Harry Scheeler v. Office of the Governor, Andrew J.

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-1236-14T3
A-3170-14T4
A-3335-14T3
HARRY SCHEELER,
APPROVED FOR PUBLICATION
Plaintiff-Respondent, January 27, 2017
v. APPELLATE DIVISION
OFFICE OF THE GOVERNOR;
ANDREW J. MCNALLY, custodian; NEW
JERSEY MOTOR VEHICLES COMMISSION;
JOSEPH F. BRUNO, custodian; NEW
JERSEY DEPARTMENT OF LAW AND PUBLIC
SAFETY, DIVISION OF ALCOHOLIC BEVERAGE
CONTROL; BRUCE J. SOLOMON, custodian;
NEW JERSEY DEPARTMENT OF MILITARY AND
VETERANS AFFAIRS; MARK A. PRESTON,
custodian; NEW JERSEY DEPARTMENT OF
THE TREASURY; CYNTHIA JABLONSKI,
custodian; NEW JERSEY DEPARTMENT OF
LAW AND PUBLIC SAFETY, DIVISION OF
CONSUMER AFFAIRS; ROBERT J. CAMPANELLI,
custodian; NEW JERSEY DEPARTMENT OF
EDUCATION, DIVISION OF CHIEF OF STAFF;
CUSTODIAN OF RECORDS FOR THE NEW
JERSEY DEPARTMENT OF EDUCATION,
DIVISION OF CHIEF OF STAFF; NEW
JERSEY DEPARTMENT OF LAW AND
PUBLIC SAFETY, DIVISION OF STATE POLICE,
Defendants-Appellants.
_____________________________________________
HEATHER GREICO,
Plaintiff-Respondent,
v.
NEW JERSEY DEPARTMENT OF
EDUCATION and THE RECORDS
CUSTODIAN OF THE DEPARTMENT
OF EDUCATION,
Defendants-Appellants.
_____________________________________________
JOHN PAFF,
Plaintiff-Respondent,
v.
NEW JERSEY MOTOR VEHICLE
COMMISSION and JOSEPH F. BRUNO,
Defendants-Appellants.
___________________________________________
Argued December 20, 2016 – Decided January 27, 2017
Before Judges Yannotti, Fasciale and Gilson.
On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Docket Nos. L-
0992-14; L-1674-14; and L-1672-14.
Valentina M. DiPippo, Deputy Attorney
General, argued the cause for appellants in
A-1236-14 (Christopher S. Porrino, Attorney
General, attorney; Raymond R. Chance, III,
Assistant Attorney General, of counsel;
Geoffrey Brounell, Deputy Attorney General,
on the brief).
Bruce S. Rosen argued the cause for
respondent in A-1236-14 (McCusker, Anselmi,
Rosen & Carvelli, P.C. and American Civil
2 A-1236-14T3
Liberties Union of New Jersey Foundation,
attorneys; Edward L. Barocas and Jeanne
LoCicero, of counsel; Mr. Rosen and Sarah L.
Fehm, on the brief).
Valentina M. DiPippo, Deputy Attorney
General, argued the cause for appellants in
A-3170-14 (Christopher S. Porrino, Attorney
General, attorney; Raymond R. Chance, III,
Assistant Attorney General, of counsel;
Christopher Huber, Deputy Attorney General,
on the brief).
Valentina M. DiPippo, Deputy Attorney
General, argued the cause for appellants in
A-3335-14 (Christopher S. Porrino, Attorney
General, attorney; Raymond R. Chance, III,
Assistant Attorney General, of counsel; Ms.
DiPippo, on the brief).
Walter M. Luers argued the cause for
respondents in A-3170-14 and in A-3335-14
(Law Office of Walter M. Luers, LLC,
attorneys; Mr. Luers, of counsel and on the
briefs).
The opinion of the court was delivered by
YANNOTTI, P.J.A.D.
Defendants appeal from orders entered by the Law Division,
which required that they provide plaintiffs with access to
certain third-party requests for documents under the Open Public
Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and awarded
plaintiffs attorney's fees. We affirm.
I.
We briefly summarize the relevant facts and procedural
history. In February 2014, Harry Scheeler sent a request to the
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Governor's Office seeking copies of all OPRA requests submitted
to that office in January 2014. He also sought copies of all
OPRA requests presented to the Governor's Office concerning the
closure of traffic lanes on the George Washington Bridge, from
September 1, 2013, to February 10, 2014.
