In the Matter of the New Jersey Firemen's Association ( 2015 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2810-13T2
IN THE MATTER OF THE NEW
JERSEY FIREMEN'S ASSOCIATION
OBLIGATION TO PROVIDE RELIEF APPROVED FOR PUBLICATION
APPLICATIONS UNDER THE OPEN
PUBLIC RECORDS ACT December 18, 2015
___________________________________
APPELLATE DIVISION
JEFF CARTER,
Third-Party
Plaintiff-Appellant,
v.
JOHN DOE,
Third-Party Defendant.
___________________________________
Argued June 2, 2015 – Decided December 18, 2015
Before Judges Messano, Ostrer and Tassini.
On appeal from the Superior Court of New
Jersey, Law Division, Union County, Docket
No. L-2932-13.
Jeff Carter, appellant pro se.
John C. Gillespie argued the cause for
respondent New Jersey State Firemen's
Association (Parker McCay P.A., attorneys;
George M. Morris, of counsel; Stacy L.
Moore, Jr., on the brief).
Thomas J. Cafferty argued the cause for
amicus curiae New Jersey Press Association
(Gibbons P.C., attorneys; Mr. Cafferty, of
counsel and on the brief; Nomi I. Lowy and
Lauren E. James-Weir, on the brief).
The opinion of the court was delivered by
OSTRER, J.A.D.
This appeal involves the Open Public Records Act (OPRA),
N.J.S.A. 47:1A-1 to -13, the Declaratory Judgment Act (DJA),
N.J.S.A. 2A:16-50 to -62, and records of the New Jersey State
Firemen's Association (Association), a public agency under OPRA.
See N.J.S.A. 47:1A-1.1. We must resolve two principal issues
affecting the public's right to access government records.
First, we must decide, as a procedural matter, whether a
government records custodian — in this case, the Association —
may bring an action pursuant to the DJA to secure a declaratory
judgment that it properly denied access to a record under OPRA
and the common law right of access. With respect to OPRA, we
conclude that a records custodian may not bring a declaratory
judgment action against a record requestor to enforce its right
to withhold records, because OPRA does not provide the records
custodian an independent right of action. As to both OPRA and
the common law, declaratory relief was inappropriate in this
case because the declaratory judgment action was essentially an
effort to preempt an imminent claim by the records requestor;
and allowing a declaratory judgment action solely with respect
to the common law would unnecessarily fragment claims.
2 A-2810-13T2
Second, we are asked to determine, as a substantive matter,
whether the requestor in this case, under OPRA or the common
law, has a right to access records pertaining to a relief award
made by the Association. We conclude that both OPRA and the
common law require disclosure of documents containing the name
of the applicant and the amount of the award.
I.
This dispute arose out of the records request of defendant
Jeff Carter.1 On July 15, 2013, Carter electronically filed a
request, under OPRA and the common law, for records pertaining
to an application for relief by John Doe,2 a man associated with
the Millstone Valley Fire Department. Carter sought the
following documents:
1. Copies of record(s) (including
attachments) submitted by [John Doe],
Local 501 agent(s), and/or NJSFA
agent(s) seeking financial benefits
described in the "BACKGROUND" section
above from January 1, 2008 through July
15, 2013.
1
The Association improperly captioned its verified complaint for
declaratory judgment against Jeff Carter as "In the Matter of
the New Jersey State Firemen's Association Obligation to Provide
Relief Applications Under the Open Public Records Act." See R.
1:4-1 (stating that the title of a complaint shall include the
names of all parties).
2
Although the records request identified the person by name, the
name is redacted in the public record on appeal.
3 A-2810-13T2
2. Copies of record(s) (including
attachments) sent to [John Doe], Local
501 agent(s), and/or NJSFA agent(s)
disbursing financial benefits described
in the "BACKGROUND" section above from
January 1, 2008 through July 15, 2013.
3. If no record(s) are responsive to Items
No. 1 or 2 above, then copies of the
front and back of every check providing
relief and/or similar benefits, both
State and Local, paid to [John Doe]
between January 1, 2008 through July
15, 2013. (Note that checks are not
required if responsive records are
provided for Items No. 1 and 2 above.)
Association vice president Fred Gunson denied Carter's
request in a July 22, 2013 email. Gunson stated that applicants
for relief through a local firemen's relief association or the
Association "have a reasonable expectation of privacy"; release
would constitute an "unwarranted invasion" of those rights; and
"[a]ccordingly, the New Jersey State Firemen's Association
cannot release those documents."
On August 3, 2013, Carter responded that he did "not seek
any legitimately defined privileged or exempt information," but
he insisted that "certain records regarding financial matters
(e.g., payroll records) must be provided with appropriate
redactions." He asked for an index of any withheld or redacted
documents, with explanations. Carter also stated, "Because I
was unable to respond sooner, I understand that the timeframe
4 A-2810-13T2
for my original request will resume on the next business day
(i.e. August 5, 2013)."
Carter included an additional document request. He sought
"a copy of the policy and/or procedures governing how 'relief'
applications/requests are processed by the State and local
associations."
On August 15, 2013, the Association filed its verified
complaint for declaratory judgment, along with a proposed order
to show cause, to compel Carter to show cause why the final
relief sought in the verified complaint should not be entered.
Although served only upon Carter, the Association sought an
order:
a. Declaring that individual relief
applications are of such a private
nature that the New Jersey State
Firemen's Association or the local
relief association shall be prevented
from acknowledging the existence of
individual applications and prohibited
from releasing the same under . . . the
Open Public Records Act;
b. Declaring that a Requestor, in order to
determine whether the New Jersey State
Firemen's Association or the local
relief association is performing its
duties appropriately, may request a
series or date range of applications,
but said applications may only be
released upon the redaction of all
personal information including the
requestors' names, addresses, account
numbers.
5 A-2810-13T2
The Association sought identical relief with respect to the
common law right of access.
The Association argued that under OPRA the information
Carter requested should not be subject to disclosure under OPRA
because it would violate an applicant's reasonable expectation
of privacy under N.J.S.A. 47:1A-1. The Association asserted
that upon applying the factors in Doe v. Poritz, 142 N.J. 1, 88
(1995), disclosure of applicant-specific documents should be
denied.
The Association disclosed documents entitled "Rules and
Guidelines Governing Relief Form 101"; "Instruction for
Investigation of Relief Applicants by Local Relief Boards";
"Application for Local Relief [-] New Jersey State Firemen's
Association"; and "Instructions for the Board of Trustees and
Board of Representatives for Review of Relief Application."
Although there is no competent evidence before us authenticating
or explaining the documents, we assume for the sake of the
appeal that the Association uses these documents when reviewing
applications for relief.3
3
The documents were attached as exhibits to the Association's
brief, contrary to R. 1:6-6. See Pressler & Verniero, Current
N.J. Court Rules, comment 1 on R. 1:6-6 (2015); Sellers v.
Schonfeld, 270 N.J. Super. 424, 427 (1993) ("[O]nly [an]
affidavit together with properly certified depositions, answers
(continued)
6 A-2810-13T2
The application forms generally require the submission of
detailed personal financial information, and a personal
statement of the applicant, to demonstrate the need for
financial assistance from a local association or the
Association. The "Rules and Guidelines" document, and the
respective instructions to the apparent decision-makers, do not
include detailed criteria for determining whether to award
relief and for what amount. The "Rules and Guidelines" document
describes the information applicants must submit. It states,
"Relief Assistance is not automatic and will only be considered
on merit, documentation and determination by the local
association." The instructions to the local relief boards
state:
The intended use of this form, is to provide
the respective boards with information
pertaining to the applicant's request for
supplementary financial assistance, and in
determining the "NEED."
WHAT IS "NEED"
"NEED" IS: Imperative Demand ***** Time of
great difficulty ***** Crisis ***** Urgency
"NEED" is a state of circumstances requiring
something!
