JOHN CAROFF v. RUTGERS, THE STATE UNIVERSITY OF NEW JERSEY (L-2018-21, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-3773-20
JOHN CAROFF,
Plaintiff-Appellant,
v.
RUTGERS, THE STATE
UNIVERSITY OF NEW JERSEY
and JEWELL BATTLE, in her
official capacity as the University
Custodian of Records,
Defendants-Respondents.
____________________________
Argued August 2, 2022 – Decided August 16, 2022
Before Judges Sumners and Gummer.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Docket No. L-2018-21.
Walter M. Luers argued the cause for appellant (Cohn
Lifland Pearlman Herrmann & Knopf LLP, attorneys;
Walter M. Luers, on the briefs).
James P. Lidon and Paul H. Kochanski argued the cause
for respondents (McElroy, Deutsch, Mulvaney &
Carpenter, LLP, and Lerner David Littenberg
Krumholz & Mentlik LLP, attorneys; James P. Lidon,
of counsel and on the brief).
PER CURIAM
Plaintiff John Caroff appeals an order denying his order to show cause and
dismissing with prejudice his verified complaint in which he sought an order
requiring Rutgers, The State University of New Jersey (Rutgers), to produce
pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, the
All-22 video of the December 5, 2020 football game between Rutgers and The
Pennsylvania State University (Penn State). Plaintiff contends the video is a
public record under OPRA and is not exempt under copyright law or OPRA's
trade-secret and competitive-advantage exemptions. Unpersuaded by those
arguments, we affirm.
I.
On January 22, 2021, Rutgers received an OPRA request from plaintiff
for the "All-22 film of the 12/05/2020 men's college football game between Penn
State and Rutgers." 1 Plaintiff requested the video because he wanted to show it
to his family, including his thirteen-year-old daughter. Plaintiff believes his
1
We note plaintiff used the phrase "All-22 film" in his request, but otherwise
plaintiff and defendants predominantly use the phrase "All-22 video." We
understand the parties use those phrases interchangeably.
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daughter "possesses the necessary skill set for her to have considerable future
career success as a football strategist" and "[s]tudying [the] college football All-
22 [v]ideo advances her qualifications should she seek future employment with
a college football staff or as part of the media covering college football."
Viewing the video, plaintiff thought his daughter would "have the opportunity
to analyze collegiate football in the same way that is currently only utilized by
Big Ten Conference insiders."
Rutgers's varsity football team is a National Collegiate Athletic
Association (NCAA) Division I program and competes in the Big Ten
Conference. The football team plays predominantly against Big Ten opponents
but also plays a small number of games against strategic non-conference
opponents. Transmissions of Rutgers football games are available on multiple
major television networks and other services legally authorized to air the games.
Tickets for home games are also available for sale to members of the public.
The All-22 video at issue is "an edited, compilation of digital video
recordings of the December 5, 2020 football game." The video includes footage
from two cameras: one is located at the fifty-yard line and captures a wide-
angle sideline shot focused to include all twenty-two players on the field; the
second is located behind the endzone and is more narrowly focused to capture
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the line formation for each given play. Rutgers considers the All-22 video to be
Rutgers's non-public proprietary information, limits internal access to the All-
22 video to the team's coaching staff and student athletes, and requires a
password for access to the video.
According to Rutgers's Associate Athletic Director of Football
Operations, the athletic-department staff records the All-22 video for two
purposes that have proprietary value to Rutgers. First, the video is used to aid
coaching staff and student athletes in "evaluat[ing] the University's offensive,
defensive and special team plays" and in "refin[ing] or adjust[ing] those plays"
based on that evaluation. Second, the video is used to obtain scouting
information concerning opposing teams. The football program "obtain[s]
scouting information on their opponents by providing access to their proprietary
All-22 videos to their opponents in exchange for their opponents' reciprocal
grant of access to the opponents' proprietary All-22 videos." This exchange
between programs not only reduces scouting costs but also "gives every team
the same level and kind of scouting information regarding opponents and, as a
result, enhances the fairness of competition."
