American Civil Liberties Union of New Jersey v. New Jersey Division of Criminal Justice and Bruce Solomon

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3381-12T1
AMERICAN CIVIL LIBERTIES UNION
OF NEW JERSEY, a non-profit
organization located in Newark,
New Jersey,
Plaintiff-Appellant,
APPROVED FOR PUBLICATION
v.
May 13, 2014
NEW JERSEY DIVISION OF CRIMINAL
JUSTICE and BRUCE SOLOMON, APPELLATE DIVISION
Custodian of Records for the
New Jersey Division of Criminal
Justice,
Defendants-Respondents.
_____________________________________________
Telephonically Argued January 23, 2014 –
Decided May 13, 2014
Before Judges Fuentes, Simonelli and Haas.
On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Docket No.
L-2562-12.
Thomas W. MacLeod argued the cause for
appellant (American Civil Liberties Union of
New Jersey Foundation, attorneys; Mr.
MacLeod, on the brief).
Mary Beth Wood, Senior Deputy Attorney
General, argued the cause for respondents
(John J. Hoffman, Acting Attorney General,
attorney; Lewis A. Scheindlin, Assistant
Attorney General, of counsel; Ms. Wood, on
the brief).
The opinion of the court was delivered by
FUENTES, P.J.A.D.
We are asked to determine whether, in response to a request
for government records brought under the Open Public Records Act
(OPRA), N.J.S.A. 47:1A-1 to 47:1A-13, and our common law right
of access, a government agency has the authority to redact an
admittedly responsive document to withhold information the
agency deems to be outside the scope of the request. In
defending the right to adopt such a policy, the public agency
concedes the information it withheld is not supported by any
claim of privilege or other recognized exemption to disclosure
in OPRA or under our State's common law right of access.
The legal question raised here derives from an OPRA request
made by the American Civil Liberties Union of New Jersey (ACLU)
to the New Jersey Division of Criminal Justice (DCJ), seeking
records "pertaining to all forms of Automatic License Plate
Recognition (ALPR) technology." The DCJ responded by sending
the ACLU seventy-nine pages of redacted documents, including
certain pages of a grant application that were completely
blacked-out. In taking this action, the DCJ redacted from the
grant application information that, in the DCJ's opinion, did
not pertain to ALPR technology and thus was outside the scope of
the request.
The ACLU filed an order to show cause and verified
complaint in the Law Division against the DCJ seeking
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declaratory and injunctive relief with respect to this redaction
policy, and an award of counsel fees under OPRA's fee-shifting
provision. The matter came before the Law Division as a summary
action under N.J.S.A. 47:1A-6. After considering the arguments
of counsel, the Law Division dismissed the ACLU's complaint,
finding the DCJ's actions were "an appropriate way to respond."
As framed by the trial court, the policy adopted by the DCJ
presented two questions: (1) in responding to a request for a
public document "under either OPRA or the common law" can a
custodian determine to withhold information he or she believes
falls outside the scope of the request, without first seeking
consent or clarification from the requestor? And if so, (2) is
it reasonable to impose the "onus" on the requestor to clarify
the request or attempt to obtain the voluntary release of the
redacted information before initiating legal action? The court
ultimately decided to answer "yes" to both of these questions.
It is important to emphasize that the decision of the trial
court to uphold the DCJ's redaction policy did not rest on how
the court characterized the ACLU's request. The court viewed
the documents requested by the ACLU as "public records,"
unambiguously available to the public under both OPRA and the
common law right of access. Analytically, the court did not
find, and the DCJ did not argue, that the redaction policy was
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in any way predicated on or supported by any claim of privilege
or statutorily recognized exemption to disclosure under either
OPRA or the common law right of access.
In the trial judge's view, the action taken by the
custodian constituted a reasonable, good faith determination by
the agency that the redacted records fell outside the scope of
the request. If the requestor is dissatisfied with the
government agency's response, it is "not unreasonable to ask the
requestor to make a follow[-]up request, which is what could
have happened here and would have resolved this particular
issue."
We disagree with the Law Division and reverse. The
redaction protocol adopted by the DCJ here cannot stand because
it is not grounded on any of the statutorily recognized
exemptions to disclosure in OPRA, N.J.S.A. 47:1A-1.1, or on a
claim of confidentiality under the common law. Absent a legally
recognized exception to disclosure, a citizen's right of access
to public information is unfettered. Courier News v. Hunterdon
Cty. Prosecutor's Office, 358 N.J. Super. 373, 383 (App. Div.
2003).
The redaction policy adopted by DCJ is based entirely on
the unilateral determination by the custodian of records of
what, in his or her opinion, is relevant to the ACLU's request.
4 A-3381-12T1
This approach confers upon the custodian of government records
quasi-judicial powers to determine what information contained
within a "government record," as defined in N.J.S.A. 47:1A-1.1,
is relevant to a request and therefore subject to disclosure
and, conversely, what information contained in this same
document will be withheld from the public, based only on the
custodian's notion of relevancy. We discern no legal support
for such a policy in OPRA.