(continued)
to interrogatories, or admissions can supply facts outside the
record that are not judicially noticeable.").
7 A-2810-13T2
It is important to remember, while a
financial loss may be shown, there may not
be the "NEED." "NEED" and financial loss do
not necessarily go hand in hand. (Example:
The person may have a financial loss, but
have financial means and can afford to cover
the financial loss without the use of local
relief, thus no "NEED" would then exist.
Apparently, there are other rules or regulations not in the
record before us, as the "Rules and Guidelines" document
includes a paragraph authorizing and consenting to the release
of financial documents to the local association and the
Association "for the purpose of determining eligibility for
relief benefits . . . in accordance with the requirements of
N.J.S.A. 43:17-24 and Article VII of the General Relief Fund
Rules." (emphasis added).
The documents indicate that the application process is
intended to be confidential. The instructions to local relief
boards include the statement: "All information given must be
held in strict confidence." The Rules and Guidelines Document
states, "The New Jersey State Firemen's Association is required
to protect the confidentiality of information. All Officers are
required to comply with our policies."
The trial court entered the order to show cause, required
Carter to file a response to the order by September 16, 2013,
and set a return date of September 27, 2013. The order also
8 A-2810-13T2
advised Carter that he was required to answer the verified
complaint within thirty-five days.
Carter retained counsel and timely filed a verified answer
and counterclaim, a third-party complaint against John Doe, and
a letter brief in opposition to the Association's application
for declaratory relief. Carter narrowed his document request,
stating he only sought disclosure of the checks paid to John Doe
and did not seek the applications Doe may have filed. He argued
he was entitled to the checks under both OPRA and the common
law. He sought dismissal of the Association's verified
complaint and an award of attorney's fees.
In a supporting certification, Carter asserted that John
Doe served as an elected fire commissioner and volunteer
firefighter in Franklin Township. Carter stated that Doe was
also a full-time municipal employee.4 Carter alleged that John
Doe was found to have viewed pornographic images on a fire
district computer. Although criminal charges were filed, a
grand jury returned a no-bill, according to Carter. However,
Doe was later discharged from his public employment for conduct
unbecoming of a township employee. Carter attached newspaper
articles to support his assertions. Carter also discussed a
4
Carter apparently served as elected fire commissioner from 1987
through 1997.
9 A-2810-13T2
suit, filed by his sister and later settled, alleging a
violation of the Law Against Discrimination by the fire district
and Doe. Carter maintained that there was a public interest in
learning whether a person who was discharged under the
circumstances Carter described had received financial assistance
through the Association. He disputed the Association's claim
that Doe in particular had an expectation of privacy, given past
publicity.
In a responsive certification, Gunson explained that
members are often eligible for financial assistance from local
associations; and if this assistance "is not adequate to address
that member's needs, the member can then approach the . . .
Association, which can award up[] to three (3) times the amount
of the local contribution." Gunson did not disclose the
criteria utilized for the financial assistance decisions, nor
did he disclose the rules or regulations governing the decision
process. However, he stated that the Association and local
associations have specific procedures to treat members'
applications anonymously, eliminating the possibility of
discrimination in responding to the request for financial
relief. These procedures include converting the applicant's
name to a control number.
10 A-2810-13T2
In its answer to Carter's counterclaim, the Association
asserted, among other defenses, that Carter's counterclaim was
time-barred as it was filed more than forty-five days after the
Association's denial of his document request.
The trial court heard argument on the return date in
September 2013. The court also reviewed in camera Doe's
application for assistance, which apparently had been submitted
to the court in August, but was later sealed.
In an order filed January 15, 2014, the court denied
Carter's requests for dismissal of the verified complaint,
disclosure of the checks paid to Doe, and attorney's fees. The
court did not enter a separate order granting declaratory relief
to the Association. However, in an accompanying letter opinion,
the court found that the names of relief recipients, the amounts
paid through the Association's financial assistance programs,
and their applications need not be released.
The court addressed the subject of applications,
notwithstanding that Carter had limited his request to checks
paid to John Doe and expressly stated he was not seeking
information in the relief applications. The court applied the
seven factors outlined in Doe, supra:
(1) the type of record requested; (2) the
information it does or might contain; (3)
the potential for harm in any subsequent
nonconsensual disclosure; (4) the injury
11 A-2810-13T2
from disclosure to the relationship in which
the record was generated; (5) the adequacy
of safeguards to prevent unauthorized
disclosure; (6) the degree of need for
access; and (7) whether there is an express
statutory mandate, articulated public
policy, or other recognized public interest
militating toward access.
[142 N.J. at 88 (internal quotation marks
and citation omitted).]
Based on that analysis, the court held that OPRA's privacy
clause, N.J.S.A. 47:1A-1, barred release:
Applying the Doe factors to the present
case, the application is a public record as
a document kept, made or maintained in the
course of official business of the
Association. The second factor weighs in
favor of non-disclosure because the
information is an individual's complete and
personal financial history, including but
not limited to tax returns, credit card
bills, mortgage payments and, hospital
bills. Applying the third factor, revealing
this information has the potential to lead
to great harm created by the release of said
information because it has the potential to
lead to identity theft and public
embarrassment. Defendant's argument that
John Doe has already sustained great public
embarrassment is not without merit being
that the incident for which he was fired was
disclosed in the newspaper. A significant
harm exists if individual relief
applications are released. Applying the
fourth factor, the release of the
information may cause an applicant to
hesitate before [he or she] seeks assistance
and may chill the disclosure of critical
information regarding the need for
assistance for fear that the knowledge will
be subject to public scrutiny. The fifth
factor, speaks to the adequacy of safeguards
12 A-2810-13T2
to prevent disclosure. The Association has
established a system to convert the
individual's name into a unique
identification number for each applicant to
ensure the confidentiality of the
information and to protect the interests of
the applicant. While the Association has
not directed this Court towards a statute
mandating non-disclosure the seventh factor
weighs in favor of non-disclosure because
there is no policy or statute which mandates
access.
Citing Loigman v. Kimmelman, 102 N.J. 98, 113 (1986), the
trial court concluded that the common law did not require
disclosure.
This appeal followed. Carter now represents himself pro
se. He renews his argument that the Association should not have
been permitted to seek a declaratory judgment. Although he
limited his request before the trial court to the checks paid to
John Doe, he now renews his request for John Doe's applications,
redacted as appropriate. We subsequently granted permission to
the New Jersey Press Association (NJPA) to appear as amicus
curiae. NJPA participates solely to argue that a records
custodian may not seek a declaratory judgment under OPRA.
II.
We turn first to defendant's argument that the Association
was not entitled to seek a declaratory judgment confirming its
denial of access under both OPRA and the common law right of
13 A-2810-13T2
access. We begin with an overview of the law on declaratory
judgments.
A.
The DJA is based on the 1922 Uniform Declaratory Judgments
Act. 12 U.L.A. 331 (2008). The DJA provides that "a person
. . . whose rights, status, or other legal relations are
affected by a statute . . . may have determined any question of
construction or validity arising under the . . . statute . . .
and obtain a declaration of rights, status, or other legal
relations thereunder." N.J.S.A. 2A:16-53. See Williams v.
Borough of Clayton, ___ N.J. Super. ___, ___ (App. Div. 2015)
(slip op. at 10-11) (approving resort to declaratory relief
regarding interpretation of N.J.S.A. 40A:14-129 and -130). The
purpose of the Act "is to settle and afford relief from
uncertainty and insecurity with respect to rights, status and
other legal relations." N.J.S.A. 2A:16-51; N.J. Ass'n for
Retarded Citizens v. N.J. Dep't of Human Servs., 89 N.J. 234,
242 (1982) ("[The purpose of the Act] is to end uncertainty
about the legal rights and duties of the parties to litigation
in controversies which have not yet reached the stage at which
the parties seek a coercive remedy.")
