JEFF CARTER VS. NEW JERSEY DEPARTMENT OF COMMUNITY AFFAIRS (GOVERNMENT RECORDS COUNCIL) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-0483-18T1
JEFF CARTER,
Petitioner-Appellant,
v.
NEW JERSEY DEPARTMENT
OF COMMUNITY AFFAIRS,
DIVISION OF LOCAL
GOVERNMENT SERVICES
CUSTODIAL AGENCY,
Defendant-Respondent.
______________________________
Argued November 4, 2019 – Decided December 10, 2019
Before Judges Fasciale and Moynihan.
On appeal from the New Jersey Department of
Community Affairs, Government Records Council,
GRC Complaint No. 2016-262.
Jeff Carter, Ph.D., appellant, argued the cause pro se.
Steven Michael Gleeson, Deputy Attorney General,
argued the cause for respondent New Jersey
Department of Community Affairs, Division of Local
Government Services (Gurbir S. Grewal, Attorney
General, attorney; Raymond R. Chance, III, Assistant
Attorney General, of counsel; Steven Michael Gleeson,
on the brief).
Debra A. Allen, Deputy Attorney General, argued the
cause for respondent Government Records Council
(Gurbir S. Grewal, Attorney General, attorney; Jane C.
Schuster, Assistant Attorney General, of counsel;
Debra A. Allen, on the brief).
PER CURIAM
Jeff Carter appeals from an August 28, 2018 final agency decision by the
Government Records Council (GRC) declaring that Carter's request for records
under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 through -13, was
invalid as overly broad. The Division of Local Government Services (the
Division) therefore did not exhaustively research or search for documents. We
affirm.
On August 9, 2016, Carter submitted his OPRA request seeking "complete
copies of any and all 'Notice of Docketing' records issued by the New Jersey
Superior Court, Appellate Division, resulting from an appeal (pursuant to
N.J.S.A. 40A:9-22.91) of any final [agency] decision of the Local Finance Board
[(LFB)] from August 9, 2011 through August 9, 2016." The custodian
1
N.J.S.A. 40A:9-22.9 permits final agency decisions pertaining to the New
Jersey Local Government Ethics Law, N.J.S.A. 40A:9-22.1 to -22.25, to be
appealed to the Appellate Division.
A-0483-18T1
2
responded on August 16, 2016, stating that "[t]he government records sought
are not records that are maintained by the [Division]. Therefore, we have no
government records that are responsive to your request." On August 18, 2016,
the custodian responded to Carter's request for clarification.
[The Division] and the Division of Law's databases do
not organize or list matters based on the description of
the record sought. Since [Carter] [has] not provided
any identifiers such as a case name, party name, or
docket number, the custodian would need to manually
identify matters, locate records in storage through
communication with the Division of Law, obtain those
records, and review the entire case file for each
potentially applicable case file to identify and compile
responsive records. Such an exercise would require the
custodian to exercise judgment and conduct research
which is beyond the ambit of OPRA.
Carter then filed a Denial of Access Complaint with the GRC, and the Division
filed a Statement of Information (SOI) with the GRC, explaining that it refused
the request because the records were not made, maintained, or received by the
Division, and therefore could not be identified without significant research by
the records custodian.
Carter rebutted the SOI, requested a summary and expedited adjudication,
and petitioned the GRC for a "contested case" determination, pursuant to
N.J.A.C. 1:1-4.1(a). Carter renewed his request seven more times through a
series of briefs filed with the GRC, and repeatedly petitioned the GRC for a
A-0483-18T1
3
"contested case" determination. 2 The GRC then issued its final agency decision
stating:
[Carter's] request seeking [n]otices for a five . . . year
period alleging a violation of N.J.S.A. 40A:9-22.9 is
invalid because it required research. The [c]ustodian
had no legal duty to research her files, or cause
research, to locate records potentially responsive to the
request.
....