In addition, Scheeler sent requests to the New Jersey Motor
Vehicle Commission (MVC), the Alcoholic Beverage Control
Commission (ABC), the New Jersey Department of Military and
Veterans Affairs (DMVA), the New Jersey Department of Treasury
(DT), the Division of Consumer Affairs (DCA), the New Jersey
Department of Education (DOE), and the Division of State Police
for copies of all OPRA requests submitted to these departments
and agencies in specified periods of time. Scheeler submitted
his requests to the MVC, ABC, DMVA, DT, and DCA anonymously.
Scheeler's requests were denied on the ground that he was
not entitled to disclosure of third-party OPRA requests. As
support for denying Scheeler's requests, the Governor's Office
and other agencies cited our decision in Gannett N.J. Partners,
LP v. County of Middlesex, 379 N.J. Super. 205 (App. Div. 2005).
The MVC, ABC, DMVA, DOT, and DCA also denied Scheeler's requests
on the ground that OPRA permits custodians of government records
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1
to deny anonymous requests. In May 2014, Scheeler filed a
complaint in the trial court challenging the denials of his
requests.
On June 2, 2014, John Paff sent a request to the MVC
seeking copies of all OPRA requests presented to that agency in
a one-week period in May 2014. On June 6, 2014, Heather Greico
submitted an OPRA request to the DOE for copies of all e-mails
between a certain individual and an employee in the Camden
County Office of Education during a ten-day period in March
2014.
On June 11, 2014, the MVC denied Paff's request, and on
June 13, 2014, the DOE provided Greico with copies of the e-
mails requested, but redacted OPRA requests from the records.
The MVC and the DOE cited Gannett as the basis for denying
access to the third-party OPRA requests. In July 2013, Paff and
Greico filed complaints in the Law Division challenging the MVC
1
The departments and agencies relied upon N.J.S.A. 47:1A-2.2,
which precludes any person convicted of an indictable offense
from seeking government records that contain personal
information about that person's victim or the victim's family.
N.J.S.A. 47:1A-2.2(a). A court may, however, release the
government record if the information therein is necessary to
assist in the requestor's defense. N.J.S.A. 47:1A-2.2(b). The
statute provides that notwithstanding any provision of law to
the contrary, "a custodian shall not comply with any anonymous
request for a government record which is protected under the
provisions of this section." N.J.S.A. 47:1A-2.2(c).
5 A-1236-14T3
and DOE's refusals to provide access to the third-party OPRA
requests.
On July 21, 2014, the motion judge heard oral argument in
the Scheeler case and placed an oral decision on the record. The
judge determined that third-party OPRA requests are "government
records" under OPRA, and there is no specific exemption in OPRA
that precludes disclosure of those records.
The judge found that Gannett did not authorize the
government agencies to deny access to all third-party OPRA
requests. The judge stated that although there is some
discussion in Gannett suggesting that requests for access to
third-party OPRA requests are improper, that discussion is dicta
and not binding precedent.
The judge therefore determined that Scheeler was entitled
to access the third-party OPRA requests he had requested in his
own name, but he was not entitled to access the records he
sought anonymously. The judge found that N.J.S.A. 47:1A-2.2(c)
authorized the denial of the requests for records that Scheeler
submitted anonymously.
The judge therefore found that Scheeler was the prevailing
party, and he was entitled to an award of attorney's fees
pursuant to N.J.S.A. 47:1A-6. The judge did not address
Scheeler's alternative claim that he was entitled to access to
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the third-party OPRA requests under the common law. The judge
memorialized her decision in an order filed July 22, 2014.
Scheeler thereafter filed a motion for reconsideration of
the part of the court's order which denied his anonymous OPRA
requests. Defendants in Scheeler opposed the motion and filed a
cross-motion seeking a stay of the court's order pending appeal.
The judge considered the motions on September 10, 2014, and
placed an oral decision on the record.
The judge reconsidered the earlier decision. The judge
determined that N.J.S.A. 47:1A-2.2(c) did not authorize
defendants to deny access to all anonymous OPRA requests because
"of the remote possibility that the anonymous requestor" had
been convicted of an indictable offense, or that the information
sought would be personal information about the requestor's
victim or family.
The judge stated that the defendants who denied Scheeler's
anonymous requests should provide the records sought, but
allowed those defendants to redact personal information from the
records, other than the name of the requestor. The judge found
that this "middle ground" would address OPRA's aim of providing
the public with access to government records, while authorizing
the records custodians to redact personal information when
responding to anonymous OPRA requests.
