Alonzo Hill, Etc. v. the New Jersey Department of Corrections ( 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NOT FOR PUBLICATION WITHOUT THE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-3278-22
ALONZO HILL, currently
incarcerated at New Jersey State
Prison in Trenton, New Jersey,
Plaintiff-Appellant,
v.
THE NEW JERSEY DEPARTMENT
OF CORRECTIONS, public agency
formed under the laws of the State
of New Jersey, and JOHN FALVEY,
in his official capacity as Custodian
of Records for the New Jersey
Department of Corrections,
Defendants-Respondents.
______________________________
Submitted October 22, 2024 – Decided November 13, 2024
Before Judges Gooden Brown and Vanek.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Docket No. L-2137-22.
Rutgers Constitutional Rights Clinic Center for Law &
Justice, attorneys for appellant (Frederick Davis,
Kristine Baffo, Jonathan Nendze, Hafsa Oksuz, Merissa
Shebell, Lucy Sprague, and Gabe Waldman, law
students appearing pursuant to Rule 1:21-3(b), and
Ronald K. Chen, Matthew Harm and Max Hermann, on
the briefs).
Matthew J. Platkin, Attorney General, attorney for
respondents (Sara M. Gregory, Assistant Attorney
General, of counsel; Dana L. Paolillo, Deputy Attorney
General, on the brief).
PER CURIAM
This appeal stems from an October 13, 2022 request under the Open
Public Records Act (OPRA) made by plaintiff Alonzo Hill, an inmate at New
Jersey State Prison (NJSP), to defendants the New Jersey Department of
Corrections (DOC) and John Falvey, Assistant Division Director for the DOC
(Falvey),1 seeking (A) the Legal Access Plan currently in effect at NJSP; (B) all
non-confidential internal management procedures and other policies and orders
pursuant to six different Executive Orders; and (C) non-confidential COVID-19
policies that apply to meetings of incarcerated persons at NJSP. 2 Defendants
provided a document in response to the Part A request, and denied the remainder
of the requests. Plaintiff filed a complaint and order to show cause (OTSC)
1
We collectively refer to the DOC and Falvey as "defendants."
2
We abbreviate plaintiff's OPRA request as the "Part A request," "Part B
request" and "Part C request."
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challenging defendants' response, which was granted in part and denied in part
by a May 26, 2023 trial court order and written decision.
After thoroughly reviewing the record under the lens of prevailing law,
we reverse and vacate the trial court's decision declaring defendants violated
OPRA through its response to plaintiff's Part A request. We affirm the
remainder of the trial court's decision since plaintiff's Part B and C requests seek
documents that are exempt from public access under OPRA and would require
the defendants to conduct research and make subjective determinations in order
to comply.
I.
We glean the salient facts from the record on plaintiff's OTSC. On
October 13, 2022, plaintiff sent an OPRA request to the DOC, through counsel,
seeking the following:
[A.] The Legal Access Plan currently in effect at NJSP.
[B.] All non-confidential internal management
procedures (IMP), standard operating procedures
(SOP), and other policies, orders, and/or directives of
the [DOC] enacted pursuant to Governor Murphy's
Executive Orders numbered: 242, 244, 280, 281, 288,
292 that apply to NJSP.
[C.] Any other non-confidential policies, orders, and/or
directives concerning social distancing or COVID-19-
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related policies that apply to meetings and gatherings
of incarcerated people at NJSP.
Plaintiff qualified his request with the following instruction to the DOC records
custodian: "Please DO NOT include policies solely regarding vaccination,
masking, and/or testing for [DOC] employees."
On October 27, Falvey responded to plaintiff's request. In response to
plaintiff's Part A request, defendants provided plaintiff with a four-page
document entitled the "Legal Access Program." In response to plaintiff's Part B
and C requests, defendants explained plaintiff's requests are invalid and
improper and cannot be fulfilled as they do not adequately identify a particular
government record(s) sought." To support its denial, defendants cited to MAG
Ent., LLC v. Div. of Alcoholic Beverage Control, 375 N.J. Super. 534 (App.
Div. 2005), and Bent v. Twp. of Stafford Police Dep't, Custodian of Recs., 381
N.J. Super. 30 (App. Div. 2005).
On December 8, plaintiff filed a verified complaint and OTSC naming the
DOC and Falvey as defendants and demanding the following judgment:
(a) Declaring [defendants] in violation of [OPRA];
(b) Compelling [defendants] to immediately provide
copies of the requested records;
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(c) Maintaining jurisdiction over this action until
[defendants] come into compliance with the court's
directives and orders;
(d) Granting attorney's fees and cost of suit pursuant
to N.J.S.A. 47:1A-6; and
(e) Granting such other relief as this court may deem
just and proper.
