 250 N.J. at 143** 

**- 44**  **( alteration and**  **omissions in original) (quoting**  **Nero v. Hyland, 76 N.J.**  **213, 222 (1978)). A**  **public record under the common law “is one that is made by a public official in the exercise of [the official’s] 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.” Keddie, 148**  **N.J. at 49.**  **To access public documents under the common law, “requestors must**  **make a greater showing than required under OPRA: (1) ‘the person seeking** 
**access must “**  **establish an interest in the subject matter of the material ”**  **’; and (2) ‘the citizen’s right to access**  **“ must be balanced against the State’s interest**  **in preventing disclosure. ”**  **’” Mason**  **, 196**  **N.J. at**  **67**

**- 68 (quoting Keddie**  **, 148**
**N.J. at 50)). We have identified factors**  **to guide that determination. See** **28**

**Rivera , 229**  **N.J. at**  **144**

**- 49 (**  **identifying factors addressing a common**  **- law**  **request for police internal affairs materials); Loigman v. Kimmelman, 102 N.J.**  **98, 113 (1986) (setting forth factors for consideration in the balancing test).**
**2. As the Appellate Division noted,**  **“[t]he status of the party from whom documents are requested is a threshold issue under the common law right of** 

**access. ”**  **ACLU ,**  **474 N.J. Super.**  **at 269. In factual allegations that we assume to be true for purposes of CPANJ’s motion to dismiss under Rule**  **4:6**

**- 2(e),**  **the ACLU asserts that CPANJ identifies itself**  **in its disclosure forms**  **as a nonprofit, tax** 

**- exempt**  **, unstaffed organization with a governing body**  **comprised of seven voting members. The**  **ACLU identifies no statute,**  **regulation, or other mandate requiring CPANJ to create or maintain the**  **documents in dispute . I**  **t suggests no statutory or regulatory mandates of any kind addressing the records at**  **issue. The**  **ACLU does not allege that CPANJ maintains**  **public documents in a public office; indeed, it does not dispute**
**C PANJ’s assertion**  **that it maintains**  **no office**  **at all**

**. The**  **ACLU identifies no**  **precedential decision discussing, let alone upholding, a request for public**  **documents served on a private entity such as CPANJ. In short,**  **the ACLU asserts no factual allegations that would suggest that CPANJ constitutes a**  **n 29** 

**entity upon which a common law right of access request for documents may**  **properly be served. We agree with the Appellate Division’s conclusion that “CPANJ is not a**  **public entity subject to the common law right of access” and that it accordingly “was not required to provide the requested documents” to**  **the**
**ACLU. Id.**  **at 271. We concur with the appellate court’s determination that the trial court properly dismissed**  **the ACLU’s common law claims.**  **We do not reach the question whether th e**  **documents that the ACLU requested from CPANJ would be considered common law public documents if**  **requested from a public entity subject to the common law right of access. 6**  **Nor do we conduct the balancing test required if a public entity disputes**  **a common law request for access to public documents.**  **If the ACLU**  **serves a**  **request for**  **the documents**  **at issue in this appeal on one or more public entities subject to the common law right of access, an**  **d that request is denied**  **, the**  **ACLU may**
**assert a claim**  **against that entity under the common law**

**.**

**6 Our dissenting colleagues state that any CPANJ documents stored at the**  **county prosecutors’ offices constitute common law public records. Post**  **at ___ (slip op. at**  **2 ,**  **19 ).**  **If the prosecutors’ offices have CPANJ**

**- related documents**  **that are subject to the common law right of access, the ACLU can request those documents from the public entities that have them** 

**-- the prosecutors’**  **offices. 30**  **IV. The judgment of the Appellate Division is affirmed.** 

**CHIEF JUSTICE RABNER and JUSTICES SOLOMON, PIERRE**

**- LOUIS,**  **and FASCIALE join in JUSTICE PATTERSON’s opinion. JUSTICE WAINER APTER filed a dissent, in which JUSTICE NORIEGA joins.** **American Civil Liberties Union of New Jersey,**  **Plaintiff**