According to Rutgers's Deputy Director of Athletics, "[a]ll Big Ten
member schools share All-22 video with a closed group of other universities
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through football video sharing arrangements." Under those arrangements,
participating schools agree to upload their All-22 videos to "an internet-based
video sharing program." Access to the video-sharing program is limited to
participating schools. The Big Ten's Game Management Manual on football
sets forth limitations on sharing depictions of the Big Ten football games by
member schools. Section seven of the manual "mandates a mutual exchange of
game video for all games played during that season between all universities."
Section fourteen of the manual further provides, "Conference universities shall
not permit depiction of Conference football games to be shown other than to
alumni groups, Conference office personnel and game officials unless
accompanied by a member of the university staff." According to Rutgers's
Deputy Director of Athletics, Rutgers's right to participate in the video-sharing
program is contingent on its compliance with the requirements set forth in the
manual.
Rutgers does not distribute All-22 video or any other game footage to the
public. According to the Deputy Director of Athletics, "college and university
football programs endeavor to prevent their All-22 video from becoming public
because it provides current and future opponents with a unilateral opportunity
to scout their teams and student athletes." Although many Division I football
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programs have video-sharing arrangements, many programs, including Rutgers,
play against non-conference opponents. Those non-conference opponents
would "have nothing to gain" by entering into a video-sharing arrangement with
Rutgers if Rutgers's All-22 video was publicly shared. Rather, according to
Rutgers's Deputy Director of Athletics, non-conference opponents would have
a "decided competitive advantage" over Rutgers by refusing to enter into mutual
video sharing arrangements because, if the All-22 video were public, non-
conference opponents would be able to scout Rutgers using the publicly-shared
All-22 video without having to afford Rutgers reciprocal access to their own
All-22 video. Public release of the All-22 video also would have a negative
impact on Rutgers's relationship with other Big Ten teams, such as Penn State,
in that public release would provide other Penn State opponents with the video,
which includes scouting information about Penn State, without providing Penn
State reciprocal access to the opponent's video. Thus, according to the Deputy
Director of Athletics, a prospective opponent of Rutgers "would have reason to
consider whether it was willing to play a football game against Rutgers" if the
All-22 video of the game would be released publicly.
On February 17, 2021, defendant Jewell Battle, Rutgers's Custodian of
Records, sent an email to plaintiff informing him Rutgers had denied his OPRA
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request because the All-22 video was exempt pursuant to OPRA's exemptions
for "trade secrets and proprietary commercial or financial information obtained
from any source" and "competitive advantage," citing N.J.S.A. 47:1A-1.1.
Battle advised plaintiff disclosure of the video "would give an advantage to
competitors or bidders" and, consequently, Rutgers denied his request.
On April 2, 2021, plaintiff filed a verified complaint against Rutgers and
Battle, in her official capacity as Rutgers's Custodian of Records, seeking to
compel Rutgers to disclose the All-22 video of the December 5, 2020 game
between Rutgers and Penn State under OPRA and the common law right of
access. Plaintiff filed with the verified complaint his counsel's certification,
which included as exhibits the email denying plaintiff's request and a copy of
the Big Ten's Game Management Manual on football.
On April 30, 2021, the trial court entered an order to show cause requiring
defendants to show cause why the court should not order them to produce the
requested All-22 video. In response, defendants submitted certifications of the
Associate Athletic Director of Football Operations in Rutgers's Department of
Intercollegiate Athletics, Rutgers's Deputy Director of Athletics, Battle, and
defense counsel, who included as an exhibit Rutgers's copyright policy.
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In reply, plaintiff submitted his certification, in which he "agree[d] with
Rutgers that the All-22 [v]ideo gives a unique perspective not found anywhere
else." He represented he was "not interested in commercializing it or uploading
it to YouTube," but wanted the video only to "educate [his] 13-year-old
daughter." According to plaintiff, "[d]istribution of All-22 video is not limited
to head-to-head competitors" but is "made available to other schools and college
football analysts in multiple media organizations and ex-players." Plaintiff
certified "[a]ll Division I college football teams, including Rutgers and private
institutions, exchange All-22 [v]ideo with their opponents."