[N]o factual causal nexus exists between [Carter's]
filing of a Denial of Access Complaint and the relief
ultimately achieved. . . . Carter's request was invalid
and no responsive records existed.
On appeal, Carter argues:
POINT I
CARTER'S OPRA REQUEST IS VALID.
A. The OPRA Request Contains More
Than Enough Qualifiers.
B. Burke Controls Here.
C. Burnett And O'Boyle Control Here.
D. Scheeler v. Gov. And Wronko Also
Control Here.
POINT II
THE GRC ERRED BY ERRONEOUSLY
CONFLATING THE OPRA REQUEST'S
PARENTHETICAL ELEMENT TO MEAN APPEALS
2
Carter filed approximately seven briefs between January 2017 and May 2018.
A-0483-18T1
4
RELATING TO "QUORUM VIOLATIONS,"
BECAUSE THE WORD "QUORUM" NEVER
APPEARS IN THE OPRA REQUEST, NOR IN THE
REQUEST FOR CLARIFICATION.
A. The GRC Erred By Misstating Facts In
The Record.
POINT III
THE CUSTODIAN CANNOT CLAIM IGNORANCE
IN CLAIMING THAT THE REQUEST WAS
OVERBROAD BASED ON HER EXTENSIVE
LEGAL CITATIONS IN HER CLARIFICATION.
POINT IV
[RESPONDENTS] REFUSED TO COMPROMISE
PURSUANT TO MASON, AND THE GRC NEVER
ADDRESSED THEIR FAILURE TO DO SO.
POINT V
THE CUSTODIAN HAD NO PERSONAL
KNOWLEDGE OF THE SEARCH FOR RECORDS;
THUS, HER CERTIFICATION WAS
INSUFFICIENT.
POINT VI
CARTER NEVER SAID THAT HE POSSESSED
BHALLA'S NOTICE OF DOCKETING RECORD;
THUS, THE GRC ERRED IN FAILING TO ORDER
ITS DISCLOSURE BECAUSE IT WAS
SPECIFICALLY IDENTIFIED AS BEING
RESPONSIVE.
POINT VII
THE GRC'S FAILURE TO ANSWER CARTER'S
WRITTEN PETITIONS FOR A "CONTESTED
CASE" DETERMINATION WITHIN THIRTY DAYS
A-0483-18T1
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VIOLATED HIS RIGHT TO PROCEDURAL DUE
PROCESS OF LAW.
A. Carter Could Not Seek Interlocutory
Review.
B. Carter's Efforts To Prosecute His
Appeal In IMO FTEB Were Stymied By
The GRC's Failure To Adjudicate His
Complaint In A Summary, Expedited,
And/Or Expeditious Manner.
C. The GRC Acted In Bad Faith By
Holding That It Handles Complaints In The
Order They Are Received, Because The
Public Record Eviscerates This Erroneous
Holding.
POINT VIII
THE GRC IS COMPELLED TO HEED OPRA'S
SUMMARY/EXPEDITED ADJUDICATION
PROVISIONS; THUS, COURTS MUST ASCRIBE
MEANING TO THE LEGISLATURE'S CHOSEN
WORDS.
A. N.J.S.A. 47:1A-6 And -7(e) Must Be
Harmonized.
B. The GRC Failed To Heed And Execute
The Mandatory Imperative In The Law[']s
Use Of The Word "Shall," Which Is An
Imperative The GRC Previously Held It Is
Familiar With.
POINT IX
THE GRC'S INTERPRETATION OF JUDICIAL
PRECEDENT IS DUE NO DEFERENCE; THE GRC
IS CONSTRAINED TO FOLLOW JUDICIAL
A-0483-18T1
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PRECEDENT INTERPRETING OPRA, BUT
IGNORED SAME.
A. This Court Is Not Bound By The GRC's
Erroneous Legal Opinions; Thus, The GRC
Is Due No Deference.
