FEB Feb. 19, :36PM Judge Jacobson Chamber No, 3137 JOHN PAFF, SUPERIOR COURT OF NEW JERSEY LAW DIVISION: MERCER COUNTY.

Transcription

1 Feb. 19, :36PM Judge Jacobson Chamber No, 3137 WALTER M. LUERS, ESQ LAW OFFICE OF WALTER M. LUERS, LLC Suite West Main Street Clinton, New Jersey Telephone: Counsel for Plaintiff FEB JOHN PAFF, Plaintiff, v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, and MATTEW COEFER in his official capacity as Records Custodian, SUPERIOR COURT OF NEW JERSEY LAW DIVISION: MERCER COUNTY DOCKET NO. Z.- - &33--- /St CIVIL ACTION ORDER TO SHOW CAUSE Defendants. THIS MATTER being brought before the Court by Law Offices of Walter M. Luers, LLC, attorney for Plaintiff John Paff, seeking relief by way of summary action pursuant to R. 4:67-1(a), based upon the facts set forth in the verified complaint and supporting papers filed herewith; and the Court having determined that this matter may be commenced by order to show cause as a summary proceeding pursuant to N.J.S.A. 47:1A-6 and for good cause shown, IT IS on this / day of 4,1,, 2013 ORDERED that the Defendants New Jersey Department of Environmental Protection, and Matthew Coder appear and show cause on the as ' day of r, 2014 before the Honorable Mary C. Jacobson, A. J. S.C., New Criminal Court House, Mercer County Superior Court, 400 S. Warren Street, 4 th Floor, Trenton, NJ , at o'clock in the noon or as soon thereafter as counsel can be heard, why judgment should not be entered:

2 Feb :36PM Judge Jacobson Chamber No, 3137 Ordering Defendants to provide Plaintiff with copies of the public records showing the copy of the roster without redactions for the city and county of Fish and Game Council members that he requested in his December 17, 2013 OPRA request to the Defendants; B. Awarding Plaintiff costs and reasonable attorneys' fees; and C. For such other or further relief as this Court deems just and equitable. And it is further ORDERED that: 1. A copy of this order to show cause, verified complaint and all supporting affidavits or certifications submitted in support of this application be served upon the Defendants personally or by certified mail, return receipt requested, within days of the date hereof, in accordance with R. 4:4-3 and R 4:4-4, this being original process. 2. The Plaintiff must file with the Court their proof of service of the pleadings on the Defendants no later than three (3) days before the return date. 3. Defendants shall file and serve a written answer and opposition papers to this order to show cause and the relief requested in the verified complaint and proof of service of the same by Allutat 3I, The answer and opposition papers must be filed with the Clerk of the Superior Court in the county listed above and a copy of the papers must be sent directly to the chambers of the Honorable Mary C. Jacobson, A.J.S.C, 4. The Plaintiff must file and serve any written reply to the Defendants' order to show cause opposition by ,e 7, The reply papers must be filed with the Clerk of the Superior Court in the county listed above and a copy of the

3 Feb :36PM Judge Jacobson Chamber r-j: 3137 P. 4 reply papers must be sent directly to the chambers of the Honorable Mary C. Jacobson, A.J.S.C. 5, If the Defendants do not file and serve opposition to this order to show cause, the application will be decided on the papers on the return date and relief may be granted by default, provided that the Plaintiff files a proof of service and a proposed form of order at least three days prior to the return date. 6. If the Plaintiff has not already done so, a proposed form of order addressing the relief sought on the return date (along with a self-addressed return envelope with return address and postage) must be submitted to the Court no later than three (3) days before the return date. 7. Defendants take notice that the Plaintiff has filed a lawsuit against you in the Superior Court of New Jersey. The verified complaint attached to this order to show cause states the basis of the lawsuit. If you dispute this complaint, you, or you attorney, must file a written answer and opposition papers and proof of service before the return date of the order to show cause. These documents must be filed with the Clerk of the Superior Court in the county listed above, A list of these offices is provided. "Tfeasufer-State-of-Nevr-J-ersey-." You must also send a copy of your answer and opposition papers to the Plaintiffs' attorney whose name and address appear above, or to the Plaintiff, if no attorney is named above. A telephone call will not protect your rights; you must file and serve your answer and opposition papers (with the fee) or judgment may be entered against you by default.

