Rotimi Owoh, Esq., Etc. v. Borough of Roselle Police Department ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-1570-22
A-2393-22
ROTIMI OWOH, ESQ., on behalf
of DELORES SIMMONS, BAFFI
SIMMONS, and GRACE WOKO,
Complainant-Appellant,
v.
BOROUGH OF ROSELLE POLICE
DEPARTMENT, UNION,
Custodial Agency-Respondent.
________________________________
ROTIMI OWOH, ESQ, on behalf of
AFRICAN AMERICAN DATA AND
RESEARCH INSTITUTE,
Complainant-Appellant,
v.
CLEMENTON BOROUGH POLICE
DEPARTMENT,
Custodial Agency-Respondent.
________________________________
GOVERNMENT RECORDS
COUNCIL,
Respondent.
________________________________
Submitted March 6, 2024 – Decided July 8, 2024
Before Judges Gummer and Walcott-Henderson.
On appeal from the New Jersey Department of
Community Affairs, Government Records Council,
GRC Complaint Nos. 2021-141 and 2021-196.
Rotimi A. Owoh, attorney for appellants.
Weber Dowd Law, LLC, attorneys for respondent
Borough of Roselle (Kraig McGrath Dowd and Neil
Bernardo, on the brief).
George J. Botcheos, attorney for respondent Clementon
Borough Police Department.
Matthew J. Platkin, Attorney General, attorney for
respondent Government Records Council (Steven
Michael Gleeson, Deputy Attorney General, on the
statements in lieu of briefs).
PER CURIAM
In these back-to-back appeals, which we consolidate for purposes of
issuing a single opinion, appellant Rotimi Owoh appeals from two orders of the
Government Records Council (GRC) denying his applications for legal fees as
a "prevailing party" in these suits brought pursuant to the Open Public Records
Act (OPRA), N.J.S.A. 47:1A-1 to -13. In these two matters, the GRC
A-1570-22
2
determined appellant was not entitled to attorney's fees as his complaints were
not the cause for the custodians' release of the records at issue and, thus, he was
not a prevailing party entitled to a fee award pursuant to N.J.S.A. 47:1A-6.1 We
agree and affirm.
To provide context, we identify the parties and summarize the proceedings
prior to our discussion of the legal issues presented. Appellant, on behalf of the
African American Data and Research Institute (AADARI) in A-1570-22 and
Delores Simmons, Baffi Simmons, and Grace Woko in A-2393-22, appeals from
final decisions of the GRC. Both matters pertain to OPRA requests, which
sought among other things, certain "complaints and summons," also known as
CDR-1 forms, R. 3:3-1(b), from two boroughs. Prior to appellant's submission
of the requests in April 2021, we had decided CDR-1 records were maintained
by the judiciary and therefore a municipal police department was not required
to produce them in response to an OPRA request. See Simmons v. Mercado,
464 N.J. Super. 77, 86 (App. Div. 2020) rev'd, 247 N.J. 24 (2021). On June 17,
2021, the Supreme Court reversed our decision, finding "there is no question
that . . . CDR-1s are government records subject to disclosure pursuant to
1
Recently, OPRA was amended to modify a requestor's entitlement to fees as a
prevailing party. N.J.S.A. 47:1A-6 (amended L. 2024, c. 16.). This amendment
has no effect here given its effective date of September 3, 2024. Ibid.A-1570-22
3
OPRA," Simmons, 247 N.J. at 40, and CDR-1 records are government records
that municipalities must provide in response to an OPRA request because the
information on CDR-1 forms is prepared and entered by municipal police
departments, id. at 41-42.
In A-1570-22, on April 28, 2021, AADARI filed an OPRA request seeking
CDR-1 records from the Borough of Roselle, including:
3. Copy of complaints and summonses prepared by
your police department relating to individuals who
were charged with drug possession and or drug
paraphernalia by . . . from 2020 to present.
4. Copy of [Driving While Intoxicated/Driving Under
the Influence] summonses and complaints prepared and
or issued by your police department from January 2020
to present.
