Baffi Simmons v. Wendy Mercado (084695) (Cumberland County & Statewide) ( 2021 )

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. In the interest of brevity, portions of an opinion may not have been summarized.
Baffi Simmons v. Wendy Mercado (A-18-20) (084695)
Argued March 31, 2021 -- Decided June 17, 2021
PIERRE-LOUIS, J., writing for a unanimous Court.
In this appeal, the Court considers whether a records request for complaint-
summonses from a municipal police department is proper under the Open Public Records
Act (OPRA), N.J.S.A. 47:1A-1 to -13. The key question is whether the complaint-
summonses -- electronic records populated with information by local police officers but
stored on Judiciary servers -- are the police department’s government records under
OPRA and, if so, whether the records request at issue here was sufficiently narrow.
Plaintiffs Baffi Simmons and the African American Data and Research Institute
(collectively, AADARI) submitted a request under OPRA to defendants Millville City
Clerk Wendy Mercado, the City of Millville, and the City of Millville Police Department
(collectively, MPD) for complaint-summonses, known as CDR-1s, for certain classes of
drug-related offenses. Specifically, AADARI requested copies of the following four
categories of documents prepared by MPD from January 2017 onward: (1) driving while
intoxicated/driving under the influence (DWI/DUI) complaints and summonses; (2) drug
possession complaints and summonses; (3) MPD’s “Arrest Listings”; and (4) drug
paraphernalia complaints and summonses. AADARI requested those records as part of a
comparative data analysis on the subject of disparate treatment in the administration and
enforcement of marijuana and other drug-related offenses in New Jersey.
In response to AADARI’s OPRA request, MPD provided documents responsive to
category 3 and advised AADARI to request the other three categories of items from the
Millville Municipal Court. AADARI filed a complaint and an order to show cause, after
which MPD provided AADARI documents responsive to category 1. So when the parties
appeared before the trial court on the order to show cause, the only outstanding requests
were the documents in categories 2 and 4 -- the drug-related complaints and summonses.
The trial court ruled in favor of AADARI, rejecting MPD’s claims that it did not
need to produce the pertinent records because MPD did not maintain them. The court
also found that the records request did not require MPD to conduct research and therefore
did not go beyond OPRA’s scope.
1
The Appellate Division reversed, finding that the requested records are in the
custody of the Judiciary and that AADARI must therefore direct its records request to the
Judiciary, not MPD. 464 N.J. Super. 77, 79, 84 (App. Div. 2020). The appellate court
did not address whether AADARI’s request would require research. Id. at 84.
The Court granted AADARI’s petition for certification. 244 N.J. 342 (2020).
HELD: Because MPD officers create the information contained in the CDR-1s, the
CDR-1s fall well within OPRA’s definition of a government record. Further, AADARI’s
records request is narrowly tailored and would not constitute research beyond OPRA’s
scope.
1. New Jersey boasts of a long and proud tradition of openness and hostility to secrecy in
government. OPRA was enacted to maximize public knowledge about public affairs in
order to ensure an informed citizenry and to minimize the evils inherent in a secluded
process. To effectuate its mission to make government records “readily accessible” to the
state’s citizens, OPRA substantively provides that “all government records shall be
subject to public access unless exempt,” N.J.S.A. 47:1A-1, and it places on the
government the burden of establishing an exemption, N.J.S.A. 47:1A-6. Although OPRA
favors broad public access to government records, it is not intended to be a research tool
that litigants may use to force government officials to identify and siphon useful
information. Thus, to prompt disclosure under OPRA, requests for information must be
properly circumscribed. (pp. 15-17)
2. In furtherance of OPRA’s goal of transparency and public access to government
records, the Legislature broadly defines a “government record” subject to OPRA to
include “information stored or maintained electronically . . . that has been made,
maintained or kept on file in the course of his or its official business by any officer,
commission, agency, or authority of the State or of any political subdivision thereof.”
N.J.S.A. 47:1A-1.1 (emphases added). “Information” is the key word. Applying those
principles to the present case, and bearing in mind OPRA’s goals, it is evident that the
CDR-1s sought in this matter are government records subject to disclosure by MPD
under OPRA. (pp. 17-18)
3. MPD’s argument that members of the Judiciary, not law enforcement officers, “make”
the CDR-1 forms obscures the nature of the information being sought here. AADARI is
not seeking blank forms that provide zero information regarding arrests made by MPD.
