In the Matter of the New Jersey State Fireman’s Association Obligation to Provide Relief Applications Under the Open Public Records Act (077097) (Union County and Statewide)

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
In the Matter of the New Jersey Firemen’s Association Obligation to Provide
Relief Applications Under the Open Public Records Act (A-68-15) (077097)
Argued January 18, 2017 -- Decided August 3, 2017
SOLOMON, J., writing for the Court.
The issue in this appeal is whether, after a public entity denies a citizen’s record request, the New Jersey
Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and the common law right of access preclude the public
entity from instituting a proceeding under the Declaratory Judgment Act (DJA), N.J.S.A. 2A:16-50 to -62. The
Court also decides whether the records sought in this case—financial relief checks that the New Jersey Firemen’s
Association (Association) issued to one of its members, John Doe—are exempt from disclosure under OPRA and
the common law right of access.
Plaintiff Jeff Carter submitted a request for the Association to release Doe’s financial relief application and
supporting documentation, as well as the relief checks the Association provided to Doe. Carter’s motivation for the
request was to publicize the fact that Doe had been charged with endangering the welfare of a child and
consequently resigned from his position with the Millstone Valley Fire Department. It was Carter’s belief that Doe
should not “receiv[e] hardship benefits for behavior that appear[ed] to be caused entirely by [Doe’s] own actions.”
The vice president of the Association denied Carter’s request via e-mail, stating that relief applicants have a
reasonable expectation of privacy that would be violated if their application materials, which contain detailed
personal financial information, were disclosed. In an e-mail response, Carter reiterated that, because he did not seek
any “legitimately defined privileged or exempt information,” the Association was obligated to release the requested
financial records with the appropriate redactions. The Association refused to disclose Doe’s records, claiming the
detailed personal financial information contained in the application raised privacy concerns.
When efforts to amicably resolve the matter proved unsuccessful, the Association filed a declaratory
judgment complaint and proposed order to show cause to establish its obligation to disclose the financial records that
Carter requested. The trial court agreed with the Association that applicants have a personal right of privacy in their
relief applications and entered the Association’s order to show cause. After retaining counsel, Carter filed his
opposition to the order to show cause, seeking dismissal of the complaint and arguing that the Association’s
declaratory judgment action was barred by section 6 of OPRA, N.J.S.A. 47:1A-6, which vests the right to institute
proceedings relating to OPRA solely in the records requestor.
The trial court reviewed in camera Doe’s financial relief application and, after oral argument, denied
Carter’s request for dismissal. After applying the seven factors outlined in Burnett v. County of Bergen, 198 N.J.
408, 427 (2009) (adopting factors announced in Doe v. Poritz, 142 N.J. 1, 88 (1995), to analyze OPRA), the court
held that OPRA’s privacy exemption barred release of relief applications, names of applicants, and amounts paid
through the Association’s financial assistance programs. The court then balanced the six factors set forth in
Loigman v. Kimmelman, 102 N.J. 98, 113 (1986), and determined that the common law did not require disclosure.
Appearing pro se, Carter appealed. The Appellate Division reversed, holding that OPRA provides the
exclusive remedy in cases involving public records requests and that the Legislature made clear that only requestors
are entitled to seek review of OPRA decisions. 443 N.J. Super. 238, 245 (App. Div. 2015). In addition, the
Appellate Division found that neither OPRA’s privacy exemption, nor the privacy considerations encompassed in
the common law right of access, could shield Doe’s payment records. Id. at 269.
The Court granted the Association’s petition for certification. 224 N.J. 528 (2016).
HELD: OPRA does not, in all instances, prohibit a public entity from instituting proceedings under the Declaratory
Judgment Act to determine whether records are subject to disclosure. After carefully balancing the public’s interest
in accessing information against the private interest in confidentiality, the Court finds that the relief checks to Doe
are exempt from disclosure under OPRA and the common law right of access.
1. By vesting New Jersey courts with the “power to declare rights, status and other legal relations, whether or not
further relief is or could be claimed,” N.J.S.A. 2A:16-52, the DJA provides all individuals and organizations, public
or private, with a forum to present bona fide legal issues to the court for resolution, N.J.S.A. 2A:16-53. A
declaratory judgment claim is ripe for adjudication only when there is an actual controversy, meaning that the facts
present concrete contested issues conclusively affecting the parties’ adverse interests. There is ordinarily no reason
to invoke the provisions of the DJA where another adequate remedy is available. (pp. 13-16)
2. OPRA was designed to promote transparency in the operation of government and makes all government records
presumptively accessible to the public unless an exemption applies. N.J.S.A. 47:1A-1. OPRA’s twenty-one
exemptions are to be “construed in favor of the public’s right of access[.]” N.J.S.A. 47:1A-1. If a records request is
denied, section 6 of OPRA provides that the requesting party may “institute a proceeding to challenge the
custodian’s decision by filing an action in Superior Court” or with the Government Records Council. N.J.S.A.
47:1A-6. (pp. 16-17)
3. OPRA recognizes a privacy exception by requiring public agencies “to safeguard from public access a citizen’s
personal information” when “disclosure thereof would violate the citizen’s reasonable expectation of privacy.”