**- Appellant,** 

**v. County Prosecutors**  **Association of New Jersey, Defendant** 

**- Respondent.** 

**JUSTICE WAINER APTER, dissenting.**
**According to the facts alleged in the American Civil Liberties Union of New Jersey**  **’s (ACLU)**  **complaint and submitted by the County Prosecutors**  **Association of New Jersey (CPANJ), CPANJ consists only of the 21 sitting county prosecutors. CPANJ has no staff; its work is completed by the county**  **prosecutors themselves, or by employees of the county prosecutors’ offices across the state, including assistant prosecutors. It has no office; its**  **documents are maintained in the county prosecutors’ offices. And**  **CPANJ receives no**  **private funding; it is funded only through government funding sources**

**. Taken in the light most favorable to the ACLU, as we must on a motion**  **to dismiss under Rule 4:6** 

**- 2(e),**  **those facts at**  **least suggest that CPANJ is**  **simply another name for the county prosecutors themselves**  **and that it** **2**

**therefore meets the definition of “public agency” in N.J.S.A. 47:1A -1**  **.1 in the**  **same way that the county prosecutors’ offices**  **themselves do.**  **Looking behind CPANJ’s technical form, and construing the Open**
**P ublic Records Act (OPRA) “in favor of the public’s right of access,” N.J.S.A.** 
**47:1A**

**- 1, I would**  **hold that the trial court erred in granting CPANJ’s motion to**  **dismiss Count**  **One of**  **the ACLU’s complaint pursuant to Rule 4:6** 

**- 2(e).**  **In addition, even if the majority were correct on the ACLU’s OPRA**
**count ,**  **the records the ACLU requested from CPANJ are common**  **- law public**  **documents. Because no private citizens are members of CPANJ, every**  **document recorded, generated, or produced by CPANJ is**  **recorded, generated, or produced by a public official. And CPANJ itself says that it was**  **created to**  **promote “the orderly administration of criminal justice within the State and the fair and effective enforcement of the constitution and laws of this State**  **”**

**-- a**  **governmental purpose of the highest order.**  **In any event, CPANJ conceded that it has no physical office, and it maintains all documents in the county prosecutors’ offices. The county**  **prosecutors’ offices are public offices under the common law. A**  **ny CPANJ documents stored at the county prosecutors’ offices are**  **by definition common**  **law public records. I would therefore hold that the trial court**  **also erred in**  **dismissing Count Two**  **of the ACLU’s complaint.** ----**3**

**For tho**  **se reasons, I respectfully dissent.**
**I. All agree that the**  **c ounty**  **p rosecutors themselves are “public agenc[ies]”**  **subject to OPRA. Ante at ___ (slip op. at 21**  **n.3 ).**  **Indeed, in many**  **cases this Court has assumed that**  **c ounty**  **p rosecutors and**  **c ounty**  **p rosecutors**  **’ o ffices fall**  **under N.J.S.A.**  **47:1A**

**- 1.1**  **’s definition of “public agency” and has simply**  **considered whether a specific OPRA exemption nonetheless shielded the records in question from access.**  **See, e.g. ,**  **Rivera v. Union Cnty**

**. Prosecutor’s**  **Off. , 250 N.J. 124, 136** 

**- 37, 141**  **(2022) (accepting**  **, without discussion, that the Union**  **County Prosecutor’s Office is a “public agency” under N.J.S.A. 47:1A**

  ** 1.1 and considering** **whether the internal affairs reports at issue were exempt from disclosure as a “personnel and/or internal affairs record”);**  **Brenna n v.**  **Bergen Cnty. Prosecutor ’**  **s Off. , 233 N.J. 330, 33**  **2-3 3 (2018) (**  **accepting, without discussion, that the**  **Bergen County Prosecutor’s Office is a “public**  **agency” under N.J.S.A. 47:1A**

**- 1.1 and considering**  **whether successful bidders**  **at a public auction of government property had a reasonable expectation that their names and addresses would remain private);**  **Paff v. Ocean Cnty**