POINT X
REVIEW OF THIS GRC MATTER IS DE
NOVO.
POINT XI
CARTER IS ENTITLED TO REASONABLE
ATTORNEYS' FEES FOR THE LEGAL WORK
PERFORMED BELOW IF HE PREVAILS ON
APPEAL.3
Our review of the GRC's decision "is governed by the same standards as
review of a decision by any other state agency," Fisher v. Div. of Law, 400 N.J.
Super. 61, 70 (App. Div. 2008), and is therefore limited. In re Stallworth, 208
N.J. 182, 194 (2011). This court "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, 400 N.J. Super. at 70. This court's standard of review
is "plenary with respect to" the GRC's interpretation of OPRA. Asbury Park
Press v. Cty. of Monmouth, 406 N.J. Super. 1, 6 (App. Div. 2009).
3
We also considered the supplemental letter, pursuant to Rule 2:6-11(d),
submitted by defendant on November 6, 2019.
A-0483-18T1
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"[D]eterminations about the applicability of OPRA and its exemptions are legal
conclusions . . . and are therefore subject to de novo review." Carter v. Doe (In
re N.J. Firemen's Ass'n Obligation), 230 N.J. 258, 273-74 (2017) (citations
omitted). But under this "deferential standard of review, [this court] give[s]
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) (citations omitted).
The law on OPRA is settled. "Any analysis of OPRA must begin with the
recognition that the Legislature created OPRA intending to make government
records 'readily accessible' to the state's citizens 'with certain exceptions[] for
the protection of the public interest.'" Gilleran v. Twp. of Bloomfield, 227 N.J.
159, 170 (2016) (alteration in original) (quoting N.J.S.A. 47:1A-1); see also
Mason v. City of Hoboken, 196 N.J. 51, 65 (2008). Thus, OPRA establishes "a
comprehensive framework for access to public records." Mason, 196 N.J. at 57.
OPRA requires, among other things, prompt disclosure of records, and it
provides different procedures to challenge a custodian's decision denying
access. Ibid.A-0483-18T1
8
OPRA does not "'authorize a party to make a blanket request for every
document' a public agency has on file. . . . Rather, a party requesting access to
a public record under OPRA must specifically describe the document sought."
Bent v. Twp. of Stafford Police Dep't, 381 N.J. Super. 30, 37 (App. Div. 2005)
(quoting Gannett N.J. Partners, LP v. Cty. of Middlesex, 379 N.J. Super. 205,
219 (App. Div. 2005)). "While OPRA provides [a] . . . means of access to
government documents not otherwise exempted from its reach, it is not intended
as a research tool litigants may use to force government officials to identify and
siphon useful information." MAG Entm't, LLC v. Div. of Alcoholic Beverage
Control, 375 N.J. Super. 534, 546 (App. Div. 2005).
Blanket requests for unspecified documents are not proper under OPRA.
The request "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." Bent, 381 N.J. Super. at 37. "OPRA does not authorize
unbridled searches of an agency's property," ibid., that "would substantially
disrupt agency operations," N.J.S.A. 47:1A-5(g). "[T]he custodian may deny .
. . [a request] after attempting to reach a reasonable solution . . . that
accommodates the interests of the requestor and the agency." Ibid. A proper
OPRA request must state "a specific subject matter that [is] clearly and
A-0483-18T1
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reasonably described with sufficient identifying information[.]" Burke v.
Brandes, 429 N.J. Super. 169, 176 (App. Div. 2012).
As the GRC has pointed out, "[a] valid OPRA request requires a search,
not research." Verry v. Borough of S. Bound Brook (Somerset), GRC Complaint
Nos. 2013-43 and 2013-53, interim order (dated Sept. 24, 2013). The GRC
explained in an opinion⸺finding an OPRA violation committed by the
Township of Union for failing to fulfill a request for "[a]ll motor vehicle
accident reports" for a ten-day period⸺that:
Pursuant to [MAG], the custodian is obligated to search
her files to find the identifiable government records
listed in the Complainant's OPRA request. . . .
