RUSSELL SMITH VS. MOORESTOWN TOWNSHIP (NEW JERSEY GOVERNMENT RECORDS COUNCIL) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-0168-19T1
RUSSELL SMITH,
Complainant-Appellant,
v.
MOORESTOWN TOWNSHIP,
Respondent-Respondent.
____________________________
Submitted May 18, 2020 – Decided June 10, 2020
Before Judges Ostrer and Vernoia.
On appeal from the New Jersey Government Records
Council, GCR No. 2019-135.
Russell Smith, appellant pro se.
Taenzer Ettenson & Aberant, PC, attorneys for
respondent Moorestown Township (Kevin E. Aberant,
on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent Government Records Council (Debra Allen,
Deputy Attorney General, on the statement in lieu of
brief).
PER CURIAM
Complainant Russell Smith (Smith) appeals from a Government Records
Council (GRC) final agency decision dismissing his complaint alleging
Moorestown Township violated the Open Public Records Act (OPRA), N.J.S.A.
47:1A-1 to -13, by denying him access to a government record in violation of
N.J.S.A. 47:1A-5(i). Having reviewed the record in light of the applicable legal
principles, we affirm.
The pertinent facts are simple and undisputed. On June 28, 2019, Smith
submitted a request to Moorestown's custodian of records for access to a
government record, the "Pennrose/Moorestown Urban Renewal Associates
preliminary site approval application."1 Having received no response from
Moorestown, five business days later, on July 8, 2019, Smith filed a "Denial of
Access Complaint" with the GRC, alleging Moorestown denied access to the
requested record in violation of N.J.S.A. 47:1A-5(i). The Denial of Access
Complaint form Smith filed expressly provided it was "to be used only for
claims of denial of access to government records that you want the [GRC] to
decide."
1
The parties do not dispute the requested "Pennrose/Moorestown Urban
Renewal Associates preliminary site approval application" is a "[g]overnment
record" under N.J.S.A. 47:1A-1.1.
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On the following business day, July 9, 2019, Moorestown provided Smith
access to the record. Smith does not dispute that Moorestown provided access
to the requested record on the sixth business day following service of his June
28, 2019 request for access.
On July 30, 2019, the GRC administratively dismissed Smith's complaint,
finding it presented an "[u]nripe [c]ause of [a]ction." The GRC cited N.J.S.A.
47:1A-5(i), which provides that a "custodian of a government record shall grant
access to a government record or deny a request for access to a government
record as soon as possible, but not later than seven business days after receiving
the request . . . [.]" The GRC noted Moorestown's custodian of records provided
Smith access to the requested record on the sixth business day following his
request, and it concluded Smith's complaint was "materially defective and shall
be dismissed because" the requested record "is not an immediate access record"
and Smith filed his complaint within the statutory seven-day period for
Moorestown's custodian of records to respond to the request. 2 This appeal
followed.
2
N.J.S.A. 47:1A-5(e) provides that "[i]mmediate access ordinarily shall be
granted to budgets, bills, vouchers, contracts, including collective negotiations
agreements and individual employment contracts, and public employee salary
and overtime information." Smith did not, and does not, claim he was entitled
to immediate access to the requested record pursuant to N.J.S.A. 47:1A-5(e).
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Our standard of review of a decision by the GRC "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). 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." Ibid. "We do not, however, simply
rubber stamp the agency's decision." Paff v. N.J. Dep't of Labor, 392 N.J. Super.
334, 340 (App. Div. 2007) (citation omitted).
Smith contends the GRC's dismissal of his complaint as premature and
"unripe" is based on a misinterpretation and misapplication of N.J.S.A. 47:1A-
5(i). Smith relies on the portion of the statute that provides "a custodian of a
government record shall grant access to a government record or deny a request
for access to a government record as soon as possible, but not later than seven
business days after receiving the request." N.J.S.A. 47:1A-5(i) (emphasis
added). He contends that the statute imposes an obligation on the custodian of
records to either grant or deny access to a requested government record "as soon
as possible," and that his GRC complaint properly asserted a claim the
Moorestown custodian of records failed to comply with that obligation. He
argues the GRC therefore erred by dismissing his complaint solely because it
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was filed less than seven business days after he sought access to the government
record, and the GRC's dismissal erroneously failed to give effect to the statutory
requirement that a custodian of records must grant or deny access to a
government record "as soon as possible."
