CARROL McMORROW v. BOROUGH OF ENGLEWOOD CLIFFS (L-6702-19, BERGEN COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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-3192-19
CARROL McMORROW,
Plaintiff-Respondent,
v.
BOROUGH OF ENGLEWOOD
CLIFFS,
Defendant,1
and
LISETTE DUFFY, in her official
capacity as Municipal Clerk and
Records Custodian for the
Borough of Englewood Cliffs,
Defendant-Appellant.
_____________________________
Argued January 18, 2022 – Decided February 25, 2022
Before Judges Messano and Rose.
1
We granted the Borough's motion to file a separate brief, but it failed to file
any brief and did not participate in the appeal.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-6702-19.
Michael Malatino argued the cause for appellant
(Meredith Malatino Law, LLC, attorneys; Michael
Malatino, on the briefs).
Donald M. Doherty, Jr., argued the cause for
respondent.
PER CURIAM
At all relevant times, defendant Lisette Duffy was the borough clerk and
records custodian for defendant Borough of Englewood Cliffs (the Borough,
collectively, defendants). Plaintiff Carrol McMorrow served a request pursuant
to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, seeking
government records in eight categories:
1. Copy of all communications between any of the
following representing the Borough . . . (including
Council members past and present, James Barberio,
Anne Marie Rizzuto, [defendant], Albert Wunsch,
Mark Ruderman and/or Joseph Mariniello) and the
Department of Community Affairs, including but not
limited to the Division of Local Government Services,
from 10/1/18 to 4/1/19.
2. Copy of all communications between any of the
following representing the Borough . . . (including
Council members past and present, James Barberio,
Anne Marie Rizzuto, [defendant], Albert Wunsch,
Mark Ruderman and/or Joseph Mariniello) and the
Office of Administrative Law from 10/1/18 to 4/1/19.
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3. Copy of all communications between Mark
Ruderman and any member of the Council or between
Mark Ruderman and [defendant] regarding disciplinary
charges concerning [defendant] between 9/1/18 and
4/1/19.
4. Copy of all communications between Mark
Ruderman and Albert Wunsch regarding disciplinary
charges concerning [defendant] between 9/1/18 and
4/1/19.
5. Copy of all communications between Albert Wunsch
and [defendant] regarding disciplinary charges
concerning [defendant] between 9/1/18 and 4/1/19.
6. Copy of all communications between Carin Geiger
and David J. Ruitenberg of Murphy McKeon beginning
1/3/2019 and 4/1/19.
7. Copy of all communications between Al Wunsch and
David J. Ruitenberg of Murphy McKeon beginning
1/3/2019 and 4/1/19.
8. Copy of all papers distributed to the Mayor and
Council by Carin Geiger at the 3-13-19 Mayor and
Council meeting.
Defendant responded, indicating as to items one and two, she "provided
[plaintiff's] request to [the borough's] I.T. consultant," who "quoted
approximately [eight] hours (max) for the search," at a charge of $125 per hour.
As to items three through seven, defendant provided some "responsive records,"
but after review with the attorneys named in those requests, defendant responded
all other records were subject to OPRA's "exception[s] for [a]ttorney [c]lient
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[p]rivilege, [a]ttorney [w]ork [p]roduct, [p]ersonnel and deliberative." As to
item eight, defendant advised she was not provided with copies of the papers
distributed by Geiger, the Borough did not retain any copies, and some of the
"governing body members informed [defendant] they threw the papers out."
Plaintiff filed a complaint demanding access to the records "without the
imposition of special service charges," an order requiring the Borough produce
the records responsive to items three through seven for in camera review by the
court, and an order requiring the Borough conduct a "new search" regarding item
eight and compel defendants to "outline what they did to conduct the prior search
and the new search." Defendant filed a certification as part of the Borough's
opposition to the complaint. Among other things, she detailed the limits of her
"technological knowledge" of the computer system and her conversation with
the Borough's "IT person," Kamran Mahmoudarabi, regarding items one and
two. Mahmoudarabi also filed a certification explaining the details of the work
he needed to perform to accommodate the two requests.
Defendant also explained that the attorneys named in items three through
five and number seven all told her the documents were privileged; the attorney
named in item six advised he had no communications with Geiger. Lastly,
defendant explained that the Borough attorney, mayor, and council members did
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not have copies of the documents mentioned in item eight; one council member
never answered defendant's inquiry.
The judge held oral argument on the return date of the order to show cause
and subsequently issued a written opinion supporting her January 6, 2020 order. 2
After comprehensively reciting relevant OPRA caselaw, the judge concluded
defendants failed to justify imposition of a special service charge pursuant to
N.J.S.A. 47:1A-5(c) or (d), "simply because [defendant wa]s incapable of
performing searches within the email accounts for multiple named individuals."
She ordered defendant to produce the records within ten days.
The judge found defendant's responses to the remaining requests were
inadequate because she failed to provide specific information regarding asserted
OPRA exemptions. The judge ordered defendants to produce a Paff
certification3 regarding items three through eight, and a Vaughn index4 as to
items three through seven.