**. Prosecutor’s Off** 

**. , 235 N.J. 1**  **, 17**

**- 24**  **(2018) (accepting, without discussion, that**  **the Ocean County Prosecutor’s Office is a “public agency” under N.J.S.A. 4** 

**47:1A**

**- 1.1**  **and considering whether the mobile video recordings at issue**  **were exempt as “criminal investigatory records”).**  **This makes sense, as c**  **ounty p**  **rosecutors are constitutional officers, “appointed by the Governor with the advice and consent of the Senate.” Ante**  **at ___ (slip op. at 22 )**  **(quoting N.J. Const.**  **art. VII, § 2, ¶ 1 )**  **; s**  **ee also a**  **nte at**  **___ (slip op. at 22**

**- 23**  **) (quoting**  **N.J.S.A. 2A:158** 

**- 1).**  **There is also no dispute that the purpose of OPRA is “that government records**  **1 shall be readily accessible for inspection, copying, or examination by**  **the citizens of this State, with certain exceptions, for the protection of the public interest.” Ante**  **at ___ (slip op. at 14) (quoting N.J.S.A. 47:1A -1**  **). In light of OPRA’s**  **vital “goal of making public records accessible and**  **transparent,” the majority agrees that the Legislature intended**  **N.J.S.A. 47:1A**

  ** 1** **’s definition of “public agency” to be broad. Ante at ___ (slip op. at 16**  **) (quoting**  **Sussex Commons Assocs**

**. , LLC v. Rutgers, 210 N.J. 531, 544 (2012)**  **, and**  **N.J.S.A. 47:1A -1**  **).**

**1 Government records are defined broadly to include “any paper . . . that has**  **been made, maintained or kept on file in the course of his**

**. . . official business**  **by any officer . . . of the State or of any political subdivision thereof . . . or that has been received in the course of his** 

**. . . official business by any such**  **officer.” N.J.S.A. 47:1A -1**  **.1**

**. 5** 

**It could hardly contend otherwise, as this Court has repeatedly recognized both**  **OPRA’s important**  **public purpose and its corresponding**  **breadth**

**. In**  **Fair Share Housing C**  **enter , Inc. v. State League of Municipalities**  **, we**  **acknowledged the key role that OPRA’s access to government records plays in**

**a vibrant**  **democracy: “Those who enacted OPRA understood that knowledge**  **is power in a democracy, and that without access to information contained in records maintained by public agencies citizens cannot monitor the operation of**  **our government or hold public officials accountable for their actions. ”**  **207 N.J. 489, 502**  **(2011)**

**. In**  **Times of Trenton Publishing Corp**  **. v. Lafayette Yard Community Development Corp.**  **, we detailed OPRA’s purpose**  **: “**  **to maximize public knowledge about public affairs in order to ensure an informed citizenry**  **and to minimize the evils inherent in a secluded process.” 183 N.J. 519, 535**  **(2005) (quoting**  **Asbury Park Press v. Ocean Cnty**

**. Prosecutor**  **’ s Off** 

**. , 374 N.J.**  **Super. 312, 329 (Law Div.**  **2004 )).**  **And in Sussex Commons Associates, LLC**  **v. Rutgers ,**  **we discussed how OPRA “seeks to promote the public interest” and**
**“serve [s]**  **as a check on government action” “**  **by granting citizens access to documents that record the workings of government.” 210 N.J. 531, 546**  **(2012) ;**  **see also Rivera**  **, 250 N.J. at 141 ( “**  **[W] ithout access to government**  **records, even the most engaged members of the public ‘**  **cannot monitor the 6** 

**operation of our government or hold public officials accountable. ’**  **” (quoting**  **Fair Share , 207 N.J.**  **at 502**  **)). As to OPRA’s expansive**  **scope, we have stated that it stems from**  **the statute’s prescription that “any limitations**  **. . . shall be construed in favor of the public**  **’ s right of access.**  **” Fair Share**  **, 207 N.J.**  **at 501 (quoting N.J.S.A.** 
**47:1A -1**  **). Therefore, under OPRA, “ ‘**  **all government records shall be subject to public access**  **unless ’**  **” they “fit within an enumerated exception .”**  **Ibid. (emphasis added)**  **(quoting N.J.S.A. 47:1A**  **-1 ).**  **Finally, the majority correctly notes that in determining whether an**