4 Feb :37PM Judge Jacobson Chamber 3137 P. 5 If you cannot afford as a ttorney, you may call the gal Services office in the county in which you A list of these offices i ovided. If you do not e an attorney and are n eligible for free legal ass' nce you may obtain a erral to an attorney by ling one of the Lawy eferral Services. A list of these numbers is also prow 9. The Court will entertain argument, but not testimony, on the return date of the order to show cause,ainiess-the-geurtrandiyarties-are-advistel-teihe-eentrarrno -laterthail efree-return-dato, HON. MARY, JACOBSON', A.J.S,C.

5 WALTER M. LUERS, ESQ LAW OFFICES OF WALTER M. LUERS, LLC Suite C West Main Street Clinton, New Jersey Telephone: Attorney for Plaintiff JOHN PAFF, Plaintiff, v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION and MATTHEW COEFER in his capacity as Chief Records Custodian. SUPERIOR COURT OF NEW JERSEY LAW DIVISION: MERCER COUNTY DOCKET NO. CIVIL ACTION VERIFIED COMPLAINT Defendants. Plaintiff John Paff, through his counsel Law Offices of Walter M. Luers, LLC, by way of verified complaint against the New Jersey Department of Environmental Protection and Matthew Coefer in his official capacity as Chief Records Custodian of the New Jersey Department of Environmental Protection, alleges as follows: PRELIMINARY STATEMENT 1 This is an action under the Open Public Records Act, N.J. S.A. 47:1A-1, et seq. ("OPRA") and the common law right of access seeking to require disclosure of items from an OPRA request. Plaintiff seeks an order compelling disclosure of the following records: a copy of the roster of the members of the Fish and Game Council ("Council"), which is a division of the New Jersey Department of Environmental Protection ("DEP"), that contains the unredacted geographic information identifying the city and county where each council member resides. No claim is being made to street addresses.

6 PARTIES 2. Plaintiff John Paff is a resident of Franklin Township, New Jersey. His mailing address is P.O. Box 5424 Somerset, New Jersey Defendant DEP is a public agency corporate and public that is organized under the laws of the State of New Jersey. The DEP's principal place of business is 401 State Street, Trenton NJ, The DEP is a "public agency" as that term is defined by N.JS.A. 47:1A Defendant Matthew Coefer is the Chief Records Custodian of the DEP and the "Custodian of a government record" as that term is defined by N.J.S.A. 47:1A-1.1. His principal place of business is 401 State Street, Trenton, NJ VENUE 5. Venue is properly laid in Mercer County because Defendant is a public agency located in Mercer County and because the cause of action arose in Mercer County. R 4:3-2(a). FACTUAL ALLEGATIONS 6. On December 17, 2013, Plaintiff submitted via fax and in the body of an message a written OPRA and common law right of access request to Defendant DEP and Matthew L. Coefer, which they received. In relevant part, Plaintiff requested the following documents concerning the Fish and Game Council, which is a division of the DEP: "Roster of members, along with term expiration dates, as the council is comprised as of the date of your receipt of this request." 7. On December 30, 2013, Defendant Matthew Coefer acknowledged receipt of Plaintiff's OPRA request. In his initial response, he provided a copy of the requested roster with redactions created with "whiteout." 8. At that time it was Coefer's position that the DEP could not provide Council members' personal address information, telephone number and addresses.

7 9. On January 2, 2014, Plaintiff responded to Defendant, first to contest the use of "whiteout" redactions. He complained that this manner of redaction "[makes] it impossible for me to tell the quantum of material that was redacted," and also noted that it violated the Government Records Council's policy for Custodians to make redactions using a "visually obvious" method. 10. In his January 2, 2014 communication, Plaintiff also stated, in relevant part, that he felt the redaction of the Council members address information was improper because "[ajt the very least, the city, state and zip code of the members' addresses could be disclosed." 11. Subsequently, on January 6, 2014, Defendant Coefer responded by providing a roster with "blackout" redactions. He maintained his position, however, that the addresses, among other information, could not be disclosed because "[t]he Fish & Game Council members are volunteers who have responsibility in developing Hunting rules and regulations, compliance, and making policy recommendations to the Governor's Office... There is a high possibility of harassment, from individuals who do not agree with certain policies/regulations or who may have lost their license due to violating the rules." 12. The records requested by Plaintiff are public records within the definition of N.J.S.A. 47:1A-1.1 and are not subject to any exception or exemption. 13. The records requested by Plaintiff are also public records within the definition of the common law right of access. 14. Plaintiff has a wholesome public interest and legitimate private interest in the documents being requested. Plaintiff's public and private interest is that he is an exhaustive advocate of openness and transparency for open government in the State of New Jersey. Mr. Paff accomplishes his goals by making hundreds of OPRA requests per year; by publicizing his findings through his blog and ing his findings to interested persons; and by communicating directly with public officials.

