KATALIN GORDON VS. CITY OF ORANGE (ESSEX) CUSTODIAN OF Â RECORD (GOVERNMENT RECORDS COUNCIL)(CONSOLIDATED) ( 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NOT FOR PUBLICATION WITHOUT THE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-4869-13T2
A-1272-14T1
KATALIN GORDON,
Complainant-Appellant,
v.
CITY OF ORANGE (ESSEX)
CUSTODIAN OF RECORD,
Respondent-Respondent.
Argued September 20, 2016 – Decided June 23, 2017
Before Judges Rothstadt and Sumners.
On appeal from the Government Records Council,
Complaint Nos. 2013-255 and 2013-256.
Katalin Gordon, appellant pro se.
Debra A. Allen, Deputy Attorney General,
argued the cause for respondent New Jersey
Government Council (Christopher S. Porrino,
Attorney General, attorney; Melissa H. Raksa,
Assistant Attorney General, of counsel; Ms.
Allen, on the brief).
Jeanette Calderon-Arnold, Assistant City
Attorney, argued the cause for respondent City
of Orange Township (Dan S. Smith, City
Attorney, attorney; Ms. Calderon-Arnold, on
the brief).
PER CURIAM
In these two appeals, calendared back-to-back and
consolidated for purposes of a single opinion, appellant Katalin
Gordon challenges final agency decisions by the New Jersey
Government Records Council (GRC) regarding her requests for
documents under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-
1 to -13, from defendant City of Orange (City). Gordon's requests
sought information related to her concerns over compensation paid
to City Clerk Dwight Mitchell during his prolonged employment
absence. In A-4869-13, the GRC denied Gordon's request for
litigation records involving Mitchell. In A-1272-14, the GRC
determined that the City's lack of responsiveness to Gordon's OPRA
request for records of disability insurance payments made to
Mitchell and Mitchell's accumulated sick leave was not willful and
deliberate. For the reasons that follow, we affirm the GRC's
decision in A-4869-13, but reverse and remand its decision in A-
1272-14.
I.
A-1272-14
Gordon submitted an OPRA request to the City on June 25,
2013, seeking all records of disability insurance payments
received and sick days accumulated by City Clerk Dwight Mitchell
2 A-4869-13T2
from July 1, 2010 to June 25, 2013. The City denied her request
on July 11, 2013, claiming that the records "involve issues
regarding ongoing litigation." In turn, Gordon requested that the
City provide the specific OPRA reference preventing it from
releasing the sought-after records. The City advised Gordon that
her initial request was closed, and since she did not ask for an
OPRA reference in her initial request, she would have to submit a
new OPRA request to the City's Law Department to provide the
reference for the initial denial. Gordon replied that she did not
have to submit a new OPRA request as it was the City's obligation
to give detailed reasons for denying her request, and if the City
choose not to do so, she would file a Denial of Access Complaint
with the GRC. The following day, the City reiterated its position
that her OPRA request was closed.
Gordon subsequently filed a complaint with the GRC asserting
that the City was obligated to provide the legal justification for
denying her request, and that it be compelled to release the
sought-after records. She also demanded that, based upon the
City's responses to her current and previous OPRA requests, the
GRC should find that the current non-disclosure was intentional
and deliberate.
3 A-4869-13T2
On April 29, 2014, the GRC issued an interim order, adopting
the findings and recommendations of the Executive Director, that
the City "must disclose to [Gordon] for the period of January 1,
2010 to June 23, 2013, a record of City Clerk Dwight Mitchell's
accumulated sick days and disability insurance payments received
from the City . . . ." The GRC reasoned that due to the City's
failure "to provide [Gordon] with a specific lawful basis for
denying access to the requested records, [it thereby] failed to
bear the burden of proving that the denial of access to said
records is lawful." The GRC, however, deferred determining whether
the City "knowingly and willfully violated OPRA and unreasonably
denied access under the totality of circumstances" pending its
compliance with the interim order.
On May 9, the City certified to the GRC that it complied
with the interim order. In reply, Gordon disputed the
responsiveness of the records she received, claiming that, based
upon the City's ordinance and the City's responses to her past
OPRA requests, Mitchell had neither been granted nor been receiving
temporary disability benefits as the City claimed.
On September 30, the GRC issued a final determination,
adopting the findings and recommendations of the Executive
Director that the City complied with its interim order providing
4 A-4869-13T2
Gordon all the documents she requested. The agency rejected
Gordon's claim of unresponsiveness by reasoning that it is not
within its jurisdiction to determine compliance with its order by
interpreting and applying the City's municipal code to information
received from past OPRA requests. Although the agency found that
the City failed to timely respond to the request, failed to cite
a specific legal basis for denying the request, and failed to
prove that the denial was authorized by law, the GRC determined
there was no evidence that the City's failings were due to "a
knowing and willful violation of OPRA and unreasonable denial of
access under the totality of the circumstances."