7 A-1236-14T3
On September 25, 2014, the judge entered a stipulation and
final order memorializing her decision. The order also awarded
Scheeler attorney's fees, and stayed the order pending
disposition of any appeal taken from the order. Defendants in
the Scheeler matter thereafter appealed. They do not, however,
challenge the provision of the trial court's order which
required that they respond to the requests that Scheeler
submitted anonymously.
In October 2014, the judge heard oral argument in the Paff
and Greico matters. The judge ruled, as she had earlier ruled in
Scheeler, that OPRA does not exempt third-party OPRA requests
from disclosure, and Gannett does not authorize the blanket
denial of access to all such requests. The judge memorialized
her decision in an order dated October 28, 2014, and required
the defendants in these cases to produce the third-party OPRA
requests that Paff and Greico sought.
The judge entered final orders in the Greico matter on
January 30, 2015, and in the Paff matter on February 4, 2015.
The judge awarded Paff and Greico attorney's fees, and stayed
the orders pending appeal. The MVC and DOE thereafter filed
notices of appeal. We address the appeals in Scheeler, Paff, and
Greico in this opinion.
8 A-1236-14T3
II.
On appeal, defendants argue that OPRA does not require that
they provide plaintiffs with access to third-party OPRA
requests. They argue that in Gannett, the court stated that
requests for access to third-party OPRA requests are improper.
Defendants contend that our discussion of third-party OPRA
requests in Gannett may have been dicta, but it constituted
binding precedent that should have been followed by the trial
court.
Because the trial court's interpretation of OPRA and its
analysis of the opinion in Gannett are issues of law, we
exercise de novo review of the trial court's orders in these
cases. State v. Goodwin, 224 N.J. 102, 110 (2016).
OPRA was enacted "to maximize public knowledge about public
affairs in order to ensure an informed citizenry and to minimize
the evils inherent in a secluded 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)). OPRA therefore provides that "government 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
9 A-1236-14T3
limitations on the right of access . . . shall be construed in
favor of the public's right of access[.]" N.J.S.A. 47:1A-1.
OPRA broadly defines "government record" or "record" to
mean
any 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 . . . . The terms shall
not include inter-agency or intra-agency
advisory, consultative, or deliberative
material.
[N.J.S.A. 47:1A-1.1.]
Nevertheless, the public's right of access to government
records is not absolute. Kovalcik v. Somerset Cty. Prosecutor's
Office, 206 N.J. 581, 588 (2011) (citing Educ. Law Ctr. v. N.J.
Dep't of Educ., 198 N.J. 274, 284 (2009)). OPRA excludes twenty-
one categories of information from the definition of a
"government record." N.J.S.A. 47:1A-1.1. Among the exclusions
are records of criminal investigations, trade secrets, certain
records requested by crime victims, personal firearms records,
information received by or prepared by members of the
Legislature, and certain emergency or security information for
10 A-1236-14T3
buildings and facilities. Ibid. Also excluded are records which
are exempt from disclosure by statute, legislative resolution,
executive order, or court rule. N.J.S.A. 47:1A-9.
Defendants concede that OPRA requests which they have
received are "government records" under N.J.S.A. 47:1A-1.1.
Indeed, such requests are documents that have been received and
kept on file by defendants in the course of their official
business. OPRA requires defendants to provide access to these
records upon request, unless they are exempt from disclosure
under OPRA. See Asbury Park Press v. County of Monmouth, 406
N.J. Super. 1, 6 (App. Div. 2009) (holding that OPRA requires
disclosure of all "government records" unless "exempted by
statute, legislative resolution, administrative regulation,
executive order, rules of court, judicial decisions, or federal
law"), aff'd, 201 N.J. 5 (2010).
OPRA does not, however, include any specific provision
declaring that OPRA requests are not subject to disclosure.
Furthermore, defendants do not cite any statute, legislative
pronouncement, executive order, or court rule that provides that
OPRA requests are confidential.
Defendants argue that demands for access to OPRA requests
by other persons are generally improper because they lack
sufficient specificity. Defendants assert that OPRA was not
11 A-1236-14T3
intended to provide a research tool for litigants "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).
Defendants note that an OPRA request "must identify with
reasonable clarity" the documents that the requestor is seeking,
and "a party cannot satisfy this requirement by simply
requesting all of an agency's documents." Spectraserv, Inc. v.
Middlesex Cty. Utils. Auth., 416 N.J. Super. 565, 576 (App.