It is the substantive information regarding arrests used to populate the CDR-1s that is at
issue here, and that information is inputted by MPD and only MPD. The CDR-1 form
developed by the Judiciary is nothing but an empty shell until law enforcement officers,
in the course of their official business, make that shell into an official government
document by inputting the information that is sought in this case. (pp. 18-19)
2
4. Further, MPD’s argument that it is not obligated to produce the CDR-1s because it
does not “maintain” the records does not square with the provision that, if a government
official makes, maintains, or keeps on file electronic information in the course of his or
her official business, it is a “government record” subject to OPRA. See N.J.S.A. 47:1A-
1.1. The use of “or” plainly indicates that any of those three listed actions is sufficient to
satisfy the statutory definition. Thus, regardless of who maintains the files, the fact that
MPD “makes” the CDR-1s means that it can be called upon to disclose those government
records. Nothing in the text of OPRA or Rule 1:38 or the Court’s jurisprudence suggests
that information cannot be both a court record and a government record. Indeed, the
language of the statute that defines a government record as one that has been “made,
maintained, or kept on file” itself suggests the possibility that different government
entities, working cooperatively, could be simultaneous custodians of the same
information. The statutory language presupposes that there may be more than one proper
place where a requestor can submit an OPRA request. That the Judiciary might maintain
on its servers the information that MPD made does not absolve MPD of its obligation to
produce that information pursuant to a proper OPRA request made to MPD. (pp. 19-22)
5. The Court therefore turns to MPD’s argument that the request at issue here was not a
proper request for OPRA purposes because it required research. In Paff v. Galloway
Township, the Court explained the proper parameters of OPRA requests, stating that “[a]
records request must be well defined so that the custodian knows precisely what records
are sought. The request should not require the records custodian to undertake a
subjective analysis to understand the nature of the request. Seeking particular
information from the custodian is permissible; expecting the custodian to do research is
not.” 229 N.J. 340, 355 (2017). The Court reviews MAG Entertainment, LLC v.
Division of Alcoholic Beverage Control, 375 N.J. Super. 534 (App. Div. 2005), in which
the Appellate Division found a request requiring research to be beyond OPRA’s statutory
ambit, and Paff, in which the Court found that the challenged request did not require
research. The distinction between a research and non-research request lies with whether
the plaintiff’s request demands the government agency engage in analysis or the exercise
of judgment in identifying responsive records. (pp. 22-25)
6. The Court explains why AADARI’s records request is distinguishable from the
request at issue in MAG and is instead akin to the permissible request in Paff. The
request was well within OPRA’s scope and does not require research by MPD. The
Court therefore reinstates the trial court’s order granting AADARI’s OPRA request.
MPD must comply with the trial court order and provide the requested documents to
AADARI within five business days of the filing of the Court’s opinion. (pp. 25-27)
REVERSED. The order of the trial court is REINSTATED.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,
FERNANDEZ-VINA, and SOLOMON join in JUSTICE PIERRE-LOUIS’s opinion.
3
SUPREME COURT OF NEW JERSEY
A-18 September Term 2020
084695
Baffi Simmons and
African American Data
and Research Institute
(AADARI),
Plaintiffs-Appellants,
v.
Wendy Mercado, City of
Millville, and City of
Millville Police Department,
Defendants-Respondents.
On certification to the Superior Court,
Appellate Division, whose opinion is reported at
464 N.J. Super. 77 (App. Div. 2020).
Argued Decided
March 31, 2021 June 17, 2021
Rotimi A. Owoh argued the cause for appellants (Rotimi
A. Owoh, on the brief).
Brock D. Russell argued the cause for respondents
(Brock D. Russell, on the brief).
Karen Thompson argued the cause for amicus curiae
American Civil Liberties Union of New Jersey (American
Civil Liberties Union of New Jersey Foundation,
attorneys; Karen Thompson, Alexander Shalom, and
Jeanne LoCicero, on the brief).
1
Robert E. Levy argued the cause for amici curiae
Adelinny Plaza, Town of West New York Police
Department, and Town of West New York (Scarinci
Hollenbeck, attorneys; Robert E. Levy, of counsel and on
the brief, and Jorge R. de Armas and Kevin M. Foltmer,
on the brief).
JUSTICE PIERRE-LOUIS delivered the opinion of the Court.
In this appeal, the Court considers whether a records request for
complaint-summonses from a municipal police department is proper under the
Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. The key question
is whether the complaint-summonses -- electronic records populated with
information by local police officers but stored on Judiciary servers -- are the
police department’s government records under OPRA. If so, we must also
consider whether the records request was sufficiently narrow.
Plaintiffs Baffi Simmons and the African American Data and Research
Institute (collectively, AADARI) submitted a request under OPRA to
defendants Millville City Clerk Wendy Mercado, the City of Millville, and the
City of Millville Police Department (collectively, MPD) for complaint-
summonses, known as CDR-1s, for certain classes of drug-related offenses.
MPD denied the request, explaining that such records could only be obtained
from the Judiciary pursuant to Rule 1:38 and that, even if MPD could access
2
the records, such a request was overly broad and would require research
beyond the scope of OPRA.