A-4869-13
As a follow-up to her request regarding Mitchell's disability
insurance payments and accumulated sick leave, Gordon submitted
an OPRA request to the City on July 24, 2013, seeking "all records
or parts thereof, from January 1, 2010 to [July 24, 2013,] which
show ongoing and pending litigation involving [] Mitchell." The
City responded that the document "request . . . would fall into
one, or more categories[,]" that could be a reason to deny her
request.1 The City further "suggested that it may be helpful to
1
The City listed the five categories as a basis for denial:
5 A-4869-13T2
meet with [Gordon] . . . [to] discuss specific documents"
pertaining to her request.
Rather than meeting with City officials, Gordon filed a Denial
of Access Complaint with the GRC on September 10, 2013, asserting
that that the City neither identified the records she sought nor
explained how her request related to records that were inimical
to the public interest. Gordon asked the "GRC to make a
determination that [the City] withheld the fact there was ongoing
and pending litigation involving [] Mitchell."
On April 29, 2014, the GRC rendered its final decision,
adopting the entirety of the findings and recommendations of the
Executive Director, denying Gordon's complaint. The agency ruled
that the City's denial of the OPRA request by providing a list of
possible exemptions that may be applicable was not a "specific
"Inter-agency or intra-agency advisory, or
consultative or deliberative material[;
r]ecords that are subject to attorney-client
privilege[; i]nformation which is
communication between a public agency and its
insurance carrier[; i]nformation generated by
or on behalf of public employers or public
employees in connection with any grievance
filed by or against an individual[; o]ngoing
investigations – any records pertaining to an
investigation in progress by any public agency
if disclosure of such record or records shall
be detrimental to the public interest.
[N.J.S.A. 47:1A-5(g).]
6 A-4869-13T2
legal basis for denying the requested records[,]" but the "request
is invalid because it fails to seek identifiable government
records[,]" and therefore was not an unlawful denial of access to
public records. Citing MAG Entertainment, LLC v. Division of
Alcoholic Beverage Control, 375 N.J. Super. 534, 546 (App. Div.
2005), the GRC noted that Gordon's request seeking "all records
or parts thereof which show ongoing and pending litigation
involving Mitchell[,]" was overly broad because the City "would
have to conduct research to examine every record on file which
might reflect the requested" information.
II.
Our review of a GRC decision "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. S. Brunswick Twp., 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. Although
an agency's determination as to the applicability of OPRA is a
7 A-4869-13T2
legal conclusion subject to plenary review, see O'Shea v. Township
of West Milford, 410 N.J. Super. 371, 379 (App Div. 2009), "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). "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) (citation
and internal quotation marks omitted).
OPRA expresses New Jersey's public policy favoring
transparency in government and disclosure of government documents.
See N.J.S.A. 47:1A-1. OPRA 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). To that end, the statute
mandates that "government records shall be readily accessible for
inspection, copying, or examination by citizens of this State,
with certain exceptions, for the protection of the public interest,
and any 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.
OPRA broadly defines "government record" to include
any paper . . . information stored or
maintained electronically . . . or any copy
8 A-4869-13T2
thereof, that has been made, maintained or
kept on file in the course of . . . official
business by any . . . commission, agency or
authority of the State or any political
subdivision thereof . . . .
[N.J.S.A. 47:1A-1.1.]
An OPRA applicant "must identify with reasonable clarity
those documents that are desired, and a party cannot satisfy this
requirement by simply requesting all of an agency's documents.
OPRA does not authorize unbridled searches of an agency's
property." Bent v. Twp. of Stafford Police Dep't, Custodian of
Records, 381 N.J. Super. 30, 37 (App. Div. 2005); see also Renna
v. Cnty. of Union, 407 N.J. Super. 230, 245 (App. Div. 2009) ("The
custodian must have before it sufficient information to make the
threshold determination as to the nature of the request and whether
it falls within the scope of OPRA."); Gannett N.J. Partners, LP
v. Cnty. of Middlesex, 379 N.J. Super. 205, 212 (App. Div. 2005)
("OPRA requires a party requesting access to a public record to
specifically describe the document sought."). OPRA was not created
to allow "open-ended searches of an agency's files" and "is not
intended as a research tool litigants may use to force government
officials to identify and siphon useful information." MAG Entm't,
supra, 375 N.J. Super. at 546-49. As such, requests for "'any and
all' documents" on a specific subject are considered "overly
9 A-4869-13T2
broad." Spectraserv, Inc. v. Middlesex Cty. Util. Auth., 416 N.J.
Super. 565, 578 (App. Div. 2010). A custodian may reject a request
that is overly broad or vague so as to prevent identification of
the records sought. N.J. Builders Ass'n v. N.J. Council on
Affordable Hous., 390 N.J. Super. 166, 181-82 (App. Div.), certif.
denied, 190 N.J. 394 (2007).