5. Copy of complaints and summonses prepared by
your police department relating to individuals who
were charged with jaywalking by your police
department from January 2020 to present.
On June 4, 2021, the custodian of records provided a response denying the
request for the summonses and complaints, also known as CDR-1s, stating as to
requests numbered three through five, those records were not maintained by the
Roselle Police Department. On June 28, 2021, the custodian of records provided
an additional letter indicating that certain other records were attached, satisfying
A-1570-22
4
other records requests, but her denial of the requests for the CDR-1 records
remained unchanged. 2
On July 7, 2021, appellant filed a denial-of-access complaint with the
GRC, arguing the records-custodian's denial decision was contrary to the
Supreme Court's June 17, 2021 decision in Simmons. Appellant asked the GRC
to compel the Roselle Borough to provide the requested CDR-1 records and to
award attorney's fees.
On February 1, 2022, the custodian of records provided appellant with
access to the CDR-1 records, and approximately one week later, the custodian
of records filed a statement of information in response to appellant's denial-of-
access complaint.
On December 13, 2022, the GRC, having adopted the findings and
recommendations of the GRC Executive Director, issued its final decision on
the denial-of-access complaint, concluding the custodian of record's June 4,
2021 denial of the OPRA request was lawful because our then-binding decision
in Simmons did not require municipal police departments to disclose CDR-1
2
The custodian had provided complaints filed against the police department
involving claims of misconduct, harassment, excessive use of force or
discrimination from 2014 to present, and settlement agreements resolving those
claims. Additional records included names, dates of hire, separation, salary and
payroll records for individuals who either resigned or retired or were terminated
from 2002 to 2017.
A-1570-22
5
records in response to OPRA requests when those records were maintained by
the judiciary. Relying on Teeters v. DYFS, 387 N.J. Super. 423, 432 (App. Div.
2006), the GRC denied appellant's fee application based on its determination the
custodian of record's production of the CDR-1 records on February 1, 2022, was
unrelated to appellant's July 2021 complaint. Thus, the GRC determined
appellant was not a prevailing party and as a result, was not entitled to attorney's
fees.
The parties contested the timeline of the custodian's denial of the request
for the CDR-1 records in A-1570-22, and specifically the date on which the
custodian issued the final denial of the request. Before the GRC, the Borough
argued the custodian's June 4, 2021 letter, which included copies of certain
records that had been requested, constituted a final denial of appellant's request
for the CDR-1 records, and appellant argued the custodian's final denial of the
request for the CDR-1 records was set forth in the June 28, 2021 letter. The
GRC found the custodian's June 4, 2021 letter constituted a final denial of the
requests for the CDR-1 records because the CDR-1 records requests had been
addressed in full in that denial.
In A-2393-22, appellant requested similar records, including CDR-1
records, from the Clementon Borough Police Department. After she requested
a sixty-day extension to respond to the request, the custodian of records provided
A-1570-22
6
some records, and an AADARI representative emailed in response, stating: "I
did NOT see any CDR-ls (complaints) relating to drug offenses attached to the
[two] emails. Am I missing something? Please clarify." The custodian then
replied, "let me review what was provided and double check with our [police
department]/Court."
A Clementon municipal court employee then emailed the AADARI
representative, stating:
To whom it may concern:
Please visit the NJ Judiciary website at
NJMCdirect.com to access public records pertaining to
municipal court matters. If you still require additional
information, please complete the NJ Judiciary Records
Request Form which is also available on the judiciary's
website.
The custodian of records then wrote to the AADARI representative and
appellant on August 30, 3021, clarifying:
I am writing to advise that the Borough of Clementon
has not denied your request for the remainder of the
documents, and I am personally still attempting to
acquire the "CDR-ls (complaints) relating to drug
offenses," which you addressed in a follow up email to
the documents provided previously. The email sent
from [the municipal court employee] is not the official
response of the custodian of records.