**e ntity is a “public agency” under**  **N.J.S.A. 47:1A**  **-1 .1**  **’s “broad” definition, we “conduct a fact** 

**- sensitive inquiry, ‘look[ing] behind the technical form**  **’ of the**  **entity at issue ‘**  **to consider its substantive attributes. ’”**  **Ante at _** 

**_ _ (slip op.**  **at 21) (quoting**  **Paff v. State Firemen’s Ass’n , 431 N.J. Super. 278, 288 (App. Div.**  **2013)). Looking behind CPANJ’s technical form, and construing “any**  **limitations . . . in favor of the public’s right of access,” N.J.S.A. 47:1A -1**  **, I**  **would hold that**  **CPANJ is a “public agency” under OPRA in the same way that**

**c ounty**  **p rosecutors**  **’ o ffices are, because**  **the ACLU alleges it is simply another**  **name for the c**  **ounty p**  **rosecutors themselves. 7** 

**That conclusion flows from the allegations in the ACLU’s complaint**  **and information submitted**  **by CPANJ**

**. See**  **AC Ocean Walk, LLC v. Am** 

**. Guar**  **. & Liab** 

**. Ins** 

**. Co** 

**. , 256 N.J. 294, 310** 

**- 11**  **(2024) (“In evaluating motions to dismiss, courts consider**  **‘ allegations in the complaint, exhibits attached to the**  **complaint, matters of public record, and documents that form the basis of a claim.**  **’” (quoting**  **Myska v. N.J. Mfrs. Ins. Co., 440 N.J. Super. 458, 482 (App. Div. 2015)**  **)); Printing Mart** 

**- Morristown v. Sharp Elecs. Corp.**  **, 116 N.J. 739, 746 (1989)**  **(in deciding a motion to dismiss, we afford plaintiff “every**  **reasonable inference of fact,” and “‘search []**  **the complaint in depth and with liberality to ascertain**  **whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to**  **amend if necessary ’”**  **(quoting Di Cristofaro v. Laurel Grove Mem’l Park**  **, 43 N.J. Super. 244, 252 (App. Div. 1957))**  **); see also**  **ante at _** 

**_ _ (slip op.**  **at 13**  **) (**  **referencing the**  **Printing Mart standard).**  **In its complaint, the ACLU alleges that CPANJ consists of only the 21**

**c ounty**  **p rosecutors themselves. Indeed, despite being classified as**  **“volunteers” on CPANJ**  **tax forms, the ACLU explains that “all officers, trustees, and members of CPANJ” are actually “New Jersey county**  **prosecutors, appointed by the Governor and paid by the State of New Jersey. ”** 
**B ecause CPANJ does not compensate any staff or have any offices, the** **8**

**“County Prosecutors use the resources of their offices,” including Assistant Prosecutors,**  **detectives, clerical staff, computers**  **, email addresses,**  **and more, “to conduct CPANJ business.” “Put simply** 

**. . . CPANJ is operated entirely by**  **government appointees who are paid with New Jersey taxpayer funds to perform legal duties on behalf of the State of New Jersey while using**  **government resources to do so. ”** 
**CPANJ acknowledges this** 

**. In**  **its responsive letter to the ACLU dated September 18, 2019, the**  **n- CPANJ President, the**  **Sussex County P**  **rosecutor ,**  **stated that CPANJ**  **is “comprised of the 21 County Prosecutors,” and “does not**  **have a physical office, location, or even an online presence.” At oral argument, counsel for CPANJ**  **agreed that only sitting**  **c ounty** 
**p rosecutors can participate in CPANJ** 