8 Recently, he submitted comments to the New Jersey Division of Local Government Services regarding their proposed rules, receipt of which was personally acknowledged by the Director of that Division. He also files ethics complaints and internal affairs complaints when they appear to be warranted based on the results of his OPRA requests. 15. Plaintiff's interest in receiving copies of the documents requested is not outweighed by Defendants' continued interest in secrecy. Verified Complaint. FIRST COUNT (OPEN PUBLIC RECORDS VIOLATION) 16. Plaintiff hereby repeats and incorporates by reference paragraphs 1-15 of this 17. Defendants violated OPRA by using "whiteout" to create redactions. 18. Defendants violated OPRA by creating a "deemed denial" when they responded later than the seven business days prescribed in N.J. S.A. 47:1A-5(i). 19. Defendants violated OPRA by not providing Plaintiff with the roster he sought in his December 17, 2013 OPRA request, without redactions of the Council members' city and county information. Verified Complaint. SECOND COUNT (COMMON LAW RIGHT OF ACCESS) 20. Plaintiff hereby repeats and incorporates by reference paragraphs 1-19 of this 21. Defendants violated Plaintiff's common law right of access by denying him a copy of the roster he sought in his December 17, 2013 request without redactions of the city and county for each Council member.

9 22. Plaintiff and the public's interest in acquiring the documents outweigh any interest in continued secrecy that Defendants may have. WHEREFORE, Plaintiff demands: A. An copy of the roster he requested in his December 17, 2013 OPRA and common law right of access request, without redactions for the city and state where each Council member resides; B. An award of costs of this action and reasonable attorneys' fees; C. Such other, further and different relief as the Court may deem equitable and just. DESIGNATION OF TRIAL COUNSEL Plaintiff hereby designates Walter M. Luers as trial counsel. CERTIFICATION PURSUANT TO R. 1:38-7(B) I certify that confidential personal identifiers have been redacted from documents now submitted to the Court, and will be redacted from all documents submitted in the future. CERTIFICATION OF'No OTHER ACTIONS Pursuant to R. 4:5-1, it is hereby stated that the matter in controversy is not the subject of any other action pending in any other court or of a pending arbitration proceeding to the best of my knowledge and belief To the best of my belief, no other action or arbitration proceeding is pending or contemplated. Further, other than the parties set forth in this pleading,.i know of no other parties that should be joined in the above action. In addition, I recognize the continuing obligation of each party to file and serve on all parties and the Court an amended certification if there is a change in the facts stated in this original certification.

10 Respectfully submitted, Dated: February 12, 2014 LAW OFFICES OF WALTER M. LUERS, LLC Walter M. Luers, Member Suite C West Main Street Clinton, New Jersey Telephone:

11 VERIFICATION John Paff, of full age, certifies as follows: 1. I am the Plaintiff in the action captioned "John Paff v. New Jersey Department of Environmental Proection, et al" All of the facts stated in the verified complaint to which this Verification is attached are true, and as to those facts that are alleged on information and belief, I believe those facts to be true. 2. I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. Dated: February 12, 2014 John Paff

12 Law Offices of Walter M. Luers, LLC Suite C West Main Street Clinton, New Jersey Telephone: Facsimile: February 12, 2014 Walter M. Luers, Esq.* *Also admitted in New York Writer's Direct Hon. Mary C. Jacobson, A.J.S.C. New Criminal Courthouse Mercer County Superior Court 400 S. Warren Street, 4 th Floor Trenton, NJ Re: Paff v. New Jersey Dep't of Envir. onmental Protection, et al. Dear Judge Jacobson: We are submitting this Letter Brief in lieu of a more formal brief in support of this action under the Open Public Records Act ("OPRA"), N.JS.A. 47:1A-1, et seq., and the common law right of access, which has been opened to the Court via Verified Complaint and Order to Show Cause. This action is being brought because Defendants have denied Plaintiff access to the following record concerning the Fish and Game Council ("Council"), a division of the New Jersey Department of Environmental Protection: the "[r]oster of members along with the term expiration dates, as the Council is comprised as of the date of your receipt of this request." In this action we seek only the following limited geographic information: the city and county of residence of each Council member, which was redacted from the record provided by the Custodian. First, we discuss the facts of this case. Second, we discuss why this action should proceed in a summary manner. Third, we discuss legal arguments that support disclosure.

