Here, Bergen Regional’s affiliates’ audited financial statements are common-law public records because they were (1) prepared at the behest of BCIA and (2) filed at its offices pursuant to � 9.25(c) of the lease and operating agreement. This contractual obligation was presumably negotiated and agreed to by the parties to facilitate BCIA’s oversight responsibilities as the license holder for this public hospital.

Once a court is satisfied that the information requested is a “public record,” it must then ascertain whether the requestor has a cognizable interest in the subject matter contained in the material. Assuming such an individual interest is found, a court must determine whether the individual’s right of access outweighs the state’s interest in preventing disclosure.

Here, Bergen Regional concedes that, as a newspaper, The Record has a cognizable interest in accessing and reviewing the audited financial records of its affiliates.

As the bargaining agent for a significant percentage of the staff at the medical center, the union argues that it has a legally valid private interest in reviewing this information. Bergen Regional contends that any disclosure that may be required under the common law does not apply to the union, because state law in this area is pre-empted by the federal Labor Management Relations Act of 1947. 29 U.S.C.A. �� 141 to -187.

Bergen Regional has not cited any case law supporting its blanket assertion of pre-emption. However, this issue need not be decided in order to afford the union access to this information. As the trial court correctly noted, denial of the information to the union here would lead to the absurd result of the union “being precluded from directly procuring this information under the common law, but could read all about it in the newspapers with the rest of the world.”

The principal legal issue in dispute is centered on the final step in the analysis under the common-law right of access. That is, whether the public’s interest in withholding the release of the affiliates’ audited financial statements outweighs the public benefit derived from their disclosure.

OPRA affirmatively excludes from the definition of “government records” 21 separate categories of information. Among the information excluded are “trade secrets and proprietary commercial or financial information obtained from any source.” N.J.S.A. 47:1A-1.1. Bergen Regional argues that these exclusions represent the Legislature’s considered public policy judgment that the prejudice caused by the disclosure of this type of information exceeds the benefit derived from its public dissemination. Thus, when confronted with a petition for disclosure under the common law, courts should defer to the Legislature’s pronouncement on the subject.

The provisions in OPRA explicitly retaining the common-law right of access impose a nondelegable duty on the judiciary to apply the common-law standards and make an independent assessment whether disclosure is warranted. If the Legislature intended to derogate from this common-law principle, it would have so stated. However, when engaging in the balancing test required under the common law, a court may look to the exclusions in OPRA as expressions of legislative policy on the subject of confidentiality. However, if application of common-law principles would lead to a finding in favor of disclosure, OPRA provisions cannot be invoked to defeat a citizen’s right of access.

Administrative regulations bestowing confidentiality on an otherwise public document, although not dispositive of whether there is a common-law right to inspect a public record, should, nevertheless, weigh “very heavily” in the balancing process, as a determination by the executive branch of the importance of confidentiality. In determining whether disclosure is warranted here, Bergen Regional urges the court to show a similar deference to the Legislature’s declaration in OPRA conferring confidentiality on proprietary financial information “obtained from any source,” by excluding such information from the definition of “government record” in N.J.S.A. 47:1A-1.1.

Such an approach, however, cannot be reconciled with the Legislature’s unequivocal injunction in 47:1A-8 that “[n]othing in [OPRA] shall be construed as limiting the common law right of access to a government record . . . .” This straightforward language is a legislative mandate to review and determine a citizen’s common-law petition for access using judicially developed common-law principles, without permitting any of the provisions in OPRA, including the exclusions enumerated in N.J.S.A. 47:1A-1.1, to heavily influence the outcome of the analysis.

Having concluded that OPRA exclusions do not limit a citizen’s common-law right of access, the trial court correctly applied the common-law balancing test. That test was succinctly described by Keddie v. Rutgers, 148 N.J. at 51:

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. 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.

Here, as the trial court noted, BCIA does not assert a public right to confidentiality. It is rather Bergen Regional, on behalf of itself and its affiliates, that asserts: (1) that without confidentiality, private for-profit companies, fearing the release of their proprietary financial information, would be discouraged from contracting with government agencies; and (2) release of this information would put them at a competitive disadvantage. Bergen Regional offers no proof of such prospects, however, calling them commonsense, self-evident propositions.

The trial court correctly found Bergen Regional’s arguments in this respect to be speculative and far from self-evident. First, as noted by the trial court, Bergen Regional is legally required to file copies of its audited financial statements with the Department of Health and Senior Services. N.J.A.C. 8:31B-3.3. Second, and perhaps most important, the original lease and operating agreement makes no provision for keeping the affiliates’ audited financial statements confidential.

Finally, based on the financial records made available to this court, Bergen Regional has continued to enjoy financial success notwithstanding the potential for disclosure.

Conversely, the public’s interest in examining these financial records is self-evident. There are large amounts of public funds being disbursed to procure management services for this public hospital. The fees paid to these three affiliates constitute more than three times the annual management fee paid to Bergen Regional. The scope of consulting services provided by the affiliates range from employee benefits to long-term patient care. The citizens of Bergen County and of this state have an unquestioned interest in ensuring that public funds, in the form of preferential reimbursement rates, are being spent wisely, efficiently and consistent with the medical center’s mission.

The trial court correctly applied the elements of the common-law right of access in ordering the release of the audited financial statements of Bergen Regional’s three affiliates.

Affirmed.

� Digested by Steven P. Bann

[The slip opinion is 26 pages long.]

For appellant Bergen Regional Medical Center, L.P. � James M. Hirschhorn (Sills Cummis Epstein & Gross). For respondents: North Jersey Media Group, Inc. et al � Arlene M. Turinchak (McGimpsey & Cafferty; Turinchak and Thomas J. Cafferty on the brief); Local 5091 � Leon Savetsky (Loccke & Correia).