Mark Lagerkvist v. Office of the Governor of the State

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0250-14T3
MARK LAGERKVIST,
APPROVED FOR PUBLICATION
Plaintiff-Appellant,
December 17, 2015
v.
APPELLATE DIVISION
OFFICE OF THE GOVERNOR OF THE
STATE OF NEW JERSEY and
JAVIER DIAZ, LEGAL SPECIALIST/
RECORDS CUSTODIAN,
Defendants-Respondents.
Argued October 15, 2015 – Decided December 17, 2015
Before Judges Alvarez, Ostrer, and Haas.
On appeal from the Superior Court of New
Jersey, Law Division, Mercer County, Docket
No. L-821-14.
Donald M. Doherty, Jr., argued the cause for
appellant.
Todd A. Wigder, Deputy Attorney General,
argued the cause for respondent (John J.
Hoffman, Acting Attorney General, attorney;
Melissa H. Raksa, Assistant Attorney
General, of counsel; Mr. Wigder, on the
brief).
The opinion of the court was delivered by
ALVAREZ, P.J.A.D.
This is an appeal by Mark Lagerkvist, a journalist, from
the July 29, 2014 Law Division order dismissing his Open Public
Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, denial of access
complaint.1 We affirm, concluding that the records custodian's
initial refusal, and silence in the face of a second request,
satisfied the mandates of the statute. We also conclude that
Lagerkvist's inquiry fell outside OPRA's scope because it called
for the custodian to conduct research and provide information,
not records.
Lagerkvist's January 15, 2014 records request sought to
have defendant Office of the Governor of the State of New Jersey
provide him with:
Copies of all available documentation for
out-of-state travel from 2012 to present by
[Governor] Chris Christie and/or members of
his senior staff to attend or participate in
third-party funded events. This request
specifically includes documentation of the
payment arrangement on the third-party
organization's letterhead, as required by
Treasury circular 12-14-OMB.[2] This request
encompasses any event programs, schedules[,]
or other records disclosing the particulars
of the events, the role of [Governor]
Christie and/or members of his senior staff
1
Lagerkvist's notice of appeal and brief only address the issue
in the context of OPRA although the complaint sought relief
under the common law as well.
2
Treasury circular 12-14-OMB, which the State contends does not
apply to the Governor and his staff, directs government
employees to maintain travel records for third-party funded
events.
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at the events[,] and the travel arrangements
including itineraries. It also includes any
emails, internal or external, regarding the
arrangements and events. If any expenses
were charged to the state, this request
includes copies of all travel vouchers
submitted by or on behalf of [Governor]
Christie and/or his senior staff, along with
copies of all original receipts.
After obtaining extensions of time in which to respond,
legal specialist/records custodian Javier Diaz, also a
defendant, denied Lagerkvist's request stating that it was
"unclear, and . . . therefore invalid under OPRA." Immediately
after that phrase, the written denial quoted Gannett New Jersey
Partners, L.P. v. County of Middlesex: "OPRA requires a party
requesting access to a public record to specifically describe
the document sought." 379 N.J. Super. 205, 212 (App. Div.
2005). The denial then quoted from Bent v. Township of Stafford
Police Department, that "a proper request" was one which
identified the sought-after documents "with reasonable clarity."
381 N.J. Super. 30, 37 (App. Div. 2005).
A few days later, Lagerkvist emailed Diaz, asserting that
he had been "specific and not 'unclear.'" He said:
• The request is for specific records that
are required to be created and maintained
by Treasury circular 12-14-OMB.
• The request covers a specific time period,
2012 to present.
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• The request is for documents regarding the
third-party funded travel of specific
public officials — i.e. [Governor]
Christie and members of his senior staff.
The current senior staff is listed on the
governor's official web site at http://
www.state.nj.us/governor/admin/staff/.
Despite turnover, the governor's office
should be able to easily identify former
senior staff.
Lagerkvist also said "[i]f you believe there is any
technicality that causes [this request] to be unclear, please
identify it and bring it to my attention immediately.
Otherwise, I will conclude your denial violates OPRA."
Defendants did not reply, triggering Lagerkvist's April 11,
2014 summary action to compel production of the third-party
funded travel records. See R. 4:67. On July 29, after hearing
oral argument, the Law Division judge opined that the request
greatly exceeded the scope of a "routine ministerial action of a
custodian[,]" going beyond the boundaries of OPRA or the common
law. It imposed on the custodian the obligation to do
significantly more than merely isolate and copy identified
records.
The judge also found no error in the custodian's use, in
the context of the written denial, of the term "unclear" as
opposed to "overbroad." By referring to precedents that defined
unclear and overbroad requests as outside OPRA's ambit, the
custodian adequately explained his reasons. Thus, any objection
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to Diaz's use of only the word "unclear" was merely a "semantic
argument." The judge further observed that the law does not
place the onus on the governmental agency "to recast the
request" so it could be granted. She dismissed the complaint
with prejudice.
On appeal, Lagerkvist reiterates that when public access
issues are litigated, the burden rests upon the custodian to
demonstrate that denial of access is warranted. From that
premise, he argues that the custodian's burden should be
expanded to include explaining the reasons for the denial of
access with such specificity that the requestor can modify the
inquiry in order to achieve success. Additionally, Lagerkvist
contends that his request was not unclear and that therefore the
custodian's response was improper.