Smith's claim requires an interpretation of OPRA's provisions under the
applicable principles of statutory construction. Our "obligation when
interpreting a law is to determine and carry out the Legislature's intent." Sussex
Commons Assocs., LLC v. Rutgers, 210 N.J. 531, 540-41 (2012). We therefore
must "first look at the plain language of the statute." Id. at 541. Although "[o]ur
standard of review is plenary with respect to" an interpretation of OPRA, Asbury
Park Press v. Cty. of Monmouth, 406 N.J. Super. 1, 6 (App. Div. 2009), aff'd,
201 N.J. 5 (2010), "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). As the Supreme Court explained in Acoli v.
N.J. State Parole Board, "generally, when construing language of a statutory
scheme, deference is given to the interpretation of statutory language by the
agency charged with the expertise and responsibility to administer the scheme."
224 N.J. 213, 229 (2016).
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N.J.S.A. 47:1A-5(i) imposes an obligation on a custodian of records to
grant or deny "access to a government record as soon as possible, but not later
than seven business days after receiving the request." The statute also makes an
express, but limited, provision for a custodian's failure to honor its obligation to
either grant or deny access to a requested public record. N.J.S.A. 47:1A-5(i)
defines the legal effect of a custodian's failure to provide access within seven
business days of a request; it states that "[i]n the event a custodian fails to
respond within seven business days after receiving a request, the failure to
respond shall be deemed a denial of the request." 3 N.J.S.A. 47:1A-5(i). The
statute makes no similar provision for a custodian's failure to provide access to
a requested record "as soon as possible." That is, the Legislature opted not to
deem a failure to provide access to a public record "as soon as possible" a denial
of the request for access under OPRA, see ibid., and it is not our role "to engraft
language that the Legislature has not chosen to include in a statute," Lippman v.
Ethicon, Inc., 222 N.J. 362, 381 (2015).
3
The statute further provides a custodian's failure to respond within seven
business days shall be deemed a denial of a request, "unless the requestor has
elected not to provide a name, address or telephone number, or other means of
contacting the requestor." N.J.S.A. 47:1A-5(i). We do not address this portion
of the statute because it is inapposite under the circumstances presented.
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N.J.S.A. 47:1A-5(i) does not define Smith's entitlement to file a complaint
with the GRC because it does not authorize the filing of a complaint based on
an alleged denial of access to a government record. The authority to file a
complaint with the GRC is provided and defined solely by N.J.S.A. 47:1A-6.
The statute permits the filing of a complaint with the GRC, but only by "[a]
person who is denied access to a government record by the custodian of the
record." N.J.S.A. 47:1A-6.
In determining whether a particular action or inaction constitutes a
"denial" of access permitting the filing of a complaint with the GRC under
N.J.S.A. 47:1A-6, we are required to "read and construe[]" the term in context
and, "unless inconsistent with the manifest intent of the [L]egislature or unless
another or different meaning is expressly indicated," give the term its "generally
accepted meaning, according to the approved usage of the language." N.J.S.A.
1:1-1. The ordinary meaning of the term "deny" is "to give a negative answer
to" or "refuse to grant." Deny, MERRIAM -WEBSTER D ICTIONARY O NLINE,
https://www.meriam-webster.com/dictionary/deny (last visited May 25, 2020).
Applying the ordinary meaning of "deny" to N.J.S.A. 47:1A-6, we
interpret the statute to authorize the filing of a GRC complaint where a custodian
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actually refuses access to a government record or responds in the negative to a
request for a government record. 4 Neither circumstance is present here.