N.J.S.A. 47:1A-1; Burnett, supra, 198 N.J. at 414, 427-28. When OPRA’s privacy exemption is at issue, the Burnett
seven-factor balancing test is applied to determine whether the citizen’s interest in privacy outweighs the public’s
interest in governmental transparency. (pp. 17-18)
4. The DJA provides broad access to our courts as a means by which rights, obligations and status may be
adjudicated in cases involving a controversy that has not yet reached the stage at which either party may seek a
coercive remedy. Conversely, OPRA limits access to the courts by conferring the right to initiate a suit only upon
the requestor, after a public agency’s denial of access. N.J.S.A. 47:1A-6. Here, The Association and Carter had
“genuine differences” as to the Association’s duty to disclose under OPRA. However, the Association’s denial of
access extinguished the controversy because the Association had determined its legal obligation with regard to the
relief checks. At that point, it was not appropriate for the Association to rely on the DJA because the controversy
had reached a stage at which Carter could seek a coercive remedy by way of section 6 of OPRA. Section 6 of
OPRA’s special procedure for review of an agency’s denial must prevail over the general DJA statute. After an
agency has denied a request, only the requestor may seek judicial review of the agency’s decision. (pp. 19-20)
5. Although the Court determines that the Association’s DJA action is moot, in the interest of judicial economy, it
nevertheless decides whether OPRA’s privacy exception applies to the relief checks issued to Doe. As this case
presents a clash between two of OPRA’s key competing interests—disclosure and protection of privacy interests—
the Court applies the seven-factor test adopted in Burnett. Because all factors weigh in favor of non-disclosure, the
Association properly denied Carter’s request in order to protect Doe’s privacy interest in the records. (pp. 21-23)
6. Like OPRA, when confidentiality concerns are raised under the common law right of access, courts balance the
requestor’s interest in disclosure against the government’s interest in confidentiality. Loigman, supra, 102 N.J. at
108. A balancing of the six Loigman factors in this case militates against disclosure. On balance, the public’s
interest in access does not outweigh the Association’s interest in non-disclosure. The Court finds that the dangers
inherent in disclosure of confidential information for public dissemination are so obvious that Doe’s privacy interest
prevails over the public interest in disclosing the information. (pp. 23-27)
The judgment of the Appellate Division is REVERSED.
JUSTICE ALBIN, CONCURRING, expresses the view that OPRA governs a records request, whether a
public entity’s records custodian denies the request or does not respond to the request. In other words, a records
custodian, who intends to deny a records request but does not verbalize the denial, cannot invoke the DJA to do an
end run around the dictates of OPRA.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA
and TIMPONE join in JUSTICE SOLOMON’s opinion. JUSTICE ALBIN filed a separate, concurring
opinion.
2
SUPREME COURT OF NEW JERSEY
A-68 September Term 2015
077097
IN THE MATTER OF THE NEW
JERSEY FIREMEN’S ASSOCIATION
OBLIGATION TO PROVIDE RELIEF
APPLICATIONS UNDER THE OPEN
PUBLIC RECORDS ACT
JEFF CARTER,
Third-Party
Plaintiff-Respondent,
v.
JOHN DOE,
Third-Party
Defendant.
Argued January 18, 2017 – Decided August 3, 2017
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 443 N.J. Super. 238 (App. Div.
2015).
John C. Gillespie and George M. Morris
argued the cause for appellant New Jersey
State Firemen’s Association (Parker McCay,
attorneys; Stacy L. Moore, Jr., on the
briefs).
C.J. Griffin argued the cause for respondent
Jeff Carter (Pashman Stein, attorneys; C.J.
Griffin and Walter M. Luers, of counsel and
on the briefs).
Thomas J. Cafferty argued the cause for
amicus curiae New Jersey Press Association
(Gibbons, attorneys; Thomas J. Cafferty, Nomi I.
Lowy, and Lauren James-Weir, on the briefs).
1
JUSTICE SOLOMON delivered the opinion of the Court.
We are asked to decide whether, after a public entity
denies a citizen’s record request, the New Jersey Open Public
Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and the common law
right of access preclude the public entity from instituting a
proceeding under the Declaratory Judgment Act (DJA), N.J.S.A.
2A:16-50 to -62. We also decide whether the records sought in
this case -- financial relief checks that the New Jersey
Firemen’s Association (Association) issued to one of its
members, John Doe1 -- are exempt from disclosure under OPRA and
the common law right of access.
A month after the Appellate Division declared the
Association to be a “public entity,” Paff v. N.J. State
Firemen’s Ass’n, 431 N.J. Super. 278, 290 (App. Div. 2013),
plaintiff Jeff Carter submitted a request for the Association to
release Doe’s financial relief application and supporting
documentation, as well as the relief checks the Association
provided to Doe. The Association refused, contending that
disclosure would compromise the reasonable expectation of
privacy that applicants, such as Doe, have when seeking its
1 The requested records identified John Doe by name, but the name
is redacted in the public record on appeal.
2
assistance. Carter renewed his request, claiming he was
entitled to certain payroll records with appropriate redactions.
The Association responded by filing a declaratory judgment
action to obtain a judicial determination of its
responsibilities under OPRA when it is asked to disclose the
personal financial information of its members. Carter answered,
counterclaimed, and filed a third-party complaint against Doe.
At that point, Carter narrowed his records request to the relief
checks paid to Doe.
The trial court found that, under OPRA and the common law,
Doe’s privacy interest outweighed the public’s interest in
disclosure. The Appellate Division reversed and held that the
Association’s DJA complaint was improper because OPRA
exclusively vests the requestor, not the custodian, with the
right to institute a proceeding. The Appellate Division also
determined that Doe’s privacy interest was not substantial
enough to outweigh the public’s interest in government
transparency.