In A-4869-13, Gordon contends that the GRC erred by finding
that her OPRA request was overly broad because the litigation
records she sought were confined to a specific subject matter and
limited to a specific period. She contends her request is similar
to that in Burke v. Brandes, 429 N.J. Super. 169, 176-77 (App.
Div. 2012), where we held that an OPRA request seeking E-Z Pass
benefits provided to Port Authority retirees was an accessible
public record, because her narrow request covers specific dates
for documents regarding litigation concerning Mitchell that are
only accessible through OPRA. We are not persuaded.
We view Gordon's request as deficient under OPRA. Gordon's
failure to specify the documents sought necessitated the
deployment of City resources to sift through the City's files and
identify, analyze and select potentially relevant and responsive
public records pertaining to litigation in which Mitchell was
involved. OPRA imposes no such obligation upon government
10 A-4869-13T2
custodians. See MAG Entm't, supra, 375 N.J. Super. at 549-50.
Relatedly, Gordon's request was also overbroad because it
encompassed attorney-client records that were exempt from
disclosure under OPRA, and which required further efforts by the
City to cull, isolate, and evaluate. Spectraserv, Inc., supra,
416 N.J. Super. at 578. Based on the OPRA's clear and unambiguous
language, and consistent with our previous interpretations of the
statute, the GRC's final order denying Gordon's OPRA request was
proper.
Turning to A-1272-14, Gordon contends the City's willful and
knowing denial of her OPRA request was demonstrated by the GRC's
issuance of an interim order due to the City's deficiencies in
responding to her OPRA request seeking records of disability
insurance payments to Mitchell, and the amount of his accumulated
sick days. In particular, Gordon asserts that the City: was not
involved in pending litigation with Mitchell as it misrepresented;
refused to provide legal grounds for the denial of her request
after she asked for them; failed to provide the GRC with a
statement of information; and delayed her request for nearly a
year. Gordon further argues that the City's willful denial of her
request is evinced by its release of unresponsive documents and
false clarifications that the City's code allows a city employee
11 A-4869-13T2
to be paid full salary while on disability. This, she contends,
contradicts the City's response to a separate and earlier OPRA
request indicating that Mitchell was not approved for any
disability claim.
It is clear that "[r]ecord custodians must grant or deny
access to . . . [such] records 'as soon as possible, but not later
than seven business days after receiving the request.'" Mason v.
City of Hoboken, 196 N.J. 51, 65-66 (2008) (quoting N.J.S.A. 47:1A-
5(i)). A custodian or any other public official or employee "who
knowingly or willfully violates [OPRA] . . . and is found to have
unreasonably denied access under the totality of the
circumstances, shall be subject to a civil penalty." N.J.S.A.
47:1A-11(a). If there is a knowing and willful OPRA violation by
a public body or custodian of records, "and is found to have
unreasonably denied access under the totality of the
circumstances, the [GRC] may impose the penalties provided for in
[OPRA]." N.J.S.A. 47:1A-7(e).
OPRA also provides that when any record or records "shall
pertain to an investigation in progress by any public agency, the
right of access - may be denied if the inspection, copying or
examination of such record or records shall be inimical to the
public interest[.]" N.J.S.A. 47:1A-3(a). See also N. Jersey
12 A-4869-13T2
Media Grp., Inc. v. Twp. of Lyndhurst, 441 N.J. Super. 70, 107
(App. Div.) (noting that motor vehicle accident reports fall
outside the exemption for criminal investigatory records because
such documents "are required by law to be made available to the
public[,]" under N.J.S.A. 39:4-131), leave to appeal granted, 223
N.J. 553 (2015).
Although we generally defer to the GRC's findings, we conclude
there was insufficient evidence in the record to support its
finding that the City's denial of Gordon's OPRA request was not
willful and deliberate. In denying Gordon's request, the City
claimed that the records could not be released because of an
"ongoing and pending litigation. The records requested involve
issues regarding the ongoing litigation." However, there was no
litigation. The City now contends that there was an investigation
involving Mitchell, which it mistakenly mischaracterized as
litigation. We find this explanation unconvincing and belies the
credibility of its denial.
Yet, even if there was an investigation, there was no
indication by the City how the sought-after information was
inimical to the public interest. N.J.S.A. 47:1A-3(a). Salary and
payroll records of a city employee are considered a government
record subject to public release. N.J.S.A. 47:1A-10.
13 A-4869-13T2
The City's willful and deliberate denial of Gordon's request
is further evinced by its meritless claim that her request was
broad, and that it does not electronically maintain the
information. The information request was clear and specific, and
we envision no time-consuming burden in obtaining the information
despite the fact that it is not preserved in the City's computers.
We affirm the GRC's decision in A-4869-13, and reverse and
remand its decision in A-1272-14 for further proceedings regarding
the imposition of appropriate penalties in accordance with OPRA.
Affirmed in part; reversed and remanded in part. We do not
retain jurisdiction.
14 A-4869-13T2