SUPERIOR COURT OF NEW JERSEY

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1 SUPERIOR COURT OF NEW JERSEY SOMERSET, HUNTERDON & WARREN COUNTIES VICINAGE 13 YOLANDA CICCONE ASSIGNMENT JUDGE SOMERSET COUNTY COURT HOUSE P.O. BOX 3900 SOMERVELLE, NEW JERSEY (998) November 2, 2015 C.J. Griffin, Esq. Court Plaza South 21 Main Street, Suite 200 Hackensack, New Jersey Francesco Taddeo, Esq. 31 East High Street Somerville, New Jersey RE: R. Verry v. Borough of South Bound Brook and D. Kazar, Records Custodian Docket No.: SOM-L ; SOM-L-104&-15 Dear Counsel, This letter is in reference to Plaintiff's Orders to Show Cause. Because the underlying facts largely overlap, the court heard Docket Numbers SOM-L and SOM-L on October 27, 2015 as one matter. Plaintiff, Robert A. Verry, brings this action under the New Jersey Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 et seq. and his common law right of access. Plaintiff seeks to compel the Borough of South Bound Brook to disclose s and an log (i.e., a descript collection of an identified set of s), certify as to the searches conducted in response to Plaintiffs requests, and produce a redaction log for those records produced with redactions. The matter arises from eight OPRA requests. FACTS Plaintiff's First Request Time Sheet' On April 26, 2015, Plaintiff submitted a request to Defendants for all e -mails between multiple persons concerning the subject Time Sheet" between January 1, 2014 and April 1

26, 2015. On May 5, 2015, Defendant Kazar denied Plaintiff access to the requested records on the basis that the request was overbroad.

2 26, On May 5, 2015, Defendant Kazar denied Plaintiff access to the requested records on the basis that the request was overbroad. Plaintiff has not set forth any justification for seeking the requested records. Additionally, to date, Defendants have not produced any of the requested records. Plaintiff's Second, Third and Fourth Requests - "Family Dollar" On May 20, 2015, Plaintiff submitted two requests to Defendants for all s between multiple persons regarding "Family Dollar." One request was for all a-mails between January 1, 2013 and December 31, 2013, another was for all s between April 19, 2015 and May 20, 2015, and a final one was for all s between January 1, 2013 and June 6, 2015, and between January 1, 2013 and December 31, On June 2, 2015, Kazar requested an extension to respond to Plaintiffs requests Plaintiff objected to any extension. Plaintiff alleges that Kazar has engaged in a pattern and practice of requesting extensions only to later deny the original request. Plaintiff contends that the s are necessary to inspect whether the Borough of South Bound Brook was conducting private meetings to avoid public disclosure of government business and decision -making. To date, Defendants have produced no responsive records_ Plaintiffs Fiftja and Sixth Requests "Federal Labor Standards Act (aka: FLSA)" On May 25, 2015, Plaintiff submitted two requests to Defendants for all s between multiple persons regarding "Federal Labor Standards Act (aka: FLSA)." One request was for all s between January 1, 2013 and May 22, 2015, and the other was for all s between January 1, 2005 and July 1, On June 2, 2015, Kazar requested an extension to respond to Plaintiffs requests Plaintiff objected to an extension for the aforementioned reason. Plaintiff has not set forth any justification for seeking the requested records. Additionally, to date, Defendants have not produced any of the requested records. Plaintiffs Seventh Request - Mayor's s On June 25, 2015, Plaintiff submitted a request for a copy of the last fifteen s sent from South Bound Brook's Mayor Tamas Ormosi's address, and a copy of the last fifteen s received by South Bound Brook's Mayor Tames Ormosi. On July 17, 2015, Kazar produced twenty (20) s. Kazar's justification for the deficiency is that he can only forward what the Mayor sent to Kazar in response to the inquiry. Plaintiff contends that the s are proof that Mayor Ormosi was conducting government business via his personal account in an effort to avoid various public disclosure requirements (OPRA and Open Minutes Log Act). Plaintiffs Eighth Request - Clerk's E - mail Log On July 5, 2015, Plaintiff submitted a request for a "log" of all s sent by the Borough of South Bound Brook's Clerk between February 5, 2015 and June 30, On July 7, 2015, Kezar denied Plaintiffs request on the grounds that no responsive records existed. 2