We reverse the judgment of the Appellate Division and
conclude that OPRA does not, in all instances, prohibit a public
entity from instituting proceedings under the DJA to determine
whether records are subject to disclosure. In addition, after
carefully balancing the public’s interest in accessing
information against the private interest in confidentiality, we
3
find that the relief checks to Doe are exempt from disclosure
under OPRA and the common law right of access.
I.
The record before us reveals the following. Statutorily
created in 1885, L. 1885, c. 122, § 24, the Association is
vested with the mission to provide welfare and death benefits to
qualified active and retired volunteer, part-time, and paid
firefighters and their families. Until June 2013, the
Association operated as a private entity. Paff, supra, 431 N.J.
Super. at 290.
A month after it was designated a “public agency,” ibid.,
the Association received its first OPRA request, in which Carter
sought the following:
1. Copies of record(s) (including attachments)
submitted by [Doe], Local 501 agent(s), and/or
NJSFA agent(s) seeking financial benefits
described in the “BACKGROUND” section above
from January 1, 2008 through July 15, 2013.
2. Copies of record(s) (including attachments)
sent to [Doe], Local 501 agent(s), and/or
NJSFA agent(s) disbursing financial benefits
described in the “BACKGROUND” section above
from January 1, 2008 through July 15, 2013.
3. If no record(s) are responsive to Items No.
1 or 2 above, then copies of the front and
back of every check providing relief and/or
similar benefits, both State and Local, paid
to [Doe] between January 1, 2008 through July
15, 2013. (Note that checks are not required
if responsive records are provided for Items
No. 1 and 2 above.)
4
Carter’s motivation for the request was to publicize the fact
that Doe had been charged with endangering the welfare of a
child and consequently resigned from his position with the
Millstone Valley Fire Department. It was Carter’s belief that
“hardship benefits are limited and are designed for those who
did not directly contribute to and/or cause their resulting need
for [such] benefits.” Thus, Carter determined that it would be
“an insult to deserving firefighters and their families” who
justly acquire benefits if Doe was “receiving hardship benefits
for behavior that appear[ed] to be caused entirely by [Doe’s]
own actions.”
Five days later, the vice president of the Association
denied Carter’s request via e-mail, stating that relief
applicants have a reasonable expectation of privacy that would
be violated if their application materials, which contain
detailed personal financial information, were disclosed.
In an e-mail response, Carter reiterated that, because he
did not seek any “legitimately defined privileged or exempt
information,” the Association was obligated to release the
requested financial records with the appropriate redactions.
Carter also renewed his original request by stating that “the
timeframe for my original request will resume on the next
business day.” Carter concluded his e-mail with a request for a
5
copy of the policy and/or procedures governing how the
Association processes relief applications.
The Association disclosed to Carter its program guidelines,
the instructions it provides to prospective applicants, and
other general materials describing the manner in which its Board
of Trustees reviews applications. The Association refused to
disclose Doe’s records, claiming the detailed personal financial
information contained in the application raised privacy
concerns. Moreover, the Association claimed its application
materials led applicants to believe that the entrusted
information would remain confidential.
When efforts to amicably resolve the matter proved
unsuccessful, the Association filed a declaratory judgment
complaint and proposed order to show cause to establish its
obligation to disclose the financial records that Carter
requested. Specifically, Count One of the complaint sought an
order:
a. Declaring that individual relief
applications are of such a private nature that
the [] Association or the local relief
association shall be prevented from
acknowledging the existence of individual
applications and prohibited from releasing the
same under . . . [OPRA];
b. Declaring that a Requestor, in order to
determine whether the [] Association or the
local relief association is performing its
duties appropriately, may request a series or
date range of applications, but said
6
applications may only be released upon the
redaction of all personal information
including the requestors’ names, addresses,
[and] account numbers.
The second count sought identical relief under the common law
right of access. The Association maintained that the records
were exempt from disclosure under both OPRA and the common law
because disclosure would violate Doe’s reasonable expectation of
privacy. The Association also sought an order compelling Carter
to demonstrate why Doe’s financial records were not exempt from
disclosure.
The trial court agreed with the Association that applicants
have a personal right of privacy in their relief applications
and entered the Association’s order to show cause. After
retaining counsel, Carter filed his opposition to the order to
show cause, seeking dismissal of the complaint and arguing that
the Association’s declaratory judgment action was barred by
section 6 of OPRA, N.J.S.A. 47:1A-6, which vests the right to
institute proceedings relating to OPRA solely in the records
requestor. Carter also filed a counterclaim and a third-party
complaint against Doe.2 At that point, Carter further narrowed
the scope of documents he sought to copies of checks issued to
Doe.
2 Doe never responded to the third-party complaint.
7
In a supporting certification, Carter claimed that Doe was
an elected fire commissioner and volunteer firefighter who was
discharged for conduct unbecoming a township employee. Thus,
according to Carter, Doe’s privacy interest could not outweigh
the public’s interest in knowing whether the Association
provided financial assistance to a government employee
discharged for inappropriate conduct.
In a responsive certification, the Association’s vice
president explained that the organization’s goal is to provide
qualifying members with relief after an anonymous, non-
discriminatory application evaluation process that protects the
members’ privacy and dignity during their time of need.