On August 31, 2021, the custodian of records emailed the AADARI
representative and appellant the following records: "Arrests for Drug
A-1570-22
7
Possession and Paraphernalia, January 2020 to present, and drug possession and
paraphernalia summonses," "Jay-Walking Summonses," and "DWI
Summonses," completing the CDR-1 records request. And, she explained the
delay was because:
it was necessary for staff in the [p]olice [d]epartment to
review thousands of records to locate those that were
responsive to your request. Despite this fact, the
Borough did not impose any special service charge for
this compilation. I sincerely apologize for the delay
and any misunderstanding that the records were being
denied. The Borough of Clementon had a transition in
both the police clerk and police chief positions in the
exact time period that the request was received and
being processed, requiring the new staff to undertake
the task of locating each of the requested documents,
and determining which were responsive.
Prior to that email, however, on August 11, 2021, appellant filed a
complaint with the GRC, arguing the July 27, 2021 correspondence from the
municipal employee constituted a denial of access and was unlawful given the
Court's June 17, 2021 holding in Simmons.
The GRC, in its final decision, determined "the [c]ustodian's failure to
respond in writing to the [appellant]'s OPRA request either granting access,
denying access, seeking clarification or requesting an extension of time within
the extended period results in a 'deemed' denial . . . pursuant to N.J.S.A. 47:1A-
5(g), N.J.S.A. 47:1A-5(i) . . . ," but that "the evidence of record demonstrates
A-1570-22
8
the [c]ustodian intended to respond to the [c]omplainant's OPRA request
notwithstanding the 'deemed' denial." Thus, according to the GRC, the
"complainant has not achieved the desired result because the complaint did not
bring about a change (voluntary or otherwise) in the custodian's conduct."
The GRC's decision noted that the department was undergoing a
"transition" and highlighted several back-and-forth emails between the
custodian and various officials in the police department and at the municipal
court regarding who maintained the records and how the custodian "received
conflicting information" in response. The GRC found that this confusion over
emails delayed the custodian's attempt to provide the requested records and that
the filing of the complaint did not bring about a change in the custodian's
disposition.
On appeal, appellant argues he is the prevailing party in both matters as it
was his filing of the GRC complaints that served as the catalyst for the
custodians' eventual release of records under Teeters, 387 N.J. Super. 423, and
Mason v. City of Hoboken, 196 N.J. 51 (2008).
I.
GRC decisions are governed by the same standard of review that applies
to consideration of a decision by any other State agency. Fisher v. Div. of Law,
400 N.J. Super. 61, 70 (App. Div. 2008). Judicial review of quasi-judicial
A-1570-22
9
agency's determination is limited. Allstars Auto Grp., Inc. v. N.J. Motor Vehicle
Comm'n, 234 N.J. 150, 157 (2018) (citing Russo v. Bd. of Trs., Police &
Firemen's Ret. Sys., 143 N.J. 22, 25 (1995)). "An appellate court reviews
agency decisions under an arbitrary and capricious standard." Zimmerman v.
Sussex Cnty. Educ. Servs. Comm'n, 237 N.J. 465, 475 (2019). "An
administrative agency's final quasi-judicial decision will be sustained unless
there is a clear showing that it is arbitrary, capricious, or unreasonable, or that
it lacks fair support in the record." In re Herrmann,192 N.J. 19, 27-28 (2007).
The party challenging the administrative action bears the burden of
making that showing. Lavezzi v. State, 219 N.J. 163, 171 (2014). On appeal,
the judicial role in reviewing all administrative action is generally limited to
three inquiries:
(1) whether the agency's action violated express or
implied legislative policies, that is did the agency
follow the law;
(2) whether the record contains substantial evidence to
support the findings on which the agency based its
action; and
(3) whether in applying the legislative policies to the
facts, the agency clearly erred in reaching a
conclusion that could not reasonably have been
made on a showing of the relevant factors.
[Allstars, 234 N.J. at 157 (quoting In re Stallworth, 208
N.J. 182, 194 (2011)).]
A-1570-22
10
Appellate review of agency rulings of law and issues regarding the
applicability, validity (including constitutionality) or interpretation of laws,
statutes, or rules is de novo. See In re Ridgefield Park Bd. of Educ., 244 N.J. 1,
17 (2020) (agency's interpretation of a statute). "[D]eterminations about the
applicability of OPRA and its exemptions are legal conclusions and are therefore
subject to de novo review." Simmons, 247 N.J. at 38 (quoting In re N.J.