3 ANALYSIS Plaintiffs claim that Defendants violated OPRA The court analyzes each of Plaintiffs OPRA requests in turn. Plaintiffs First Repuest "Time Sheet" Defendants contend that their denial is excused on the basis that Plaintiff's request is overly broad and/or unclear. The test for determining whether a request is overly broad and/or unclear is set forth in full in the court's October 19, 2015 Letter Opinion on 11 Scheeler v. Greenwich Two. and K. Viscomi. Records Custodian to Counsel. In short,,a request is valid if it has been set forth with adequate specificity. In the court's October 19, 2015 Letter, two divergent interpretations were touched upon. In Burke v. Brandes. 429 N.J. Super, 169 (App. Div. 2012) and like cases, the court set out that a request is valid if the search terms are confined to a specific subject matter that is clearly and reasonably described. In Bent v. Stafford Twp. Police Dep'ts, 381 N.J. Super. 30, 37 (App. Div. 2005) and like cases, the court set out that a request is not valid if it fails to identify a subject with sufficient specificity. The resultant legal standard is unclear, and requires a fact-intensive inquiry. Here, Plaintiff has set forth the additional example of Verry v. Borough of South Bound Brook, GRC Complaint No (Sept. 30, 2014) in support of the proposition that "Time Sheet" is sufficiently specific. The Court recognizes the similarities between the present set of facts and those in Verry, in which "internal revenue form W-9" was deemed sufficiently specific. In lieu of the lack of a strict legal standard, and plentiful support from the Government Records Council (GRC), the court finds that Plaintiffs request was not overbroad and/or unclear. As a result, Defendants are found to be in violation of PHA with respect to Plaintiff's first request. Plaintiffs Second. Third and Fourth Requests "Family Dollar" Defendants contend that any alleged violation for failing to produce the requested records is excused on the conflicted basis that they do not exist, but even if they do exist, they were not located. Defendants rely on the principle that no violation is possible when there are no responsive records. If the records exist, Defendants must produce them and respond within seven business days. Assuming responsive records exist, Defendants would be in violation of N.J.S.A. 47:1A-5.i. N.J.S.A. 47:1A-5.i. explicitly mandates that a custodian grant or deny a request for access as soon as possible, but not later than seven business days after receiving the request provided that the record is currently available and not in storage or archived. If the records do not exist and have never existed, that is a separate issue. On that point, the statute's language is critical, and as Such, it is recreated in full: Unless a shorter time period is otherwise provided by statute, regulation, or executive order, a custodian of a government record shall grant access to a government record or deny a request for access to a government record as soon as 3

4 possible, but not later than seven business days after receiving the request, provided that the record is currently available and not in storage or archived_ In the event a custodian fails to respond within seven business days after receiving a request, the failure to respond shall be deemed a denial of the request, unless the requestor has elected not to provide a name, address or telephone number, or other means of contacting the requestor. If the requestor has elected not to provide a name, address, or telephone number, or other means of contacting the requester, the custodian shall not be required to respond until the requester reappears before the custodian seeking a response to the original request. If the government record is in storage or archived, the requester shall be so advised within seven business days after the custodian receives the request. The requester shall be advised by the custodian when the record can be made available. If the record is not made available by that time, access shall be deemed denied_ LddJ Plaintiffs Counsel repeatedly relies on strict textualist readings of OPRA in her numerous requests for counsel fees. During Oral Argument, Plaintiffs Counsel relied on the opposite end of that argument: that the court should gloss over a potential gap in the text, and make a ruling in line with the spirit of PEA. Counsel is by no means precluded from changing her position in different matters, but, her willingness to stray from a core principle in her ordinary line of thinking is nonetheless persuasive that the issue may need to be fleshed out in greater detail. Counsel argues that the absence of "currently available" in paragraph four of N.J.S.A. 47:1A-5.g. has no effect because records not "currently available" are treated the same as those records "in storage or archived" even though the statute does not explicitly state as much. Counsel's position sidesteps the tenet of statutory construction against surplus language. The legislature was not ignorant of the specific language it employed. Accordingly, if the legislature intended to couple records "currently available" with those "in storage or archived," it would have done so explicitly. The absence of "currently available" from paragraph four is indicative that there exists reasonable doubt as to whether the legislature intended to couple those separate categories of records with one another. Moreover, the statute does not follow-up with specific instructions tailored to requests for records that do not exist. On that point, N.J.S.A.. 47:1A.-5.g. in relevant part states: A custodian shall promptly comply with a request to inspect, examine, copy, or provide a copy of a government record. 4