The trial court reviewed in camera Doe’s financial relief
application and, after oral argument, denied Carter’s request
for dismissal. After applying the seven factors outlined in
Burnett v. County of Bergen, 198 N.J. 408, 427 (2009) (adopting
factors announced in Doe v. Poritz, 142 N.J. 1, 88 (1995), to
analyze OPRA), the court held that OPRA’s privacy exemption
barred release of relief applications, names of applicants, and
amounts paid through the Association’s financial assistance
programs. The court then balanced the six factors set forth in
Loigman v. Kimmelman, 102 N.J. 98, 113 (1986), and determined
that the common law did not require disclosure. The court also
denied Carter’s request for attorney’s fees under OPRA.
8
Appearing pro se, Carter appealed. The Appellate Division
reversed, holding that OPRA provides the exclusive remedy in
cases involving public records requests and that the Legislature
made clear that only requestors are entitled to seek review of
OPRA decisions. In re N.J. Firemen’s Ass’n Obligation to
Provide Relief Applications Under Open Public Records Act, 443
N.J. Super. 238, 245 (App. Div. 2015). The Appellate Division
found that neither OPRA’s privacy exemption, nor the privacy
considerations encompassed in the common law right of access,
could shield Doe’s payment records. Id. at 269. The Appellate
Division remanded the matter for a determination of attorney’s
fees.3 Id. at 271.
In a concurring opinion, Judge Messano expressed his belief
that the majority was unnecessarily “paint[ing] with . . . a
broad brush” because there could be circumstances in which it
would be appropriate for a public agency to seek declaratory
relief. Id. at 273, 275 (Messano, P.J.A.D, concurring).
We granted the Association’s petition for certification.
224 N.J. 528 (2016). The New Jersey Press Association (NJPA),
which appeared as amicus curiae in the Appellate Division,
retained its amicus status pursuant to Rule 1:13-9(d).
II.
3 The amount of attorney’s fees was subsequently settled, but
payment was stayed pending this appeal.
9
A.
The Association acknowledges that OPRA’s function is to
make identifiable government records “readily accessible for
inspection, copying, or examination.” N.J.S.A. 47:1A-1.
Additionally, the Association concedes that section 6 of OPRA
prohibits record custodians from instituting OPRA suits, a right
exclusively reserved for requestors.
However, the Association emphasizes that, as a public
agency, it “has a responsibility and an obligation to safeguard
from public access a citizen’s personal information with which
it has been entrusted when disclosure thereof would violate the
citizen’s reasonable expectation of privacy.” N.J.S.A. 47:1A-1.
The Association observes that, although OPRA attempts to strike
a balance between the competing interests of citizens’ privacy
and government transparency, it fails to instruct public
agencies on how to execute their duties without violating
citizens’ privacy rights. The Association states that it
accordingly availed itself of the DJA both to determine the
legality of disclosing applicant information in response to
Carter’s request and to ensure that firefighters in need can
apply for benefits without fear that the sensitive information
in their financial and/or medical records could one day be
disclosed to the public.
10
The Association maintains that OPRA can be readily squared
with the DJA because OPRA does not expressly, or even impliedly,
prohibit a public agency from filing a complaint under the DJA.
Rather, the Association interprets section 6 of OPRA to
foreclose custodians from “institut[ing] any proceeding under
this section.” N.J.S.A. 47:1A-6 (emphasis added).
Specifically, the Association argues that “under this section”
refers to Title 47 of the New Jersey Statutes, which deals
exclusively with OPRA, and not to statutory provisions contained
in other titles -- such as the DJA, which appears under Title
2A. Contrary to the Appellate Division’s opinion, the
Association finds it implausible that the Legislature would have
intended to bar public agencies’ access to the judicial system
when a genuine justiciable dispute arises, even if the issue
relates to OPRA. The Association warns that, under the
Appellate Division’s interpretation of OPRA, public agencies are
“sitting duck[s]” left with no alternative but to wait to be
sued and potentially “hit with substantial prevailing party
fees.”
B.
Carter asserts that the plain language of section 6 of OPRA
makes clear that only the requestor holds the right to initiate
proceedings regarding a public agency’s decision to provide
public access to records. Carter argues that, when a public
11
agency is unsure whether disclosure would violate a citizen’s
reasonable expectation of privacy, OPRA clearly dictates that
the agency has two options: (1) release the record as a
governmental record, or (2) deny access pursuant to one of
OPRA’s enumerated exemptions. Thus, Carter maintains that the
Association had no legal right, even under the DJA, to seek
judicial guidance in this case.
Carter accuses the Association of focusing too heavily on
the language “under this section” in section 6. According to
Carter, the proper point of emphasis in section 6 is that the
right to institute “any proceeding” belongs to the requestor.
Carter interprets that language as evidence of a legislative
intent to bar records custodians’ access to the court system by
way of any other statutory provision. Carter argues that
allowing public agencies to sidestep OPRA’s requirements via the
DJA would eradicate the exclusive right that OPRA bestows upon
requestors to choose to institute a proceeding and select the
forum in which the dispute is resolved -- either the Government
Records Council or the Superior Court. Carter warns that
allowing public agencies to utilize the DJA would chill OPRA
requests because it would force requestors to litigate when they
might not have done so otherwise, or even dissuade requestors
from making OPRA requests in the first place for fear of being
sued as a result.
12
C.