Firemen's Ass'n Obligation, 230 N.J. 258, 273-74 (2017)).
OPRA mandates that a custodian of records must either grant or deny
access to requested records within seven business days from receipt of a request.
N.J.S.A. 47:1A-5(i). And, a custodian's failure to respond in writing to an
OPRA request granting access, denying access, seeking clarification, or
requesting an extension of time within seven days is deemed a denial of the
OPRA request. Ibid.; see also N.J.S.A. 47:1A-5(g).
OPRA includes an exception to the "American Rule," under which a
prevailing party ordinarily cannot recover attorney's fees from the losing party.
See Mason, 196 N.J. at 70 (citing Rendine v. Pantzer, 141 N.J. 292, 322 (1995));
N.J.S.A. 47:1A-6 ("A person who is denied access to a government record by
the custodian of the record, at the option of the requester, may: institute a
A-1570-22
11
proceeding to challenge the custodian's decision. . . . A requester who prevails
in any proceeding shall be entitled to a reasonable attorney's fee.").
In Mason, our Supreme Court undertook an extensive review of the
question of a parties' entitlement to attorney's fees under OPRA. 3 Ibid. The
Court explained OPRA contains broader language on attorney's fees than the
former Right To Know Law, N.J.S.A. 47:1A-1 to -4 (repealed 2002), ("RTKL"),
and clarified the Legislature's revisions to the statute to: (1) mandate, rather
than permit, an award of attorney's fees to a prevailing party; and (2) eliminate
the $500 cap on fees and permit a reasonable, and quite likely higher, fee award.
Id. at 75.
The Court explained that requestors are entitled to attorney's fees under
OPRA, absent a judgment or an enforceable consent decree, when they can
demonstrate: (1) "a factual causal nexus between plaintiff's litigation and the
relief ultimately achieved;" and (2) "that the relief ultimately secured by
plaintiffs had a basis in law." Id. at 76 (quoting Singer v. State, 95 N.J. 487, 494
3
OPRA provides that "[a] requestor who prevails in any proceeding shall be entitled
to a reasonable attorney's fee." N.J.S.A. 47:1A–6. Under the prior RTKL, "[a]
plaintiff in whose favor such an order [requiring access to public records]
issues . . . may be awarded a reasonable attorney's fee not to exceed $500.00."
N.J.S.A. 47:1A–4 (repealed 2002).
A-1570-22
12
(1984 )). "Consistent with our case law, litigants seeking fees are required to
make that showing." Ibid. (internal citations omitted).
Here, appellant contends he is entitled to legal fees related to the initial
denials of the OPRA requests, which were subsequently granted by the
boroughs, because OPRA expressly requires counsel fees be paid to a prevailing
party. Appellant maintains there is "a factual causal nexus between [the]
litigation and the relief ultimately achieved"; and (2) ''that the relief ultimately
secured by [him] had a basis in law." See id. at 76 (citing Singer, 95 N.J. at
495). He argues he is therefore entitled to attorney's fees in each case.
II.
In A-1570-22, the Roselle custodian of records denied the request for
CDR-1s. The custodian characterized CDR-1 records as "[c]ourt records not
maintained by RPD," apparently following our decision in Simmons. However,
before appellant filed the GRC complaint, our Supreme Court reversed
Simmons, holding that there could be more than one custodian of records of a
single record and that both police departments—and the municipal courts—were
custodians of CDR-1 records. 247 N.J. at 42-43.
In Simmons, the Millville Police Department (MPD) argued it did not
"maintain[]" the servers with the CDR-1 records, but the Court focused on the
word "makes," ibid., and as MPD made the records, the Court found that MPD
A-1570-22
13
was a custodian of records, even though the records were stored and maintained
elsewhere. Ibid. Noting that a government record is subject to OPRA if "a
government official makes, maintains, or keeps on file electronic information in
the course of his or her official business," id. at 41 (emphasis added) (quoting
N.J.S.A. 47:1A-1.1), the Court held there could be "simultaneous custodians of
the same information," and that the "or" in "makes, maintains, or keeps" makes
the list disjunctive, rather than conjunctive. Ibid.