The trial court ordered MPD to produce the CDR-1s, emphasizing that
although MPD did not maintain the records, it was still required to produce
them because MPD officers input the information to make the CDR-1s and had
access to them. The trial court further found that the request did not require
research, as it only required MPD to observe whether a designated offense was
drug-related or not.
The Appellate Division reversed, agreeing with MPD that the records
were not in its possession. The court acknowledged that police officers input
information to trigger the creation of CDR-1s but determined that, because the
final product is maintained by the Judiciary, MPD was not obligated to
produce the items requested. Finding that the CDR-1s were not MPD’s
“government records” under OPRA, the court declined to address whether
AADARI’s request would require research.
Because MPD officers create the information contained in the CDR-1s,
we find that they fall well within OPRA’s definition of a government record.
We further find that AADARI’s records request is narrowly tailored and would
not constitute research beyond OPRA’s scope. Accordingly, we reverse and
3
reinstate the trial court’s order mandating that MPD produce the requested
records to AADARI.
I.
A.
Pursuant to Rule 3:4-1(a)(1), after making an arrest without a warrant,
law enforcement officers are required to immediately prepare a complaint
setting forth the relevant facts and circumstances in support of probable cause
for the arrest. As part of the State’s compliance with the Criminal Justice
Reform Act, N.J.S.A. 2A:162-15 to -26, the Attorney General has directed
local police departments to utilize the electronic Complaint Disposition Record
system (eCDR) to expedite the process of generating such complaints.
Attorney General Law Enforcement Directive No. 2016-06 (Oct. 11, 2016).
Using the eCDR system, law enforcement officers input into a blank electronic
form information about the arrest, including the offense allegedly committed,
the arrestee’s biographical information, and a description of the facts.
Once the pertinent information is entered, the eCDR system allows law
enforcement officers to electronically submit the form to the court. No judge
or member of the Judiciary plays a role in the inputting or submission of
information by law enforcement officers through the eCDR system. At the
point at which a law enforcement officer is submitting the form, an arrest has
4
already been made without any involvement by a judicial officer. The form
that the law enforcement officer submits becomes part of a CDR-1 complaint-
summons or a complaint-warrant, known as a CDR-2. R. 3:3-1. For low-level
offenses, law enforcement officers may issue the CDR-1 to the defendant
without any judicial input. R. 3:3-1(b)(2). For CDR-2s, once the form is
submitted to the court, an assigned judge makes a probable cause
determination. The information contained in those CDR-1 and CDR-2 forms
is stored on Judiciary servers, but because law enforcement officers enter the
substantive information about the arrests in the forms, local police departments
have access to the forms in the system.
The forms at issue in the present case are CDR-1s, complaint-
summonses. CDR-1s are typically issued for low-level offenses that do not
involve defendants who pose a risk warranting pretrial detention. Such
defendants are always released, and the complaint-summons directs the
defendant to appear in court on a specified date.
Prior to eCDR, the Judiciary manually stored paper files and records,
and police departments retained copies of complaint forms in their own records
departments. N.J. State Bar Ass’n, Capitol Report, 223 N.J.L.J. 16 (June 5,
2017). Under statewide document retention schedules, even with eCDR it is
envisioned that police departments will maintain their own copies of CDR-1s
5
for thirty days after disposition of the matter. See Div. of Archives & Record
Mgmt., Municipal Police Departments: Records Retention & Disposition
Schedule, https://www.nj.gov/treasury/revenue/rms/pdf/m900000.pdf.
B.
On September 10, 2018, a representative from AADARI emailed a
records request pursuant to OPRA 1 to MPD. AADARI requested copies of the
following four categories of documents prepared by MPD from January 2017
onward: (1) driving while intoxicated/driving under the influence (DWI/DUI)
complaints and summonses; (2) drug possession complaints and summonses;
(3) MPD’s “Arrest Listings”; and (4) drug paraphernalia complaints and
summonses. AADARI requested those records as part of a comparative data
analysis on the subject of disparate treatment in the administration and
enforcement of marijuana and other drug-related offenses in New Jersey.
In response to AADARI’s OPRA request, on September 13, 2018, MPD
provided documents responsive to category 3, the arrest listings. MPD did not
provide any documents responsive to categories 1, 2, or 4, the DUI and drug-
1
The original records request was also made pursuant to the common law
right of access. The parties, however, never litigated the applicability of the
common law right of access in this case.
6
related complaints and summonses, and advised AADARI to request those
items from the Millville Municipal Court.
On October 2, 2018, AADARI filed a complaint and an order to show
cause against MPD, asking for a court order to provide AADARI with
immediate access to the requested records pursuant to OPRA. After AADARI
filed the complaint and order to show cause, MPD, “in an abundance of
caution,” provided AADARI documents responsive to category 1, the DUI
complaints and summonses, although MPD continued to maintain that those
documents are court records. So when the parties appeared before the trial
court on the order to show cause, the only outstanding requests were the
documents in categories 2 and 4 -- the drug-related complaints and
summonses.