2
The order and supporting opinion were filed January 8, 2020.
3
In Paff v. New Jersey Department of Labor, we set out information the records
custodian must supply in sworn statements when responding to a records
request. 392 N.J. Super. 334, 341 (App. Div. 2007).
4
In a "Vaughn index," "the custodian of records identifies responsive
documents and the exemptions it claims warrant non-disclosure." N. Jersey
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Although noting the filing of Paff certifications and Vaughn indexes were
not required "at the time of an OPRA response," the judge concluded doing so
were "prudent means of complying with the statute." Citing several previous
OPRA cases involving defendant and the Borough, the judge noted, "[d]espite
this court's repeated warnings, [defendant] has continued to fail in practicing
such diligence."
The judge found "[t]here [wa]s no question that [the papers referenced in]
item eight constitute[] a government record" under OPRA. She concluded "it
[was defendant's] responsibility to ensure that appropriate records [we]re kept,"
and defendant could have requested a copy from Geiger at the meeting or
"requisitioned a copy . . . once she received" plaintiff's OPRA request. The
judge had imposed a penalty against defendant in a prior lawsuit, and now she
concluded under the "totality of the circumstances" defendant's "blanket denials
violate[d] both the statute and the court's prior numerous warnings." The judge
held defendant "unreasonably den[ied] access in a knowing and willful manner,"
and because it was defendant's second violation, the judge imposed a $2,500
Media Grp., Inc. v. Bergen Cnty. Prosecutor's Off., 447 N.J. Super. 182, 191
(App. Div. 2016) (citing Vaughn v. Rosen, 484 F.2d 820, 826–27 (D.C. Cir.
1973)).
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civil penalty pursuant to N.J.S.A. 47:1A-11. The judge's order prohibited the
Borough from paying the penalty or reimbursing defendant.
Defendants moved for reconsideration. Defendant supplied a more
detailed certification regarding her actions in responding to plaintiff's request s
and documentation detailing her interactions with counsel regarding items three
through seven. The judge granted the motion in part, vacating her prior order
as it related to items three, four, five and seven. Somewhat inexplicably, despite
the undisputed denial by the attorney named in item six of any communication
between him and Geiger, much less the existence of a responsive government
record, the judge reiterated that a Paff certification and Vaughn index as to item
six must be produced within seven days. The judge denied reconsideration of
her prior order regarding items one, two and eight, again ordering a Paff
certification and Vaughn index as to those items. Finally, the judge reaffirmed
the civil penalty imposed on defendant.
Defendant appeals from the initial order and the order denying
reconsideration. She raises a single issue, specifically that the judge mistakenly
abused her discretion in finding defendant knowingly and willfully violated
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OPRA and unreasonably denied access to a government record. We agree the
judge erred and reverse.5
"OPRA, at its core, was 'designed to promote transparency in the operation
of government,' with a 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.'" Bozzi v. City of Jersey City, 248 N.J. 274, 283
(2021) (quoting first Sussex Commons Assocs., LLC v. Rutgers, 210 N.J. 531,
541 (2012); and then quoting Mason v. City of Hoboken, 196 N.J. 51, 64
(2008)). On appeal from an order deciding an OPRA dispute, we defer to the
judge's factual findings when supported by adequate, substantial and credible
evidence, but we owe no deference to her interpretation of the law or the legal
consequences that flow from those facts. N. Jersey Media Grp., Inc. v. State,
451 N.J. Super. 282, 301–02 (App. Div. 2017) (citations omitted).
N.J.S.A. 47:1A-11(a) provides:
A public official, officer, employee or custodian
who knowingly and willfully violates [OPRA] . . . and
is found to have unreasonably denied access under the
totality of the circumstances, shall be subject to a civil
5
The only relief defendant seeks in her brief is reversal and vacation of the civil
penalty imposed against her, not reversal of the other paragraphs of the judge's
orders finding violations of OPRA. We only address the merits of the trial
judge's rulings as to items one, two and eight in the context of the propriety of
the civil penalty.
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penalty of $1,000 for an initial violation, $2,500 for a
second violation that occurs within [ten] years of an
initial violation, and $5,000 for a third violation that
occurs within [ten] years of an initial violation. This
penalty shall be collected and enforced in proceedings
in accordance with the "Penalty Enforcement Law of
1999, [N.J.S.A. 2A:58-10 to -12]," and the rules of
court governing actions for the collection of civil
penalties. The Superior Court shall have jurisdiction of
proceedings for the collection and enforcement of the
penalty imposed by this section.
Appropriate disciplinary proceedings may be
initiated against a public official, officer, employee or
custodian against whom a penalty has been imposed.