13 Hon. Mary C. Jacobson, A.J.S.C. February 12, 2014 Page 2 of 12 STATEMENT OF FACTS For the facts, the Court is respectfully referred to Plaintiff's Verified Complaint. The Plaintiff's OPRA request, Defendants' responses and their exchange of correspondence and the documents that were produced in redacted form are attached to the Luers Certification submitted herewith. LEGAL ARGUMENT POINT I PLAINTIFF'S ACTION SHOULD PROCEED IN A SUMMARY MANNER "A person who is denied access to a government record by the custodian of the record,... may institute a proceeding to challenge the custodian's decision by filing an action in Superior Court." N.J.S.A. 47:1A-6. Once instituted, : "[a]ny such proceeding shall proceed in a summary or expedited manner." Id "This statutory language requires a trial court to proceed under the procedures prescribed in Rule 4:67." Courier News v. Hunterdon County Prosecutor's Office, 358 N.J. Super. 373, 378 (App. Div. 2003). Any such action must be initiated by Order to Show Cause, supported by a verified Complaint. Id (citing R. 4:67-2(a)). Here, because OPRA authorizes actions under it to proceed in a summary manner, and Plaintiff's request for an order to show cause is supported by a verified complaint, the relevant documents have been provided via certification, and.the relevant facts should not reasonably be disputed, the order to show cause should be granted so this matter may proceed in a summary manner. R. 4:67-2(a).

14 Hon. Mary C. Jacobson, A.J. S.C. February 12, 2014 Page 3 of 12 POINT II THE RECORDS SOUGHT BY PLAINTIFF SHOULD BE DISCLOSED Plaintiff seeks records pursuant to OPRA and the common law right of access. As the Court knows, the Open Public Records Act ("OPRA") mandates 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 limitations on the right of access accorded [under OPRA] as amended and supplemented, shall be construed in favor of the public's right of access." Libertarian Party of Cent. New Jersey v. Murphy, 384 N.J. Super. 136, 139 (App. Div. 2006) (citing N.J.S.A. 47:1A-1). "The purpose of OPRA 'is to maximize public knowledge about public affairs in order to ensure an informed citizenry and to minimize the evils inherent in a secluded process.' Times of Trenton Publ'g Corp. v. Lafayette Yard Cmty. Dev. Corp., 183 N.J. 519, 535 (2005) (quoting Asbury Park Press v. Ocean County Prosecutor's Office, 374 N.J. Super. 312, 329 (Law Div. 2004)). These lofty descriptions of the purposes of OPRA are not mere bromides or empty statements of legislative intent. Our Supreme Court has stated that "Those who enacted OPRA understood that knowledge is power in a democracy, and that without access to information contained in records maintained by public agencies citizens cannot monitor the operation of our government or hold public officials accountable for their actions." Fair Share Housing Center, Inc. v. New Jersey State League of Municipalities, 207 N.J. 489, 502 (2011). The burden of proof in showing that a denial of access was justified rests solely with the Records Custodian. N.J.S.A. 47:1A-6; Asbury Park Press v. Monmouth County, 406 N.J. Super. 1, 7 (App. Div. 2009). Here, the documents sought by Plaintiff are "government records" within the meaning of OPRA. Under OPRA, "government record":

15 Hon. Mary C. Jacobson, A.J. S.C. February 12, 2014 Page 4 of 12 means 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, including subordinate boards thereof, or that has been received in the course of his or its official business by any such officer, commission, agency, or authority of the State or of any political subdivision thereof, including subordinate boards thereof 47:1A-1.1. For the forgoing reasons, we submit that the records requested by Plaintiff are all government records that must be disclosed under OPRA. Defendants have denied access to a Council member roster, which is undisputedly a government record. Defendants' actions constituted a "deemed denial" pursuant to N.J.S.A. 47:1A- 5(i). The Plaintiff submitted his request on December 17, 2013, but did not receive a response from the Custodian until December 30, 2013, well over the seven business day time limit under OPRA, Further, the Custodian's method of redaction in his initial response to Plaintiff was in itself a violation of Plaintiff's rights under the statute. Under OPRA, any limitations on access must be construed in favor of public access. N.J.S.A. 47:1A-1. Here, the Custodian used "whiteout" to redact a portion of the record claimed as exempt by the Council. This practice violates the aforementioned mandate favoring public access. "Whiteout" redactions conceal the nature and extent of material excised from a redacted document. No doubt for that reason, the agency whose task is to "prepare guidelines" for Custodians, the Government Records Council ("GRC"), 47:1A-7(b), has disavowed the practice. The GRC' s Handbook for Records