At oral argument on November 13, 2018, MPD alleged that it did not
have the requested complaints in categories 2 and 4 and submitted an affidavit
from an MPD lieutenant stating that the police department does not have
access to those records. Specifically, MPD contended (1) it was not the
custodian of the eCDR records, so AADARI would need to request the records
from the municipal court, and (2) even if MPD had access to the records, it
could not search by complaint type and, thus, AADARI’s request was overly
broad.
7
AADARI disputed MPD’s lack of access to eCDR, asserting that each
local police department had a password to access eCDR and “the government
is [e]ssentially sending them paper copies. They are stored as a PDF on [an]
electronic system,” from which MPD could print the complaints. AADARI
further emphasized that just because other government officials, including
prosecutors and public defenders, have access to the system, that did not
render MPD exempt from its OPRA obligations.
As to MPD’s ability to conduct a specific records search, counsel for
AADARI asserted that MPD could use the first and last names of arrestees to
narrow the group of individuals with relevant search results. By using the
charge numbers included on the arrest listings, AADARI explained, MPD
would be able to look up the individual complaints of everyone MPD arrested
for the class of drug offenses AADARI requested. AADARI represents that it
identified 162 cases from MPD’s arrest listings that corresponded to the
requested CDR-1s in categories 2 and 4.
The trial court ruled in favor of AADARI, rejecting MPD’s claims that it
did not need to produce the pertinent records because MPD did not maintain
them. The court found that “the issue of whether or not they maintain [the
records] . . . is not a relevant issue for OPRA,” under the statute’s definition of
a government record, N.J.S.A. 47:1A-1.1. The judge emphasized that the
8
language of the definition included any record “that has been made,
maintained, or kept [] on file . . . in the course of . . . official business”
(emphasis added), and that there was no dispute here that MPD made the
documents in its official business.
Relying on Burnett v. County of Gloucester, 415 N.J. Super. 506 (App.
Div. 2010), the court held that “even though you don’t maintain [a record], if
it’s a governmental record you still have an obligation to turn it over.”
Otherwise, the court cautioned, “a governmental agency seeking to protect its
records from scrutiny could simply relinquish possession to third parties
thereby thwarting the policy of transparency that underlies OPRA.” Thus, the
court held that MPD was in violation of OPRA for failing to turn over any
CDR-1s it maintained for the thirty-day period mandated by State document
retention policies. The court further found that AADARI was entitled to the
rest of the requested records but allowed MPD an additional two weeks to
submit proof that it did not have the ability to access the complaints.
At a subsequent hearing on December 18, 2018, MPD conceded that
“[t]he police department does have access [to eCDR] -- to be clear it’s not
disputed.” However, MPD relied upon MAG Entertainment, LLC v. Division
of Alcoholic Beverage Control, 375 N.J. Super. 534, 540 (App. Div. 2005),
and continued to assert that AADARI’s records request would constitute
9
research for MPD and would go beyond OPRA’s scope. The court disagreed,
finding MAG to be distinguishable because there, the records custodian was
asked to read through individual documents to interpret whether they fell into
the category of information that the requestor was seeking. By contrast, here,
“the only thing that’s requested is for the custodian of records to see what the
charge is,” which “[d]oesn’t require any thinking, doesn’t require any
interpretation.” The decision in favor of AADARI was reduced to a formal
order on January 3, 2019. 2
C.
MPD appealed from the order and the Appellate Division reversed.
Simmons v. Mercado, 464 N.J. Super. 77, 79 (App. Div. 2020). The court
agreed with MPD that it was not obligated to produce the requested records
under OPRA because “the manner in which the requested complaint-
summonses were created demonstrates that they are not government records in
their possession but are records in the custody of the judiciary.” Id. at 84.
Although local police “input the information that triggers the process” of
2
Thereafter, MPD filed a motion for reconsideration, arguing that complaints
and summonses are pleadings within the scope of Rule 1:38 and are not subject
to OPRA. The court denied the motion, holding that “even if [the CDR-1s] are
court records[,] it doesn’t mean that the requestor has to go through the court”
to obtain them. The court emphasized “[t]here’s no exceptions under
OPRA . . . if it’s available through the court from some other source.”
10
generating a CDR-1, the fact that “the final product is governed by other forces
and the resulting product is maintained by others” meant, according to the
court, that a CDR-1 “is, in reality, not a government record maintained by the
municipality but a record maintained by the judiciary.” Ibid. The court
highlighted that judicial officers have the discretion to decide whether the
eCDR system will generate a CDR-1 (summons) or a CDR-2 (warrant) based
upon the data input by police. Id. at 85. In the court’s view, Rule 3:4-1(a)(1)
did not require a different result because it does not reveal whether a
complaint-summons “constitutes a municipal record or a judiciary record.” Id.
at 85. The court further observed that the fact that MPD has access to eCDR
“does not alter the fact that the record is maintained by the judiciary.” Id. at
86.
