JEFF CARTER VS. FRANKLIN FIRE DISTRICT NO. 2, ETC. Â (NEW JERSEY GOVERNMENT RECORDS COUNCIL) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4726-14T1
JEFF CARTER,
Appellant,
v.
FRANKLIN FIRE DISTRICT
NO. 2 (Somerset) Custodian
of Records,
Respondent.
_____________________________
Argued October 5, 2017 – Decided November 22, 2017
Before Judges Simonelli, Rothstadt and Gooden
Brown.
On appeal from New Jersey Government Records
Council, Docket No. 2012-05.
Walter M. Luers argued the cause for
appellant.
Dominic P. DiYanni argued the cause for
respondent Franklin Fire District No. 2 (Eric
M. Bernstein & Associates, LLC, attorneys; Mr.
DiYanni, of counsel and on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent Government Records
Counsel (Debra A. Allen, Deputy Attorney
General, on the brief).
Alexi M. Velez argued the cause for amicus
curiae American Civil Liberties Union of New
Jersey Foundation (American Civil Liberties
Union of New Jersey Foundation, attorneys;
Edward L. Barocas, Jeanne LoCicero, Alexander
Shalom and Iris Bromberg, on the brief).
PER CURIAM
Complainant, Jeff Carter, appeals from the Government Records
Council's (GRC) Final Decision, finding his request to the
Custodian of Public Records for the Franklin Fire District No. 2
(District), under the Open Public Records Act (OPRA), N.J.S.A.
47:1A-1 to -13, was invalid because it was overly broad and failed
to specifically identify the records sought. He also appeals from
the GRC's determination that he was not entitled to reasonable
attorney's fees under N.J.S.A. 47:1A-6. Carter's primary claims
on appeal are that the GRC committed reversible error when it
found that his request was invalid, even though the records
custodian never replied to his original complaint, and when it
determined that he was not entitled to reasonable attorney's fees
as a "catalyst." He also argues the GRC should have referred the
matter to the Office of Administrative Law (OAL) to determine
whether the custodian knowingly and willfully violated OPRA. We
disagree and affirm.
The facts found by the GRC are not disputed and are summarized
as follows. On December 18, 2011, Carter submitted an OPRA request
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to the District for all purchase orders, vouchers, purchase order
vouchers and warrants, including invoices/attachments for each
record regarding "[f]inancial software used by the District to
process its monetary disbursements (including any reasonably
construed variation thereof)." His request did not include any
limiting information, such as a date range or names of any
individuals or entities. The District did not respond to Carter's
request.
When the District failed to respond, Carter filed a denial
of access complaint with the GRC on January 9, 2012. The next
day, the GRC sent a request for a Statement of Information (SOI)
to the District's records custodian so that he could present the
District's reasons for not responding to Carter. The District's
records custodian did not respond to the request. The GRC sent a
letter to the custodian advising the custodian that if an SOI was
not submitted, Carter's complaint would "proceed to adjudication
based only on the information submitted in the [d]enial of [a]ccess
[c]omplaint." The custodian did not respond.
The GRC reviewed Carter's complaint and determined that under
OPRA, the District's failure to respond to Carter's request was
deemed a denial of the request and could result in a violation of
OPRA. However, the GRC found that Carter's request was invalid
because the:
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OPRA request [was] overly broad and failed to
specifically identify the records sought, and
because OPRA does not require custodians to
research files to discern which records may
be responsive to a request, the custodian
would have no legal duty to conduct research
to locate records potentially responsive to
[Carter's] request.
It concluded that because Carter was not a prevailing party under
OPRA, he was not entitled to an award of attorney's fees as
provided for in N.J.S.A. 47:1A-6.1
The GRC sent its Final Decision to all parties on June 28,
2012. Carter filed a motion for reconsideration that the GRC
denied.
Carter filed an appeal from the GRC's Final Decision. In
response, the GRC sought remand, which we granted. On remand, the
GRC issued an interim order directing "the current [c]ustodian
[to] provide additional facts regarding his ability to respond to
[Carter's] OPRA request." The GRC also decided that it would re-
evaluate whether Carter was the prevailing party, and whether the
custodian knowingly and willfully violated OPRA when it received
the custodian's response. The District's records custodian
responded by filing an SOI, in which he asserted Carter's request
was invalid because it "failed to include a date or range of dates,
1
N.J.S.A. 47:1A-6 states in pertinent part: "A requestor who
prevails in any proceeding shall be entitled to a reasonable
attorney's fee."