16 Hon. Mary C. Jacobson, A.T.S.C. February 12, 2014 Page 5 of 12 Custodians specifically instructs that Custodians must use a "visually obvious" method of redaction. Gov't Records Council, Handbook for Records Custodians, Fifth Edition, 17, available at: For these reasons, this court should hold that Defendants' use of "whiteout" to redact material was an unlawful denial of access under OPRA. Second, the Defendants' denial of access to Council members' geographic information, in redacting the city and county of each Council member, was unlawful under OPRA. In this action we seek only that information; we do not seek addresses, mailing addresses, or telephone numbers. Defendants have not cited a specific OPRA exemption that justifies their denial of access to this limited geographic information, stating only that the "high possibility of harassment" precludes the Council from releasing this information. However, the only OPRA exemption which addresses concerns about "harassment," an agency's responsibility to safeguard from public access those records that would violate a citizen's "reasonable expectations of privacy," N.J.S.A. 47:1A-1, does not exempt this information. Under the privacy exemption, the Court must apply the six Doe factors in weighing the competing interests of privacy and access, as established under OPRA in Burnett v. County of Bergen, 198 N.J. 408, 427 (2009): (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; (7) whether there is an express statutory mandate, articulated public policy, or other public interest militating towards public access. (citing Doe v. Poritz, 142 N.J. 1, 88'(1995)):

17 Hon. Mary C. Jacobson, A.J.S.C. February 12, 2014 Page 6 of 12 Applying these factors shows that the redaction of each Council member's city and county of residence from this record was not justified by the privacy exemption. The first two Doe factors, which concern the nature of the record in question, support disclosure because this geographic information is not of a private nature. The Fish and Game Council is a public body whose members are appointed by the Governor, in many cases on the basis of their county of residence. N.J.S.A. 13:1B-24. The disclosure of Council members' city and county of residence is not of the sort of disclosure which should surprise Council members, who have acceded to public life to represent the interests of their locality. In fact, for 5 of the 11 Council members, this information is already available online in press releases from the Governor's office. Council members Jeffrey Link, Alex Puskas, and Philip Brodhecker's addresses were disclosed in a press release on June 1, (Luers Cert., Exhibit 5 (Governor Chris Christie Files Nominations)). Council members Agust Gudmundsson and David Burke's addresses were disclosed in a press release on August 23, (Luers Cert., Exhibit 5) Governor Chris Christie Files Nominations)). Council members Cathy Blumig and Joseph DeMartino's addresses were disclosed in a press release on July 31, (Luers Cert., Exhibit 5 (Governor Chris Christie Files Nominations)). Under the first two Doe factors, these press releases show that this geographic information is non-private in nature; in fact, more than that, the State has considered the public release of this information to serve a salutary function. The second two factors also support disclosure of this information; those factors address the potential harm stemming from disclosure. Burnett, 198 N.J. at 431. Here, no harm appears likely, because many Council members' geographic information is already public, and the Custodian has cited no harm that has occurred. To justify his denial of access, the Custodian

18 Hon. Mary C. Jacobson, A. J. S. C. February 12, 2014 Page 7 of 12 has instead referred only to a "high possibility of harassment" if this information is released, Exhibit 1 at 6, a claim whose credibility is undermined by the Custodian's inability to cite any tangible evidence in support. By contrast, the court in Burnett weighed against the release of Social Security Numbers ("SSNs") when considering these Doe factors, citing in support "alarming statistical findings" on identity theft, to conclude that "identity theft today is real, and it is directly linked to the of exposed or stolen SSNs." 198 N.J., at 433. Here, not only is there an absence of such compelling evidence, no evidence at all has been cited, so the two Doe factors concerning harm cannot support a claimed privacy exemption. Under the fifth factor, the possibility of unauthorized disclosure, for at least 5 of the 11 council members, this information has been publicized by the State, and its disclosure cannot be considered unauthorized. Further, upon information and belief, for the remaining 6 Council members, the same information may have already been publicized in similar press releases no longer extant online. However, even if the State has not previously publicized the remaining 6 Council members' geographic information, it is not clear that disclosure of that information would be unauthorized, nor that authorization should be required to access this relatively harmless information. The sixth factor concerns the need for access. This factor weighs in favor of access, because Plaintiff has a purpose in requesting this information that is at the core of OPRA. The New Jersey Supreme Court has held under this factor that "[a]s a general rule, we do not consider the purpose behind OPRA requests...however, when legitimate privacy concerns exist that require a balancing of interests...it is appropriate to ask whether unredacted disclosure will further the core purpose of OPRA." Burnett, 198 N.J., at Here, the Plaintiff's request furthers the goal of OPRA to "maximize public knowledge about public affairs in order to ensure