As amicus curiae, the NJPA submits that the Legislature
intentionally vested all statutory standing in the requestor.
According to the NJPA, the fact that OPRA was passed after the
DJA shows that the Legislature deliberately chose not to include
a provision in OPRA allowing public agencies to file declaratory
judgment actions. The NJPA also argues that allowing public
agencies to seek a declaratory judgment in this context would
improperly shift the burden of proof to the requestor to prove
the unlawfulness of the denial, instead of leaving the burden on
the government to prove the denial is justified by one of OPRA’s
exemptions. The NJPA highlights, further, that the DJA is
designed to provide a remedy for live controversies, not future
ones.
III.
We exercise plenary review over issues of statutory
interpretation. State v. Williams, 218 N.J. 576, 586 (2014).
Likewise, determinations about the applicability of OPRA and its
exemptions are legal conclusions, O’Shea v. Township of West
Milford, 410 N.J. Super. 371, 379 (App. Div. 2009); Asbury Park
Press v. County of Monmouth, 406 N.J. Super. 1, 6 (App. Div.
2009), aff’d o.b., 201 N.J. 5 (2010), and are therefore subject
to de novo review, Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995).
13
As always, our primary “objective [in] statutory
interpretation is to discern and effectuate the intent of the
Legislature.” Murray v. Plainfield Rescue Squad, 210 N.J. 581,
592 (2012). “If the Legislature’s intent is clear on the face
of the statute, then we must apply the law as written.” Ibid.
“Absent a clear indication from the Legislature that it intended
statutory language to have a special limiting definition, we
must presume that the language used carries its ordinary and
well-understood meaning.” State v. Lenihan, 219 N.J. 251, 262-
63 (2014). “[L]egislative language must not, if reasonably
avoidable, be found to be inoperative, superfluous or
meaningless.” State v. Regis, 208 N.J. 439, 449 (2011) (quoting
Franklin Tower One, L.L.C. v. N.M., 157 N.J. 602, 613 (1999)).
Yet, when statutory language is ambiguous, or “leads to more
than one plausible interpretation,” the court “may turn to
extrinsic evidence, ‘including legislative history, committee
reports, and contemporaneous construction.’” DiProspero v.
Penn, 183 N.J. 477, 492-93 (2005) (quoting Cherry Hill Manor
Assocs. v. Faugno, 182 N.J. 64, 75 (2004)).
A.
We begin with a review of the DJA, which provides as
follows:
A person . . . whose rights, status or other
legal relations are affected by a statute,
municipal ordinance, contract or franchise,
14
may have determined any question of
construction or validity arising under the
instrument, statute, ordinance, contract or
franchise and obtain a declaration of rights,
status or other legal relations thereunder.
[N.J.S.A. 2A:16-53.]
By vesting New Jersey courts with the “power to declare rights,
status and other legal relations, whether or not further relief
is or could be claimed,” N.J.S.A. 2A:16-52, the DJA provides all
individuals and organizations, public or private, with a forum
to present bona fide legal issues to the court for resolution,
N.J.S.A. 2A:16-53. The Legislature intended the Act to provide
“relief from uncertainty and insecurity with respect to rights,
status and other legal relations.” N.J.S.A. 2A:16-51. The
primary goal of affording this equitable relief is to allow
interested parties to preserve the status quo without having to
undergo costly and burdensome proceedings. DiFrancisco v. Chubb
Ins. Co., 283 N.J. Super. 601, 613 (App. Div. 1995).
Although any such declaration by the court carries “the
force and effect of a final judgment,” N.J.S.A. 2A:16-59, the
Judiciary is forbidden from “declar[ing the] rights or status of
parties upon a state of facts which are future, contingent and
uncertain.” Lucky Calendar Co. v. Cohen, 20 N.J. 451, 454
(1956) (quoting Tanner v. Boynton Lumber Co., 98 N.J. Eq. 85, 89
(Ch. 1925)). The prohibition of advisory opinions prevents
courts, “through avoidance of premature adjudication, from
15
entangling themselves in abstract disagreements.” Abbott Labs.
v. Gardner, 387 U.S. 136, 148, 87 S. Ct. 1507, 1515, 18 L. Ed.
2d 681, 691 (1967). It follows, then, that a declaratory
judgment claim is ripe for adjudication only when there is an
actual controversy, meaning that the facts present “concrete
contested issues conclusively affecting” the parties’ adverse
interests. N.J. Turnpike Auth. v. Parsons, 3 N.J. 235, 241
(1949) (citation omitted).
Finally, the DJA is a remedial statute that “shall be
liberally construed and administered, and shall be so
interpreted and construed as to effectuate its general purpose
to make uniform the law of those states which enact it, and to
harmonize, as far as possible, with federal laws, rules and
regulations on the subject of declaratory judgments.” N.J.S.A.
2A:16-51. However, there is “ordinarily no reason to invoke the
provisions of the Declaratory Judgments Act where another
adequate remedy is available.” Rego Indus., Inc. v. Am. Modern
Metals Corp., 91 N.J. Super. 447, 453 (App. Div. 1966).
B.