The DJA constitutes "remedial legislation entitled to
liberal construction and administration." N.J. Ass'n for
14 A-2810-13T2
Retarded Citizens, supra, 89 N.J. at 241-42; N.J.S.A. 2A:16-51.
The DJA must be "interpreted and construed as to effectuate its
general purpose to make uniform the law of those states which
enact it, and to harmonize, as far as possible, with federal
laws, rules and regulations on the subject of declaratory
judgments." N.J.S.A. 2A:16-51.
The decision to grant or deny declaratory relief lies
within the court's discretion. See In re Resolution of State
Comm. of Investigation, 108 N.J. 35, 46 (1987); see also State
v. Eatontown Borough, 366 N.J. Super. 626, 637 (App. Div. 2004)
("Generally, it rests in the sound discretion of the trial court
whether declaratory relief under the Act should be granted.").
"Declaratory relief is not to be denied simply because other
relief is available." Nat'l – Ben Franklin Fire Ins. Co. v.
Camden Trust Co., 21 N.J. 16, 22 (1956); see also R. 4:42-3 ("A
judgment for declaratory relief, if appropriate, is not
precluded by the existence of another appropriate remedy.").
On the other hand, "a court might in the proper exercise of
its discretion, deny such [declaratory] relief if it
satisfactorily appeared that the other relief would be more
effective." Nat'l – Ben Franklin Fire Ins. Co., supra, 21 N.J.
at 22. For example, a court may decline to award relief "where
only fragmentary redress will be awarded . . . ." Utility Blade
15 A-2810-13T2
& Razor Co. v. Donovan, 33 N.J. Super. 566, 572 (App. Div.
1955). "The court may refuse to render or enter a declaratory
judgment, when, if rendered or entered, it would not terminate
the uncertainty or controversy giving rise to the proceeding."
N.J.S.A. 2A:16-61; see also Nat'l – Ben Franklin Fire Ins. Co.,
supra, 21 N.J. at 23. A court may also decline to render a
declaratory judgment if "convinced that the public interest and
an enlightened use of the judicial function" require restraint.
The Proprietary Ass'n v. Bd. of Pharmacy, 16 N.J. 62, 71 (1954).
The right to relief under the DJA is procedural in nature;
it does not create substantive rights to relief. "A declaratory
judgment act merely provides a procedural device to accelerate
the resolution of a dispute; the procedural right does not alter
the substance of the dispute." Ciba-Geigy Corp. v. Liberty Mut.
Ins. Co., 149 N.J. 278, 302 (1997) (O'Hern, J., dissenting); see
Labor Ready Northeast, Inc. v. Director, Div. of Taxation, 25
N.J. Tax 607, 621 (2011). The United States Supreme Court has
adopted a similar view of the federal Declaratory Judgment Act,
26 U.S.C.A. § 2201. See Schilling v. Rogers, 363 U.S. 666, 677,
80 S. Ct. 1288, 1296, 4 L. Ed. 2d 1478, 1485-86 (1960) (stating
that the availability of relief under the federal Declaratory
Judgment Act, 28 U.S.C.A. § 2201, "presupposes the existence of
a judicially remediable right"); Skelly Oil Co. v. Phillips
16 A-2810-13T2
Petroleum Co., 339 U.S. 667, 671, 70 S. Ct. 876, 879, 94 L. Ed.
1194, 1199 (1950) ("The operation of the Declaratory Judgment
Act is procedural only. Congress enlarged the range of remedies
available in the federal courts but did not extend their
jurisdiction.") (citation omitted).
Put another way, if there is no private right of action
under a particular statute, a party may not secure a declaration
of its statutory rights by seeking relief under the DJA. This
general principle is implied by the Court's decision in In re
Resolution of State Comm. of Investigation, supra, 108 N.J. at
46. The Court declined to render a declaratory judgment on the
question whether the State Commission on Investigation (SCI)
unlawfully disclosed information about the plaintiffs. The
Court held that plaintiffs lacked a private right of action to
secure injunctive relief against the SCI arising out of the
alleged disclosures. Ibid. ("[O]ur decision that the plaintiffs
may not obtain the injunctive relief they sought undermines
their need for a declaratory judgment."); see also In re A.N.,
430 N.J. Super. 235, 244-45 (App. Div. 2013) (holding that the
Chancery Division lacked jurisdiction under N.J.S.A. 2A:16-55 to
determine Medicaid eligibility, where the authority to do so was
vested in the Division of Medical Assistance and Health
Services); Med. Soc. of N.J. v. AmeriHealth HMO, Inc., 376 N.J.
17 A-2810-13T2
Super. 48, 59 (App. Div. 2005) (denying Medical Society's claim
for declaratory and injunctive relief under L. 1989, c. 154, as
it lacked a private right of action).5
Courts in other jurisdictions applying comparable
provisions of their declaratory judgment acts have clearly
stated the principle that declaratory relief is unavailable when
there is no private right of action. See Pono v. Molokai Ranch,
Ltd., 194 P.3d 1126, 1148 (Haw. Ct. App. 2008) ("[I]n order for
a private citizen to seek a declaratory judgment that a statute
has been violated, the private citizen must, as a threshold
matter, have a private right of action to enforce the
statute."), certif. denied, 208 Haw. LEXIS 304 (2008); Gore v.
Indiana Ins. Co., 876 N.E.2d 156, 165-66 (Ill. App. Ct. 2007)
(finding plaintiff lacked standing to bring declaratory judgment
action because statute at issue did not confer private right of
action); Nichols v. Kansas PAC, 11 P.3d 1134, 1146-47 (Kan.
2000) (refusing to grant declaratory relief under consumer fraud
5
Bergen Cty. Improvement Auth. v. N. Jersey Media Group, Inc.,
370 N.J. Super. 504 (App. Div. 2004), cited by the Association,
does not support the contrary view. Although the plaintiff in
that case sought declaratory relief, the court did not address
the issue of the plaintiff's right to do so. In Chamber of
Commerce v. State, 89 N.J. 131 (1982), and N.L. Industries,
Inc., v. New Jersey Department of Environmental Protection, 397
N.J. Super. 127 (App. Div. 2007), certif. denied, 195 N.J. 418
(2008), cited in the concurring opinion, infra, the parties did
not raise, nor did the court address, the plaintiff's right of
action, express or implied, under the statute at issue.
18 A-2810-13T2
statute because it contained no private right of action);
Alliance for Metro. Stability v. Metro. Council, 671 N.W.2d 905,
916 (Minn. Ct. App. 2003) (stating that where "there was no
private right to enforce" the statute, the "Uniform Declaratory
Judgments Act cannot create a cause of action that does not
otherwise exist"); Delgado v. N.Y.C. Hous. Auth., 888 N.Y.S.2d
19, 21 (App. Div. 2009) (holding that petitioners did not
possess "a private right of action for injunctive and
declaratory relief sought" because only the city's housing
official could enforce the city's housing maintenance code).
See also Boston Med. Ctr. v. Sec'y of the Exec. Office of HHS,
974 N.E.2d 1114, 1134 (Mass. 2012) (where "the Legislature has
declined to give the plaintiff providers any private right of
action and what is at issue is the reasonableness . . . and the
methodology" of payment rates, "[a] declaratory judgment cannot
be used to circumvent a legislative judgment denying a provider
the opportunity to seek administrative or judicial review of the
reasonableness of payment rates.").6
6
Cf. Serv. Emp. Int'l. Union, Local 509 v. Dep't of Mental
Health, 14 N.E.3d 216, 227 (Mass. 2014) (citing Boston Med.