**-- once a**  **c ounty**  **p rosecutor has resigned**  **or been removed, that individual can no longer participate. He also stated that because CPANJ has no physical office, it maintains**  **all documents in the** 

**c ounty**  **p rosecutors**  **’ o ffices** 

**. And**  **he conceded that CPANJ is funded only through government resources (i.e., county prosecutors’ office resources)** 

**-- there are no**  **private sources of funding.**  **In their briefing and at argument, the ACLU and amici Libertarians for Transparent Government and the Association of Criminal Defense Lawyers**  **(together, LFTG) likewise assert that: (1) no private citizens are members of 9** 

**CPANJ; (2) CPANJ funding appears to be derived entirely from county prosecutors’ offices; and (3) CPANJ has no office, no email address, and no**  **staff of its own, and relies solely on government staff and government resources, including email addresses, funds, and computers, to complete all of**  **CPANJ’s work. 2**  **In other words, “the overlap” between the county prosecutors’ offices and CPANJ “is complete,” and CPANJ is simply**  **“organizational shorthand for the twenty**

**- one county prosecutor’s offices.”**  **The majority states**  **that CPANJ is a “private entit y.”**  **A nte**  **at ___ (slip op. at**  **28 ).**  **But based on their actions, the county prosecutors see**  **CPANJ as “organizational shorthand” for themselves and their offices, not as any separate**  **private entity**

**. The relevant statutes prove the point. Pursuant to N.J.S.A. 2A:158** 

**- 1.1,** 

**“ [a]**  **ny person appointed to the office of county prosecutor” must “**  **serve on a full** 

**- time basis” and “shall not engage in the practice of law or other gainful**  **employment .”**  **Similarly, a**  **ssistant p**  **rosecutors may never**  **engage in “outside employment”**  **that involves “the private practice of law or the provision of other legal services.”**  **N.J.S.A. 2A:158** 

**- 15.1b.**  **Yet the c**  **ounty p**  **rosecutors and**

**2 It is appropriate to consider the assertions set forth by the ACLU and their**  **amici in briefing and at oral argument because the ACLU has not yet had an opportunity to amend its complaint, and leave to amend is to be freely granted.**  **See Printing Mart**  **, 116 N.J. at 746. 10** 

**a ssistant**  **p rosecutors regularly represent CPANJ in court, demonstrating that**  **they view CPANJ as the voice of the c**  **ounty p**  **rosecutors speaking together, not** 

**as a**  **private organization. In this case, an Assistant Prosecutor**  **from the Mercer County** 
**Prosecutor’s Office**  **represented CPANJ before the trial court and the Appellate Division, using his**  **c ounty**  **p rosecutor’s**  **o ffice email address and resources to**  **do so.**
**In In re Request to**  **Release Certain Pretrial Detainees , CPANJ**  **participated before this Court as a “party in interest,” urging the Court not to compel the release of pretrial detainees in response to COVID** 

**- 19.**  **See 245**  **N.J. 218 (2021). CPANJ was represented by the then** 

**- President of CPANJ, the**  **Hudson County Prosecutor, and Assistant Prosecutors from the Morris County Prosecutor’s Office, Warren County Prosecutor’s Office, and Somerset County**  **Prosecutor’s Office. Accompanying the brief was a certification from the First Assistant Prosecutor for the Warren County Prosecutor’s**  **Office explaining that**  **he had been tasked by CPANJ with authoring a portion of the brief and had obtained data on COVID** 

**- 19**  **from representatives of CPANJ, i.e., staff from other county prosecutors**  **’ offices.**  **LFTG provided a list of 29 published decisions of this Court for which**
**CPANJ participated as amicus curiae and was represented by**  **assistant 11** 

**prosecutors , dating back to 1986.**  **And there are additional cases as well. For**  **example, in State v. Higginbotham ,**  **which is pending, CPANJ submitted an**  **amicus curiae brief to this Court defending the constitutionality of amendments to the child endangerment statute,**  **N.J.S.A. 2C:24** 