Defendants supported their opposition to plaintiff's OTSC with
certifications from Falvey, Major Craig Sears, a Correctional Police Major at
NJSP (Sears), and Acting Assistant Commissioner for the Division of
Operations in the DOC, Erin Nardelli (Nardelli). Falvey stated "the DOC's
regulations refer to a 'Legal Access Plan' [and] the document styled 'Legal
Access Program' is the current Legal Access Plan, and is publicly posted."
Falvey maintained each prison facility has copies of the inmate handbook
containing the information provided in the Legal Access Program setting forth
how incarcerated persons can access legal services. Falvey also explained "the
[DOC] has a confidential IMP which has been titled 'Inmate Legal Access.'"
Falvey articulated that the Legal Access Program document contains
information about the Inmate Legal Association, the law library, and legal
supplies that an incarcerated person may request, while the Inmate Legal Access
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IMP is a confidential document for facility staff which is exempt from disclosure
under OPRA.
In response to plaintiff's Part B request, Falvey conducted a search and
"identified approximately 500 IMPs created and revised by the [DOC] during
that time." Falvey set forth that "there is no additional way of locating
responsive documents other than reviewing the contents of each IMP issued
during that time period and comparing it to the [Executive Order] listed in the
OPRA request."
Sears also submitted a certification addressing plaintiff's Part A and B
requests. Sears is responsible for security at the facility and certified "[t]he IMP
titled Inmate Legal Access is a confidential IMP that is designated for the sole
use of custody staff setting forth the processes and procedures that the
Correctional Police staff is required to utilize when implementing the Legal
Access Program." Such procedures include, for example, "how and when
inmates are moved when participating in the Legal Access Program, whether
inmates are being moved to the Library or [whether] paralegals are visiting the
different units." Additionally, Sears explained the Inmate Legal Access IMP
contains "specific directives with step-by-step instructions on what to do or how
to handle certain situations." In his certification, Sears explained these
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procedures ensure the orderly running of the facility, and if this information was
provided to an incarcerated person, it would create "the potential for an
inmate(s) to be able to circumvent lawful actions by the Correctional Police and
develop counter measures to disrupt their responses."
Nardelli addressed the DOC's response to Part C of plaintiff's request
regarding COVID-19 related documents. Nardelli certified that "between March
2020 and present, the DOC . . . implemented hundreds of formal and informal
policies, directives, and guidance in response to [COVID-19]." The DOC
"issued general policies, directives, and guidance that would be implemented
Statewide across all institutions and Residential Community Release Programs
under DOC supervision," with each individual facility also "implementing any
necessary additional guidance and policies specific to that facility to comply
with general guidance provided by the DOC." The policies, directives, and
guidance "widely ranged in subject," and included topics such as staffing
procedures, inmate activities, and healthcare.
Nardelli also explained "the DOC compiled the statewide DOC policies,
directives, and guidance which amounts to several hundred, if not, thousands of
pages of documents" and that
locating documents within those compiled documents
specific to 'social distancing or COVID-19 related
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policies that apply to meetings and gatherings of
incarcerated people at NJSP' would require a subjective
review of each and every page of these hundreds, if not
thousands, of pages to determine whether it addresses
those issues named.
In an effort to be cooperative, defendants included an email chain
captioned "COVID Mitigation Strategies" directed to certain staff to combat the
rise in positive COVID-19 cases with its opposition brief. Defendants proffered
this document as one of the policies the DOC enacted regarding COVID-19 that
apply to meetings and gatherings of incarcerated people at NJSP.
On May 26, 2023, the trial court entered an order accompanied by a
written decision ruling that defendants violated OPRA as to its response to
plaintiff's Part A request and denying plaintiff's application to compel
defendants to comply with Parts B and C, along with plaintiff's request for
attorney's fees. As it relates to plaintiff's Part A request, the trial court found
the defendants violated OPRA because defendants' "response did not indicate
that the confidentiality exemption applies to [plaintiff's Part A request]." The
trial court also reasoned defendants "failed to indicate in their response the
specific basis for their inability to provide the exact document that [plaintiff]
requested. As a result, [defendants] violated OPRA."
