JESSE WOLOSKY VS. BOROUGH OF WASHINGTONÂ (L-0099-16, WARREN COUNTY AND STATEWIDE) ( 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NOT FOR PUBLICATION WITHOUT THE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-4884-15T3
JESSE WOLOSKY,
Plaintiff-Appellant,
v.
BOROUGH OF WASHINGTON,
Defendant-Respondent.
________________________________
Argued November 2, 2017 – Decided November 17, 2017
Before Judges Haas and Rothstadt.
On appeal from Superior Court of New Jersey,
Law Division, Warren County, Docket No. L-
0099-16.
Richard M. Gutman argued the cause for
appellant.
Tara A. St. Angelo argued the cause for
respondent (Gebhardt & Kiefer, PC, attorneys;
Leslie A. Parikh and Ms. St. Angelo, on the
brief).
PER CURIAM
Plaintiff Jesse Wolosky appeals from the June 8, 2016 Law
Division order denying his request for an unredacted copy of a
municipal clerk's payroll record. We affirm.
The relevant facts are not in dispute. Plaintiff made a
request to defendant Borough of Washington under the Open Public
Records Act, N.J.S.A. 47:1A-1 to -13 (OPRA), for "[a] copy of the
actual existing official year[-]end payroll record for 2015 or the
year[-]end pay stub for 2015 for the Manager/Municipal Clerk."
The Borough responded to plaintiff's request by giving him the
clerk's 2015 year-end payroll document1 with the clerk's deductions
for pension contributions, pension loan payments, and health
insurance payments redacted.
Plaintiff asked for an explanation for the redactions, and
the Borough's attorney provided a detailed, written response.
Among other things, the attorney stated that the information
plaintiff requested about the clerk's pension contributions,
pension loan, and health insurance payments were "personnel [and]
pension records" that were exempt from disclosure under N.J.S.A.
47:1A-10. The attorney also advised plaintiff that the Borough's
position was consistent with that taken by the Government Records
Council (GRC) in similar cases.
Plaintiff filed a complaint and order to show cause seeking
access to the redacted information. Following oral argument,
1
This document listed the clerk's annual salary for 2015, together
with her federal and state tax, Medicare, and Social Security
payments for the year.
2 A-4884-15T3
Judge Yolanda Ciccone rendered a concise and thoughtful oral
opinion denying plaintiff's request and dismissing his complaint.
By way of background, 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." Times of Trenton Publ'g Corp. v. Lafayette Yard Cmty.
Dev. Corp., 183 N.J. 519, 535 (2005) (quoting Asbury Park Press
v. Ocean Cnty. Prosecutor's Office, 374 N.J. Super. 312, 329 (Law
Div. 2004)). In furtherance of that purpose, the Legislature has
declared that "government records[2] shall be readily accessible
for inspection, copying, or examination by the 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.
2
"'Government record' or 'record' means any paper, written or
printed book, document, drawing, map, plan, photograph, microfilm,
data processed or image processed document, information stored or
maintained electronically or by sound-recording or in a similar
device, or any copy thereof, that has been 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 subdivision thereof, including subordinate boards
thereof, or that has been 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,
including subordinate boards thereof." N.J.S.A. 47:1A-1.1.
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However, "the right to disclosure is not unlimited" and OPRA
is clear that "the public's right of access [is] not absolute."
Kovalcik v. Somerset Cnty. Prosecutor's Office, 206 N.J. 581, 588
(2011). In this regard, N.J.S.A. 47:1A-10 specifically states
that "the personnel or pension records of any individual in the
possession of a public agency . . . shall not be considered a
government record and shall not be made available for public
access[.]" N.J.S.A. 47:1A-10 reflects the Legislature's
determination "that personnel records are, by definition, not
classified as government records at all; any document that
qualifies as a personnel record is therefore not subject to being
disclosed notwithstanding the other provisions of the statute."
Kovalcik, supra, 206 N.J. at 592.
Under OPRA, a "personnel record" may only be disclosed "if
and only if, [it] . . . fits within one of the three exceptions
to the general exemption for personnel records" set forth in
N.J.S.A. 47:1A-10. Ibid. As plaintiff argued before Judge
Ciccone, one of the three exceptions set forth in N.J.S.A. 47:1A-
10 provides that "an individual's name, title, position, salary,
payroll record, length of service, date of separation and the
reason therefor, and the amount and type of any pension received
shall be a government record" and subject to release under OPRA.