**- 4. Listed**  **as counsel**  **for CPANJ**  **on the brief were then**

**- President of CPANJ, the Cape May**  **County Prosecutor, and Assistant Prosecutors from the Mercer County Prosecutor’s Office, Somerset County Prosecutor’s Office, Bergen County** 
**Pr osecutor’s Office, and Cape May County Prosecutor’s**  **Office**

**. The**  **c ounty**  **p rosecutors thus see CPANJ as a convenient way to make**  **their collective views known to this Court** 

**-- when they agree, rather than**  **submit 21 amicus briefs, they submit one joint brief.**  **In a certification in support of CPANJ’s motion to appear as amicus curiae in**  **State v. Smart , 253** 
**N.J. 156 (2023)**  **, to defend the constitutionality of a particular search and**  **seizure , an Acting Assistant Prosecutor from the Monmouth County** 
**Prosecutor’s Office**  **explained why: “CPANJ is an organization whose**  **membership is comprised of the 21 county prosecutor’s offices in New Jersey,” and it “serves to represent the interests of the assistant prosecutors employed**  **in the diverse prosecutor’s offices around the State.” All of this points to**  **CPANJ being indivisible**  **from the county**  **prosecutors’ offices themselves** 

**. 12** 

**CPANJ conceded that the offices of the county prosecutors are public agencies under OPRA. If county prosecutors**  **’ offices**  **are public agencies under OPRA, and CPANJ is the county prosecutors’ offices**  **by another name, then CPANJ should likewise be a public agency subject to OPRA’s**  **requirements. I would therefore hold that the ACLU has asserted sufficient**  **facts to at least suggest that CPANJ is mere shorthand for New Jersey’s county prosecutors’ offices, and meets the definition of “public agency” in**  **N.J.S.A.**
**47:1A**

**- 1.1 in the same way that they do.**  **At the very least, the ACLU should have been entitled to discovery of information**  **uniquely in CPANJ’s possession that is relevant to whether it meets the definition of public agency under**  **N.J.S.A. 47:1A**  **-1 .1** 

**. CPANJ**  **possesses the facts that establish whether it and the county prosecutors**  **’ offices**  **are actually one and the same, and yet it moved to dismiss this case without**  **disclosing th at**  **information**

**. The Court should not countenance**  **such an approach.**  **Cf. Cardali v. Cardali, 255 N.J. 85, 110** 

**- 11 (2023) (one party cannot**  **be required to put forth information solely in the other party’s possession without first having the opportunity to obtain that information through**  **discovery).**
**We have previously**  **endorsed OPRA’s “underlying premise . . . that society as a whole suffers when ‘governmental bodies are permitted to operate** **13**

**in secrecy.’” Fair Share**  **, 207 N.J. at 502 (quoting Asbury Park Press, 374 N.J. Super.**  **a t 329).**  **Public officials should not be permitted to hide behind**  **organizational forms to utilize government resources to carry out government**  **business in secrecy. This means that c**  **ounty p**  **rosecutors ’ offices**  **should not be permitted to escape OPRA by labeling certain of**  **their activities as occurring**  **on behalf of CPANJ, rather than themselves, when the ACLU alleges that there is**  **no functional difference between the two. I would hold the trial court erred in granting CPANJ’s motion to dismiss**  **the ACLU’s complaint pursuant to Rule**  **4:6**

**- 2(e).**  **In my view, the court should have either granted discovery on whether CPANJ is a “public agency” under** 
**N.J.S.A. 47:1A** 

**- 1.1**  **, or considered CPANJ’s argument that the documents in**  **question were exempt from OPRA for various reasons. I therefore dissent**  **from the majority’s affirmance of the dismissal of Count**  **One of the ACLU’s**  **complaint at this stage** 

**. II.**  **Even if the majority were correct that the ACLU did not allege sufficient**  **facts that CPANJ meets the definition of “public agency” in N.J.S.A. 47:1A**

  ** 1** **.1 to survive a motion to dismiss,**  **I would nonetheless hold that the ACLU sufficiently alleged**  **that the records**  **it requested from CPANJ are common**  **- law** **14**

