RICHARD SPILLANE VS. NEW JERSEY STATE PAROLE BOARD Â (NEW JERSEY GOVERNMENT RECORDS COUNCIL)

NOT FOR PUBLICATION WITHOUT THE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-5089-14T2
RICHARD SPILLANE,
Appellant,
v.
NEW JERSEY STATE PAROLE BOARD,
Respondent.
_________________________________
Submitted September 11, 2017 – Decided September 21, 2017
Before Judges Messano and Vernoia.
On appeal from the Government Records Council,
Complaint No. 2014-169.
Richard Spillane, appellant pro se.
Christopher S. Porrino, Attorney General,
attorney for respondent New Jersey State
Parole Board (Lisa A. Puglisi, Assistant
Attorney General, of counsel; Gregory R.
Bueno, Deputy Attorney General, on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent Government Records
Council (Debra A. Allen, Deputy Attorney
General, on the statement in lieu of brief).
PER CURIAM
Appellant Richard Spillane appeals from a decision of the
Government Records Council (GRC) finding the New Jersey State
Parole Board lawfully denied his request for access to a mental
health evaluation report under the Open Public Records Act (OPRA),
N.J.S.A. 47:1A-1 to -13. Because we are convinced the GRC correctly
determined the requested report was exempt from disclosure under
OPRA, we affirm.
Appellant is an inmate serving a life sentence in the custody
of the New Jersey Department of Corrections. He was denied parole
by the New Jersey State Parole Board and, in a separate appeal,
challenges the Parole Board's decision.
A mental health evaluation of appellant was performed at the
Parole Board's direction for its use in connection with his parole
proceeding. Appellant filed an OPRA request with the Parole Board
seeking a copy of the mental health evaluation report.1 The Parole
Board denied the request claiming the report was exempt from
disclosure under OPRA.
Appellant filed a complaint with the GRC asserting the Parole
Board's denial of access to the report violated OPRA. Following
the exchange of submissions by appellant and the Parole Board, the
GRC's executive director made findings and recommendations. The
1
Appellant also requested other items that are not at issue here.
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executive director found the report constituted a medical,
psychiatric, or psychological record that was exempt from
disclosure under OPRA and recommended that the GRC determine the
Parole Board lawfully denied access to the report. In its final
decision, the GRC adopted the executive director's findings and
recommendation. This appeal followed.
We review the GRC's decision under the same standard we apply
to the review of any other state agency decision. Fisher v. Div.
of Law, 400 N.J. Super. 61, 70 (App. Div. 2008). The determinations
and findings of an administrative agency will not be set aside
absent "a clear showing that (1) the agency did not follow the
law; (2) the decision was arbitrary, capricious, or unreasonable;
or (3) the decision was not supported by substantial evidence."
In re Virtua-West Jersey Hosp. Voorhees for a Certificate of Need,
194 N.J. 413, 422 (2008) (citing In re Herrmann, 192 N.J. 19, 28
(2007)). "[U]nder our deferential standard of review, we give
weight to the GRC's interpretation of OPRA." McGee v. Twp. of E.
Amwell, 416 N.J. Super. 602, 616 (App. Div. 2010). This deference
is appropriate in light of the specialized or technical expertise
of the agency charged with administration of a regulatory system.
In re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 488-89
(2004).
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Appellant first contends GRC's determination that the report
is exempt from disclosure is inconsistent with the policies
underlying OPRA's requirements. Appellant relies on Burnett v.
Cty. of Bergen, 198 N.J. 408, 414 (2009), where our Supreme Court
explained that OPRA is intended to provide access to government
records and protect a citizen's personal information. He asserts
that neither of those policies are furthered by the Parole Board's
denial of his access to a mental health evaluation report about
himself and, for that reason, the GRC decision violates OPRA. We
disagree.
Although the Court in Burnett described OPRA's purposes and
noted OPRA required that "government records 'shall be readily
accessible' to the citizens of this State," it also recognized
that access to government records under OPRA was "subject to
certain exceptions." Ibid. Here, the GRC correctly determined
appellant was not entitled to the report because the report is
exempted from disclosure under OPRA.
N.J.S.A. 47:1A-1 declares it is the public policy of this
State that government records shall be readily accessible. OPRA
does not, however, require or permit access to all government
records. N.J.S.A. 47:1A-1 bars access to records that are exempt
from disclosure under OPRA and "any other statute, resolution of
either or both houses of the Legislature, regulation promulgated
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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." Ibid.