4 A-4884-15T3
Ibid. (emphasis added).3 Plaintiff asserted that the information
he requested concerning the clerk's pension and health insurance
payments was part of her "payroll record" and, therefore, should
be released under N.J.S.A. 47:1A-10.
Judge Ciccone rejected plaintiff's contention on this point
and concluded that the clerk's pension contributions, pension
loan, and health insurance payments were not a required part of
an employee's payroll record and, therefore, not subject to
disclosure under OPRA. In so ruling, the judge relied upon the
New Jersey Department of Labor and Workforce Development's
definition of this term in N.J.A.C. 12:16-2.1(a), which states:
Every employing unit having workers in
employment, regardless of whether such unit
is or is not an "employer" as defined in the
Unemployment Compensation Law, shall keep
payroll records which shall show, for each pay
period:
1. The beginning and ending dates;
2. The full name of each employee and the
day or days in each calendar week on which
services for remuneration are performed:
3. The total amount of remuneration paid to
each employee showing separately cash,
including commissions and bonuses; the cash
value of all compensation in any medium other
than cash; gratuities received regularly in
the course of employment if reported by the
employee, or if not so reported, the minimum
3
Executive Order No. 11 (Nov. 15, 1974) likewise contains a
provision that mirrors the exception for payroll records.
5 A-4884-15T3
wage rate prescribed under applicable laws of
this State or of the United States of the
amount of remuneration actually received by
the employee from his employing unit,
whichever is the higher[,] and service charges
collected by the employer and distributed to
workers in lieu of gratuities and tips;
4. The total amount of all remuneration paid
to all employees;
5. The number of weeks worked.
Because an employee's pension and health insurance payments
are not a required part of a "payroll record" under this
regulation, Judge Ciccone concluded that this information was not
covered by the exception to non-disclosure for payroll records set
forth in N.J.S.A. 47:1A-10.4 Therefore, the judge dismissed
plaintiff's complaint because the clerk's personnel and pension
records were protected from disclosure by N.J.S.A. 47:1A-10.
Although this ruling ended the inquiry, Judge Ciccone
nevertheless went on to address plaintiff's contention that the
clerk's expectation of privacy did not outweigh the public's
general right to access to government documents. The judge stated
that she applied the balancing test analysis established by the
4
Decisions of the GRC "shall not have value as a precedent for
any case initiated in the Superior Court[,]" N.J.S.A. 47:1A-7(e).
Nevertheless, we note that the GRC has taken a similar position
in at least two of its prior decisions, as well as in the training
materials it provides to government agencies. See McCormack v.
N.J. Dep't of Treasury, GRC Complaint No. 2005-164 (July 2008);
Jackson v. Kean Univ,, GRC Complaint No. 2002-98 (Feb. 2004).
6 A-4884-15T3
Supreme Court in Doe v. Poritz, 142 N.J. 1, 88 (1995), which
requires a judge to consider the following seven factors:
(1) the type of record requested; (2) the
information it does or might contain; (3) the
potential for harm in any subsequent
nonconsensual disclosure; (4) the injury from
disclosure to the relationship in which the
record was generated; (5) the adequacy of
safeguards to prevent unauthorized
disclosure; (6) the degree of need for access;
and (7) whether there is an express statutory
mandate, articulated public policy, or other
recognized public interest militating toward
access.
[Ibid.]
After analyzing these factors, Judge Ciccone found that "the
controlling factor for this [c]ourt is the determination that the
public's right to access of the amount of money that [the clerk]
contributes to her health insurance and pension is heavily
outweighed by [the clerk's] expectation of privacy in the
information." Therefore, the judge concluded that even if the
redacted information was not already specifically exempt from
disclosure under N.J.S.A. 47:1A-10, the Borough properly denied
plaintiff's OPRA request under the Doe balancing test. This appeal
followed.
On appeal, plaintiff argues that Judge Ciccone erred in
dismissing his OPRA claim. We disagree.
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Because "determinations about the applicability of OPRA and
its exemptions are legal conclusions," our standard of review is
de novo. Carter v. Doe, 230 N.J. 258, 273-74 (2017) (citing O'Shea
v. Twp. of West Milford, 410 N.J. Super. 371, 379 (App. Div.
2009)). We have considered plaintiff's contentions in light of
the record and the legal principles discussed above, and conclude
they are without sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E). We are satisfied that Judge
Ciccone properly determined that plaintiff was not entitled to the
redacted information concerning the clerk's pension and health
insurance payments. Therefore, we affirm substantially for the
reasons expressed in the judge's cogent oral opinion.
Affirmed.
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