The Moorestown custodian of records did not grant or deny access to the
requested record prior to the filing of Smith's complaint. Instead, the custodian
simply had not responded to Smith's request prior to his filing of the GRC
complaint. Under the ordinary meaning of the term "deny," the Moorestown
custodian took no action for which N.J.S.A. 47:1A-6 authorized the filing of a
complaint with the GRC, and, for that reason alone, the GRC properly dismissed
Smith's complaint as unripe and premature. The plain language of N.J.S.A.
47:1A-6 does not authorize the filing of a GRC complaint until such a denial
takes place, and no such denial occurred here.
4
We recognize that refusal of access may occur in different ways. For example,
a custodian of records may directly communicate a refusal to provide access to
the requestor. In addition, a custodian of records violates OPRA by refusing to
provide access by improperly redacting government records that are otherwise
produced, see, e.g., American Civil Liberties Union of N.J. v. N.J. Division of
Criminal Justice, 435 N.J. Super. 533, 536 (App. Div. 2014), or by failing to
provide access to all of the requested records, see, e.g., Scheeler v. Office of the
Governor, 448 N.J. Super. 333, 343-45, 349 (App. Div. 2017) (determining the
plaintiffs were entitled to all the records they sought because "OPRA requires
defendants to provide access to [government] records upon request, unless they
are exempt from disclosure). As we explain, the Moorestown custodian of
records did not in any manner refuse to provide access to the requested record
before Smith filed his complaint with the GRC.
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In our interpretation of N.J.S.A. 47:1A-6, we are not limited to the
ordinary meaning of the term "denied," because, as noted, N.J.S.A. 47:1A-5(i)
provides for another circumstance in which a request for a government record
shall be deemed denied. We therefore also interpret the term "denied" in
N.J.S.A. 47:1A-6 "in context with [the] related provision[, N.J.S.A. 47:1A-5(i),]
so as to give sense to the legislation as a whole[.]" Fraternal Order of Police,
Newark Lodge No. 12 v. City of Newark, 459 N.J. Super. 458, 484 (App. Div.
2019).
As we have explained, the Legislature chose not to deem a failure to
provide a requested record "as soon as possible" under N.J.S.A. 47:1A-5(i) a
denial of access to the government record. If the Legislature had intended to
render such a failure a denial of access, it would have included it in the statutory
language deeming a failure to grant or deny access to a record within seven
business days a denial of the request for access. See N.J.S.A. 47:1A-5(i); see
also N. Jersey Media Grp., Inc. v. Twp. of Lyndhurst, 441 N.J. Super. 70, 112
(App. Div. 2015) ("We must 'read every word in a statute as if it was deliberately
chosen and presume that omitted words were excluded purposefully.'" (quoting
State v. Scott, 429 N.J. Super. 1, 6-7 (App. Div. 2012)), aff'd in part and rev'd
in part on other grounds, 229 N.J. 541 (2017)). As noted, it is neither the GRC's
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role nor ours to write into OPRA that which the Legislature clearly chose not to
include. See Lippman, 222 N.J. at 381.
In sum, Smith was not denied access to a government record within the
meaning of N.J.S.A. 47:1A-6, and the statute therefore did not authorize the
filing of his complaint with the GRC. As the GRC implicitly determined, it was
not until the Moorestown custodian of records actually denied Smith's request
or refused to provide the requested access, or failed to either grant or deny the
request within seven business days of the request, that N.J.S.A. 47:1A-6
permitted the filing of the complaint. See Mason v. City of Hoboken, 196 N.J.
51, 76 (2008) (explaining OPRA "requires that an agency provide access or a
denial no later than seven business days after a request"). The Moorestown
custodian of records provided Smith access on the sixth business day. Thus, the
GRC's decision to dismiss the complaint as unripe and premature is supported
by the plain language of N.J.S.A. 47:1A-6 because, at the time the complaint
was filed, the Moorestown custodian of records had not actually denied Smith
access to the requested record.
Affirmed.
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