Ctr., supra, 974 N.E.2d at 1134) (confirming principle that
declaratory relief shall be denied in the absence of a private
right of action where Legislature intended to "foreclose certain
remedies," but awarding declaratory relief where a party
"suffered a cognizable injury," lacked other means to assure
agency's compliance with statute, "[n]o other party [was]
(continued)
19 A-2810-13T2
Federal courts applying the federal Declaratory Judgment
Act, 28 U.S.C.A. § 2201, likewise have determined that the
federal act does not provide a right to declaratory relief where
no private right of action exists. See, e.g., Mylan Pharm.,
Inc. v. Thompson, 268 F.3d 1323, 1332 (Fed. Cir. 2001) (barring
declaratory relief because the Federal Food, Drug, and Cosmetic
Act did not provide plaintiff a private cause of action), cert.
denied, 537 U.S. 941, 123 S. Ct. 340, 154 L. Ed. 2d 248 (2002);
Dallas Cty. v. MERSCORP, Inc., 2 F. Supp. 3d 938, 947 (N.D.Tex.
2014) ("[A] plaintiff may not obtain a declaratory judgment
under a statute . . . that provides no private right of
action."); Reid v. Aransas Cty., 805 F. Supp. 2d 322, 339
(S.D.Tex. 2011) (noting that because the federal act does not
create a substantive cause of action, but can only be invoked to
address a controversy arising under other substantive law,
plaintiff could not seek relief to which he would otherwise not
be entitled); Jones v. Hobbs, 745 F. Supp. 2d 886, 893 (E.D.Ark.
2010) ("[T]he Declaratory Judgment Act does not authorize
actions to decide whether federal statutes have been or will be
violated when no private right of action to enforce the statutes
(continued)
entitled to challenge the alleged violation," and denial of
declaratory relief would "contravene the Legislature's
intent.").
20 A-2810-13T2
has been created by Congress."); Glen v. Club Mediterranee S.A.,
365 F. Supp. 2d 1263 (S.D.Fla. 2005) ("[J]udicial review is
unavailable where no express provision for judicial relief
exists . . . . For this Court to create a private right of
action for declaratory relief [where none exists] would be
contrary to legislative intent."), aff’d, 450 F.3d 1251 (11th
Cir. 2006). We construe our DJA in harmony with the foregoing
state and federal decisions. See N.J.S.A. 2A:16-51.
As the federal court in Jones observed, where enforcement
of a law is vested solely in the executive branch, allowing
declaratory relief "would circumvent the discretion entrusted to
the executive branch in deciding how and when to enforce those
statutes." Jones, supra, 745 F. Supp. 2d at 893. Likewise,
where no private right of action exists, allowing parties to
obtain declaratory relief would "evade the intent of Congress
not to create private rights of action." Ibid.
A related principle of the law of declaratory judgments is
that "where a special statutory procedure has been provided as
an exclusive remedy for a particular type of case in hand . . .
that specific recourse must be followed," to the exclusion of
declaratory relief. Edwin Borchard, Declaratory Judgments (2d
ed. 1941) at 342. "So, when the statute provides that an appeal
from an administrative determination may be taken only in a
21 A-2810-13T2
certain way and to a certain court . . . it would have been
wrong for another court . . . to interfere and entertain a suit
for a declaration . . . ." Id. at 343-44.
We adopt the same reasoning here. To do otherwise would
allow records custodians to evade the Legislature's intent with
respect to enforcement of rights under OPRA, which we discuss
below. We recognize that the phrase "private right of action"
may appear to be a misnomer when used to define the rights of
the Association, which is a public agency under OPRA. Yet, the
governing principle is the same. A party that lacks a statutory
right of action under OPRA may not obtain declaratory relief
regarding its rights or obligations under OPRA.
B.
We conclude that OPRA does not vest a right of action in a
records custodian. Consequently, a records custodian has no
right to declaratory relief. Put another way, the Legislature
intended that only requestors may seek review of OPRA decisions,
by resort to the Government Records Council (GRC) or the court.
N.J.S.A. 47:1A-6.
OPRA expressly grants a right of action exclusively to
requestors. A requestor may elect to bring an action in
Superior Court, or before the GRC, to challenge a denial of
access:
22 A-2810-13T2
A person who is denied access to a
government record by the custodian of the
record, at the option of the requestor, may:
institute a proceeding to challenge the
custodian's decision by filing an action in
Superior Court which shall be heard in the
vicinage where it is filed by a Superior
Court Judge who has been designated to hear
such cases because of that judge's knowledge
and expertise in matters relating to access
to government records; or
in lieu of filing an action in Superior
Court, file a complaint with the Government
Records Council established pursuant to
section 8 of P.L. 2001, c. 404 (C. 47:1A-7).
The right to institute any proceeding under
this section shall be solely that of the
requestor. Any such proceeding shall
proceed in a summary or expedited manner.
The public agency shall have the burden of
proving that the denial of access is
authorized by law. If it is determined that
access has been improperly denied, the court
or agency head shall order that access be
allowed. A requestor who prevails in any
proceeding shall be entitled to a reasonable
attorney's fee.
[N.J.S.A. 47:1A-6 (emphasis added).]
Even assuming for argument's sake that N.J.S.A. 47:1A-6
does not grant a right of action exclusively to a requestor,7
any other party's right of action would have to be inferred,
given the absence of an explicit grant. However, our courts
7
The Association argues that the right "solely" granted the
requestor is the right to commence "proceedings under this
section," which the Association contends is limited to
challenges by a requestor denied access.
23 A-2810-13T2
"have been reluctant to infer a statutory private right of
action where the Legislature has not expressly provided for such
action." R.J. Gaydos Ins. Agency, Inc. v. Nat'l Consumer Ins.
Co., 168 N.J. 255, 271 (2001). The Court has adopted a three-
part test for determining whether a statute implies a private
right of action:
To determine if a statute confers an implied
private right of action, courts consider
whether: (1) plaintiff is a member of the
class for whose special benefit the statute
was enacted; (2) there is any evidence that
the Legislature intended to create a private
right of action under the statute; and (3)
it is consistent with the underlying
purposes of the legislative scheme to infer
the existence of such a remedy.
[Id. at 272.]
A court's primary mission is to determine legislative intent.
Id. at 272-73.
Applying this test, we conclude the Legislature did not
intend for records custodians to bring actions against record
requestors to enforce their asserted right to withhold records.
OPRA was enacted to promote the public's right of access to
government records, and to enable the public to monitor the
activities of government. See, e.g., Educ. Law Ctr. v. N.J.
Dep't of Educ., 198 N.J. 274, 284 (2009) ("OPRA's clear purpose
. . . is 'to maximize public knowledge about public affairs in
order to ensure an informed citizenry and to minimize the evils
24 A-2810-13T2
inherent in a secluded process.'") (quoting Mason v. City of
Hoboken, 196 N.J. 51, 64 (2008)). Having reviewed OPRA's
legislative history, we find no evidence of legislative intent
to grant a right of action to records custodians. OPRA provides
a broad right of access to government records. The statute
"shall be construed in favor of the public's right of access."
N.J.S.A. 47:1A-1.
Recognizing such a right of action would be contrary to
legislative design. A right of action would enable records
custodians to hale into court requestors who have no interest in
pursuing any review of a records custodian's denial, subjecting
requestors to the emotional turmoil and burdens attendant to
being sued. Such a right of action would also undermine
requestors' express right under OPRA to choose whether to
challenge the denial of access before the GRC or in court, by
empowering records custodians to choose the forum. Just the
threat of suit may deter some citizens from exercising their
rights under OPRA.
C.
Although the foregoing analysis does not address the right
to declaratory relief regarding the Association's obligations
under the common law right of access, we conclude that such
25 A-2810-13T2
relief would have been inappropriate in this case. We do so for
two reasons.