**public records** 

**. I therefore separately dissent from the majority’s affirmance of**  **the dismissal of Count Two of the ACLU’s complaint. As the majority**  **correctly explains, “OPRA does not limit the right of**  **access to government records under the common law.” Ante at _** 

**_ _ (slip op.**  **at 25**  **) (quoting Rivera , 250 N.J.**  **at 143). The majority also acknowledges that**  **“[t]he definition of a public record under the common law is broader than**  **under OPRA. ”**  **Rivera , 250 N.J. at 143.** 
**A common law public record “is one that is made by a public official in**  **the exercise of [the official’s] 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 .”**  **Ante at __**  **_ (slip op.**  **at 27**  **) (emphasis added)**  **(quoting Keddie v. Rutgers, 148 N.J. 36, 49 (1997)**  **) . The majority concludes that the**  **requested documents are not common law public records because “[t]**  **he ACLU identifies no statute, regulation, or other mandate requiring CPANJ to create or maintain**  **the documents in dispute,” and because “[t]he ACLU does not allege that CPANJ maintains public documents in a public office**  **.” Ante**  **at _**

**_ _ (slip op.** 
**at 28**  **). The first is not required; the second is**  **incorrect**

**. As an initial matter, “w**  **ritten memorials made by public officers in the exercise of public functions are common** 

**- law public records**  **” “ even**  **if they are**
**not ” “**  **required by law to be made, maintained or kept on file .”**  **Loigman v. 15** 

**Kimmelman , 102 N.J.**  **98, 1 02**  **(1986) (citations and internal quotation marks**  **omitted); Shuttleworth v. City of Camden, 258 N.J. Super. 573, 582** 

**- 83**  **(App. Div. 1992)**  **(quoting N.J.S.A. 47:1A**  **-2 ). Common law public records thus** 

**“ include**  **almost every document recorded, generated, or produced by public officials**  **.” Shuttleworth**  **, 258 N.J. Super. a**  **t 582 (emphasis added).**  **The documents the ACLU requested we**  **re written by public officers exercising**  **public functions. As earlier noted, CPANJ**  **concedes that it consists of only the 21 sitting county prosecutors.**  **It concedes that it has no private citizens as members, and no paid staff. Therefore, every document recorded, generated, or produced by**  **CPANJ must be recorded, generated, or produced by a public official; there is simply no one other than public officials that can perform CPANJ**  **work**

**. CPANJ disputes that the county prosecutors**  **and their staff are exercising**  **any governmental function when acting on behalf of CPANJ. At oral argument, counsel for CPANJ suggested that a county prosecutor’s**  **participation in CPANJ is similar to that prosecutor**  **serving on their town’s**  **“little league board.” That is false. O**  **ne must**  **go no further than CPANJ’s own words, and**  **the statutes enacted by the Legislature, to see why.** **16**

**First, in its tax returns**  **, CPANJ does not describe itself as a volunteer**  **organization with social, professional, or athletic**  **aims . It**  **describes itself as an organization created to** 

**maintain close cooperation between the Attorney General of the State of New Jersey, the Division of**  **Criminal Justice of the State of New Jersey and the twenty** 

**- one (21) county prosecutors of the State of New**  **Jersey relative to . . . developing educational p rograms**  **so as to promote the orderly administration of criminal justice within the State of New Jersey, consistent with**  **the Constitution and the laws of the State of New Jersey.**  **Similarly, i n its**  **September 18, 2019 response to the ACLU, CPANJ stated that**  **its goal is “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.”**  **The promotion of the orderly administration of criminal justice within the State, and the fair and effective enforcement of our criminal laws and our**  **constitution, is a governmental function of the highest order. How do we know?**  **Because the Legislature**  **has declared it to be. In 1970, the Legislature declared it**  **the public policy of this State to encourage cooperation among law enforcement officers and to provide for the**  **general supervision of criminal justice by the Attorney General as chief law enforcement officer of the State,**  **in order to secure the benefits of a uniform and efficient** **17 enforcement of the criminal law and the administration**  **of criminal justice throughout the State. [**  **N.J.S.A. 52:17B** 