After hearing oral argument, Judge Alberto Rivas placed a decision on the
record denying plaintiff's application. The judge first held OPRA's proprietary-
information exemption applied and precluded disclosure of the All-22 video to
plaintiff because Rutgers has "a significant proprietary interest in A[ll]-22 films
and the sharing of these films is not indiscriminate." Rejecting plaintiff's
argument that by sharing the All-22 videos with some schools Rutgers opened
the door to everyone, the judge found Rutgers did not "just give[ the video] willy
nilly to any person who asks for it; it is within a defined universe." Referring
to the All-22 videos as "the coin of the realm," the judge found the All-22 videos
"have intense value because of the information that's contained therein" and
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"that value is reciprocated when Rutgers gets from the other school their films
. . . ." He held "[i]f Rutgers's films are devalued [by] becoming generally
available, that is a harm to Rutgers," precluding disclosure of the video to
plaintiff under OPRA's proprietary-information exemption.
The judge also held the competitive-advantage exemption under OPRA
precluded disclosure of the All-22 video to plaintiff. The judge found "if the
other schools can just OPRA Rutgers['s] films, there is no corresponding duty
to turn over opponents' films and that without question would put Rutgers at a
competitive disadvantage." The judge found under those circumstances
"schools can bypass the reciprocal process to get Rutgers['s] films and there is
no corresponding [obligation] to turn over the film to Rutgers," forcing Rutgers
to "either forego getting competitive information or . . . engage in the expense
of sending scouts to prospective opponents which could result in increased
costs," an expense Rutgers's competitors would not have to incur if Rutgers's
videos were subject to disclosure under OPRA. The judge held:
The current sharing agreement is a closed loop
system dependent on mutual cooperation and that . . . is
where the value exists. It's an intangible value, but it is
a value of no question.
Opening the floodgates to dissemination which
would be the practical results in ordering the production
of the A[ll]-22 film in this case would destroy the value,
advantages and benefits that w[ere] sought to be
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accomplished and encompassed in the agreement that
Rutgers entered into with [other] school[s].
Regarding copyright, the court found "there is some degree of creativity
which would bestow upon the [All-22] film copyrighted protection" and "the
creation of this film was a copyrightable act and is subject to protection based
on . . . the intentional limited distribution." The judge also found fair use did
not apply because "[f]air use . . . is dependent upon access" and here "there's no
generalized access" to the All-22 videos because "these films are not deposited
in a location where there is unlimited access. Access is restricted here governed
by contractual agreement."
With respect to the common-law access claim, the judge weighed the
competing interests of both plaintiff and Rutgers and determined "[t]he interest
of an individual looking to enhance job opportunities in the future while
laudable do[es] not outweigh the interest of Rutgers to limit the distribution of
A[ll]-22 films." The judge then denied the order to show cause, held Rutgers
was not required to disclose the December 5, 2020 All-22 video, and dismissed
plaintiff's complaint with prejudice. On August 11, 2021, the judge issued an
order memorializing his decision.
On appeal, plaintiff argues the All-22 video is not exempt from disclosure
under OPRA's proprietary information and trade secrets exemption or the
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competitive advantage exemption and is not exempt from disclosure under
federal copyright law. Plaintiff did not address the judge's finding that Rutgers
was not required to disclose the All-22 video under the common law.
Accordingly, plaintiff waived his common-law argument. See Sklodowsky v.
Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011) ("An issue not briefed on
appeal is deemed waived."); Matter of Gloria T. Mann Revocable Tr., 468 N.J.
Super. 160, 180 (App. Div. 2021) (same).
II.
"Whether an OPRA exemption applies is a question of law subject to de
novo review." Bozzi v. City of Jersey City, 248 N.J. 274, 282-83 (2021); see
also Libertarians for Transparent Gov't v. Cumberland Cnty., 250 N.J. 46, 55
(2022) (noting we review legal questions, including the interpretation of statutes
such as OPRA, de novo). We do not disturb a trial judge's factual findings if
they are supported by adequate, substantial, and credible evidence. N. Jersey
Media Grp., Inc. v. State, Off. of Governor, 451 N.J. Super. 282, 295 (App. Div.
2017).