First, the Association's evident intent was to preempt an
action by Carter. We long ago held that judicial discretion to
grant relief under the declaratory judgment statute should be
withheld from a party whose clear purpose was "to have the court
adjudicate in advance the validity of its possible defense to
defendants' imminent law suit." Rego Indus., Inc. v. Am. Modern
Metals Corp., 91 N.J. Super. 447, 453 (App. Div. 1966); see also
Donadio v. Cunningham, 58 N.J. 309, 325 (1971) (stating that
"relief by way of a declaratory judgment should be withheld,
when the request is in effect an attempt to have the court
adjudicate in advance the validity of a possible defense in some
expected future law suit"); Utility Blade & Razor, supra, 31
N.J. Super. at 572-73 ("In the usual case where an action by one
party is imminent, it would serve no sensible purpose to permit
his adversary to sue first for a declaration that he has a good
defense to the action.").8
8
We recognize that where a lawsuit is not imminent, but the
parties' rights and responsibilities in an ongoing relationship
are subject to uncertainty, declaratory relief may be
appropriate, as was found in Utility Blade & Razor, supra, 33
N.J. Super. at 573 ("On the other hand, under some
circumstances, if the suit is not imminent and the declaratory
proceeding will relieve a party of a burden and would seem -- in
any event, through the interposition of a counterclaim -- to
(continued)
26 A-2810-13T2
Second, allowing a declaratory judgment action to proceed
to clarify duties under the common law right of access, when
relief under OPRA is precluded, would result in "fragmentary
redress." Id. at 571. As noted above, a court is empowered to
refuse declaratory relief when it "would not terminate the
uncertainty or controversy giving rise to the proceeding."
N.J.S.A. 2A:16-61.9
In sum, we conclude that the court erred in granting the
Association declaratory relief.
III.
We turn to the issue whether Carter was entitled under OPRA
to obtain access to records of relief payments to John Doe. 10
(continued)
settle the entire controversy, it may be unjust not to permit
him to sue immediately to free himself of liability.").
9
We also note that the Association's request for declaratory
relief, and the court's declaration, were overly broad. The
relief sought and granted pertained not just to Carter, but any
prospective requestor of relief applications and payments. Yet,
only Carter was named and served. "When declaratory relief is
sought, all persons having . . . any interest which would be
affected by the declaration shall be made parties to the
proceeding." N.J.S.A. 2A:16-56. "The court cannot adjudicate
the rights of parties who are not before the court." Gotlib v.
Gotlib, 399 N.J. Super. 295, 313 (App. Div. 2008).
10
We decline to address Carter's additional requests because he
abandoned those in his brief to the trial court. "[O]ur
appellate courts will decline to consider questions or issues
not properly presented to the trial court when an opportunity
for such a presentation is available 'unless the questions so
(continued)
27 A-2810-13T2
Before doing so, we review briefly the role of the Association
and local relief associations.
A.
We have previously discussed at some length the history of
the Association, the local relief associations, and their
statutory authority to grant relief payments and burial benefits
to their members and members' families. Paff v. N.J. State
Firemen's Ass'n, 431 N.J. Super. 278 (App. Div. 2013). Among
their purposes, local relief associations shall
maintain a fund for the relief, support or
burial of:
(1) needy firefighters and their families;
(2) any persons and the families of any
persons who are injured or die in the course
of doing public fire duty, or who may become
needy or disabled or die as the result of
doing such duty or be prevented by the
injury or by illness arising from doing such
duty, from attending to their usual
occupation or calling; and
(continued)
raised on appeal go to the jurisdiction of the trial court or
concern matters of great public interest.'" Nieder v. Royal
Indem. Ins. Co., 62 N.J. 229, 234 (1973) (internal quotation
marks and citation omitted). However, we note that Executive
Order 26 (McGreevey), issued pursuant to N.J.S.A. 47:1A-1,
exempts from disclosure under OPRA "[i]nformation describing a
natural person's finances, income, assets, liabilities, net
worth, bank balances, financial history or activities, or
creditworthiness, except as otherwise required by law to be
disclosed." Ibid. The Order also exempts "information related
to medical, psychiatric or psychological history, diagnosis,
treatment or evaluation . . . ." Ibid.
28 A-2810-13T2
(3) the families of any persons doing
public fire duty who die as the result of an
act of terrorism committed against the
United States of America while such persons
were serving as federal, State or local law
enforcement officers.
[N.J.S.A. 43:17-3.]
The Association "shall have the same rights, powers and
privileges as the local firemen's relief associations, including
providing for the distribution of any fund for the relief of
disabled or needy firefighters and their families." N.J.S.A.
43:17-41.
Awards of relief shall be made pursuant to rules and
regulations adopted by the Association. N.J.S.A. 43:17-3(c)
("The relief, support or burial benefit shall be granted in
accordance with the rules and regulations adopted by the New
Jersey State Firemen's Association."); see also N.J.S.A. 43:17-
24, -35. However, the Association's rules and regulations have
not been promulgated with notice and allowing comment. See N.J.
Const., Art. V, § 4, para. 6; N.J.S.A. 52:14B-4.
The statute also authorizes consideration of why a person
is in need.
No person shall be given assistance if the
cause of the need or the reason for the
disability or the nature or cause of the
injury or sickness is not in the opinion of
the board of representatives such as to
entitle the applicant to assistance, or if
29 A-2810-13T2
the applicant is deemed financially unworthy
of assistance.
[N.J.S.A. 43:17-24.]
The Department of Banking and Insurance (DOBI) requires
local relief associations to file annual reports including the
names of relief beneficiaries and the amounts paid.11 The
applicable regulations provide:
(a) All local relief associations shall
file with the Commissioner, the Secretary of
State, and the secretary of the State
Association, no later than April 1 of each
year, a sworn statement, which shall contain
the following information:
1. The names of its representatives,
visitors or trustees and other officers,
with the amount of their respective fees or
salaries, if any;
2. The names of its beneficiaries during or
within the year next preceding the
statement;
3. The amount of money paid to each
beneficiary; . . . .
[N.J.A.C. 11:1-38.3.]
The regulations do not expressly require a similar report
by the Association, notwithstanding that it has the power,
comparable to the local associations, to award relief benefits.
11
The Association and local associations are funded through a
tax on fire insurance premiums of insurers not organized under
New Jersey law, N.J.S.A. 54:18-1, -2; and fire insurance
premiums of surplus lines fire insurers, N.J.S.A. 17:22-6.59.
30 A-2810-13T2
B.
The issue presented is whether the payment records are
shielded by OPRA's "privacy clause," which states: "[A] public
agency has a responsibility and an obligation to safeguard from
public access a citizen's personal information with which it has
been entrusted when disclosure thereof would violate the
citizen's reasonable expectation of privacy . . . ." N.J.S.A.
47:1A-1. We have previously determined that the Association is
a public agency subject to OPRA. Paff, supra, 431 N.J. Super.
at 279. Also, it is undisputed that relief payment records are
government records. N.J.S.A. 47:1A-1.1. Although numerous
categories of documents are exempt from the definition of
government records, see Educ. Law Ctr., supra, 198 N.J. at 284
("OPRA excludes twenty-one categories of information, making the
public right of access not absolute.") (citation omitted), none
of the exemptions apply here. Furthermore, the Association does
not invoke any regulation or executive order that arguably
removes the payment records from the scope of its disclosure
obligations under OPRA.12
12
In particular, we note that an agency may exempt certain
documents by regulation authorized by law. N.J.S.A. 47:1A-1
(stating that public agencies may exempt documents from
disclosure by "regulation promulgated under the authority of any
statute or Executive Order of the Governor"). The exemption
power is not "unlimited" and must "be exercised only when
(continued)
31 A-2810-13T2
The privacy clause is a substantive counterweight to the
right to access under OPRA. Burnett v. Cty. of Bergen, 198 N.J.
408, 422-23 (2009). Courts must balance OPRA's mandate of
disclosure with its protection of privacy. Id. at 425-26. To
do so, the Court determined it was appropriate to consider the
seven factors identified in Doe, supra:
(1) the type of record requested; (2) the
information it does or might contain; (3)
the potential for harm in any subsequent
nonconsensual disclosure; (4) the injury
from disclosure to the relationship in which
the record was generated; (5) the adequacy
of safeguards to prevent unauthorized
disclosure; (6) the degree of need for
access; and (7) whether there is an express
statutory mandate, articulated public
policy, or other recognized public interest
militating toward access.
