S.W. AND J.W., ETC. v. ELIZABETH BOARD OF EDUCATION (L-3514-20, UNION COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2088-20
S.W. and J.W.
o/b/o J.J.W.,
Plaintiff-Appellant,
v.
ELIZABETH BOARD OF
EDUCATION,
Defendant-Respondent.
__________________________
Argued March 9, 2022 – Decided June 21, 2022
Before Judges Whipple, Geiger, and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Docket No. L-3514-20.
Walter M. Luers argued the cause for appellants (Cohn
Lifland Pearlman Herrmann and Knopf, LLP,
attorneys; Walter M. Luers, on the briefs).
Richard P. Flaum argued the cause for respondent
(DiFrancesco, Bateman, Kunzman, Davis, Lehrer &
Flaum, attorneys; Richard P. Flaum and Mallory J.
Ullrich, on the brief).
PER CURIAM
Appellants S.W.1 and J.W. (the parents) appeal on behalf of their son,
J.W., from a February 17, 2021 Law Division order issued by Judge Daniel R.
Lindemann denying their request for an order to show cause and dismissing with
prejudice their complaint against the Elizabeth Board of Education (Board)
alleging a violation of the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1
to -13. After carefully reviewing the record in view of the arguments of the
parties and the applicable legal principles, we affirm substantially for the
reasons expressed in Judge Lindemann's eleven-page written opinion.
The procedural history and pertinent facts are set forth in Judge
Lindemann's thorough opinion and need only be briefly summarized. This case
arises from a Free Appropriate Public Education (FAPE) due process petition
brought by the parents on behalf of their son related to the special education
services that were being provided to him, and specifically, whether he was
entitled to door-to-door transportation services. The matter was transmitted to
the Office of Administrative Law (OAL) as a contested case. The
Administrative Law Judge (ALJ) conducted a pre-hearing conference and
1
Pursuant to Rule 1:38-3(d)(1), we use initials and pseudonyms to preserve the
confidentiality of the family.
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instructed the parties to agree to stipulate to as many documents as possible.
The record further shows that any discovery concerns were to be informally and
immediately brought to the ALJ's attention.
Four months later, the parents, now represented by counsel, requested a
complete copy of their son's student records from the Board's solicitor. The
solicitor provided 148 pages of documents to appellants, including the student's
grades, progress reports, attendance records, and special education records. The
parents claimed that the documents that were provided in discovery did not
include the records of their son's participation in the District's Early Intervention
Program. The parents demanded those additional documents in a letter to the
Board's solicitor. Their letter cited to several statutes/regulations, including
Family Educational Rights and Privacy Act (FERPA) of 1974, 20 U.S.C. §
1232g; Individuals with Disabilities Education Act (Education of the
Handicapped Act) (IDEA), 20 U.S.C. § 1415(b)(1); and OPRA.
The solicitor promptly responded that the additional documents requested
were not relevant to the OAL proceeding because they had no bearing on the
parents' due process petition. The solicitor maintained that the Board had
provided all documents it was required to provide. For reasons that are not clear
to us, and notwithstanding that discovery concerns were to be brought to the
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ALJ's attention, the parents did not file a motion in the OAL proceeding to
compel discovery. On September 30 and October 7, 2020, the ALJ conducted
due process hearings via conference call. The discovery dispute was not raised
to the ALJ.
Instead, the parents sent the Board a request pursuant to OPRA. That
request was made by means of a letter to the Board's solicitor, rather than to the
District's records custodian. The Board denied any obligation to provide
documents under OPRA because no valid OPRA request had been submitted to
the District's records custodian, nor to an officer, employee, or office of the
District. The Board acknowledged that OPRA requires "[a]ny officer or
employee of a public agency who receives a request for access to government
record[s]" to forward that request to the custodian of the record, but argued that
the statutory language clearly imposed "no such obligation [upon] attorneys
representing government agencies."
The parents filed a verified complaint in the Law Division claiming the
Board's failure to produce the additional documents was a denial of public
records under N.J.S.A. 47:1A-5(i) and a violation of OPRA. The parents
claimed that the letter to the Board's solicitor was appropriate because Rule of
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Professional Conduct (RPC) 4.22 prohibited them from communicating directly
with the District. They argued the letter request to the solicitor was thus
adequate to trigger the District's obligations under OPRA.
Judge Lindemann rejected the parents' arguments, ruling in favor of the
Board because the parents failed to send their document request to the proper
custodian as expressly required by OPRA. The trial judge explained that
strict compliance [with OPRA] is necessary, and not at
all an unfair burden, because the consequences against
the public entity for failure to comply and meet its
obligation gives the requesting member of the public an
entitlement to counsel fees. [As] such counsel fees
come from the public, from the taxpayers, . . . the
statute's design is exactly intended to be strictly
enforced against a non-complying public entity[,] . . .
and that is exactly why an OPRA request must be a
proper OPRA request . . . so that no delay is possible to
thwart the ability of the public entity to meet its
obligation of compliance.
Judge Lindemann also rejected the parents' argument that RPC 4.2 barred
them from serving the OPRA request on the records custodian, reasoning that
2
RPC 4.2 forbids a lawyer representing a client from "communicat[ing] about
the subject of the representation with a person the lawyer knows, or by the
exercise of reasonable diligence should know, to be represented by another
lawyer in the matter . . . unless the lawyer has the consent of the other lawyer,
or is authorized by law or court order to do so . . . ." Rules of Pro. Conduct r.