OPRA was “designed to promote transparency in the operation
of government.” Sussex Commons Assocs., LLC v. Rutgers, 210
N.J. 531, 541 (2012). Its 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
16
process.” Mason v. City of Hoboken, 196 N.J. 51, 64 (2008)
(quoting Asbury Park Press v. Ocean Cty. Prosecutor’s Office,
374 N.J. Super. 312, 329 (Law Div. 2004)). Such “broad public
access to information” allows the public to police “wasteful
government spending and guard[] against corruption and
misconduct.” Burnett, supra, 198 N.J. at 414. Although OPRA is
“not intended [to be] a research tool [that] litigants may use
to force government officials to identify and siphon useful
information,” MAG Entm’t, LLC v. Div. of Alcoholic Beverage
Control, 375 N.J. Super. 534, 546 (App. Div. 2005), it makes all
government records presumptively accessible to the public unless
an exemption applies, N.J.S.A. 47:1A-1; see also Mason, supra,
196 N.J. at 57. OPRA’s twenty-one exemptions are to be
“construed in favor of the public’s right of access[.]”
N.J.S.A. 47:1A-1.
If a records request is denied, section 6 of OPRA provides
that the requesting party may “institute a proceeding to
challenge the custodian’s decision by filing an action in
Superior Court” or with the Government Records Council.
N.J.S.A. 47:1A-6. To ensure that the average citizen is not
deterred from challenging an agency’s decision due to the
financial risk involved, OPRA allows an award of a reasonable
attorney’s fee to a “requestor who prevails in any proceeding.”
Ibid.
17
Actions under section 6 of OPRA “shall proceed in a summary
or expedited manner,” with the public agency bearing the burden
of proving “that one of [the] exemptions or exceptions
incorporated in the statute by reference is applicable to the
requested disclosure.” Tractenberg v. Township of West Orange,
416 N.J. Super. 354, 378-79 (App. Div. 2010) (quoting Asbury
Park Press, supra, 374 N.J. Super. at 329). In order to meet
this burden, the agency must present “specific reliable evidence
sufficient to meet a statutorily recognized basis for
confidentiality.” Courier News v. Hunterdon Cty. Prosecutor’s
Office, 358 N.J. Super. 373, 382-83 (App. Div. 2003).
Speculation is not sufficient to override “the overarching
public policy in favor of a citizen’s right of access” that
guides our courts. Id. at 383. “Absent such [specific reliable
evidence], a citizen’s right of access is unfettered.” Ibid.
Despite a clear commitment to transparency, OPRA recognizes
a privacy exception by requiring public agencies “to safeguard
from public access a citizen’s personal information” when
“disclosure thereof would violate the citizen’s reasonable
expectation of privacy.” N.J.S.A. 47:1A-1; Burnett, supra, 198
N.J. at 414, 427-28. When OPRA’s privacy exemption is at issue,
courts apply a seven-factor balancing test to determine whether
the citizen’s interest in privacy outweighs the public’s
interest in governmental transparency. Burnett, supra, 198 N.J.
18
at 427 (adopting factors identified in Poritz, supra, 142 N.J.
at 88). Those factors are discussed below. See infra Part V.A.
IV.
With the pertinent provisions of OPRA and the DJA in mind,
we now consider whether the two statutes can be harmonized to
resolve the ultimate question before the Court: whether a
public entity, after denying an OPRA request, can institute an
action against the requestor under the DJA to determine whether
the requested documents should be disclosed.
The DJA is a general statute that provides broad access to
our courts as “a means by which rights, obligations and status
may be adjudicated in cases involving a controversy that has not
yet reached the stage at which either party may seek a coercive
remedy.” Rego, supra, 91 N.J. Super. at 452-53; see N.J.S.A.
2A:16-51. Conversely, OPRA limits access to the courts by
conferring the right to initiate a suit only upon the requestor,
after a public agency’s denial of access. N.J.S.A. 47:1A-6.
Here, when the Association received its first records
request after it was declared a public entity, an actual
controversy existed: the Association and Carter had “genuine
differences” as to the Association’s duty to disclose under
OPRA. See N.J. Ass’n for Retarded Citizens v. Dep’t of Human
Servs., 89 N.J. 234, 242 (1982). However, the Association’s
denial of access extinguished the controversy because the
19
Association had determined its legal obligation with regard to
the relief checks. At that point, it was not appropriate for
the Association to rely on the DJA because the controversy had
reached a stage at which Carter could seek a coercive remedy by
way of section 6 of OPRA. Without a live dispute, any judicial
declaration on the Association’s right to deny access to the
relief checks would have amounted to an impermissible advisory
opinion.
Moreover, OPRA clearly and unambiguously confers the right
to initiate a suit after a public agency’s denial of access only
upon the requestor. N.J.S.A. 47:1A-6. In the absence of
legislative intent to the contrary, as is the case here, a
specific statutory provision dealing with a particular subject
prevails over a general provision. Trinity Cemetery Ass’n, Inc.
v. Township of Wall, 170 N.J. 39, 46 (2001). We therefore
conclude that section 6 of OPRA’s special procedure for review
of an agency’s denial must prevail over the general DJA statute.
Accordingly, after an agency has denied a request, section 6 is
triggered, and only the requestor may seek judicial review of
the agency’s decision.
We do not reach the question of whether a public entity may
file a pre-denial declaratory judgment action when confronted
with an unsettled question that has not been litigated before
and that implicates OPRA’s privacy prong, N.J.S.A. 47:1A-1.
20
V.
Although we have determined that the Association’s DJA
action is moot, in the interest of judicial economy, we
nevertheless choose to decide whether OPRA’s privacy exception
applies to the relief checks issued by the Association to Doe.