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The trial court ruled defendants properly denied plaintiff's Part B and C
requests because they would be required to research and "to evaluate and use
their subjective judgment to determine which documents were promulgated
under the specified Executive Orders and which documents concerned [COVID-
19 related] social distancing [procedures]." The trial court found an award of
attorney's fees to plaintiff was not authorized under OPRA. Plaintiff filed a
notice of appeal.
II.
Determinations "about the applicability of OPRA and its exemptions are
legal conclusions and are therefore subject to de novo review." Simmons v.
Mercado, 247 N.J. 24, 38 (2021) (citing Matter of New Jersey Firemen's Ass'n
Obligation to Provide Relief Applications Under Open Pub. Recs. Act, 230 N.J.
258, 273-74 (2017)). Thus, "we owe no deference to the interpretive
conclusions reached by . . . the trial court[.]" Id. at 38 (citing Paff v. Galloway
Township, 229 N.J. 340, 351 (2017)).
III.
After our de novo review, we are unpersuaded that defendants violated
OPRA and that plaintiff is a prevailing party entitled to an award of attorney's
fees and costs.
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"The Legislature passed OPRA in 2001 to replace the then-existing Right
to Know Law, L. 1963, c. 73, which did not keep pace with the vast
technological advances that changed the ways citizens and public officials
communicate and store information." Ass'n for Governmental Resp., Ethics &
Transparency v. Borough of Mantoloking, 478 N.J. Super. 470, 485 (App. Div.
2024) (internal quotations omitted). "OPRA's purpose 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." Conley v. New Jersey Dep't
of Corr., 452 N.J. Super. 605, 610 (App. Div. 2018) (quoting Mason v. City of
Hoboken, 196 N.J. 51, 64 (2008)).
OPRA as promulgated in N.J.S.A. 47:1A-1 is explicit in its policy
objectives:
[G]overnment records 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 accorded by P.L.1963, c. 73 (C.47:1A-1) as
amended and supplemented, shall be construed in favor
of the public's right of access . . . .
"To achieve its purpose, OPRA broadly [defines] government records." Ass'n for
Governmental Resp., Ethics & Transparency, 478 N.J. Super. at 486. The following
are considered "government records" subject to public access under OPRA:
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[A]ny 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.]
Although OPRA's broad objective centers around increasing transparency,
the Legislature did not intend for citizens to have unfettered access to
government records. Conley, 452 N.J. Super. at 610; see also Bozzi v. City of
Jersey City, 248 N.J. 274, 284 (2021) ("The public's right to disclosure, while
broad, is not unlimited."). The Legislature recognized the limitation on
disclosure through exemptions under OPRA. See N.J.S.A. 47:1A-1.
In its written decision, the trial court noted: "[t]he public right of access
under OPRA is subject to . . . limitations," the first of which is that the document
requested must be a "government record" as defined in N.J.S.A. 47:1A-1.1, and
second, it must also not be subject to an exemption by any other federal or state
statutory provisions.
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According to the plain text of N.J.S.A. 47:1A-9(a), as recently recognized
by the Court, OPRA creates an exemption for an administrative agency's
regulations that exclude, or exempt, certain records from public access. N.J.S.A.
47:1A-9, titled "Construction with other laws," provides that context, and states
in pertinent part:
The provisions of this act, P.L.2001, c. 404 (C.47:1A-5
et seq.), shall not abrogate any exemption of a public
record or government record from public access
heretofore made pursuant to P.L.1963, c. 73 (C.47:1A-
1, et seq.); any other statute; resolution of either or both
Houses of the Legislature; regulation promulgated
under the authority of any statute or Executive Order of
the Governor; Executive Order of the Governor; Rules
of Court; any federal law; federal regulation; or federal
order.
The exemptions to disclosure of a government record are not limited to
those circumscribed in OPRA as the statute itself incorporates confidentiality
provisions and limitations on disclosure promulgated in other laws. The Court
recognized that N.J.S.A. 47:1A-9(a) "provides that OPRA 'shall not abrogate or
erode' any grant of confidentiality established or recognized by statute."
Gannett Satellite Info. Network, LLC, 254 N.J. at 251; see also Brennan v.
Bergen Cnty. Prosecutor's Off., 233 N.J. 330, 338 (2018) ("OPRA also exempts
from disclosure any information that is protected by any other state or federal
statute, regulation, or executive order.").
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Based on prior precedent from our Supreme Court, we are unpersuaded
that the term "heretofore" contained in N.J.S.A. 47:1A-9(a) should be given the
construction advocated by plaintiff. The statutory framework in addition to the
plain language of (a), makes the disclosure of government records subject to
exemptions promulgated under OPRA and other laws, including the DOC's
regulations. See Rivera v. Union Cnty. Prosecutor's Off., 250 N.J. 124, 141
(2022) (concluding that to interpret a statute, courts must start with the plain
text of the law and "give words their generally accepted meaning . . . if the law
is clear, our analysis is complete").