Appellant argues that but for his willingness to file and litigate the GRC
complaint, the custodian would not have provided the CDR-1 records. Roselle
maintains the GRC correctly determined the operative response was issued on
June 4, 2021, when the Borough issued a "final response to the majority of those
[requests] . . . and sought an extension only with respect to the remaining
[records]," before the Supreme Court's June 17, 2021 decision in Simmons, 247
N.J. 24, and not on June 28, 2021.
Under our standard of review, the GRC's decision is entitled to substantial
deference and will be upset if appellant demonstrates it was arbitrary,
capricious, or unreasonable. Zimmerman, 237 N.J. at 475. The record shows
the custodian initially provided some records and denied the CDR-1 records on
June 4 based on the law in effect at the time the OPRA request had been made.
The denial on June 4 is critical because it pre-dated the change in the law after
A-1570-22
14
which the Borough would have had to release the CDR-1 records in its
possession even if those same records were also maintained by the municipal
court or the judiciary. Simmons, 247 N.J. at 42-43. The parties contest the date
that constitutes the custodian's final denial.
In reviewing this matter, the GRC determined that the denial of request
occurred on June 4, as all issues related to appellant's request for CDR-1 records
had been addressed in full in that response. In its final decision, the GRC stated
that:
[the] [c]ustodian's June 4, 2021 response to the
[c]omplainant's April 28, 2021 OPRA request is no
longer a lawful denial pursuant to [Simmons, 247 N.J.
at 42]; her response was nonetheless lawful at that time
because it was consistent with the prevailing case law
and Council decisions prior to the Court's ruling.
....
the evidence of record supports that the original
[c]ustodian's response was lawful at the time and the
[c]ustodian's subsequent actions were in response to
Simmons, rather than the complaint. Therefore, the
[c]omplainant is not a prevailing party entitled to an
award of a reasonable attorney's fee.
[(Citations omitted).]
Because the June 4, 2021 response from the Roselle custodian constituted
a denial of the CDR-1 records requests, stating—"[c]ourt records not
maintained by [Roselle Borough Police Department]"—and occurred prior to
A-1570-22
15
the Simmons Court's holding, we are persuaded the GRC's decision was correct.
A review of the custodian of records' June 28, 2021 correspondence clearly
shows it was a follow-up response to the June 4 correspondence although it
indicated that some records—non-CDR-1 records—were being attached. We
are not persuaded the June 28, 2021 letter constituted a re-examination of the
custodian of records' previous denial of the request for CDR-1 records, in fact
the custodian of records did not alter her June 4, 2021 denial of the request for
the CDR-1 records. Critically, the GRC found that the custodian's providing of
the requested records on February 1, 2022 resulted from the Court's reversal of
our decision in Simmons, and there was no causal nexus between the filing of
plaintiff's complaint and the eventual release of the records. See In re
Herrmann,192 N.J. at 27-28 (2007) ("An administrative agency's final quasi-
judicial decision will be sustained unless there is a clear showing that it is
arbitrary, capricious, or unreasonable, or that it lacks fair support in the
record.").
Under the arbitrary-and-capricious standard, we discern no basis to
reverse the GRC's findings and determination as there is no "clear showing that
it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the
record," In re Herrmann, 192 N.J. at 27-28.
III.
A-1570-22
16
In the second matter, A-2393-22, appellant again argues he is entitled to
fees as the prevailing party. However, he bases his entitlement to fees on a July
27, 2021 email from a Clementon Borough employee who was not the custodian
of records. The record shows an exchange of several communications with the
custodian of records of the Clementon Police Department, when another
individual employed by the municipal court emailed the AADARI
representative, stating:
To whom it may concern:
Please visit the NJ Judiciary website at
NJMCdirect.com to access public records pertaining to
municipal court matters. If you still require additional
information, please complete the NJ Judiciary Records
Request Form which is also available on the judiciary's
website.