However, the [c]ustodian is not required to research her
files to figure out which records, if any, might be
responsive to a broad or unclear OPRA request. The
word search is defined as to go or look through
carefully in order to find something missing or lost.
The word research, on the other hand, means a close
and careful study to find new facts or information.
[Burnett v. Cty. of Gloucester, 415 N.J. Super. 506, 515
(App. Div. 2010) (alterations in original) (internal
quotations omitted) (quoting Donato v. Twp. of Union,
GRC Complaint No. 2005-182, interim order (Jan. 31,
2007)).]
In Bent, the requestor sought information and records from a criminal
investigation of his credit card activities conducted jointly by the township
police, the United States Attorney for New Jersey, and a special agent of the
A-0483-18T1
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Internal Revenue Service. 381 N.J. Super. at 38. This court affirmed the GRC's
denial, stating that "to the extent Bent's request was for records that either did
not exist or were not in the custodian's possession, there was, of necessity, no
denial of access at all." Ibid. This court emphasized that the custodian was not
under any obligation to search beyond the township's files. Ibid.Carter's request sought notices from the Appellate Division for LFB
decisions addressing violations of N.J.S.A. 40A:9-22.9 over a five-year period.
The custodian explained that the Division did not maintain "a database or list of
records organized pursuant to . . . the general description of records requested[.]"
The request did not identify a case name, party name, or docket number.
Therefore, the custodian needed to "exercise discretion, survey employees or
undertake research" to comply with the request. Specifically, the custodian had
to search through thousands of cases to identify documents relevant to the
request. The request required the custodian to "manually identify matters, locate
records in storage through communication with the Division of Law, obtain
those records, and review the entire case file for each potentially applicable case
file to identify and compile responsive records." Such an endeavor constituted
research, not a search, Burnett, 415 N.J. Super. at 515, which goes beyond what
OPRA requires.
A-0483-18T1
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As we previously said, "[a] proper request [for information] 'must identify
with reasonable clarity those documents that are desired.'" Burke, 429 N.J.
Super. at 174 (quoting Bent, 381 N.J. Super. at 37). Requests for general
information—like here—that must be "analyzed, collated and compiled" by the
agency are outside the scope of OPRA. MAG, 375 N.J. Super. at 549. Requests
requiring the custodian to analyze and evaluate information to respond are
improper. See Burke, 429 N.J. Super. at 174; see also Bent, 381 N.J. Super. at
33-39 (denying a request for the "entire file" of the plaintiff's criminal
investigation because it "neither identifies nor describes with any specificity or
particularity of the records sought"); see also MAG, 375 N.J. Super. at 549(holding the plaintiff's request invalid for failing to provide any identifiers other
than "a broad generic description of a brand or type of case prosecuted by the
agency in the past"); see also N.J. Builder's Ass'n v. N.J. Council on Affordable
Hous., 390 N.J. Super. 166, 172 (App. Div. 2007) (denying a request for "any
and all documents and data" for asking the agency to identify the documents
rather than specifically describing the documents sought).
As Carter emphasized during oral argument before us, he specified a
subject and the relevant timeframe, but he did not include a case name, party
name, or docket number. The failure to include these identifiers would have
A-0483-18T1
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forced the custodian to research and manually identify the documents. Like in
N.J. Builder's, this request for "any and all" information placed the burden on
the custodian to locate germane documents, which is improper.
Carter asserts his request comports with Burke. In Burke, the plaintiff
requested government records in its possession or control regarding "EZ Pass
benefits afforded to retirees of the Port Authority, including all . . .
correspondence between the Office of the Governor . . . and the Port
Authority[.]" 429 N.J. Super. at 171-72 (alterations in original). This court
noted that the request was "confined to a specific subject matter that was clearly
and reasonably described with sufficient identifying information[.]" Id. at 176.