(emphasis added).
Similarly, N.J.S.A. 47:1A-9 further identifies records that
are exempt from disclosure under OPRA. In pertinent part, it
provides that OPRA
shall not abrogate any exemption of a public
record or government record from public access
heretofore made pursuant to P.L. 1963, c. 93
[OPRA]; 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.
[N.J.S.A. 47:1A-9(a) (emphasis added).]
The GRC determined that the Parole Board lawfully denied
access to the mental health evaluation report under N.J.S.A. 47:1A-
9 because the report was exempt from disclosure under Executive
Order No. 26 which was issued by Governor James E. McGreevey in
2002. The executive order expressly provides that "[i]nformation
relating to [an individual's] medical, psychiatric or
psychological history, diagnosis, treatment or evaluation" "shall
not be considered to be government records" under OPRA. Exec.
Order No. 26 (Aug. 13, 2002), 34 N.J.R. 3043(b)-44 (Sept. 3, 2002).
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The GRC also determined appellant was not entitled to access
to the report under N.J.A.C. 10A:71-2.2, which regulates the
disclosure of information by the Parole Board. The regulation
prohibits the Parole Board's disclosure of records that are exempt
from disclosure under OPRA, and also exempts from disclosure the
following records: "[i]nformation, files, documents, reports,
records or other written materials concerning an offender's
medical, psychiatric or psychological history, diagnosis,
treatment or evaluation." N.J.A.C. 10A:71-2.2.
We discern no basis to reverse the GRC's reliance on Executive
Order No. 26 or N.J.A.C. 10A:71-2.2 to support its determination
that the requested report was exempted from disclosure under
N.J.S.A. 47:1A-1 and -9. The plain language of the executive order
and regulation rendered the report exempt from disclosure under
OPRA. N.J.S.A. 47:1A-1 and -9. Thus, the GRC correctly determined
that the Parole Board lawfully denied appellant access to the
report under OPRA.
We are not persuaded by appellant's contention he was entitled
to the report under OPRA because the report was about himself.
OPRA provides a vehicle for public access to government records.
See N.J.S.A. 47:1A-1 (providing that government records "shall be
subject to public access"); N.J.S.A. 47:1A-9 (describing records
that are exempt from "from public access" under OPRA). OPRA does
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not afford appellant a right of personal access to government
records that are subject to OPRA's exceptions or exemptions. See
MAG Entertainment, LLC v. Div. of Alcohol Beverage Control, 375
N.J. Super. 534, 546 (App. Div. 2005) (finding "OPRA provides an
alternative means of access to government documents not otherwise
exempted from its reach"). As a result, appellant's claimed
entitlement to a report which is exempt from disclosure under OPRA
finds no support in the statute.
We also reject appellant's assertion that the GRC's
application of OPRA's requirements deprived him of due process
rights in the parole proceeding before the Parole Board. The GRC
has "jurisdiction to adjudicate all complaints about denial of
access to a 'government record' based on OPRA." Paff v. N.J. Dep't
of Labor, Bd. of Review, 379 N.J. Super. 346, 353 (App. Div. 2005);
see also A.A. v. Gramiccioni, 442 N.J. Super. 276, 282 n.4 (App.
Div. 2015) (explaining "[t]he GRC has jurisdiction only over OPRA
requests"); accord Ciesla v. N.J. Dep't. of Health, 429 N.J. Super.
127, 146-49 (App. Div. 2012). Here, the GRC exercised its limited
jurisdiction to adjudicate only appellant's allegation that the
Parole Board violated OPRA by denying access to the report.
The GRC did not decide, nor could it, that appellant had a
due process right to the production of the report in his parole
proceeding before the Parole Board. See N.J.S.A. 47:1A-9 (granting
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the GRC jurisdiction to render a decision as to whether a requested
record is a government record that must be accessible to the public
under OPRA). Appellant's parole hearing was the subject of a
separate proceeding before a different agency, the Parole Board,
and appellant's appeal the Parole Board's decision is the subject
of a separate proceeding before this court.
We do not offer an opinion as to whether appellant had a
right of access to the report, independent of OPRA's requirements,
in his parole proceeding. See MAG Entertainment, supra, 375 N.J.
Super. at 543 (explaining that a litigant may obtain records
through OPRA, the common law right to know, and under the discovery
rules applicable to a proceeding). We decide only that the GRC
correctly determined the Parole Board properly denied appellant
access to the report under OPRA.
Appellant's remaining arguments are without sufficient merit
to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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