[Id. at 427 (quoting Doe, supra, 142 N.J. at
88).]
(continued)
necessary for the protection of the public interest." Irval
Realty, Inc. v. Bd. of Public Util. Commrs., 61 N.J. 366, 374
(1972) (applying identical language in pre-OPRA Right to Know
Law). We express no opinion as to whether the Association,
pursuant to its power to adopt rules or regulations governing
the grant of relief, may exempt documents from OPRA. The
regulations are not before us, and have not been adopted
pursuant to public notice and comment under the Administrative
Procedure Act (APA), N.J.S.A. 52:14B-4; nor are they available
for public viewing in accord with the APA. N.J.S.A. 52:14B-
3(3).
32 A-2810-13T2
A court must engage in a case-specific analysis. Id. at 437
("This balancing of interests must be applied case by case, and
under different facts, another result might be proper.").
Although the trial court applied the Doe factors, we
consider them de novo. See K.L. v. Evesham Twp. Bd. of Educ.,
423 N.J. Super. 337, 349 (App. Div. 2011) (stating that an
appellate court exercises de novo review of a trial court
decision regarding whether OPRA requires disclosure of publicly
held records), certif. denied, 210 N.J. 108 (2012). In so
doing, we part company with the trial court, given its
determination that the privacy clause shields relief payment
records.
We consider together the first two factors — the record
type and information contained. Carter seeks copies of checks,
which would confirm the identity of a relief applicant, state
the amounts of relief received, and state when they were
received from a public agency empowered to make discretionary
relief decisions. However, if Carter is able to confirm that
Doe received relief, additional information may be inferred;
even without his application documents, Carter may infer that
Doe was in financial distress, although cause and extent were
not disclosed.
33 A-2810-13T2
Personal financial information in the possession of public
agencies — which is what Carter seeks — has not been treated
uniformly under OPRA and implementing regulations and executive
orders. OPRA exempts "the pension or personnel records of any
individual in the possession of a public agency" from the
definition of government records, but does not exempt a public
employee's "name, title, position, salary, payroll record,13
length of service, date of separation and the reason therefor,
and the amount and type of any pension received." N.J.S.A.
47:1A-10. Also, Executive Order No. 26 (McGreevey), ¶ 4(b)(3)
(2002) exempts "[i]nformation describing a natural person's
finances, income, assets, liabilities, net worth, bank balances,
financial history or activities, or creditworthiness, except as
otherwise required by law to be disclosed."14
13
Although "payroll record" is not defined in OPRA, it elsewhere
has been defined to include more than salary. For example, to
comply with The Unemployment Compensation Law, N.J.S.A. 43:21-1
to -24, and the Temporary Disability Benefits Law, N.J.S.A.
43:21-25 to -71, among others, employers must maintain "payroll
records" that include: "[t]otal remuneration paid in each pay
period showing separately cash, including commissions and
bonuses . . . gratuities received regularly . . . [and] special
payments, such as bonuses and gifts . . . ." N.J.A.C. 12:2
Appx. A; see also N.J.A.C. 12:16-2.1.
14
Also exempt is "[i]nformation relating to medical, psychiatric
or psychological history, diagnosis, treatment or evaluation."
Id. at ¶ 4(b)(1).
34 A-2810-13T2
None of these sources directly address Association relief
payments, although both parties seek support from N.J.S.A. 47:1-
10. The payments are not salary or remuneration for employment,
although they are a benefit for qualified firefighters —
including, notably, volunteer firefighters — in return for
service. Relief payments are discretionary, like bonuses and
gifts that are reported on payroll records, but relief
recipients are not on the Association's payroll. The
Association argues the payments should be withheld as a "pension
record" exempt under N.J.S.A. 47:1A-10, and Carter argues the
payments should be disclosed as "the amount and type of any
pension received," which are not exempt under N.J.S.A. 47:1A-10.
In our view, neither interpretation is correct.
Although one might argue that a relief award is
"information describing a natural person's . . . income" under
Executive Order No. 26,15 the Order was apparently intended to
address personal financial information that a citizen entrusts
to the government. See Executive Order No. 21 (McGreevey) ¶ 4
(which Executive Order No. 26 was intended to clarify). It was
not intended to bar release of records pertaining to outlays by
a public agency to a citizen. Further, any ambiguity in the
Executive Order should be resolved in favor of disclosure. See
15
We note that the Association has not presented this argument.
35 A-2810-13T2
N.J.S.A. 47:1A-1 ("[L]imitations on the right of access accorded
by [OPRA] . . . shall be construed in favor of the public's
right of access.").
Although the relief payments do not fall neatly into the
statutory categories found in N.J.S.A. 47:1-10, their similarity
to forms of payment that are subject to disclosure arguably
strengthens the case for access. However, there is an important
difference between relief awards and salary, pension payments,
or even bonuses and gifts reported in payroll records. Bonuses
are awarded generally for a job well done — which is unlikely to
embarrass the recipient. Relief benefits are awarded upon proof
that someone is in financial distress, which may subject the
recipient to embarrassment. A similar distinction can be drawn
between disability insurance payments, which the GRC has found
to be disclosable, see, e.g., Gordon v. City of Orange, GRC
Complaint No. 2013-255 (2014), and relief benefits. We conclude
factors one and two weigh slightly in favor of non-disclosure
based on this distinction between relief awards and other forms
of remuneration or compensation that are subject to disclosure
under N.J.S.A. 47:1A-10.
Doe factors three and four relate to the potential for
harm. The Association's vice president asserts that John Doe,
and other beneficiaries whose records would be released, will
36 A-2810-13T2
suffer public embarrassment. The Association also speculates
that future applicants for relief would be deterred from seeking
benefits to avoid public embarrassment.16 We note that release
would also arguably have the effect of upsetting the reasonable
expectations of applicants, inasmuch as the application forms
state that the "Association is required to protect the
confidentiality of information." While that may be read to
refer only to an applicant's submission, it would be reasonable
for an applicant to expect that any benefits received would also
be confidential. Upsetting these expectations may affect "the
relationship in which the record was generated." On the other
hand, disclosure may empower Association members to assess the
Association's process for deciding such applications, thereby
ultimately enhancing their relationship with the organization.
We conclude factors three and four slightly favor non-
disclosure.
Factor five refers to "the adequacy of safeguards to
prevent unauthorized disclosure." This concerns the extent to
which the requested documents are otherwise protected from
disclosure. The Association's vice president asserted that
16
The Association also discusses the harm that would result from
the release of the personal financial information included in
the applications. As noted, we deem Carter's request for that
information to have been abandoned in the trial court.
37 A-2810-13T2
consideration of applications is performed without attaching the
applicant's name, to assure unbiased consideration. On the
other hand, Carter maintained that existing safeguards were
inadequate, because he learned through some unnamed source that
Doe had received benefits. Given the apparent leak, this factor
neither favors nor disfavors disclosure.
It is also reasonable to discuss factors six and seven
together. Carter's need for access is based on an interest in
the Association's exercise of its authority to grant relief in
Doe's case. Carter questions whether it is appropriate to award
benefits to a person who was charged with crimes and allegedly
terminated for conduct related to those charges. We need not
take a position on whether the circumstances of Doe's
termination should be a factor in the Association's decision-
making to conclude that Carter's expressed interest relates to
the Association's governance. For example, Carter does not seek
disclosure for financial gain, as a finance company might, in
seeking the names of beneficiaries because they are in financial
distress and may be worth soliciting. Carter's request is
instead grounded in an interest in the Association's authority
to grant Doe a relief award given the allegations of impropriety
that led to Doe's termination from public employment.