Appellant argues the municipal-court employee's email constitutes a
denial of his request for records, and his subsequent GRC complaint filed on
August 11, 2021, resulted in the records being provided. He maintains he is the
prevailing party, and on that basis is entitled to fees. Appellant also argues there
is "a factual causal nexus between [the] litigation and the relief ultimately
achieved"; and (2) ''that the relief ultimately secured [] had a basis in law."
Mason, 196 N.J. at 76. However, OPRA expressly requires counsel fees be paid
to a prevailing party described as first "[a] person who is denied access to a
A-1570-22
17
government record by the custodian of the record . . . ." N.J.S.A. 47:1A-6. The
statute therefore makes clear that prior to the examination of whether a factual
causal nexus exist between the litigation and the relief ultimately achieved,
appellant must first establish the custodian of records denied the request. Singer,
95 N.J. at 494.
Here, the GRC correctly noted that the municipal-court employee who
emailed the AADARI representative was not the Clementon Borough Police
Department's custodian of records, and the employee's "email was not an official
response on the [c]ustodian's behalf." Thus, in the absence of a denial from the
custodian of records, appellant's claim to be the prevailing party entitled to
attorney's fees must fail.
Having determined the denial of records on which appellant relied was not
made by the custodian of records, the GRC nevertheless concluded the
Clementon custodian's failure to respond in writing to appellant's OPRA request
by the deadline constituted a "deemed" denial under the statute. N.J.S.A. 47:1A-
5(i). In doing so, the GRC next addressed whether a factual causal nexus exists
between the litigation and the relief ultimately achieved. The GRC concluded
"[a] review of the facts indicates the [c]ustodian intended to provide responsive
records to the [c]omplainant, regardless of the filing of the complaint," as she
had "demonstrated her desire to fulfill the request, notwithstanding the extended
A-1570-22
18
deadline's expiration and the complaint filing." Thus, "the complaint was not
the catalyst for the [c]ustodian's intended disclosure and that no causal nexus
exists."
In reaching its determination, the GRC specifically referred to the
custodian's August 31, 2021 response to appellant, explaining that the police
department was undergoing a "transition period of its Police Chief and clerk at
the time of the request," and highlighted a number of emails between the
custodian and the acting Police Chief and a municipal-court employee about
who maintained the records and how the custodian had "received conflicting
information" in response.
In fact, the custodian of records wrote to an ADDARI representative on
August 30, 3021, clarifying:
I am writing to advise that the Borough of Clementon
has not denied your request for the remainder of the
documents, and I am personally still attempting to
acquire the "CDR-ls (complaints) relating to drug
offenses", which you addressed in a follow up email to
the documents provided previously. The email sent
from [] is not the official response of the custodian of
records.
Relying on this record, the GRC concluded the custodian of records
demonstrated a desire to fulfill the request, notwithstanding the expiration of the
extension period. We concur with the GRC that this record clearly evidences
A-1570-22
19
the custodian's intent to provide the CDR-1 records separate and apart from the
filing of the GRC complaint.
Under these circumstances, we are not persuaded by appellant's claim the
GRC erred in concluding he is not entitled to fees as the prevailing party. In our
view, the GRC correctly determined the custodian's belated response—filed
after the sixty-day extension—was a "deemed" denial under the statute, but that
appellant had not shown the records were subsequently provided because he had
filed the GRC complaint. N.J. Builders Ass'n v. N.J. Council on Affordable
Hous., 390 N.J. Super. 166, 181 (App. Div. 2007) ("A custodian's failure to meet
the promised deadline is then deemed a denial.") (citing N.J.S.A. 47:1A–5(i)).
For these reasons, we discern nothing arbitrary, capricious, or
unreasonable in the GRC's adoption of factual findings and determinations, in
these back-to-back matters, that the filing of the GRC complaints was not the
impetus for the release of the requested records in either case. Mason, 196 N.J.
at 76. Thus, appellant was not the prevailing party as defined in OPRA, and the
decision not to award fees was not arbitrary or capricious.
Finally, to the extent we have not specifically addressed arguments raised
by appellant, they lack sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-1570-22
20