Div. 2010) (emphasis omitted) (quoting Bent v. Twp. of Stafford
Police Dep't, 381 N.J. Super. 30, 37 (App. Div. 2005)). They
assert requests for access to third-party OPRA requests lack the
specificity required.
We are not persuaded by defendants' argument. Here,
plaintiffs did not seek access to general categories of records,
nor did they ask defendants to undertake any analysis or
research to determine the records that fall within the scope of
the requests. Rather, plaintiffs sought access to OPRA requests
by other persons, which were received by defendants within
specific time frames. Thus, plaintiffs requested the documents
with sufficient clarity.
Defendants further argue that granting citizens access to
OPRA requests by third parties does not advance the purpose of
12 A-1236-14T3
OPRA, which is to allow citizens to secure access to "government
records" so that the public can obtain "information about how
state and local governments operate[.]" Burnett v. County of
Bergen, 198 N.J. 408, 414 (2009). However, as noted, third-party
OPRA requests fall within the broad definition of a "government
record" in N.J.S.A. 47:1A-1.1, and there is no provision of
OPRA, any legislative resolution, executive order, or court rule
that exempts third-party OPRA requests from disclosure.
Receiving and responding to requests for government records
is a governmental function. We must therefore presume that the
Legislature intended that the public would have access to these
records to "maximize public knowledge about public affairs."
Mason, supra, 196 N.J. at 64 (quoting Asbury Park Press, supra,
374 N.J. Super. at 329).
III.
Defendants also contend Gannett established that requests
for access to third-party OPRA requests are improper. Defendants
argue that the trial court erred by failing to follow the
precedent purportedly established by Gannett. We disagree.
In Gannett, the United States Attorney for the District of
New Jersey had issued grand jury subpoenas for the production of
documents upon various officials in Middlesex County. Gannett,
supra, 379 N.J. Super. at 209. The service of the subpoenas was
13 A-1236-14T3
widely reported in the news media, including newspapers
published by the plaintiff, Gannett New Jersey Partners, L.P.
Ibid. Gannett then filed an OPRA request with the County seeking
copies of all of the federal subpoenas, as well as the documents
provided to the United States Attorney in response thereto. Id.
at 210.
The County produced many of the documents that Gannett had
requested, but refused to provide copies of the federal
subpoenas and certain other records. Ibid. Gannett then brought
an action in the trial court to compel disclosure of the records
the County had withheld, and the trial court determined that
Gannett was not entitled to the records. Id. at 210-11. Gannett
appealed. Id. at 211.
This court began its opinion by questioning whether
Gannett's request for all information provided to the United
States Attorney in response to the federal subpoenas was proper.
Ibid. The court stated that "OPRA does not authorize a party to
make a blanket request for every document a public agency has
provided another party in response to an OPRA request or, in
this case, a federal grand jury subpoena." Id. at 212.
The court observed that such a request does not merely seek
access to public records, it also represents an attempt to
ascertain "the nature and scope of a third party's inquiry to a
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government agency." Ibid. The court pointed out that the United
States Attorney had a "particularly strong" interest in
"maintaining the confidentiality of [his] inquiry" because it
was part of a federal investigation. Ibid. The court also
observed that other third parties may have an interest in
maintaining the confidentiality of their requests for access to
public records. Ibid.
The court added that "even assuming" Gannett's OPRA request
was improper and that the County could have refused to produce
any documents in response to the request, the County did not
take that position and instead provided Gannett with most of the
documents it requested. Id. at 212-13. Moreover, in the trial
court, the County did not assert that the OPRA request was
improper. Id. at 213.
The court stated that the County had waived "whatever right
[it] may have had to deny Gannett's entire OPRA request on the
ground that it was improper." Ibid. (citation omitted). The
court went on to address whether the records the County had
withheld were subject to disclosure under OPRA. Id. at 213-22.
Here, the trial court correctly determined that the Gannett
court's discussion of the propriety of Gannett's OPRA request is
dicta and not binding precedent. Our Supreme Court has stated
that "matters in the opinion of a higher court which are not
15 A-1236-14T3
decisive of the primary issue presented but which are germane to
that issue . . . are not dicta, but binding decisions of the
court." State v. Rose, 206 N.J. 141, 183 (2011) (alteration in
original) (quoting 5 Am. Jur. 2d Appellate Review § 564 (2007)).
The Gannett court's discussion of the OPRA request was not
germane to the issues presented in that case, which were whether
Gannett was entitled to the records the County had withheld.