See Mystic Isle Dev. Corp. v. Perskie & Nehmad, 142 N.J. 310,
322 (1995) (recognizing value in related claims being resolved
in one adjudication to avoid “fragmented, multiple and
duplicative litigation”).
A.
The Association concedes that, following its designation as
a public agency in 2013, its relief applications and payment
checks are government records and presumptively accessible under
OPRA. N.J.S.A. 47:1A-1. The Association contends, however,
that those government records are exempt from disclosure because
of its obligation under OPRA to safeguard citizens’ reasonable
expectation of privacy. Ibid. As this case presents a clash
between two of OPRA’s key competing interests -- disclosure and
protection of privacy interests -- we apply the seven-factor
balancing test adopted in Burnett, supra, 198 N.J. at 427, and
consider:
(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
21
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.
We conclude that a balancing of those factors weighs in favor of
non-disclosure.
First, financial assistance applications and payments to a
specific individual are considered government records that are
kept, made, or maintained in the course of the Association’s
official business. Although a government record, the
Association claims that relief applications often contain the
complete personal financial history of individual applicants and
should receive more protection than welfare applications and
individual pension records, which are protected under N.J.S.A.
47:1A-10.
In applying the second and third factors, we find that the
potential harm that could be created by the release of this
information is unlimited -- identity theft, public
embarrassment, general loss of privacy, and so on. If
disclosure is required, individuals seeking benefits will fear
that sensitive information could be made public. Fourth, the
release of this information would likely create a chilling
effect among applicants for fear that the information may be
subject to public scrutiny.
22
Fifth, the Association has established a safeguard to
prevent disclosure by converting applicants’ names into unique
identification numbers. This also helps the Association
objectively evaluate each applicant’s claim for relief. If the
Association were forced to disclose information with applicants’
names, it would undermine this procedure.
Sixth, even if the public had a significant interest in
evaluating the Association’s decision-making process in
affording relief to its members, there is little public need to
release a single individual’s application. Finally, under the
seventh factor, there is no public policy or recognized interest
that requires access here.
Because all factors weigh in favor of non-disclosure, we
hold that the Association properly denied Carter’s request in
order to protect Doe’s privacy interest in the records.
Accordingly, we reverse the Appellate Division’s judgment
releasing the relief checks and awarding attorney’s fees to
Carter under OPRA.
B.
The common law right of access remains a distinct basis upon
which to access public records. Bergen Cty. Improvement Auth. v.
N. Jersey Media Grp., Inc., 370 N.J. Super. 504, 516 (App. Div.
2004). Under the common law, a public record is
23
one required by law to be kept, or necessary
to be kept in the discharge of a duty imposed
by law, or directed by law to serve as a
memorial and evidence of something written,
said, or done, or a written memorial made by
a public officer authorized to perform that
function, or a writing filed in a public
office. The elements essential to constitute
a public record are that it be a written
memorial, that it be made by a public officer,
and that the officer be authorized by law to
make it.
[Nero v. Hyland, 76 N.J. 213, 222 (1978)
(alterations removed) (quoting Josefowicz v.
Porter, 32 N.J. Super. 585, 591 (App. Div.
1954)).]
Thus, to receive access to a public record under the common law,
(1) the record requested must be a common-law public document;
“(2) the person seeking access must ‘establish an interest in
the subject matter of the material,” Keddie v. Rutgers, 148 N.J.
36, 50 (1997) (quoting S. Jersey Publ’g Co. v. N.J. Expressway
Auth., 124 N.J. 478, 487 (1991)); “and (3) the citizen’s right
to access ‘must be balanced against the State’s interest in
preventing disclosure,’” ibid. (quoting Higg-A-Rella, Inc. v.
County of Essex, 141 N.J. 35, 46 (1995)).
Because the Association requires that applicants compile
information for the Association to complete its public function
of awarding relief benefits, the information is created at the
behest of the Association. Therefore, the relief checks are
public records under the common law, a point the Association
does not presently contest. Carter’s claimed interest in the
24
checks is to shed light on the firefighter benefits award
process.
Like OPRA, when confidentiality concerns are raised under
the common law right of access, courts balance the requestor’s
interest in disclosure against the government’s interest in
confidentiality. Loigman, supra, 102 N.J. at 108. “[T]he
relative interests of the parties in relation to the specific
materials in question” must be the center of the balancing
process. Piniero v. N.J. Div. of State Police, 404 N.J. Super.
194, 206-07 (App. Div. 2008) (citing McClain v. Coll. Hosp., 99
N.J. 346, 361 (1985)). When there is a confidentiality claim,
the “applicant’s interest in disclosure is more closely
scrutinized.” Keddie, supra, 148 N.J. at 51. With this in
mind, courts consider whether the confidentiality claim is
“premised upon a purpose which tends to advance or further a
wholesome public interest or a legitimate private interest.”
Loigman, supra, 102 N.J. at 112 (quoting City of St. Matthews v.
Voice of St. Matthews, Inc., 519 S.W.2d 811, 815 (Ky. 1974)).