The plaintiff made it clear that he was specifically seeking written or electronic
correspondence between two offices. Id. at 176-77. The request involved no
research or analysis, but rather a search for and production of "readily
identifiable records[.]" Id. at 178. But Carter's request required research of
thousands of records.
Relying on Burnett and O'Boyle, Carter contends that the "government
should not be able to shield its transactions from public scrutiny by the expedient
of entrusting sole possession of relevant documents to third parties ." See
O'Boyle v. Borough of Longport, 426 N.J. Super. 1, 14 (App. Div. 2012). In
A-0483-18T1
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Burnett, we evaluated a request for "[a]ny and all settlements, releases or similar
documents entered into, approved, or accepted" in the preceding two-year period
from the County of Gloucester. 415 N.J. Super. at 508 (alteration in original).
We determined that the request was not overly broad because it sought a specific
type of document. Id. at 516. As noted in O'Boyle, the central holding in Burnett
is that "documents accessible to the public which are generated on behalf of a
public agency in the course of its official business are subject to disclosure no
matter where they are located, even if they were never in the possession of the
governmental entity." O'Boyle, 426 N.J. Super. at 14 (citing Burnett, 415 N.J.
Super. at 517).
Although Burnett establishes that requested documents not in the
respective agency's possession does not excuse the agency from its OPRA
obligations to produce the documents, Carter's request is distinguishable. See
415 N.J. Super. at 516-17. In Burnett, the requested records were created by the
respective agency in its official course of business, which is not the case here.
Id. at 516. The Notices of Docketing sought here were records created by the
court, only received by the Division in connection with each individual appeal.
Because the records did not originate with the Division, the requested documents
A-0483-18T1
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are not classified separately in its files, thus requiring the custodian to conduct
research to locate them.
Moreover, Carter's reliance on Scheeler v. Office of the Governor, 448
N.J. Super. 333 (App. Div. 2017) is misplaced. The plaintiff in Scheeler sought
third-party OPRA requests submitted over a period of time. 448 N.J. Super. at
338-39. This court found that the requests were made with sufficient clarity,
but we emphasized that the request did not require the agency to do research to
identify the records. Id. at 344. In Scheeler, the requested documents were
maintained by the agency and were reasonably identifiable without the need for
research. Id. at 344.
Carter argues that the GRC incorrectly noted "[t]he request at issue here
sought Notices from the Appellate Division for L[FB] decisions addressing
violations of N.J.S.A. 40A:9-22.9 for a five[-]year period." (emphasis added).
Carter asserts that this is factually inaccurate because he actually sought Notices
"resulting from an appeal (pursuant to N.J.S.A. 40A:9-22.9) of any [LFB] final
decision." (emphasis added). It can hardly be said that the GRC decision here
was so mistaken as to demand "intervention and correction" on behalf of the
interests of justice, therefore Carter's reliance on Clowes v. Terminix Intern.,
Inc., 109 N.J. 575, 588-89 (1988) is misplaced. Although the GRC may have
A-0483-18T1
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confused "pursuant to" and "violation of," Carter's request remains invalid as it
required research, therefore falling outside the scope of the Division's OPRA
obligations. It is the resulting process imposed on the custodian that makes the
request impermissible.
Carter alleges that the custodian failed to work with him to try to resolve
the matter before he filed a complaint. N.J.S.A. 47:1A-5(g) states that "the
custodian may deny access to the [requested] record after attempting to reach a
reasonable solution with the requestor that accommodates the interests of the
requestor and the agency." An agency and a requestor compromise and work
through problematic requests. Mason, 196 N.J. at 76. Carter urges that in
accordance with Mason, the custodian should have made an effort to work
through the issue⸺the overly broad request⸺with Carter. But the custodian
responded to Carter's request with a denial seven days later. When Carter asked
why his request was denied, the custodian provided her rationale two days later.