The overarching principle in the statutory scheme is that
"all government records shall be subject to public access unless
exempt." N.J.S.A. 47:1A-1. For this reason, the burden is
placed on the custodian, once proceedings to compel disclosure
are initiated, to prove that denial of access is "authorized."
N.J.S.A. 47:1A-6. Appellate review of questions regarding
applicability of OPRA is de novo. K.L. v. Evesham Twp. Bd. of
Educ., 423 N.J. Super. 337, 349 (App. Div. 2011) (citing O'Shea
5 A-0250-14T3
v. Twp. of W. Milford, 410 N.J. Super. 371, 379 (App. Div.
2009)), certif. denied, 210 N.J. 108 (2012).
As a threshold matter, we concur with the Law Division
judge that Diaz's use of the word "unclear," as opposed to
"overbroad," is a matter of semantics which had no effect on the
issue of whether the request was properly framed and the denial
lawful. A custodian must provide a "'specific basis' for the
denial of access," and that occurred here. Gannett, supra, 379
N.J. Super. at 215 (quoting N.J.S.A. 47:1A-5(g)). The language
immediately following the use of "unclear" unequivocally
explained that the request was also overbroad.
Additionally, Lagerkvist's second request was no more than
a rephrasing of the first. Although Lagerkvist purported to
make the second request narrower, in truth nothing in it changed
from the initial inquiry. The custodian had already explained
that the substantively identical initial inquiry was unclear and
overbroad. Indeed, the statute states that silence will "be
deemed a denial . . . ." N.J.S.A. 47:1A-5(i).
N.J.S.A. 47:1A-5(g) imposes upon the custodian the
responsibility to "indicate the specific basis" for the denial
of access. Having initially responded in a fashion that
satisfied the statute, nothing further was required of the
custodian when faced with the same demand. See N.J.S.A.
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47:1A-5(i). His silence was correctly interpreted as a denial
of access.
Lagerkvist further seeks to expand a custodian's duty to
include the obligation to work out a "reasonable solution" with
the requestor in circumstances beyond those found in the
statutory scheme. N.J.S.A. 47:1A-5(g) states that if a request
would "substantially disrupt agency operations, the custodian
may deny access to the record after attempting to reach a
reasonable solution with the requestor that accommodates the
interests of the requestor and agency." Lagerkvist contends
this statutory duty, imposed when the time involved in complying
with the search is onerous, should include this scenario. We do
not agree that such an expansion is warranted.
Efforts at working out an agreement between the requestor
and custodian are necessary when the governmental entity's
objection stems from the potential for "substantial disrup[tion]
[to] agency operations." See N.J.S.A. 47:1A-5(g); see also
Mason v. City of Hoboken, 196 N.J. 51, 65 (2008) ("Various
provisions in the statute are designed to foster cooperation
among requestors and agencies . . . . [f]or example, if a request
'would substantially disrupt agency operations . . . .'").
This would occur, for example, where a request is problematic
because of the number of documents sought, or because of
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duplication difficulties presented by the inherent nature of the
items requested.
In American Civil Liberties Union of New Jersey v. New
Jersey Division of Criminal Justice, 435 N.J. Super. 533, 541
(App. Div. 2014), this court held that there is "no legal basis
to expand the custodian's role beyond what the Legislature
specifically described in N.J.S.A. 47:1A-5(g)." Although in
that case, we made the observation in the context of an agency
claim that it had the right to exercise discretion in redacting
records, the language is equally apt here.
In this case, no efforts at accommodation were necessary
because the custodian's objection was that the request was
unclear and overbroad, not that the process of responding would
excessively burden the agency or disrupt day-to-day operations.
"While OPRA provides [a] . . . means of access to government
documents not otherwise exempted from its reach, it is not
intended as a research tool 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). That is precisely the nature
of Lagerkvist's inquiry here.
Lagerkvist's request sought travel records and related
documents, such as emails and correspondence, from "2012 to
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present" for an unknown number of persons for an unknown number
of events. See id. at 540 ("MAG's request required the
custodian to collect, evaluate, and compile information from
each file and amounted, in effect, to an improper demand for
research."). A proper request would ask for specific documents
regarding a third-party funded event occurring on a specific
date, naming those who participated —— such an inquiry would
fall within OPRA's scope.
Nothing in OPRA requires what Lagerkvist sought: that the
custodian "conduct research among its records . . . and
correlate data from various government records in the
custodian's possession." Id. at 546-47 (internal citation
omitted). A requestor is obliged to identify the documents
sought with some particularity, thus enabling government to
maintain transparency while completing necessary day-to-day
functions. Bent, supra, 381 N.J. Super. at 37.
The custodian in this case would have had to make a
preliminary determination as to which travel records correlated
to the governor and to his senior officials, past and present,
over a span of years. The custodian would then have had to
attempt to single out those which were third-party funded
events. Next, he would have had to collect all documents
corresponding to those events and search to ensure he had
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accumulated everything, including both paper and electronic
correspondence. OPRA does not convert a custodian into a
researcher, and that would have been the effect of Lagerkvist's
request.
This was no "routine search of files pertaining to a very
narrowly specified topic." Burke v. Brandes, 429 N.J. Super.
169, 177 (App. Div. 2012). Lagerkvist's inquiry clearly
exceeded the limits of OPRA. The denial of access was proper.
Affirmed.
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