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 requester_ The above

5 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 requester_ The above provision assumes that a government record exists. The court finds that N.J.S.A. 47:1A-51 and 47:1A -5.g. do not explicitly advise custodians on how to act when the request is for records that do not exist. Additionally, the statute is not instructive in determining whether the correspondence exchanged between parties in this case complies with the requirement that there be a prompt response. Because of the conclusory nature with which the matter was discussed during Oral. Argument, and the Court's ruling in DeLia v. Kiernan, 119 N.J. Super. 581, 585 (App. Div.), certif. denied, 62 N.J. 74 (1972) that courts have inherent power to prevent abuse and protect public officials, the court requests that each party brief the specific issue of whether records being not "currently available" requires a response from the custodian within seven days of the initial request. A determination as to whether Defendants violated Plaintiffs second, third, and fourth requests pends the outcome of supplemental papers. Additionally, Defendants are Ordered to produce a fully responsive certification outlining what measures were taken to locate responsive records, on which dates, and by whom. The certification will comply with the standards set forth in Paff v. New Jersey Dep't of Labor, 392 N.J. Super. 334, 341 (App. Div. 2007). Failure to do so will result in permitting Plaintiff to conduct limited discovery on those individual matters. Plaintiffs Fifth and Sixth Requests "Federal Labor Standards Act (aka: FLSA)" The analysis set forth above with respect to "Family Dollar" applies in full to Plaintiffs fifth and sixth requests. Accordingly, the court awaits the submission of supplemental papers and Defendants' certification. Plaintiffs Seventh Request Mayor's s Defendants argue that all responsive records were produced. The court is hesitant to believe that all of the s responsive to the inquiry are limited to those that were turned over. Accordingly, the court Orders Defendants to produce a certification in compliance with the requirements set forth in Paff, supra, 392 N.J. Super. at 341. Pending the submission of a legally sufficient certification, the court reserves ruling on whether Defendants' actions were a violation of OPRA. Furthermore, the Court cannot compel the production of a log of private s. Plaintiff's Eighth Request Clerk's Log Defendants' argument that no record of the Clerk's s exists is patently untrue. All relevant case law favors the court finding that the requested log is a government record subject to OPRA, See, e.g., Courier News v_ Hunterdon County Prosecutgr's Office, 358 N.J. Super. 373, (App. Div. 2003); Paff v. Galloway Twp., Docket No. ATL-L (Law Div. June 10, 2014). 5