19 Hon. Mary C. Jacobson, A.J.S.C. February 12, 2014 Page 8 of 12 an informed citizenry and to minimize the evils inherent in a secluded process." Mason v. City of Hoboken, 196 N.J., 51, 64 (2008). The Plaintiff's purpose furthers OPRA here because the geographic location of a Council member's residence is of great relevance for a citizen in understanding the composition of the Council. The Council's role is to determine "when and where in the state hunting and fishing shall take place, and which fresh water fish, game birds, game animals, and fur bearing animals may be taken and in what numbers." Humane Soc y of the U.S. v. N.J. State Fish & Game Council, 70 N.J. 565, 569, 362 A.2d 20, 22 (1976), appeal dismissed, 429 U.S. 1032, 97 S. Ct. 723, 50 L. Ed. 2d 744 (1977) (emphasis added). Thus, the Council is a body whose decisions are directly linked to geography; no doubt for that reason their enabling statute requires appointment of 9 of its 11 members on the basis of their geographic association. Three Council members must be chosen from one of the following counties: "Bergen, Essex, Hudson, Morris, Passaic, Sussex, and Warren." N.J.S.A. 13:1B-24. Three Council members must be chosen from the following counties: "Hunterdon, Mercer, Middlesex, Monmouth, Ocean, Somerset, and Union." Ibid Finally, three Council members must be chosen from one of the following counties: "Atlantic, Burlington, Camden, Cape May, Cumberland, Gloucester, and Salem." Ibid. Thus the statute contemplates that Council members will represent the interests of their locality in their decision-making. It therefore is in the public interest to know Council members' city and county of residence. Plaintiff is an activist who requests the information for this public purpose, and to further government accountability; he is not someone who intends to harass Defendants. Plaintiff's purpose for requesting this information is to shed light on the decision-making process of a public body, a core purpose of OPRA. Therefore an inquiry into the need for access under the sixth Doe factor should weigh in favor of disclosure.

20 Hon. Mary C. Jacobson, A.J.S.C. February 12, 2014 Page 9 of 12 Finally, the seventh factor asks whether there is an "express statutory mandate, articulated public policy, or other recognized public interest" favoring public access. The same interests that favor disclosure under the sixth factor, including OPRA's mandate favoring public access, also support disclosure under the seventh factor. We submit that there are no statutes, prescriptions of public policy, or other public interest concerns that counsel against disclosure of this relatively limited geographic information. The seventh factor should weigh in favor of disclosure. In sum, the Custodian has unlawfully denied Plaintiff access to this relatively innocuous geographic information in two separate instances. First, procedurally; the Custodian's initial inept response to Plaintiff's request, as well as his use of "whiteout" redaction constituted a "deemed denial" under OPRA. Second, substantively; the Custodian's claim that the geographic information of each Council member must be redacted from the responsive record, because of a "high possibility of harassment" for Council members, was not supported by any OPRA exemption. OPRA's only relevant exemption here, its privacy provision, does not apply here. There is a strong public interest in favor of disclosing Council members' geographic information to shed light on that body's decision-making process, weighed against a specious and speculative privacy interest. The redaction of this information was unlawful under OPRA. POINT III ACCESS SHOULD BE GRANTED UNDER THE COMMON LAW RIGHT OF ACCESS If this Court should deny access to the records requested under OPRA, the Court should grant access under the common law right of access. The public's right of access to records is broader under the common law right of access than under OPRA. "Nothing contained