The DOC's rule-making authority stems from the Department of
Corrections Act of 1976, N.J.S.A. 30:1B-1-52. N.J.S.A. 30:1B-6 sets forth
The commissioner, as administrator and chief executive
officer of the department, shall:
....
e. Formulate, adopt, issue and promulgate, in the name
of the department such rules and regulations for the
efficient conduct of the work and general
administration of the department, the institutions or
noninstitutional agencies within its jurisdiction, its
officers and employees as may be authorized by law;
....
g. Determine all matters of policy and regulate the
administration of the institutions or noninstitutional
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agencies within his jurisdiction, correct and adjust the
same so that each shall function as an integral part of a
general system. The rules, regulations, orders and
directions promulgated by the commissioner for this
purpose shall be accepted and enforced by the executive
having charge of any institution or group of institutions
or noninstitutional agencies or any phase of the work
within the jurisdiction of the department . . . .
A.
OPRA mandates the procedure to be followed when a government agency
denies a record request in N.J.S.A. 47:1A-5, setting forth
A custodian shall promptly comply with a request to
inspect, examine, copy, or provide a copy of a
government record. If the custodian is unable to
comply with a request for access, the custodian shall
indicate the specific basis therefor on the request form
and promptly return it to the requestor. The custodian
shall sign and date the form and provide the requestor
with a copy thereof . . . . If a request for access to a
government record would substantially disrupt agency
operations, the custodian may deny access to the record
after informing the requestor of the potential disruption
to agency operations and attempting to reach a
reasonable solution with the requestor that
accommodates the interests of the requestor and the
agency.
[N.J.S.A. 47:1A-5(g).]
When an OPRA request is denied, the burden is placed upon the custodian of
the record to state the "specific basis" for denial. Newark Morning Ledger Co.
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v. New Jersey Sports & Exposition Auth., 423 N.J. Super. 140, 162 (App. Div.
2011).
Defendants properly responded to plaintiff's Part A request by providing
plaintiff with the Legal Access Program government record in effect as of
plaintiff's OPRA request date. Pursuant to Falvey's undisputed certification, the
Legal Access Program is in fact the Legal Access Plan required under N.J.A.C.
10A:6-2.15. The Legal Access Program contains information to facilitate
inmate access to the courts and law library. We are unpersuaded that plaintiff's
reference to a lengthier government record with an effective date of May 9,
1996, revised May 1, 2007, creates a factual issue as to whether the proper
government record was provided in response to plaintiff's Part A request. The
confidential IMP titled "Inmate Legal Access" is a separate internal government
record designated for the sole use of the correctional police staff which is exempt
from disclosure under OPRA.
Defendants' response was not a denial requiring explanation pursuant to
N.J.S.A. 47:1A-5(g) since the Legal Access Program provided to plaintiff is in
fact the Legal Access Plan requested by plaintiff in his OPRA request. N.J.S.A.
47:1A-5(g) does not require the government agency to provide any explanation
when it complies with a request for access under OPRA; the statutorily-
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mandated explanation is only required where there is a denial. Thus, we
conclude the trial court incorrectly found that defendants violated OPRA
because they were not required to explain the response to plaintiff's Part A
request. We reverse and vacate the trial court's finding that defendants violated
OPRA.
B.
We discern no error with the trial court's conclusion that defendants
properly denied plaintiff's Part B request as exempt under OPRA since plaintiff
requested internal management procedures, which are protected from public
access from OPRA based on the DOC's regulatory authority.
N.J.A.C. 10A:22–2.3 includes certain DOC records which "shall not be
considered government records subject to public access pursuant to N.J.S.A.
47:1A-1 et. seq." N.J.A.C. 10A:22-2.3 (referring to OPRA). The relevant part
of the DOC regulation, promulgated pursuant to N.J.S.A. 47:1A-9(a) and
N.J.S.A. 30:1B-6(e) and (g), states
(a) In addition to records designated as confidential
pursuant to the provisions at N.J.S.A. 47:1A-1, et. seq.,
any other law, rule promulgated pursuant to the
authority of any statute or Executive Order of the
Governor, resolution of both houses of the Legislature,
Executive Order of the Governor, Rules of Court, or
any Federal law, Federal regulation, or Federal order,
the following records shall not be considered
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government records subject to public access pursuant to
N.J.S.A. 47:1A–1 et. seq.;
....