Although the Appellate Division recounted caselaw to highlight that
OPRA does not require records custodians to conduct research, it ultimately
did not address the question as to whether AADARI’s request would require
research, because “[t]hat presupposes, of course, that the requested record is a
‘government record.’” Id. at 84. Finding that the requested records were not
government records subject to OPRA, the court concluded that AADARI must
direct its records request to the Judiciary, not MPD. Id. at 86.
11
We granted AADARI’s petition for certification. 244 N.J. 342 (2020).
We also granted leave to participate as amici curiae to the American Civil
Liberties Union of New Jersey (ACLU) and to the Town of West New York,
Town of West New York Police Department, and the West New York Deputy
Clerk Adelinny Plaza (collectively, West New York).
II.
A.
AADARI contends that the trial court properly ordered MPD to produce
the requested CDR-1s because MPD has direct access to those summonses and
the ability to retrieve and print them from eCDR. Although AADARI
concedes that eCDR is maintained by the Judiciary, it argues that the public
could easily gain access to CDR-1s from police departments before they were
computerized and that technological advancements should not diminish the
right to access government records. To find otherwise, AADARI submits,
would run counter to the purpose of OPRA: to grant quick and expeditious
access to public records as part of promoting transparency in government.
AADARI further asserts that its request for the CDR-1s is a valid and
identifiable request for public records in accordance with Burke v. Brandes,
429 N.J. Super. 169 (App. Div. 2012), and that no research is required for
MPD to produce the requested records.
12
Amicus ACLU, like AADARI, urges this Court to reverse the Appellate
Division, arguing that its findings are “not supported by the statutory text or
case law” and that its decision “creates unjustifiable limitations on government
transparency obligations by fashioning arbitrary boundaries around the
public’s access to government records.” The ACLU asserts that the CDR-1s
are MPD’s government records under OPRA because its officers generate the
electronic information that is sought by AADARI and that the Appellate
Division erred by relying upon where the document is stored. Amicus also
warns that the Appellate Division’s decision would burden judicial resources
“by re-assigning to the judiciary the work of individual police departments . . .
forcing the judiciary to dispense aggregated data from nearly 200 municipal
police departments across the state.” The ACLU asserts that this would stymie
the purpose of OPRA, which is “to maximize public knowledge about public
affairs so as to build an informed populace and to minimize the evils inherent
in a secluded process.”
B.
MPD asks this Court to affirm the Appellate Division decision. It claims
that it does not own or maintain the CDR-1s at issue, emphasizing that
although officers initiate the process of generating a complaint by inputting
information into an electronic form in eCDR, the Judiciary has already
13
completed preprinted fields and the decision of whether to issue a CDR-1 or
CDR-2 is made by a judicial officer. Because the information filled in by
officers is “deliberative” and maintained on Judiciary servers, MPD contends
that CDR-1s are not its government records under OPRA. MPD also asserts
that CDR-1s fall within the definition of court records under Rule 1:38-2(a)(4)
and that AADARI should therefore request such pleadings from the Judiciary
under the framework of Rule 1:38. A ruling to the contrary, according to
MPD, would contravene its understanding that “OPRA does not apply to the
Judiciary which is a separate and distinct branch of government under the State
Constitution.”
Amicus West New York largely echoes MPD’s arguments. West New
York asserts that municipal clerks are not required under OPRA “to take court
records from Judiciary files without authorization, in violation of Judiciary
Rules and policy, in order to provide them to an OPRA requestor, all und er the
threat of serious sanction.” Like MPD, West New York argues that the CDR-
1s are court records deliberately exempted from OPRA under the New Jersey
Constitution and separation of power principles. West New York disputes that
mere access is insufficient to create “legal access” to the requested records and
contends that a ruling in favor of AADARI would create a scenario where any
14
government office could be required to produce otherwise non-discoverable
court records simply because they have access to them.
III.
Our state boasts “of a long and proud ‘tradition[] of openness and
hostility to secrecy in government.’” Educ. Law Ctr. v. Dep’t of Educ., 198
N.J. 274, 283 (2009) (alteration in original) (quoting N. Jersey Newspapers v.
Passaic Cnty. Bd. of Chosen Freeholders, 127 N.J. 9, 16 (1992)). To further
enhance government transparency, OPRA was enacted “to maximize public
knowledge about public affairs in order to ensure an informed citizenry and to
minimize the evils inherent in a secluded process.” Mason v. City of
Hoboken, 196 N.J. 51, 64 (2008) (quoting Asbury Park Press v. Ocean Cnty.