Thereafter, Carter failed to modify his request, choosing instead to file a
complaint with the GRC. Thus, the custodian worked with Carter.
Carter argues that the custodian's certification contained in the Statement
of Information (SOI) filed with the GRC is insufficient because the custodian
did not personally search for the records. Carter insists that the Executive
A-0483-18T1
16
Assistant to the LFB, who conducted the search, should have submitted a
certification to substantiate the SOI. In accordance with Paff v. New Jersey
Department of Labor, agency personnel must produce sworn statements by
agency personnel detailing the following information:
(1) the search undertaken to satisfy the request;
(2) the documents found that are responsive to the
request;
(3) the determination of whether the document or any
part thereof is confidential and the source of the
confidential information;
(4) a statement of the agency's document
retention/destruction policy and the last date on which
documents that may have been responsive to the request
were destroyed.
[392 N.J. Super. 334, 341 (App. Div. 2007) (emphasis
omitted).]
The GRC has discretionary authority to require additional certifications from
any party where needed for appropriate adjudication of a complaint. N.J.A.C.
5:105-2.3(k), -2.4(j)(l). Sworn statements must be "made on personal
knowledge, setting forth only facts which are admissible in evidence to which
the [custodian] is competent to testify[.]" R. 1:6-6; see N. Jersey Media Grp.
Inc. v. Office of the Governor, 451 N.J. Super. 282, 300 (App. Div. 2017).
A-0483-18T1
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The custodian completed its search of records responsive to Carter's
request by delegating the search of records to a LFB employee. An additional
certification was unnecessary because the documents submitted with the
custodian's SOI sufficiently detail the scope and process of the records search.
The documents and emails exchanged between the custodian and the executive
assistant demonstrate that the request was properly handled. Because the GRC
is granted the discretionary authority to require supplemental certifications, its
decision not to require an additional certification is not arbitrary, capricious or
unreasonable.
Carter asserted in his complaint, dated September 14, 2016, that he was
aware of three records that he sought. After identifying these records, Carter
stated that "[b]ecause [Carter] is already in possession of these particular
responsive records as the matter's appellant, there is no need for [the GRC] to
order disclosure." The GRC misunderstood this to mean that Carter possessed
all three Notices, therefore it did not provide him with any. Because the GRC
did not provide Carter with the identified Notices, he argues that the GRC failed
to disclose this record.
As previously mentioned, N.J.S.A. 47:1A-5(g) notes that a custodian may
deny access to the record after attempting to reach a reasonable solution with
A-0483-18T1
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the requestor. The agency and requestor are encouraged to compromise and
work through problematic requests. Mason, 196 N.J. at 76. Again, Carter did
not make another request upon the custodian, specifically mentioning this
requested record by name. In fact, the name of the requested record was not
mentioned until Carter filed a complaint with the GRC. Carter made no effort
to work with the custodian to clarify his request by either modifying it or
submitting a new request with the sufficient identifying information.
Accordingly, the GRC's misunderstanding that Carter already possessed the
record is immaterial.
Carter argues that because his case contains "contested facts," he is
entitled to a determination from the agency within thirty-days of receipt of his
petition, pursuant to N.J.A.C. 1:1-4.1. Carter filed for a "contested case" status
on October 12, 2016, but he ultimately did not receive a decision from the GRC
until August 28, 2018. Carter points to the alleged LFB quorum issues and their
failure to maintain certain records with the agency as "contested facts." Carter
asserts that this delay was in bad faith, as the agency was aware that Carter
sought these documents for another appeal he had pending against the LFB.
Under N.J.A.C. 1:1-2.1, a contested case is defined as:
[A]n adversary proceeding . . . in which the legal rights,
duties, obligations, privileges, benefits or other legal
A-0483-18T1
19
relations of specific parties are required by
constitutional right or by statute to be determined by an
agency by decisions, determinations, or orders,
addressed to them or disposing of their interests, after
opportunity for an agency hearing[.]