38 A-2810-13T2
We noted above that the statute authorizes consideration of
the cause of a person's financial need. N.J.S.A. 43:17-24. The
relief decisions must be made according to the Association's
rules and regulations. N.J.S.A. 43:17-3(c). However, the lack
of transparency in the Association's decision-making process,
including the lack of publicly available rules and regulations
adopted after notice and comment, heightens the need for
disclosure of documents related to individual cases. Cf. Mason,
supra, 196 N.J. at 64 (stating that OPRA is designed "to
maximize public knowledge about public affairs in order to
ensure an informed citizenry and to minimize the evils inherent
in a secluded process.") (internal quotation marks and citation
omitted). The need for disclosure is also heightened by the
fact that, apparently, only local relief associations'
beneficiaries and amounts of grants are subject to DOBI's
outside review. N.J.A.C. 11:1-38.3. We conclude that factors
six and seven weigh heavily in favor of disclosure.
Upon balancing the Doe factors, in view of the
circumstances presented in this case, we conclude that the
privacy clause does not bar plaintiff's right under OPRA to the
records of the relief payments made to Doe.
We briefly address the Association's contention that a
contrary result is compelled by Michelson v. Watt, 379 N.J.
39 A-2810-13T2
Super. 611 (App. Div. 2005). We disagree. In Michelson, supra,
plaintiff sought disclosure of documents and information
pertaining to the health insurance benefits enjoyed by public
employees of the city in which he lived. Id. at 614. The court
held that plaintiff's request was "not subject to access and
disclosure pursuant to OPRA." Id. at 623. The court deemed the
detailed health insurance information requested to be personnel
records that fell outside of government records as defined in
N.J.S.A. 47:1A-10. Also, disclosure was barred by Executive
Order No. 26, which established that "information regarding an
individual's health history is not a government record subject
to public access." Id. at 619-20; Executive Order No. 26
(McGreevey), ¶ 4(b)(1) (2002). Finally, disclosure was barred
by N.J.A.C. 17:9-1.2(b), which "treats all personal health
information as confidential information in accordance with
HIPAA." Michelson, supra, 379 N.J. Super. at 620.
Michelson does not compel non-disclosure in this case.
Relief payments are not personnel records under N.J.S.A. 47:1A-
10. Furthermore, disclosure is not shielded by Executive Order
No. 26 or any duly adopted regulation.
In sum, plaintiff is entitled to the limited disclosure of
Doe's relief payment checks under OPRA.
40 A-2810-13T2
IV.
We also conclude that Carter is entitled to Doe's payment
records under the common law right of access. See Mason, supra,
196 N.J. at 67 (noting that OPRA does not limit the common law
right of access) (citing N.J.S.A. 47:1A-8). There is no
question that Carter seeks a public record, subject to the
common law right of access. See Nero v. Hyland, 76 N.J. 213,
222 (1978) ("The elements essential to constitute a public
record are . . . that it be a written memorial, that it be made
by a public officer, and that the officer be authorized by law
to make it.") (internal quotation marks and citation omitted).
There also is no question that Carter has standing; he is an
Association member interested in the criteria applied to relief
decisions. See Irval, supra, 61 N.J. at 372 (stating that some
showing of interest is required to enforce the common law right
to inspect).
An access request under the common law is subject to an
"exquisite weighing process" that balances the requestor's
interest in disclosure and the government's interest in
confidentiality. Loigman v. Kimmelman, 102 N.J. 98, 108 (1986).
The balancing process must be "concretely focused upon the
relative interests of the parties in relation to the specific
materials in question." Piniero v. N.J. Div. of State Police,
41 A-2810-13T2
404 N.J. Super. 194, 206-07 (App. Div. 2008) (citing McClain v.
Coll. Hosp., 99 N.J. 346, 361 (1985)). The Court has identified
several factors that may be considered:
(1) the extent to which disclosure will
impede agency functions by discouraging
citizens from providing information to the
government; (2) the effect disclosure may
have upon persons who have given such
information, and whether they did so in
reliance that their identities would not be
disclosed; (3) the extent to which agency
self-evaluation, program improvement, or
other decisionmaking will be chilled by
disclosure; (4) the degree to which the
information sought includes factual data as
opposed to evaluative reports of
policymakers; (5) whether any findings of
public misconduct have been insufficiently
corrected by remedial measures instituted by
the investigative agency; and (6) whether
any agency disciplinary or investigatory
proceedings have arisen that may
circumscribe the individual's asserted need
for the materials. Against these and any
other relevant factors should be balanced
the importance of the information sought to
the plaintiff's vindication of the public
interest.
[Loigman, supra, 102 N.J. at 113 (citation
omitted).]
The requestor's motivation is also a relevant consideration.
Loigman, supra, 102 N.J. at 104 ("Somewhat different but related
considerations arise when the citizen seeks access to
information to further a public good" as opposed to a private
interest.).
42 A-2810-13T2
Loigman factors one and two slightly favor confidentiality.
As discussed above, the Association contends disclosure of Doe's
records may discourage members from applying for benefits in the
future; however, this fear is speculative. In any event,
Carter's request is confined to a single recipient, limiting any
chilling effect of disclosure. However, as noted above, an
applicant may reasonably have relied on the reference to
confidentiality in the application form.
Turning to factor three, we discern no threat that
disclosure would chill the ability of the Association or local
associations to render their decisions, or to engage in self-
evaluation and improvement. If anything, disclosure may
encourage self-criticism and internal oversight. Carter seeks
factual data, not evaluative reports (factor four). Moreover,
there is no evidence that alternative remedial measures or
outside oversight have addressed the issue of concern to Carter
— that is, whether benefits are granted to persons whose
financial distress is allegedly the result of their misconduct.
As Loigman provides, other relevant factors may be
considered. In this case, weight may be given to the fact that
Doe has already been placed in the public eye. His arrest and
his termination received publicity in the local newspapers.
Thus, to some extent, his personal travails are already in the
43 A-2810-13T2
public domain. What is not disclosed is whether he has received
assistance from a local association or the Association. This
distinguishes Carter's request from a request for payments made
to any and all beneficiaries.
Carter's professed need is not based on personal curiosity,
or personal financial interest. Rather, it is based on his
interest in determining the criteria for relief awards,
specifically, whether the local association or Association deems
it appropriate to consider the cause of a person's financial
need. The lack of transparency in the Association's decision-
making, the lack of rules adopted pursuant to the APA, and the
lack of oversight by DOBI of Association awards, heightens the
interest in disclosure.
In sum, we conclude that the public interest in disclosure
in this case outweighs the interest in confidentiality.
V.
We briefly address the Association's argument that Carter's
counterclaim for disclosure was time-barred, as it was filed
more than forty-five days after the denial. OPRA actions have a
forty-five-day statute of limitations, as do actions in lieu of
prerogative writs. Mason, supra, 196 N.J. at 57. However, that
time frame may be enlarged "in the interest of justice." Id. at
70. The time period should be enlarged here because the
44 A-2810-13T2
Association's declaratory judgment action effectively preempted
Carter's option to resort to the GRC, which has no specified
limitations period. Id. at 70. Carter was compelled to respond
to a lawsuit that, as discussed above, the Association was not
entitled to bring in the first place.
We also note that because Carter has prevailed, in that he
has secured access to Doe's relief payment records, he is
entitled to a reasonable attorney's fee. N.J.S.A. 47:1A-6. We
remand for the trial court's fee determination.
Reversed and remanded. We do not retain jurisdiction.
45 A-2810-13T2
MESSANO, P.J.A.D, concurring.
For the reasons compellingly presented by Judge Ostrer in
Parts III and IV of his opinion, I agree that Carter was
entitled to obtain copies of the relief payments made by the
Association to John Doe under both OPRA and the common law right
of access to public records. I further agree with the
conclusions that OPRA "grants a right of action exclusively to
requestors," and that "the Legislature did not intend for
records custodians to bring actions against record requestors to
enforce their asserted right to withhold records." Ante at 22,
24.