Prosecutor’s Off., 374 N.J. Super. 312, 329 (Law Div. 2004)). The Legislature
passed OPRA in 2001 to replace the then-existing Right to Know Law,
L. 1963, c. 73, which “did not keep pace with the vast technological advances
that changed the ways citizens and public officials communicate and store
information.” Paff v. Galloway Township, 229 N.J. 340, 352 (2017). To
effectuate its mission “to make government records ‘readily accessible’ to the
state’s citizens,” OPRA “substantively provides that ‘all government records
shall be subject to public access unless exempt,’ N.J.S.A. 47:1A-1, and it
15
places on the government the burden of establishing an exemption, N.J.S.A.
47:1A-6.” Gilleran v. Township of Bloomfield, 227 N.J. 159, 170 (2016).
Although OPRA favors broad public access to government records, it is
“not intended [to be] a research tool [that] litigants may use to force
government officials to identify and siphon useful information.” In re N.J.
Firemen’s Ass’n Obligation, 230 N.J. 258, 276 (2017) (alterations in original)
(quoting MAG, 375 N.J. Super. at 546). Thus, to prompt disclosure under
OPRA, requests for information must be properly circumscribed. Paff, 229
N.J. at 355.
In this appeal, we consider, first, whether the requested CDR-1s are
government records subject to disclosure under OPRA and, second, whether
the requests were sufficiently circumscribed. “[D]eterminations about the
applicability of OPRA and its exemptions are legal conclusions and are
therefore subject to de novo review.” In re N.J. Firemen’s Ass’n Obligation,
230 N.J. at 273-74 (citations omitted). “[T]herefore, we owe no deference to
the interpretive conclusions reached by either the trial court or the Appellate
Division.” Paff, 229 N.J. at 351. In our review, we are mindful of the
Legislature’s direction that “OPRA ‘shall be construed in favor of the public’s
right of access’” and “imposes on public agencies ‘the burden of proving that
the denial of access is authorized by law.’” Paff v. Ocean Cnty. Prosecutor’s
16
Off., 235 N.J. 1, 16 (2018) (first quoting N.J.S.A. 47:1A-1; and then quoting
N.J.S.A. 47:1A-6).
IV.
A.
In determining whether certain information falls within OPRA’s scope,
the plain language of the statute is our best guide. In furtherance of OPRA’s
goal of transparency and public access to government records, the Legislature
broadly defines a “government record” subject to OPRA as
any paper, written or printed book, document, drawing,
map, plan, photograph, microfilm, data processed or
image processed document, information stored or
maintained electronically or by sound-recording in a
similar device, or any copy thereof, that has been made,
maintained or kept on file in the course of his or its
official business by any officer, commission, agency,
or authority of the State or of any political subdivision
thereof . . . .
[N.J.S.A. 47:1A-1.1 (emphases added).]
In Paff, we clarified that this definition includes electronic records, as “[t]he
Legislature apparently decided against defining government record[s] as
documents or files stored or maintained electronically. ‘Information’ is the
key word.” 229 N.J. at 353. We noted that “[t]his logical conclusion flows
directly from OPRA’s language,” ibid., and that a contrary position could not
“be squared with OPRA’s plain language or its objectives in dealing with
17
electronically stored information,” id. at 356. Applying those principles to the
present case, and bearing in mind OPRA’s goals, it is evident that the CDR -1s
sought in this matter are government records subject to disclosure by MPD
under OPRA.
MPD’s argument that members of the Judiciary, not law enforcement
officers, “make” the CDR-1 forms completely obscures the nature of the
information being sought here. AADARI is not seeking blank forms that
provide zero information regarding arrests made by MPD. We recognize that
the Judiciary developed the CDR-1 template, or the electronic shell that
categorizes the substantive information that must be entered by law
enforcement officers. But it is the substantive information regarding arrests
used to populate the CDR-1s that is at issue here, and that information is
inputted by MPD and only MPD. No judicial officer or judge plays a role in
creating the document or inputting any information into the CDR-1s at the
moment the law enforcement officer fills out the form and submits it to the
Judiciary. That is what AADARI is seeking here -- the actual completed
official document that contains details of an arrest, probable cause, and an
arrestee’s biographical information.
As we made clear in Paff, and continue to emphasize, “‘[i]nformation’ is
the key word” for purposes of OPRA. 229 N.J. at 353. The CDR-1 form
18
developed by the Judiciary is nothing but an empty shell until law enforcement
officers, in the course of their official business, make that shell into an official
government document by inputting the information that is sought in this case.