**- 98.**  **] But the Legislature did not simply leave the “administration of criminal justice**  **throughout the State” to the Attorney General. Instead, it statutorily mandated**  **that the county prosecutors “cooperate with and aid the Attorney General” in this vital work.**  **N.J.S.A. 52:17B** 

**- 112(a).**  **I n order to facilitate that aid and**  **cooperation, it also provided that “[t]he Attorney General may, from time to time, and as often as may be required, call into conference the county**  **prosecutors,**

**. . . for the purpose of discussing the duties of their respective**  **offices with a view to the adequate and uniform enforcement of the criminal laws of this State.**  **” Id.**  **at (c).**  **According to the ACLU, that is exactly what CPANJ does:**  **provid es**  **a convenient way for all 21 county prosecutors**  **to cooperate with and aid the Attorney General**  **in the performance of his official duties regarding**  **the fair**  **and effective enforcement of the criminal law of this**  **S tate.**  **That is true when CPANJ submit**  **s amicus briefs to this court**  **defending the constitutionality of a criminal statute,**  **see State v. Higginbotham**  **, or a particular search and seizure,** 

**see State v. Smart**  **. It is true when CPANJ weighs in on the possible release of**  **pretrial detainees in response to COVID**

**- 19.**  **See In re**  **Request to Release**  **Certain Pretrial Detainees**

**. 18** 

**And ,**  **the ACLU alleges, it is true when CPANJ meets with the Attorney**  **General to discuss the uniform and effective enforcement of this State’s criminal law**  **s**
**. In its complaint, the ACLU alleges that CPANJ “**  **regularly meets with representatives of the Attorney General of New Jersey at the**  **Hughes Justice Complex in Trenton, New Jersey and is treated by the Office of the Attorney General** 

**. . . as a partner in implementing statewide criminal**  **justice policy. ”**  **The Appellate Division similarly stated that**  **“CPANJ ’**  **s monthly meetings are a convenient forum for the Attorney General to meet**  **with the county prosecutors. Such meetings could be convened, of course,**  **without the existence of CPANJ.” ACLU of N.J. v. Cnty. Prosecutors Ass’n of** 
**N.J. , 474 N.J. Super. 243, 267**  **(App. Div. 2022). Therefore**  **, CPANJ’s documents are written by public officers exercising public functions.**  **However, even if county prosecutors and their staff were somehow not exercising public functions when acting on behalf of CPANJ, CPANJ records**  **would still meet the definition of common law public records. This is so**  **because any document “filed in a public office” is a common law public record.**  **Keddie , 148 N.J. at 49.** 
**In Keddie**  **, a Rutgers**  **p rofessor sought information from Rutgers about**  **work that private attorneys performed on civil rights claims**  **and other matters. 19** 

**Id. at 41.**  **The professor specifically requested bills that the private attorneys submitted to Rutgers for payment.**  **I bid.**  **This Court held that the private attorneys’ bills were common law public records because they were “writings**  **filed in a public office,” i.e., writings filed at Rutgers. Id.**  **at 50. Here, again**  **, CPANJ has conceded that it has no physical office,**  **and it maintains any and all documents that it has in the county prosecutors’ offices.**  **The county prosecutors’ offices are, without question, public offices under the**  **common law. Therefore, any CPANJ documents stored at the county prosecutors’ offices are common law public records.**  **Because CPANJ documents are common law public records, the trial court should have assessed whether the ACLU**  **“establish[ed] an interest in the subject matter of the material” and then should have**  **balanced the ACLU ’s**  **“right to access” the materials against CPANJ’s “interest in preventing disclosure.”**  **Mason v. City of Hoboken, 196 N.J. 51, 67**

**- 68**  **(2008). It did not. For this independent reason, I dissent from the majority’s affirmance of**  **the dismissal**  **of Count Two**  **of the ACLU’s complaint**

**. III** 

**. For the foregoing reasons, I respectfully dissent** 

**.**