9. All internal management procedures, or any portion
thereof, including any portions of those procedures
and/or any indexes or lists identifying the procedures
related to the following: safety and security measures,
inmate movement, staffing, investigative techniques,
contraband detection, intelligence gathering
techniques, structural or physical plant designs,
surveillance techniques, and search techniques . . . .
[N.J.A.C. 10A:22-2.3(a).]
The IMP at issue here is exempt under N.J.A.C. 10A:6-2.23(a)(9) because
it reflects security measures to be implemented within the NJSP. Thus, we
affirm the trial court's finding that defendants did not violate OPRA with respect
to its response to plaintiff's Part B request.
C.
We are unpersuaded that plaintiff's Part B and C requests sufficiently
identified government records that could be provided without conducting
research requesting the subjective exercise of judgment, a task not required to
be undertaken by the DOC to comply with OPRA.
Under prevailing law, in order to be deemed a "government record" as
defined by N.J.S.A. 47:1A-1.1, the document must not be subject to any
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exemptions pursuant to N.J.S.A. 47:1A-9. The third limitation is that every
record request must identify with reasonable clarity those documents that the
requestor seeks. See Burke v. Brandes, 429 N.J. Super. 169, 174 (App. Div.
2012). This court reasoned the "exact definition of an impermissibly overly
broad request is abstract." Doe v. Rutgers State Univ. of New Jersey, 466 N.J.
Super. 14, 27 (App. Div. 2021). "Courts have found requests that require a
custodian to exercise his discretion, survey employees, or undertake research to
determine whether a record is responsive are overly broad and not encompassed
by OPRA." Ibid.OPRA allows "requests for records, not requests for information." Burke,
429 N.J. Super. at 174 (citing Bent, 381 N.J. Super. at 37). OPRA "is not
intended as a research tool . . . to force government officials to identify and
siphon useful information." Bent, 381 N.J. Super. at 37 (citing MAG Ent., LLC,
375 N.J. Super. at 546). Simply stated, if an OPRA request slides over into the
realm of information gathering, as opposed to record gathering, the custodian of
the government records is not required under OPRA to supply access to the
information requested.
The Supreme Court of New Jersey in Simmons recently expanded on the
information versus record gathering distinction, particularly focusing on what
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would be considered "information gathering," under OPRA, explaining "the
request should not require the records custodian to undertake a subjective
analysis to understand the nature of the request. Seeking particular information
from the custodian is permissible; expecting the custodian to do research is not."
Simmons, 247 N.J. at 43 (citing Paff, 229 N.J. at 355). The Court concluded
that to tip the OPRA request into impermissible information gathering, the
request would "require the record custodian to exercise subjective judgment in
determining which records must be produced." Ibid. See also New Jersey
Builders Ass'n v. New Jersey Council on Affordable Hous., 390 N.J. Super. 166(App. Div. 2007); Bent, 381 N.J. Super. at 40 (concluding the plaintiff's OPRA's
request was open-ended and required the agency to conduct impermissible
analysis, which it was under no obligation to provide); MAG Ent., LLC, 375
N.J. Super. at 547 (noting the plaintiff was not specific enough in the OPRA
request because the plaintiff "sought information regarding a municipality's
liability settlements" without requesting any particular record).
We are unpersuaded by plaintiff's argument that the Part B and C requests
contained the required specificity and determine the DOC's denial was proper
because "they do not adequately identify a particular government record(s)
sought." The record supports the DOC's assertion that Falvey and other DOC
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employees would have to engage in impermissible research, or a subjective
analysis, which is not required under OPRA. Falvey certified that when he
conducted a search related to plaintiff's Part B request, he "identified
approximately 500 IMPs created and revised by the [DOC] during that time"
with no additional way of locating responsive documents other than reviewing
the contents of each IMP issued during that time period and comparing it to the
[Executive Order] listed in the OPRA request." Similarly, Nardelli certified that
complying with plaintiff's Part C requests would yield "several hundred, if not
thousands, of documents," related to the DOC's COVID-19 response which
"would require a subjective review of each and every page of these hundreds, if
not thousands, of pages to determine whether it addresses those issues named."
Because we find that plaintiff did not prevail on any portion of his OPRA
complaint, he is not a prevailing party entitled to an award of fees under N.J.S.A.
47:1A-6.
Any arguments not addressed in this decision are without sufficient merit
to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed in part. Reversed and vacated in part.
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