I also agree that the Legislature did not intend to permit
any "public agency," like the Association, to commence an action
under OPRA seeking to pre-emptively establish a defense that is
expressly provided by the statute. See N.J.S.A. 47:1A-5(g)
(permitting the custodian of a government record to "assert[]
that part of a particular record is exempt from public access").
Finally, I agree that permitting a public agency to initiate a
lawsuit asserting a defense to the production of particular
public records under the common law would result in "fragmentary
redress," ante at 27, and should be avoided in furtherance of
the salutary goal of judicial economy.
I write separately, however, to state my respectful
disagreement with my colleagues' expansive conclusion in Part
II-A of their opinion that "if there is no private right of
action under a particular statute, a party may not secure a
declaration of its statutory rights by seeking relief under the
DJA." Ante at 17. In my opinion, that conclusion is not
supported by the clear and unambiguous language of the DJA,
which is the clearest indication of the Legislature's intent.
Town of Kearny v. Brandt, 214 N.J. 76, 98 (2013).
As noted by my colleagues, the DJA is remedial in nature
and entitled to liberal interpretation. Ante at 14-15. The DJA
provides that "[a]ll courts of record . . . shall . . . have
power to declare rights, status and other legal relations,
whether or not further relief is or could be claimed." N.J.S.A.
2A:16-52 (emphasis added). Seemingly, the Legislature did not
intend to foreclose a party from seeking relief under the DJA
even if "further relief" could not be claimed by that party.
Id.
N.J.S.A. 2A:16-53, in turn, provides that "[a] person . . .
whose rights, status or other legal relations are affected by a
statute, . . . may have determined any question of construction
or validity arising under the . . . statute . . . and obtain a
declaration of rights, status or other legal relations
2 A-2810-13T2
thereunder." (Emphasis added). As noted, I agree that a public
agency cannot initiate a lawsuit under OPRA to determine whether
a specific record is exempt from production under OPRA. In my
mind, the highly discretionary remedy of declaratory relief
cannot be invoked to settle such a dispute, because that issue
has little to do with the "rights, status or other legal
relation[]" of and between, in this case, the Association and
Carter.
However, the Association is undoubtedly a person "whose
rights, status and other legal relations are affected" by OPRA.
N.J.S.A. 2A:16-53 (emphasis added). In a different context, I
believe the Association could initiate a lawsuit seeking relief
under the DJA. For example, in Paff, supra, 431 N.J. Super. at
285, the trial court dismissed the plaintiff's complaint,
finding the Association was not a public agency subject to OPRA.
After thoroughly reviewing the Association's "formation,
structure, and function," we concluded that it was a public
agency under OPRA and reversed. Id. at 289-90.
In Paff, the issue arose in the context of an OPRA suit
already initiated by a "requestor." Given the Association's
unusual status, however, I doubt that we would have dismissed an
action initiated by the Association pursuant to the DJA seeking
a declaration as to whether or not it was public agency. Even
3 A-2810-13T2
though OPRA provides no right of action to a public agency, I
believe the Association's complaint in that context — whether
the association was subject to OPRA — would have been cognizable
under the DJA.1
I find support for this conclusion not only through
application of the plain language of the DJA, but also in cases
that have long-recognized the appropriateness of such relief
under the DJA. See, e.g., N.J. Ass'n for Retarded Citizens,
supra, 89 N.J. at 242 (resort to the DJA is appropriate "to end
uncertainty about the legal rights and duties of the parties
. . . in controversies which have not yet reached the stage at
which the parties seek a coercive remedy," and where "there is
an actual controversy . . . which involves differing views on
the meaning of applicable statutory provisions").2
1
In Paff, we cited three other cases that involved public
agencies that, given their unusual circumstances, challenged
whether they were subject to OPRA. Id. at 287 (citing Sussex
Commons Assocs., LLC v. Rutgers, the State Univ., 210 N.J. 531
(2012); Fair Share Hous. Ctr., Inc. v. N.J. State League of
Municipalities, 207 N.J. 489 (2011); The Times of Trenton Publ'g
Corp. v. Lafayette Yard Cmty. Dev. Corp., 183 N.J. 519 (2005)).
Although in those cases the issue arose in the context of a
pending prerogative writ lawsuit brought by a requestor, I
believe the Court would have resolved the issue had the public
agency initiated the suit for declaratory relief.
2
I recognize that there must be an "actual controversy" before
the DJA can be invoked. Finkel v. Twp. of Hopewell, 434 N.J.
Super. 303, 318 (App. Div. 2013). However, that predicate could
(continued)
4 A-2810-13T2
In this regard, while the out-of-state and federal cases
cited by my colleagues provide support for their conclusion —
"if there is no private right of action under a particular
statute, a party may not secure a declaration of its statutory
rights" — I do not believe any of the cited New Jersey cases do.
Moreover, it strikes me as anomalous that a statute like OPRA
that provides a specific unilateral cause of action to a
requestor could nonetheless provide the rationale for barring a
clearly "affected" party — here, the Association — from seeking
relief under the DJA.
Moreover, our courts have considered requests for
declaratory relief under the DJA even though the particular
statute at issue provided no right of action to a litigant. For
example, in Chamber of Commerce v. State, 89 N.J. 131, 138-39
(1982), the Court considered whether the plaintiff trade
association was entitled to relief under the DJA declaring the
Strikebreakers Act, N.J.S.A. 34:13C-1 to -6, unconstitutional.
The Court ultimately concluded that portions of the statute were
preempted by federal labor law, but other sections were not.
Id. at 163. The Court did not predicate the relief upon the
plaintiff, or for that matter, any person, having a private
(continued)
be easily satisfied, for example, if a request has been made,
but the litigation has not commenced, as was the case here.
5 A-2810-13T2
right of action under the Strikebreakers Act. Indeed, the
statute was essentially penal in nature, and presumably could
not be invoked by anyone other than the State. See N.J.S.A.
34:13C-5 (making any violation of the act a misdemeanor).
In NL Indus., Inc. v. New Jersey Dept. of Envtl.
Protection, 397 N.J. Super. 127, 133 (App. Div. 2007), certif.
denied, 195 N.J. 418 (2008), we considered the "rights and
responsibilities" of the parties under N.J.S.A. 58:10B-3.1,
which permitted a local government unit that condemned property
to replace – with the Department's approval – a person
performing remediation at the contaminated site. Before
considering the merits, we concluded that the plaintiff's
complaint was cognizable under the DJA, specifically rejecting
the Department's argument that jurisdiction lay in the Appellate
Division and not the trial court. Id. at 131-32. Notably,
neither the statute at issue, nor the legislation of which it
was a part, provided the remediating party with a specific cause
of action by which to challenge the Department's or the public
entity's decision.
Finally, although I agree with much of my colleagues'
opinion, I believe it unnecessary to paint with such a broad
brush. Whether the DJA means what it says, or, whether its
remedies are available only to those whom the Legislature has
6 A-2810-13T2
provided a specific cause of action, is an issue of some import.
Resolving that issue in a manner that I believe departs from
existing precedent is more appropriately the province of our
Supreme Court. See, e.g., Riley v. Keenan, 406 N.J. Super. 281,
297 (App. Div.) (noting that an appellate court "should normally
defer to the Supreme Court with respect to the creation of a new
cause of action") (citing Tynan v. Curzi, 332 N.J. Super. 267,
277 (App. Div. 2000)), certif. denied, 200 N.J. 207 (2009);
Proske v. St. Barnabas Med. Ctr., 313 N.J. Super. 311, 316 (App.
Div. 1998) (declining to find damages for personal injuries
based on a failure to perform a contractual term "'in the
absence of [any] precedent, or . . . clear direction by dictum
from our Supreme Court'" authorizing such action) (quoting Coyle
v. Englander's, 199 N.J. Super. 212, 226 (App. Div. 1985)),
certif. denied, 158 N.J. 685 (1999).
I therefore respectfully concur in the judgment.
7 A-2810-13T2