See Burnett, 415 N.J. Super. at 517 (finding that the requested documents were
government records under OPRA because they “were ‘made’ by or on behalf
of the Board in the course of its official business”). Pursuant to OPRA’s
definition of “government record,” there is no question that CDR-1s are
documents that are made in the course of a law enforcement officer’s official
business. See N.J.S.A. 47:1A-1.1. Because MPD officers create the
completed CDR-1s by populating the forms with the information necessary to
generate a summons and submit it to the court, there is no question that the
CDR-1s are government records subject to disclosure pursuant to OPRA.
MPD also argues that it is not obligated to produce the CDR-1s because
it does not “maintain” the records. The Appellate Division, in line with that
argument, found that the CDR-1s were not government records because
although local police input the information, “the resulting product is
maintained by others.” 464 N.J. Super. at 84. But that interpretation of what
constitutes a government record does not square with the explicit language in
OPRA.
19
Any reliance here on the maintenance of the records is misplaced
because it completely ignores the fact that MPD officers “make” the
information by inputting substantive data about the arrests into eCDR , as noted
above. The plain language of the statutory provision at issue here is clear: if a
government official makes, maintains, or keeps on file electronic information
in the course of his or her official business, it is a “government record” subject
to OPRA. See N.J.S.A. 47:1A-1.1. The use of “or” plainly indicates that any
of those three listed actions is sufficient to satisfy the statutory definition. See,
e.g., State v. Frank, 445 N.J. Super. 98, 106 (App. Div. 2016) (noting that the
word “or” in a statute generally indicates an alternative and that, “where items
in a list are joined by a comma, with an “or” preceding the last item, the items
are disjunctive, meaning distinct and separate from each other” (alterations and
quotations omitted)). Thus, regardless of who maintains the files, the fact that
MPD “makes” the CDR-1s means that it can be called upon to disclose those
government records.
MPD also appears to argue that, even if it had a disclosure obligation as
to the CDR-1s, its obligations under OPRA are preempted because the CDR-
20
1s, once submitted, become court records that can be obtained only from the
Judiciary pursuant to Rule 1:38.3
Certainly, once the CDR-1 is created by law enforcement and submitted
to the court, the document falls under Rule 1:38-2’s definition of a court
record in that it is “information maintained by a court in any form in
connection with a case or judicial proceeding.” But nothing in the text of
OPRA or Rule 1:38 or our jurisprudence suggests that information cannot be
both a court record and a government record. Indeed, the language of the
statute that defines a government record as one that has been “made,
maintained, or kept on file” itself suggests the possibility that different
government entities, working cooperatively, could be simultaneous custodians
of the same information. See N.J.S.A. 47:1A-1.1 (emphasis added). The
statutory language presupposes that there may be more than one proper place
where a requestor can submit an OPRA request.
3
Rule 1:38 governs public access to court records, which include “any
information maintained by a court in any form in connection with a case or
judicial proceeding.” R. 1:38-2(a)(1). Court records also encompass “any
information in a computerized case management system created or prepared by
the court in connection with a case or judicial proceeding.” Id. at -2(a)(4).
Requests for municipal court records under Rule 1:38 must be directed to a
“Municipal Court Director or Administrator.” Id. at -10(a)(7). The Rule
further lists numerous categories of court records that are excluded from public
access. Id. at -3.
21
Moreover, the contention by MPD that because government records may
be available elsewhere an agency can relinquish its obligations under OPRA
runs counter to “the State’s policy in favor of broad access to public records”
embodied by OPRA. N. Jersey Media Grp., Inc. v. Township of Lyndhurst,
229 N.J. 541, 555 (2017). Were we to engraft upon OPRA an exception for
when a government agency has created but no longer maintains a record, it
would create a perverse incentive for officials to relinquish electronic records
to a third party in order to prevent their public disclosure. That would conflict
with OPRA’s policy of government transparency and would ignore the fact
that modern-day technological advancements have, in many cases, resulted in
the possibility for there to be multiple concurrent or simultaneous custodians
of the same electronic information. That the Judiciary might maintain on its
servers the information that MPD made does not absolve MPD of its obligation
to produce that information pursuant to a proper OPRA request made to MPD.
That brings us to MPD’s argument that the request at issue here was not
a proper request for OPRA purposes because it required research.
B.
In Paff, we explained the proper parameters of OPRA records requests as
follows:
A records request must be well defined so that the
custodian knows precisely what records are sought.
22
The request should not require the records custodian to
undertake a subjective analysis to understand the nature
of the request. Seeking particular information from the
custodian is permissible; expecting the custodian to do
research is not.
[229 N.J. at 355.]
Thus, a records request must not be so broad as to require the record custodian
to exercise subjective judgment in determining which records must be
produced. See N.J. Builders Ass’n v. N.J. Council on Affordable Hous., 390
N.J. Super 166, 171-72 (App. Div. 2007) (finding that an OPRA request for
“[a]ny and all documents and data which [were] relied upon, considered,
reviewed, or otherwise utilized by any employee or staff member of COAH”
was overly broad and did not specify the information sought (alterations in
original)). To avoid submitting a broad request outside the scope of OPRA,
the requestor must “describe[] the records sought with the requisite specificity
and narrow[] the scope of the inquiry to a discrete and limited subject matter.”