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clear subject matter, and identifiable parties." Carter responded
to the custodian's SOI, contending that the GRC's decision
invalidating his OPRA request was improper and not in accordance
with our opinion in Burke v. Brandes, 429 N.J. Super. 169 (App.
Div. 2012).
After considering the parties' submissions, on May 28, 2015,
the GRC issued a Final Decision, in which it agreed with the
reasons provided in the District's records custodian's SOI, and
it re-adopted its earlier findings set forth in its original Final
Decision. This appeal followed.
We begin our review of the GRC's decision by acknowledging
that it "is governed by the same standards as review of a decision
by any other state agency," Fisher v. Division of Law, 400 N.J.
Super. 61, 70 (App. Div. 2008) (citing Serrano v. South Brunswick
Township, 358 N.J. Super. 352, 362 (App. Div. 2003)), and is
therefore limited. In re Stallworth, 208 N.J. 182, 194 (2011).
We "will not overturn an agency's decision unless it violates
express or implied legislative policies, is based on factual
findings that are not supported by substantial credible evidence,
or is arbitrary, capricious or unreasonable." Fisher, supra, 400
N.J. Super. at 70 (citing Aqua Beach Condo. Ass'n v. Dep't of
Cmty. Affairs, 186 N.J. 5, 15-16 (2006)).
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"We exercise plenary review over" the GRC's interpretation
of OPRA. Carter v. Doe (In re N.J. Firemen's Ass'n Obligation),
230 N.J. 258, 273 (2017) (citing State v. Williams, 218 N.J. 576,
586 (2014)); see also Asbury Park Press v. Cty. of Monmouth, 406
N.J. Super. 1, 6 (App. Div. 2009), aff'd o.b., 201 N.J. 5 (2010).
"[D]eterminations about the applicability of OPRA and its
exemptions are legal conclusions, and are therefore subject to de
novo review." Carter, supra, 230 N.J. at 273-74 (citations
omitted); see also O'Shea v. Twp. of W. Milford, 410 N.J. Super.
371, 379 (App. Div. 2009). However, "under our deferential
standard of review, we give weight to the GRC's interpretation of
OPRA." McGee v. Twp. of E. Amwell, 416 N.J. Super. 602, 616 (App.
Div. 2010) (citing Blecker v. State, 323 N.J. Super. 434, 442
(1999)). "We do not, however, simply rubber stamp the agency's
decision." Bart v. City of Paterson Hous. Auth., 403 N.J. Super.
609, 618 (App. Div. 2008) (quoting Paff v. N.J. Dep't of Labor,
392 N.J. Super. 334, 340 (App. Div. 2007)), certif. denied, 198
N.J. 316 (2009).
In our review, we are mindful of the public policy in these
matters. "Any analysis of OPRA must begin with the recognition
that the Legislature created OPRA intending to make government
records 'readily accessible' to the state's citizens 'with certain
exceptions[] for the protection of the public interest.'" Gilleran
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v. Bloomfield, 227 N.J. 159, 170 (2016) (alteration in original)
(quoting N.J.S.A. 47:1A-1). OPRA expresses New Jersey's public
policy favoring transparency in government and disclosure of
government documents. See N.J.S.A. 47:1A-1. It endeavors to
"maximize public knowledge about public affairs in order to ensure
an informed citizenry and to minimize the evils inherent in a
secluded process." Times of Trenton Publ'g Corp. v. Lafayette
Yard Cmty. Dev. Corp., 183 N.J. 519, 535 (2005) (citation omitted).
"[A]ny limitations on the right of access . . . shall be construed
in favor of the public's right of access." N.J.S.A. 47:1A-1.
Despite that public policy, OPRA does not "'authorize a party
to make a blanket request for every document' a public agency has
on file. Rather, a party requesting access to a public record
under OPRA must specifically describe the document sought." Bent
v. Twp. of Stafford Police Dep't, 381 N.J. Super. 30, 37 (App.
Div. 2005) (citations omitted). "While OPRA provides [a] . . .
means of access to government documents not otherwise exempted
from its reach, it is not intended as a research tool litigants
may use to force government officials to identify and siphon useful
information." Lagerkvist v. Office of Governor of State, 443 N.J.