Equally troubling is the court's decision to place the
"onus" on the requestor to clarify or engage in negotiations
with the custodian as a jurisdictional prerequisite to
instituting legal action to enforce his or her rights to access
public information. This extra hurdle the requestor must clear
before getting to the courthouse doors is not only untethered to
any provision in OPRA, but contravenes the clear public policy
expressed by the Legislature in OPRA, directing the courts to
construe "any limitations on the right of access . . . in favor
of the public's right of access." N.J.S.A. 47:1A-1.
I
These facts are not disputed. On July 30, 2012, the ACLU
filed a formal OPRA request1 to the DCJ seeking records
1
The ACLU transmitted the request using the State of New
Jersey's electronic request form.
5 A-3381-12T1
"pertaining to all forms of Automatic License Plate Recognition
(ALPR) technology." The ACLU specifically requested:
1. Records of all federal funds sought,
received, or managed by your agency in
connection with procurement and use of ALPR
technology;
2. Records of all police departments and
other agencies that received or purchased
ALPR technology using funds from grants
managed, arranged, or assisted by your
agency;
3. All policies, procedures, and other
general guidelines set for your agency by
federal grant-making agencies, and for
police departments and other agencies by
your agency, with respect to procurement and
use of ALPR technology, and to storage,
access and sharing of data scanned with ALPR
technology, including but not limited to
those governing use of, access to, and
auditing of databases, data mining programs,
and other computerized management systems
into which data from two or more police
departments or other agencies is deposited;
4. All training materials relating to
procurement and use of ALPR technology, and
to storage, access, and sharing of data
scanned with ALPR technology;
5. All records of the purchase, sale, or
other transfer of ALPR data to any
individual or entity; and
6. All ALPR data sharing agreements with
any agency of the federal government,
including but not limited to memoranda of
understanding/agreement between your agency
and any division or department of the U.S.
Department of Justice, U.S. Department of
Homeland Security, U.S. Department of
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Transportation, Federal Aviation
Administration, and Department of Defense.
In a transmittal letter submitted simultaneously with the
OPRA request, the attorney representing the ACLU apprised the
"OPRA custodian of government records" that if "any portions of
the requested materials are exempt from disclosure, please
redact only what you believe is exempt and provide the
remaining, non-exempt portions."
The DCJ confirmed receipt of the ACLU's request on
September 14, 2012, and sent an ostensible response to the
request that included "electronic copies of 79 pages of redacted
records[.]" As described by the ACLU in its brief, "[t]he
redactions were made line-by-line in some cases; on other pages,
particular pieces of data within the record were blacked out."
The only explanation or justification the OPRA custodian
provided for taking this action consisted of the following curt
statement: "redacted information not relevant to request."
(Emphasis added).
On November 2, 2012, the ACLU filed a verified complaint
in the Law Division alleging the redacted documents sent by the
custodian violated the disclosure provisions under OPRA and the
common law right of access. The ACLU alleged the records
requested fell within the definition of "government records"
under N.J.S.A. 47:1A-1.1. As such, the DCJ did not have the
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legal authority to redact a government record and withhold
information from it based on the DCJ's unilateral determination
of what may or may not have been relevant to the requestor's
purpose.
By way of relief, the ACLU sought: (1) a judicial
declaration that the DCJ's redaction policy violated OPRA and
the common law right of access; (2) an order enjoining the DCJ
from denying access to nonexempt portions of government records
"based on claims that they are not relevant to the request" and
compelling the DCJ to issue a clear policy statement and
training protocol to avoid similar violations of the laws
governing the public's right to inspect and copy government
records; and (3) an award of counsel of fees pursuant to
N.J.S.A. 47:1A-6.
The following colloquy between the trial judge and the
Deputy Attorney General representing the DCJ captured the
essence of the dilemma created by the public agency's position
here.
[DEPUTY ATTORNEY GENERAL]: . . . [The ACLU]
asked for a very limited piece of
information and we gave it to them. Had
they come back and said, wait, I want the
grant application or even what they're
arguing now, I want grant materials
concerning the law enforcement initiatives,
we would have given them that. But they've
never asked for it. . . . [T]heir request
was very, very specific. . . . It said very,
8 A-3381-12T1
very clearly and in a very limited way, I
want the grant materials for ALPR
technology, and that's what we gave them.
THE COURT: But, . . . they're concerned
that you are exercising judgment and that
they can't trust the judgment of a defendant
to determine what is responsive and what's
not and that the better rule is to provide
it all. And there's something appealing to
that because then you take any sort of
judgment out of the mix.
[DEPUTY ATTORNEY GENERAL]: . . . [Y]our
Honor, it's not judgment. . . . [I]f you
look at the records, . . . the custodian
here made clear that he was redacting - -
he left the headings in for everything. So,
for example, at PA-14, . . . he left open D
reentry and redacted underneath it. So you
can see that it had nothing to do with ALPR
technology. The redacted portion had to do
with reentry. And in . . . subcategory (c),
the heading is prevention. It has nothing
to do with ALPR technology. And the
custodian was really very careful in doing
that so that they could see that it had
nothing to do with their request.