The quorum issue is controlled by OPRA. See N.J.S.A. 10:4-6 to 10:4-21.
Therefore, quorum issues falling under this Act are not within the GRC's
authority to adjudicate.
The GRC has no authority to regulate or adjudicate the manner in which
an agency maintains its files or records. 4 Because these issues are not under the
authority of the GRC to adjudicate, and they were not pertinent to the GRC's
determination of this case, they are not considered "contested facts." Since
Carter's case is not considered a "contested case," he was not entitled to the
thirty-day determination timeframe enumerated in N.J.A.C. 1:1-4.1.
In turning to Carter's bad faith argument, he asserts that the agency
purposely delayed his case (1) so that he could not seek interlocutory review,
and (2) to stymy his efforts to argue another appeal he had pending against the
LFB. See In re Appeal of the Dec. of the Franklin Twp. Ethics Bd. (Somerset
4
See e.g., Toscano v. N.J. Dep't of Labor, Div. of Vocational Rehab. Serv.,
GRC Complaint No. 2010-58 (June 28, 2011); Kvederas v. Town of Morristown
(Morris), GRC Complaint No. 2009-70 (Apr. 8, 2010); Gillespie v. Newark Pub.
Sch., GRC Complaint No. 2004-105 (Nov. 9, 2004); Katinsky v. River Value
Twp., GRC Complaint No. 200-68 (Nov. 13, 2003).
A-0483-18T1
20
Cty.) in FTEB Complaint #11-01, No. A-2561-15 (App. Div. Nov. 14, 2017).
As to Carter's interlocutory review argument, he relies on the time it took the
GRC to issue its decision. Carter accuses the GRC of colluding with the
Division.
The GRC noted in its final decision that its "established policy does not
provide a process for complainants to request an expedited adjudication. The
GRC instead adjudicates complaints in the order that they are received." Carter
contends that this is not true because he reviewed their website and manually
counted the subsequently filed complaints that were adjudicated before his. But
Carter did not produce any evidence as to this assertion, though he offered to do
so if required. We conclude the GRC's final decision was not arbitrary,
capricious or unreasonable.
Carter argues that the GRC did not conduct its analysis of his complaint
in a "summary or expedited manner" in accordance with N.J.S.A. 47:1A-6. He
further urges that the GRC failed to abide by the temporal limits set in N.J.S.A.
47:1A-6 and -7(e). Under N.J.S.A. 47:1A-6, a person who is denied access to a
government record by the custodian may either institute a proceeding to
challenge the custodian's decision by either filing an action in the Superior Court
or by filing a complaint with the GRC. "Any such proceeding shall proceed in
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a summary or expedited manner." N.J.S.A. 47:1A-6. N.J.S.A. 47:1A-7(e) states
that "[a]ll proceedings of the council . . . shall be conducted as expeditiously as
possible." "[C]itizens are entitled to swift access to public records, and both the
public and governmental bodies are logically entitled to have any disputes
brought and addressed in the same, rapid manner." Mason, 196 N.J. at 69.
As the GRC noted in its final decision, it has an established procedure of
addressing complaints in the order that they are received. The GRC merely
addressed Carter's complaint when it was his turn. Because the GRC has an
established, reasonable procedure in addressing complaints, the GRC's delay in
response was not arbitrary, capricious, or unreasonable.
Carter contends that he is entitled to attorney's fees should he prevail in
this appeal. Under OPRA, a requestor who prevails in any proceeding is entitled
to reasonable attorney's fees. N.J.S.A. 47:1A-6. Because Carter has not
prevailed in this proceeding, he is not entitled to attorney's fees.
To the extent that we have not specifically addressed Carter's remaining
arguments, we conclude that they are without merit to warrant attention in a
written opinion. R. 2:11-3(e)(1)(E). We otherwise affirm for the reasons
expressed by the GRC.
Affirmed.
A-0483-18T1
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