6 Moreover, Plaintiff did Defendants the favor of spelling out the instructions for fulfilling his request. An appropriate response by Defendants would have been stating reasons for denial, and exploring alternatives with counsel for both sides. Defendants' refusal to cooperate violated Plaintiffs rights under OPRA. Plaintiffs claim that Defendant Kazar knowingly and willfully violated OPRA Pursuant to N.J,S A. 47:1A-11(a), "[a] public official, officer, employee or custodian who knowingly and willfully violates [OPRA]... and is found to have unreasonably denied access under the totality of the circumstances, shall be subject to a civil penalty of $1,000 for an initial violation, $2,500 for a second violation that occurs within 10 years of an initial violation, and $5,000 for a third violation that occurs within 10 years of an initial violation." The appropriate standard in determining a "knowing and willful" violation of OPRA has not been addressed by a court. The Government Records Council (GRC) set forth a collection of factors to consider. Nevertheless, the court reviews all GRC decisions de nova N.J.S.A. 47:1A-7.g_ Plaintiff bases his claim on a theory of constructive notice. Plaintiff contends that Kazar had knowledge that Plaintiffs requests were valid based on other, similarly worded requests held to be valid. In considering the totality of the circumstances there is insufficient evidence for finding that Kazar had knowledge that he was in violation of OPRA. OPRA requests are subject to highly fact-specific analysis, and the court is of the belief that no two requests are exactly alike. Therefore, Plaintiffs proposed theory of constructive notice fails. Plaintiffs claim that Plaintiffs Counsel is entitled to fees and costs as the prevailing party Here, Plaintiff achieved prevailing party status when Defendants failed to respond, or failed to produce some of the responsive records. In determining the amount of counsel fees for which Plaintiff is entitled, the court considers the number of documents received versus the number of documents requested, and whether the purpose of OPRA was vindicated by the litigation_ See Kelley v. Borough of Riverdale, MRS-L (Law Div. April 11, 2014) at page 7 citig n New Jersevans for a Death Penalty Moratorium v. N.J. Dep't of Corr 185 N.J. 137, 155 (2005). Based on the abovecited case law, unless proven otherwise, Plaintiffs assertion during Oral Argument that a court does not consider the purpose of OPRA in awarding counsel fees is mistaken. Defendants were at least negligent in their responses, and outwardly hostile toward Plaintiff. However, the court remains unconvinced that all of Plaintiffs requests vindicate the purpose of OPRA. Plaintiff articulated a reason for requesting the records related to "Family Dollar" and the Mayor's e-msils, however the court fails to note how production of the additional records furthers OPRA's purpose. The court is satisfied that a partial award of fees and costs does not defeat the underlying purpose of OPRA. To that extent, the court requires Plaintiffs counsel produce a Certification of Services so that the court may apprise reasonable counsel fees and costs. 5

7 Plaintiffs claim that Defendants violated Plaintiffs common law right of access The public enjoys a vested common law right of access to public records generated or maintained by public agencies. N.J.S.A_ 47:1A-8. A "public record" is any written memorial made by a public officer authorized by law to do so. If the information requested is a "public record" and the requestor has a legally recognized interest in the subject matter contained in the material, the material must be disclosed if the individual's right of access outweighs the State's interest in preventing disclosure. Shuttleworth v. City of Camden, 258 N.J. Surer. 573, 583 (App. Div. 1992). Defendants cannot demonstrate any harm resulting from the release of the requested records that exist. Moreover, Defendants fail to set forth a proper basis why denial was proper under the circumstances. Defendants' analysis is limited to the two words, "as such." Accordingly, the court finds Defendants violated Plaintiffs common law right of access. CONCLUSION Based upon the foregoing, the court finds that Plaintiffs rights under OPRA were violated in part. Accordingly, Plaintiff is entitled to some measure of counsel fees. Plaintiffs counsel will produce a Certification of Services so that the court may apprise reasonable fees and costs. Additionally, for those records that were produced with redactions, Defendants are Ordered to produce a redaction log. For those records that were not produced, Defendants are Ordered to produce fully responsive certifications outlining what measures were taken to locate responsive records, on which dates, and by whom for all records Defendants claim do not exist, or ever existed. The certifications will comply with the standards set forth in PatT, supra, 392 N.J. Super. at 341. Failure to do so will result in permitting Plaintiff to conduct limited discovery on those individual matters. For those records that Defendants claim are not available because they never existed, the court reserves a finding of a "deemed denial" violation of OPRA pending the submission of supplemental papers. Regarding Kazar, the court finds that he has not willfully and knowingly violated OPRA. Therefore, civil penalties are inappropriate.

FINAL DECISION. December 18, 2012 Government Records Council Meeting

FINAL DECISION. December 18, 2012 Government Records Council Meeting FINAL DECISION December 18, 2012 Government Records Council Meeting Anthony Florczak Complainant v. Bergen County Sheriff s Office Custodian of Record Complaint No. 2012-32 At the December 18, 2012 public