THE COURT: But, . . . they believe they
don't have to accept the limitation because
it's a public record and there's no
exemption that prevents them from - - that
should prevent them from getting access to
the material.
After a thorough review of the ACLU's request, the trial
judge found the State's grant application attached to the ACLU's
verified complaint noted that only a certain amount of the funds
of the total grant would be committed to purchasing "license
plate readers for strategic deployment throughout the state."
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Other sections of the grant application focused on different law
enforcement initiatives, such as reducing recidivism, discharge
planning for juvenile delinquents, and establishing a pilot
program for defendants with mental health needs.
After carefully scrutinizing the ACLU's request for ALPR-
related records and the DCJ's responsive documents, the judge
found "it was reasonable to conclude that prevention . . . and
reentry aspects of the grant have nothing to do with automatic
license plate readers." The judge noted that the ACLU had
conceded that its initial request did not seek information
pertaining to other projects that were included in the grant
application. Against these findings, the court agreed with the
DCJ and concluded "[t]his case is not about an exemption and it
is about the reasonable scope of a request and whether the
records provided by the agency were responsive to that request."
Despite these findings, the judge acknowledged what she
characterized as the ACLU's "underlying concerns" that this
approach left the door ajar for less scrupulous custodians to
redact more information than would be proper
when they were responding to a request and
that you don't want to put the custodian in
that situation. And I think, sure, that's
something that would need to be carefully
looked at in any particular case and I
surely accept that that's something that
could happen. But that particular danger to
me is not at all supported by this record
where their request was very specific and
10 A-3381-12T1
they were provided with documents that
responded to their request. And I think if
there were - - if they determined after they
viewed the documents that they received with
portions deleted that they wanted the entire
document, I think it was reasonable to
require any requestor to make a follow[-]up
request. Now they want the additional
document that they did not ask for the first
time.
II
The Legislature has carefully described the responsibility
of the custodian in responding to a request for a government
record under OPRA:
A request for access to a government record
shall be in writing and hand-delivered,
mailed, transmitted electronically, or
otherwise conveyed to the appropriate
custodian. A custodian shall promptly
comply with a request to inspect, examine,
copy, or provide a copy of a government
record. If the custodian is unable to
comply with a request for access, the
custodian shall indicate the specific basis
therefor on the request form and promptly
return it to the requestor. The custodian
shall sign and date the form and provide the
requestor with a copy thereof. If the
custodian of a government record asserts
that part of a particular record is exempt
from public access pursuant to P.L.1963,
c.73 (C.47:1A-1 et seq.) as amended and
supplemented, the custodian shall delete or
excise from a copy of the record that
portion which the custodian asserts is
exempt from access and shall promptly permit
access to the remainder of the record. If
the government record requested is
temporarily unavailable because it is in use
or in storage, the custodian shall so advise
the requestor and shall make arrangements to
11 A-3381-12T1
promptly make available a copy of the
record. If a request for access to a
government record 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 the agency.
[N.J.S.A. 47:1A-5(g) (emphasis added).]
In our view, the fact-sensitive approach employed by the
trial court here authorizes the custodian to unilaterally
determine what sections of an indisputably public document falls
within the scope of a request, and thereafter deny access to
that record without "attempting to reach a reasonable solution
with the requestor that accommodates the interests of the
requestor and the agency." Ibid. We discern no legal basis to
expand the custodian's role beyond what the Legislature
specifically described in N.J.S.A. 47:1A-5(g).
The public's right of access is further undermined by
shifting the burden to the requestor to explain or justify with
greater specificity than the law requires the need to copy and
examine a public record. Shifting the burden to the requestor
to make a follow-up request, as suggested by the trial court
here, imposes a bureaucratic hurdle that runs counter to our
State's strong public policy favoring "the prompt disclosure of
government records." Mason v. City of Hoboken, 196 N.J. 51, 65
(2008); N.J.S.A. 47:1A-1.
12 A-3381-12T1
The DCJ does not dispute that the documents requested by
the ACLU are "government records" as defined in N.J.S.A. 47:1A-
1.1. A government agency's policy to restrict the public's
right of access to "government records" under OPRA must be
supported by one or more of the twenty-one categories of
information recognized in N.J.S.A. 47:1A-1, or by establishing,
under the common law balancing test established in Nero v.
Hyland, 76 N.J. 213, 223-24 (1978), that the public interest for
confidentiality outweighs the private right of access. N.J.S.A.
47:1A-9; Bergen Cty. Improvement Auth. v. N. Jersey Media Group,
Inc., 370 N.J. Super. 504, 517 (App. Div.), certif. denied, 182
N.J. 143 (2004). Absent establishing such a showing, a
citizen's right of access is unfettered. Courier News, supra,
358 N.J. Super. at 383.2
Reversed.
2
Because we have decided this case based exclusively on
statutory grounds under OPRA, we need not and specifically do
not reach the ACLU's alternative arguments based on the common
law right of access.
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