Along with a requestor’s motivation, Loigman, supra, identifies
six factors that must be balanced in order to determine whether
to disclose:
(1) the extent to which disclosure will impede
agency functions by discouraging citizens from
providing information to the government; (2)
the effect disclosure may have upon persons
who have given such information, and whether
25
they did so in reliance that their identities
would not be disclosed; (3) the extent to
which agency self-evaluation, program
improvement, or other decisionmaking will be
chilled by disclosure; (4) the degree to which
the information sought includes factual data
as opposed to evaluative reports of
policymakers; (5) whether any findings of
public misconduct have been insufficiently
corrected by remedial measures instituted by
the investigative agency; and (6) whether any
agency disciplinary or investigatory
proceedings have arisen that may circumscribe
the individual’s asserted need for the
materials. Against these and any other
relevant factors should be balanced the
importance of the information sought to the
plaintiff’s vindication of the public
interest.
[102 N.J. at 104, 113.]
We conclude that a balancing of the six Loigman factors in
this case militates against disclosure. First, disclosure of
relief payments would discourage citizens who require benefits
from applying for relief, and thus hamper the Association’s
ability to perform one of its core functions. Second, the
entire relief process is conditioned on confidentiality. The
remaining factors do not weigh heavily for or against
disclosure. Therefore, on balance, the public’s interest in
access does not outweigh the Association’s interest in non-
disclosure.
Accordingly, we find that “[t]he dangers inherent in
disclosure of confidential information for public dissemination
are so obvious” that Doe’s privacy interest “prevail[s] over the
26
public interest in disclosing the information.” N. Jersey Media
Grp., Inc. v. Bergen Cty. Prosecutor’s Office, 405 N.J. Super.
386, 391 (App. Div. 2009).
VI.
For the reasons set forth above, the judgment of the
Appellate Division is reversed.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON,
FERNANDEZ-VINA and TIMPONE join in JUSTICE SOLOMON’s opinion.
JUSTICE ALBIN filed a separate, concurring opinion.
27
SUPREME COURT OF NEW JERSEY
A-68 September Term 2015
077097
IN THE MATTER OF THE NEW
JERSEY FIREMEN’S ASSOCIATION
OBLIGATION TO PROVIDE RELIEF
APPLICATIONS UNDER THE OPEN
PUBLIC ACT
JEFF CARTER,
Third-Party
Plaintiff-Respondent,
v.
JOHN DOE,
Defendant-Third-Party
JUSTICE ALBIN, concurring.
I join the Court’s opinion in full. I write separately to
express my view that the New Jersey Open Public Records Act
(OPRA), N.J.S.A. 47:1A-1 to -13, governs a records request,
whether a public entity’s records custodian denies the request
or does not respond to the request. In other words, a records
custodian, who intends to deny a records request but does not
verbalize the denial, cannot invoke the Declaratory Judgment
Act, N.J.S.A. 2A:16-50 to -62, to do an end run around the
dictates of OPRA.
The Court’s opinion states: “We do not reach the question
of whether a public entity may file a pre-denial declaratory
judgment action when confronted with an unsettled question that
1
has not been litigated before and that implicates OPRA’s privacy
prong, N.J.S.A. 47:1A-1.” Ante at ___ (slip op. at 20)
(emphasis added). I believe that the Legislature’s clear intent
in passing OPRA, however, answers that question -- OPRA is the
only statutory medium in which a citizen’s records request can
be adjudicated.
I.
The Legislature enacted OPRA to occupy the field in
addressing records requests made by citizens to public agencies.
The Court’s opinion explains that a citizen, whose records
request is denied, may “‘institute a proceeding to challenge the
custodian’s decision by filing an action in Superior Court’ or
with the Government Records Council,” citing N.J.S.A. 47:1A-6.
Ante at ___ (slip op. at 17). The aggrieved requestor, thus,
has two alternative forums in which to seek relief: one through
our court system and the other through an administrative agency.
The requestor -- not the public agency -- has the sole “right to
institute any proceeding” arising from the denial of a records
request. N.J.S.A. 47:1A-6. We denied the records custodian the
power to initiate a declaratory judgment action against a
requestor because to do so would violate the requestor’s sole
right to initiate litigation over a records issue and to decide
the forum in which to seek relief. Ante at ___ (slip op. at
20). OPRA does not allow a public agency to haul a records
2
requestor before a Superior Court judge on an order to show
cause to justify why he requested a document. A citizen whose
records request is denied may have no intention to take the
matter further and cannot be forced to litigate a matter against
his will.
II.
Every reason for denying a public agency the authority to
file a declaratory action after the denial of a records request
holds true after a request is made but before the custodian’s
denial. The Legislature did not intend that a records custodian
could merely say nothing in response to a citizen’s records
request for the purpose of circumventing the citizen’s “right to
institute any proceeding” under OPRA. See N.J.S.A. 47:1A-6.
The citizen, who receives no response from the records custodian
-- like the citizen whose request is denied -- cannot be dragged
into Superior Court against his will by the records custodian
through a declaratory judgment action. The records custodian,
through strategic timing, cannot deprive the citizen of the
statutory right of choosing whether to litigate a records
request and, if so, selecting the forum, either Superior Court
or the Government Records Council. To conclude otherwise would
have a powerful chilling effect on whether a citizen would even
request a government record, thus defeating the entire purpose
of OPRA. See N.J.S.A. 47:1A-1 (“[G]overnment records shall be
3
readily accessible for inspection, copying, or examination by
the citizens of this State.”).
I believe that the logic of today’s opinion and a fair
reading of OPRA preclude a records custodian from resorting to a
declaratory judgment action after a citizen makes a records
request, regardless of whether the custodian voices a denial.
Having expressed this viewpoint, I fully concur with the
Court’s opinion.
4