Super. 230, 236 (App. Div. 2015) (alterations in original) (quoting
MAG Entm't, LLC v. Div. of Alcoholic Beverage Control, 375 N.J.
Super. 534, 546 (App. Div. 2005)). A valid request "must identify
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with reasonable clarity those documents that are desired, and a
party cannot satisfy this requirement by simply requesting all of
an agency's documents." Bent, supra, 381 N.J. Super. at 37; see
also Burke, supra, 429 N.J. Super. at 176.
Requests for "particularized identifiable government
records . . . rather than information generally" are permissible.
Burke, supra, 429 N.J. Super. at 176. Requests that identify a
specific subject matter with sufficient identifying information
are not overly broad, even where a custodian is required to search
and locate records according to a specific topic area. See, e.g.,
Burnett v. Cty. of Gloucester, 415 N.J. Super. 506, 508 (App. Div.
2010).
Applying these guiding principles, we conclude from our
review that the GRC correctly determined Carter's OPRA request
failed to include necessary identifying information, such as date
ranges, clear subject matter, and recognizable parties. Although
Carter specified the type of document he was seeking, without
including these other identifiers, his request amounted to a
blanket request for access to records over an unlimited period of
time. Without a specified date range, or vendor name, the request
would require the custodian to decipher purchasing records
surrounding the financial software, updates to the software, prior
software versions, and any other products related to the software.
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By including a request for not only "all" documents, but also "any
reasonably construed variation thereof," a response would require
the custodian to conduct research to uncover all years of invoices,
vouchers and checks to find anything related to financial software
used by the District. As such, it was an improper request. See
Bent, supra, 381 N.J. Super. at 37 (holding that a party requesting
access to a public record under OPRA must specifically describe
the document sought); see also Spectraserv, Inc. v. Middlesex Cty.
Utils. Auth., 416 N.J. Super. 565, 578 (App. Div. 2010) (holding
that a denial is justified where compliance was overly cumbersome
and time consuming). Carter's arguments to the contrary are
without any merit.
We similarly find Carter's argument that the GRC arbitrarily
shifted the burden of proof from the custodian to him in violation
of N.J.S.A. 47:1A-6,2 and his due process rights, to be "without
sufficient merit to warrant discussion in a written opinion." R.
2:11-3(e)(1)(E). We only observe that the GRC acted in accordance
with OPRA when it deemed Carter's request denied, N.J.S.A. 47:1A-
2
The statute addresses the burden of proof by stating: "The
public agency shall have the burden of proving that the denial of
access is authorized by law." N.J.S.A. 47:1A-6.
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5(i),3 because the District's records custodian failed to respond,
but still found a "defense[] pertaining to [Carter's] complaint"
in accordance with N.J.A.C. 5:105-2.1(h).4 Moreover, on remand,
the District's records custodian raised the same defense that the
GRC found in the first instance.
Finally, we also reject Carter's argument that despite the
GRC's determination, he was still entitled to an award of counsel
fees because he was a "catalyst" whose actions resulted in relief
being granted in accordance with his complaint. Contrary to
Carter's contention, the GRC's interim order directing the
custodian to respond to Carter's complaint with an SOI did not
make him a "prevailing" party under OPRA, N.J.S.A. 47:1A-6, or a
"catalyst" to the GRC awarding him any relief. See Teeters v.
Div. of Youth and Family Serv., 387 N.J. Super. 423, 432 (App.
Div. 2006) (determining that the plaintiff in an OPRA action was
3
The statute in pertinent part states: "In the event a custodian
fails to respond within seven business days after receiving a
request, the failure to respond shall be deemed a denial of the
request." N.J.S.A. 47:1A-5(i).
4
N.J.A.C. 5:105-2.1(h) authorizes the GRC
[i]n response to the complaint before it, [to]
raise issues and defenses pertaining to that
complaint on a sua sponte basis if it deems
such action appropriate or necessary and if
said action on behalf of the [GRC] would be
in the interest of furthering the provisions
and intent of [OPRA].
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entitled to fees after settling his claim under a "catalyst
theory," where plaintiff's complaint brought about an alteration
in the defendant's position, and plaintiff received a favorable
result).
Because we agree with the GRC's determination that Carter's
request was overbroad, we need not address his remaining argument
about the GRC's failure to refer his complaint to the OAL for a
hearing on whether the District's records custodian "knowingly and
willfully violate[d]" OPRA. N.J.S.A. 47:1A-11.
Affirmed.
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