"N.J.S.A. 47:1A-11 provides a valuable means to compel compliance with
OPRA by public officials, officers, employees and records custodians who
might otherwise flout OPRA's requirements and willfully and knowingly
deprive the public of access to government records." N. Jersey Media Grp., 451
N.J. Super. at 309. But "custodians[] are only personally liable if they
'knowingly and willfully' violate the provisions of OPRA[] and are 'found to
have unreasonably denied access [to government records] under the totality of
the circumstances.'" Courier News v. Hunterdon Cnty. Prosecutor's Off., 378
N.J. Super. 539, 546 (App. Div. 2005) (alteration in original) (second emphasis
added) (quoting N.J.S.A. 47:1A-11(a)).
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The phrase "willful and knowing violation" is not defined in the statute,
therefore we assign the words their "generally accepted meaning, according to
the approved usage of the language." N.J.S.A. 1:1-1. "'Willful' has been defined
as 'deliberate, voluntary, or intentional,' 'but not necessarily malicious.'" State
v. Moran, 202 N.J. 311, 323 (2010) (first quoting Webster's Unabridged
Dictionary of the English Language 2175 (2001); and then quoting Black's Law
Dictionary 1737 (9th ed. 2009)). "'Knowing' is well understood to be an
awareness or knowledge of the illegality of one's act." Allstate Ins. Co. v.
Northfield Med. Ctr., PC, 228 N.J. 596, 620 (2017) (citing Black's Law
Dictionary 950).
In Bart v. City of Paterson Housing Authority, we considered the
defendant's appeal from the final decision of the Government Records Council
(GRC) that the authority's record custodian knowingly and willfully violated
OPRA. 403 N.J. Super. 609, 612 (App. Div. 2008). We accepted the GRC's
definition of those terms, specifically "a knowing and willful violation of the
statute would require that the custodian must have had actual knowledge that his
actions were wrongful, and that there had to be a positive element of conscious
wrongdoing." Id. at 619. "We decline[d] to equate a public entity's decision to
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consult with its counsel and to seek the assistance of counsel in drafting
correspondence with a knowing and willful violation of the statute." Ibid.Here, defendant sought the advice of the Borough's IT consultant in
fashioning a response to items one and two. The judge ignored the certification
of Mahmoudarabi, who explained a response required the expenditure of some
time and effort, and instead concluded defendant's limited technological
knowledge of the computer system was a deficiency supporting a finding of
"conscious wrongdoing." Moreover, the judge expressed her personal belief
about the ease in accessing the computer system and providing the requested
emails, despite defendant's clear certification that she was not the administrator
of the Borough's computer system and did not have the ability to access the
emails of the various officials.
We do not consider whether the judge's ultimate conclusion that
defendants' response to items one and two violated OPRA was in error; we only
conclude that the record evidence did not meet the requisite standard of proof to
find a knowing and willful violation.
Turning to item eight, OPRA defines a "[g]overnment record" as:
any paper . . . document . . . data processed or image
processed document, [or] information stored or
maintained electronically . . . that has been made,
maintained or kept on file in the course of his or its
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official business by any officer, commission, agency or
authority of the State . . . or that has been received in
the course of his or its official business by such officer,
commission, agency, or authority . . . .
[N.J.S.A. 47:1A-1.1 (emphasis added).]
Item eight sought "papers" that a private citizen distributed to the mayor and
council at a public meeting. The record fails to reveal what these papers were
or whether the mayor or council even addressed them during the meeting. It is
clear, however, that defendant was never given a copy of the documents , and
they were never formally filed or acknowledged to be part of the official
proceedings. We express grave doubt they were government records at all.
In any event, the judge concluded these unspecified documents were
government records and further determined defendant's failure to incorporate
them as part of the official proceedings and archive them as government records
was sufficient to find a violation of OPRA. More importantly, it was the judge's
personal opinion about defendant's obligations to do more to preserve and
produce the documents that justified the finding of a knowing and willful
violation of OPRA. That legal conclusion was clearly erroneous and deserves
no further attention. R. 2:11-3(e)(1)(E).
In opposing this appeal, plaintiff's counsel addressed a procedural issue
that is not before us but deserves mention. As noted, the enforcement of
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sanctions imposed pursuant to N.J.S.A. 47:1A-11 requires summary proceedings
under the Penalty Enforcement Law of 1999. Under that statute, "[i]f a judgment
for a civil penalty is rendered against a defendant, payment shall be made to the
court and shall be remitted to the State Treasurer of New Jersey, unless other
disposition is provided for in the statute imposing the penalty." N.J.S.A. 2A:58-
11(f). OPRA does not provide for some "other disposition." As counsel noted,
plaintiff is not entitled to the monies collected and has no interest in the
summary proceedings contemplated under N.J.S.A. 47:1A-11.
Plaintiff's counsel avers that perhaps the Attorney General must intervene
to enforce the civil penalty, and he candidly acknowledged before us that the
practice in trial courts throughout the State lacks uniformity and consistency.
We readily understand. However, in light of our disposition of this appeal, the
issue is not properly before us, and we will not address it at this time.
Reversed. The civil penalties imposed against defendant are vacated.
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