"OPRA is designed to give members of the public 'ready access to
government records' unless the statute exempts them from disclosure." Rivera
v. Union Cnty. Prosecutor's Off., 250 N.J. 124, 140-41 (2022) (quoting Burnett
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v. Cnty. of Bergen, 198 N.J. 408, 421 (2009)). The purpose of OPRA is "to
maximize public knowledge about public affairs in order to ensure an informed
citizenry and to minimize the evils inherent in a secluded process." N. Jersey
Media Grp., Inc. v. Twp. of Lyndhurst, 229 N.J. 541, 555 (2017) (quoting Mason
v. City of Hoboken, 196 N.J. 51, 64 (2008)); see also Rivera, 250 N.J. at 141
(OPRA's "core concern is to promote transparency in government").
To achieve those goals, Rivera, 250 N.J. at 141, OPRA broadly defines
"[g]overnment record" to include any record "made, maintained or kept on file
in the course of his or its official business by any officer, commission, agency
or authority of the State or of any political subdivisions thereof," or any record
"received in the course of his or its official business by any such officer,
commission, agency or authority of the State or of any political subdivision
thereof," N.J.S.A. 47:1A-1.1.
"The public's right to disclosure, while broad, is not unlimited." Bozzi,
248 N.J. at 284. "OPRA contains twenty-three explicit exemptions from
disclosure." Ibid. "[I]f a document falls within one of these categories, it is not
a government record and not subject to disclosure pursuant to OPRA."
Commc'ns Workers of Am. v. Rousseau, 417 N.J. Super. 341, 355 (App. Div.
2010).
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N.J.S.A. 47:1A-1.1 provides in relevant part, "[a] government record shall
not include . . . information which is deemed to be confidential" including "trade
secrets and proprietary commercial or financial information obtained from any
source." A trade secret is exactly that: a secret whose "only value consists in
. . . being kept private." Newark Morning Ledger Co. v. N.J. Sports &
Exposition Auth., 423 N.J. Super. 140, 169 (App. Div. 2011) (quoting Trump's
Castle Assocs. v. Tallone, 275 N.J. Super. 159, 163 (App. Div. 1994)).
However, to be protected from disclosure, "information need not rise to the level
of a trade secret . . . and indeed, may otherwise be publicly available." Lamorte
Burns & Co. v. Walters, 167 N.J. 285, 299 (2001). "Notably, OPRA does not
require an independent demonstration of confidentiality. Rather, under OPRA,
if the document contains commercial or proprietary information it is not
considered a government record and is not subject to disclosure." Rousseau,
417 N.J. Super. at 358.
N.J.S.A. 47:1A-1.1 also exempts from disclosure under OPRA
"information which, if disclosed, would give an advantage to competitors or
bidders." "To justify non-disclosure under this provision, there must be 'a clear
showing' that the exemption applies." Scheeler v. Off. of the Governor, 448 N.J.
Super. 333, 347 (App. Div. 2017) (quoting Tractenberg v. Twp. of W. Orange,
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416 N.J. Super. 354, 378-79 (App. Div. 2010)). "The 'mere potential' that
disclosure of information in a government record might confer a competitive
advantage upon some person or entity is not sufficient." Scheeler, 448 N.J.
Super. at 347 (quoting Tractenberg, 416 N.J. Super. at 379). In Tractenberg, we
held "the mere potential for future negotiations without a strong showing that
negotiations are probable" was not sufficient to meet OPRA's competitive-
advantage exemption. 416 N.J. Super. at 379.
OPRA also exempts information protected from disclosure by any federal
law, regulation, or order. N.J.S.A. 47:1A-9(a); see also Doe v. Rutgers, State
Univ. of N.J., 466 N.J. Super. 14, 23-24 (App. Div. 2021). Under the federal
Copyright Act, copyright protection attaches to "original works of authorship
fixed in any tangible medium of expression, now known or later developed, from
which they can be perceived, reproduced, or otherwise communicated, either
directly or with the aid of a machine or device." 17 U.S.C. § 102(a); see also
Fourth Est. Pub. Benefit Corp. v. Wall-Street.com, LLC, ___ U.S. ___, 139 S.
Ct. 881, 887 (2019). "An author gains 'exclusive rights' in her work immediately
upon the work's creation, including rights of reproduction, distribution, and
display." Fourth Est. Pub. Benefit Corp., ___ U.S. at ___, 139 S. Ct. at 887; see
also Eldred v. Ashcroft, 537 U.S. 186, 195 (2003) ("[F]ederal copyright
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protection . . . run[s] from the work's creation."). Copyrightable w orks include,
among other things, "motion pictures and other audiovisual works." 17 U.S.C.