Burke, 429 N.J. Super. at 177-78.
In MAG, the Appellate Division reviewed an order granting MAG
Entertainment (MAG) a right under OPRA to obtain documents from the
Division of Alcoholic Beverages Control (ABC). 375 N.J. Super. at 539.
ABC had a pending enforcement action against MAG, and MAG was pursuing
a selective enforcement defense. Ibid. To substantiate its defense, MAG filed
23
an OPRA request for all documents pertaining to past instances where ABC
sought to revoke liquor licenses for certain alcohol-related criminal charges,
but “MAG’s request did not identify any specific case by name, date, docket
number or any other citation.” Id. at 539-40.
The Appellate Division reversed the order granting MAG’s OPRA
request, explaining that
the request failed to identify with any specificity or
particularity the governmental records sought. MAG
provided neither names nor any identifiers other than a
broad generic description of a brand or type of case
prosecuted by the agency in the past. Such an open-
ended demand required the Division’s records
custodian to manually search through all of the
agency’s files, analyze, compile and collate the
information contained therein, and identify for MAG
the cases relative to its selective enforcement defense
in the . . . litigation. Further, once the cases were
identified, the records custodian would then be required
to evaluate, sort out, and determine the documents to be
produced and those otherwise exempted.
[Id. at 549.]
Accordingly, the court concluded that ABC “was asked to do the very research
and investigation MAG needed to do in the administrative proceeding in order
to establish a ‘colorable claim’ of selective enforcement,” which was
“decidedly outside [of OPRA’s] statutory ambit.” Id. at 549-50. The court
held that OPRA does not encompass “[w]holesale requests for general
24
information to be analyzed, collated and compiled by the responding
government entity.” Id. at 549.
By contrast, in Paff, we held that a plaintiff’s OPRA request did not
require research. 229 N.J. at 356. There, Paff submitted an OPRA request to
Galloway Township “for specific information in emails sent by the Township’s
Municipal Clerk and Chief of Police over a two-week period,” seeking only
information in the “sender,” “recipient,” “date,” and “subject” fields. Id. at
343. We rejected the Township’s analogy to MAG, emphasizing that
[u]nlike the request in MAG, Paff circumscribed his
request to a two-week period and identified the discrete
information he sought. The records custodian did not
have to make a subjective judgment to determine the
nature of the information covered by the request. The
custodian simply had to search for -- not research the
identity of -- the records requested.
[Id. at 356.]
Thus, the distinction between a research and non-research request lies with
whether the plaintiff’s request demands the government agency engage in
analysis or “the exercise of judgment in identifying responsive records.”
Burke, 429 N.J. Super. at 177.
Here, MPD likens AADARI’s records request to the request rejected in
MAG, arguing that it would require research and was thus beyond the scope of
OPRA. The trial court rejected that argument, finding that MPD does not need
25
to interpret any documents to determine whether they need to be produced.
We agree.
We are not persuaded that AADARI’s records request would require
MPD to engage in any analysis to produce the requested CDR-1s. As
AADARI has explained, because it already has MPD’s arrest listings for the
relevant time period, which include drug-related incidents, it has identified 162
cases that correspond to the requested CDR-1s. The arrest listings contain the
first and last names of the offenders, their dates of birth, the dates of each
incident, the incident numbers, and the specific offense charged -- in this case,
drug possession. MPD merely needs to use any of those already-provided data
points to retrieve the corresponding CDR-1s and produce them to AADARI.
Such an exercise would not require any subjective judgment, only the
objective activity of producing the CDR-1s referenced in the arrest listings.
MPD’s reliance on MAG is misplaced. This is far from a case where the
requestor did not provide anything more than a “broad generic description of a
brand or type of case prosecuted by the agency in the past.” See MAG, 375
N.J. Super. at 549. Rather, it is akin to the request in Paff, wherein the
requestor “circumscribed his request to a two-week period and identified the
discrete information he sought,” 229 N.J. at 356, or Burke, where the request
“was confined to a specific subject matter that was clearly and reasonably
26
described with sufficient identifying information,” 429 N.J. Super. at 177.
Similar to those cases, we conclude that AADARI’s request was well within
OPRA’s scope and does not require research by MPD.
V.
For the reasons set forth above, we reverse the judgment of the
Appellate Division and reinstate the trial court’s order granting AADARI’s
OPRA request. MPD must comply with the trial court order and provide the
requested documents to AADARI within five business days of the filing of this
opinion.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, FERNANDEZ-VINA, and SOLOMON join in JUSTICE PIERRE-
LOUIS’s opinion.
27