4.2 (2021)
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the RPC allows communications "authorized by law." Accordingly, the judge
dismissed their OPRA complaint with prejudice.
This appeal follows. The parents raise the following issues for our
consideration:
POINT I
COUNSEL FOR DEFENDANT HAD A DUTY TO
PROVIDE THE RECORDS CUSTODIAN WITH A
COPY OF PLAINTIFFS' OPRA REQUEST, WHICH
WAS "DEEMED DENIED" BECAUSE DEFENDANT
NEVER RESPONDED TO THE OPRA REQUEST.
A. PLAINTIFFS' OPRA REQUEST WAS
DEEMED DENIED.
B. THE JULY 28, 2020 LETTER WAS AN
OPRA REQUEST[.]
C. COUNSEL FOR DEFENDANT HAD AN
OBLIGATION TO FORWARD THE OPRA
REQUEST TO THE RECORDS CUSTODIAN[.]
D. THE ETHICAL OBLIGATION OF AN
ATTORNEY WHEN TRANSMITTING OPRA
REQUESTS DURING LITIGATION[.]
Because we affirm for the reasons explained in Judge Lindemann's
thorough and cogent opinion, we need not re-address the parents' arguments, but
we add the following comments.
"[D]eterminations about the applicability of OPRA and its exemptions are
legal conclusions, and are therefore subject to de novo review." In re N.J.
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Firemen's Ass'n Obligation to Provide Relief Applications Under OPRA, 230
N.J. 258, 273–74 (2017).
A reviewing court's primary "objective [in] statutory interpretation is to
discern and effectuate the intent of the Legislature." Murray v. Plainfield
Rescue Squad, 210 N.J. 581, 592 (2012). "If the Legislature's intent is clear on
the face of the statute, then we must apply the law as written" Ibid. "Absent a
clear indication from the Legislature that it intended statutory language to have
a special limiting definition, we must presume that the language used carries its
ordinary and well-understood meaning." State v. Lenihan, 219 N.J. 251, 262
(2014). "[L]egislative language must not, if reasonably avoidable, be found to
be inoperative, superfluous or meaningless." State v. Regis, 208 N.J. 439, 449
(2011) (quoting Franklin Tower One, L.L.C. v. N.M., 157 N.J. 602, 613 (1999)).
Only when statutory language is ambiguous, or "leads to more than one plausible
interpretation," may the court "turn to extrinsic evidence, 'including legislative
history, committee reports, and contemporaneous construction.'" DiProspero v.
Penn, 183 N.J. 477, 492–93, (2005) (quoting Cherry Hill Manor Assocs. v.
Faugno, 182 N.J. 64, 75 (2004)).
"OPRA allows public access to all government records that are not exempt
from public disclosure." Commc'ns Workers of Am. v. Rousseau, 417 N.J.
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Super. 341, 355 (App. Div. 2010). The detailed procedure for submitting an
OPRA request "purposefully devises a uniform procedure to be followed by one
making a request for government records and one responding to that request."
Bozzi v. City of Atl. City, 434 N.J. Super. 326, 333 (App. Div. 2014); see also
Paff v. City of E. Orange, 407 N.J. Super. 221 (App. Div. 2009). OPRA clearly
identifies the responsibilities of the requestor and the agency to ensure prompt
access to records. See N.J. Builders Ass'n v. N.J. Council on Affordable Hous.,
390 N.J. Super. 166,176 (App. Div. 2007). Our courts have held that we cannot
disregard the requirements of submitting an OPRA request, as it would "render
the statutory provision meaningless, and create a circumstance running counter
to the express language in OPRA." See Bozzi, 434 N.J. Super. at 334 (holding
the express requirement for a written record request cannot be ignored).
OPRA requires a request for access to a government record to be "in
writing and hand-delivered, mailed, transmitted electronically or otherwise
conveyed to the appropriate custodian." N.J.S.A. 47:1A-5(g) (emphasis added).
OPRA defines "custodian of a government record" or "custodian" to mean, "in
the case of a municipality, the municipal clerk and in the case of any other public
agency, the officer officially designated by formal action of that agency's
director or governing body, as the case may be." N.J.S.A. 47:1A-1.1.
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In this instance, the parents submitted a letter to counsel for the District,
intended to serve as an OPRA request. We agree with Judge Lindemann that
District counsel was not a custodian within the meaning of OPRA and was not
the officially designated agent authorized to receive such requests. The parents
cite no legal authority to support their position, acknowledging they raise a
question of first impression. They ask us to establish a new rule for making
OPRA requests based on broad policy and fairness considerations rather than
the clear and unambiguous statutory text. We decline to do so, especially given
that the parents in this case eschewed the obvious remedy of bringing the
discovery dispute to the attention of the ALJ presiding over the OAL matter.
We add that we also agree with the Law Division judge that RPC 4.2 did
not prohibit the parents or their counsel from filing an OPRA request with the
District's designated records custodian. As Judge Lindemann aptly noted, the
RPC includes an explicit exception that permits contact with a represented party
when the law authorizes such contact. The comments to RPC 4.2 confirm that
the rule "ensur[es] a citizen's right of access to government decision makers"
remain[s] "unrestricted[.]" Rules of Pro. Conduct r. 4.2 cmt. (2003).
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To the extent we have not addressed them, any remaining arguments
raised by the parents lack sufficient merit to warrant discussion. R. 2:11-
3(e)(1)(E).
Affirmed.
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