§ 102(a)(6). A work is "original" if it was "independently created by the author"
and "possesses at least some minimal degree of creativity." Feist Publ'ns, Inc.
v. Rural Tel. Serv., Co., 499 U.S. 340, 345 (1991). "To be sure, the requisite
level of creativity is extremely low" and "[t]he vast majority of works make the
grade quite easily, as they possess some creative spark." Ibid.Based on these principles, Judge Rivas correctly applied OPRA's
propriety-information, competitive-advantage, and federal-law exemptions, and
we affirm.
Plaintiff mistakenly conflates the concepts of trade secret and proprietary
information. Judge Rivas held the All-22 video was protected as propriety
information, not as a trade secret. Although the determination of whether
information constitutes a trade secret includes whether the information "is
known outside of the owner's business," Newark Morning Ledger Co., 423 N.J.
Super. at 169, confidentiality is not a required element for a determination that
information is proprietary, Rousseau, 417 N.J. Super. at 358. Like the
information at issue in Rousseau, the All-22 video is not intended for wide
dissemination and the agreements about the videos delineate the specific terms
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regarding their use and the persons who may review them. Id. at 359. That
Rutgers chose to make the All-22 video available to individuals or entities
pursuant to the limited terms of those agreements does not strip the video of its
proprietary nature. Under any definition of proprietary, the All-22 video – made
by Rutgers's personnel and owned, used, and distributed by Rutgers for Rutgers's
intended purposes – is proprietary information and is exempt from OPRA. See
DiProspero v. Penn, 183 N.J. 477, 492 (2005) (in interpreting statutory
language, courts "ascribe to the statutory words their ordinary meaning and
significance").
We are equally convinced, as Judge Rivas was, that requiring disclosure
of the All-22 video would give an advantage to Rutgers's competitors. Credible
evidence in the record supports the finding that the All-22 video is a substantial
bargaining chip – or "coin of the realm" to use Judge Rivas's expression –
Rutgers uses in its negotiations with other universities. Making Rutgers's All-
22 video subject to disclosure under OPRA would eliminate that bargaining
chip. Plaintiff's argument that the competitive-advantage exemption "can never
apply to Rutgers because Rutgers can negotiate a video exchange with any
prospective non-conference opponent" or because Rutgers does not have to
compete against a team that refuses to share its All-22 video is nonsensical. If
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its All-22 video were subject to disclosure under OPRA, any offer by Rutgers to
share its All-22 video would have no value because the competing school could
obtain Rutgers's All-22 video under OPRA. Rutgers would have to offer
something else to obtain its competitor's All-22 video or, unlike its competitors,
incur the cost of other scouting efforts. That inherently places Rutgers at a
competitive disadvantage. Moreover, as plaintiff's counsel conceded during oral
argument, under plaintiff's interpretation of OPRA, not only Rutgers's All-22
video but any All-22 video Rutgers "received" would be subject to disclosure
under OPRA. See N.J.S.A. 47:1A-1.1 (including in the definition of government
record any items "received" by the State entity in the course of its official
business). How many schools would be willing to exchange All-22 videos with
Rutgers if by doing so they would be placing their own All-22 videos in the
public domain? The competitive-advantage exemption clearly precludes the
All-22 video from disclosure under OPRA.
OPRA's federal-law exemption also applies. The All-22 video is a
copyrightable work under the Copyright Act. It is an "original work[] of
authorship," 17 U.S.C. § 102(a), "independently created by" Rutgers's football
staff and "possess[ing] at least some minimal degree of creativity," subjecting it
to copyright protection. See Feist Publ'ns, Inc., 499 U.S. at 345. The fair-use
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doctrine, on which plaintiff relies, is a defense to a copyright-infringement
claim. See Georgia v. Public.Resource.Org, Inc., ___ U.S. ___, 140 S. Ct. 1498,
1513 (2020); Golan v. Holder, 565 U.S. 302, 329 (2012). Having not made use
of the All-22 video, plaintiff cannot rely on the fair-use defense. Accordingly,
plaintiff's fair-use argument is inapplicable, and we need not address it.
Affirmed.
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