Furthermore, in Gannett, the court did not definitively state
that the OPRA request was improper.
Indeed, the court commented that, even assuming that
Gannett's request was improper and could have been denied for
that reason, the County had waived the issue. Gannett, supra,
379 N.J. Super. at 212-13. Therefore, Gannett does not represent
a binding decision that all requests for access to third-party
OPRA requests are improper and government agencies can deny
citizens access to all such requests.
Defendants nevertheless argue that the court's discussion
in Gannett justifies denying access to the third-party OPRA
requests plaintiffs sought. We disagree. As noted in Gannett,
the court suggested that Gannett's OPRA request was not proper
because it was a "blanket request" for records provided to a
third party. Id. at 212. However, plaintiffs' OPRA requests are
not blanket requests for government records. Indeed, as we have
16 A-1236-14T3
determined, plaintiffs identified the records they were seeking
with sufficient specificity.
Defendants further argue that access to all third-party
OPRA requests may be denied because in Gannett, the court stated
that a citizen making an OPRA request may have an interest in
maintaining the confidentiality of such a request. Ibid. The
Gannett court noted hypothetically that a news organization
might have a competitive interest in maintaining the
confidentiality of its request for government records under
OPRA. Ibid.
OPRA provides an exemption in N.J.S.A. 47:1A-1.1 for
"information which, if disclosed, would give an advantage to
competitors or bidders[.]" To justify non-disclosure under this
provision, there must be "a clear showing" that the exemption
applies. Tractenberg v. Township of West Orange, 416 N.J. Super.
354, 378-79 (App. Div. 2010) (emphasis omitted) (quoting Asbury
Park Press, supra, 374 N.J. Super. at 329). The "mere potential"
that disclosure of information in a government record might
confer a competitive advantage upon some person or entity is not
sufficient. Id. at 379.
Here, defendants have not asserted that release of any of
the third-party OPRA requests sought by plaintiffs would confer
a competitive advantage on any person or entity. Although there
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may be circumstances where denial of access to such records
might be justified under the "competitive advantage" exemption,
the exemption does not provide a basis for the blanket denial of
access to all third-party OPRA requests.
Furthermore, denial of access to the third-party OPRA
requests sought by plaintiffs is not justified by any apparent
privacy concerns. OPRA requires government agencies to balance
the public's strong interest in disclosure of government records
"with the need to safeguard from public access personal
information that would violate a reasonable expectation of
privacy." Burnett, supra, 198 N.J. at 427. When doing so, the
government agencies must consider the following factors:
(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 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.
[Ibid. (quoting Doe v. Poritz, 142 N.J. 1,
88 (1995)).]
In these cases, defendants have not asserted that access to
the OPRA requests sought by plaintiffs can be denied because the
third-party requestors have a reasonable expectation of privacy
18 A-1236-14T3
in their OPRA requests. In this regard, we note that some State
agencies have used OPRA-request forms that inform citizens that
their requests may be subject to disclosure.
Even if the OPRA-request forms did not include such
warnings, a citizen submitting an OPRA request ordinarily would
not have a reasonable expectation that the request will not be
disclosed to others. As noted, OPRA requests are "government
records" and there is no OPRA exemption, legislative resolution,
executive order or court rule that precludes their disclosure.
Even so, there may be individual cases in which a citizen
may have a reasonable expectation of privacy regarding that
citizen's OPRA request. However, the agency may deny the public
access to the OPRA request only after it has considered and
applied the Burnett balancing test. Nevertheless, there is no
justification for denying the public access to all third-party
OPRA requests merely because of the possibility that a requestor
might have an interest in preserving the confidentiality of a
particular request.
Finally, we note that under OPRA, the records custodian has
the burden to show that the denial of access was authorized by
law. See Asbury Park Press, supra, 406 N.J. Super. at 7 (citing
N.J.S.A. 47:1A-6). Here, defendants did not deny access on the
basis of any exemption in OPRA. Instead, as previously noted,
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defendants relied exclusively on the dicta in Gannett. Thus,
defendants did not carry their burden to show that the denials
were based on any exemptions in OPRA.
Therefore, the trial court correctly determined that
plaintiffs were entitled to the records they sought. The court
also correctly found that plaintiffs were prevailing parties and
awarded them attorney's fees pursuant to N.J.S.A. 47:1A-6. On
appeal, defendants have raised no issue regarding the award of
attorney's fees.
Affirmed.
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