21 Hon. Mary C. Jacobson, A.J.S.C. February 12, 2014 Page 10 of 12 in [OPRA] shall be construed as limiting the common law right of access to a government record, including criminal investigatory records of a law enforcement agency." NJ.S.A. 47:1A- 8; see also North Jersey Media Group Inc. v. State, Dept of Personnel, 389 N.J. Super. 527, 536 (Law. Div. 2006); Bergen County Improvement Auth. v. N. Jersey Media Group, Inc., 370 N.J. Super. 504, 516 (App. Div. 2004). Thus, the right of access to records under the common law is broader than under OPRA. North Jersey Media Group, 389 N.J. Super. at 537. The common law right of access has three elements: (1) the records must be common law public documents; (2) the person who seeks access must "establish an interest in the subject matter of the material," South Jersey Publishing Co. v. New Jersey Expressway Auth., 124 N.J. 478, 487 (1991), and (3) the citizen's right to access "must be balanced against the State's interest in preventing disclosure." Higg-A-Rella, Inc., 141 N.J. at 46; see also Keddie v. Rutgers, The State University, 148 N.J. 36, 50 (1997) (discussing these three elements). Common law public records "include almost every document recorded, generated, or produced by public officials whether or not 'required by law to be made, maintained or kept on file.'" Shuttleworth v. City of Camden, 258 N.J. Super. 573, 582 (App. Div. 1992). Here, the records sought are public records because they are kept by the public agency. Higg-A-Rella, Inc., 141 N.J. at 46 (defining a common-law record as one that is made by a public official in the exercise of their public function, either because the record was required or directed by law to be made or kept, or because it was filed in a public office). Plaintiff has a strong interest in these records because he is activist seeking disclosure of these records in the interest of government accountability and also public knowledge. Thus, Plaintiff has standing to request these documents under the common law, a requirement that is easily met. "A citizen, and the press on its behalf, does not have to prove any personal interest in order to satisfy the common law

22 Hon. Mary C. Jacobson, A.J.S.C. February 12, 2014 Page 11 of 12 standing requirement." Daily Journal v. Police Dep't of City of Vineland, 351 N.J. Super. 110, 122 (App. Div. 2002). To determine whether the records should be disclosed to Plaintiff, this Court must balance Plaintiffs' interest in disclosure against Defendants' interest in confidentiality. In weighing whether disclosure outweighs confidentiality, New Jersey courts have weighed several factors, including (1) the extent to which disclosure will impede agency functions by discouraging citizens from providing information to the government; (2) the effect disclosure may have upon persons who have given such information, and whether they did so in reliance that their identities would not be disclosed; (3) the extent to which agency self-evaluation, program improvement, or other decisionmaking will be chilled by disclosure; (4) the degree to which the information sought includes factual data as opposed to evaluative reports of policy-makers; (5) whether any findings of public misconduct have been insufficiently corrected by remedial measures instituted by the investigative agency; and (6) whether any agency disciplinary or investigatory proceedings have arisen that may circumscribe the individual's asserted need for the materials. Loigman v. Kimmelman, 102 N.J. 98, 113 (1986). These factors weigh in favor of disclosure here. Under the first factor, disclosure would not discourage Council members from providing their geographic information, because they are already required to do so to obtain their position, and in most cases are appointed on the basis of their geography. Under the second factor, we submit, as we did in our discussion under Point II, that disclosure of this information poses no credible threat of harm to Council members, who in many cases assumed office with a press release announcing both the fact of their appointment along with this exact geographic information. Further, in such an environment, any Council member's reliance on the non-disclosure of this information would not have been reasonable. Under the third factor, release of this information would not chill agency decision-

23 Hon. Mary C. Jacobson, A.J.S.C. February 12, 2014 Page 12 of 12 making, as much of this information is already public, and yet Defendants have not claimed this has had any chilling effect on the Council. The fourth factor clearly favors access, because the requested information is factual material, not evaluative in nature. The fifth factor does not weigh for or against disclosure, as the record contains no evidence of public misconduct associated with the Council. For the same reasons, the sixth factor weighs neither for nor against disclosure. Therefore on the balance, the six Loigman factors weigh in favor of disclosure of this geographic information, and we ask this Court to find that the common law right of access provides Plaintiff the right to receive this roster without each Council member's the city and county of residence redacted from the record. Walter M. Luers

24 WALTER M. LUERS, ESQ LAW OFFICES OF WALTER M. LUERS, LLC Suite C West Main Street Clinton, New Jersey Telephone: Attorney for Plaintiff JOHN PAFF, Plaintiff, v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION and MATTHEW J. COEFER in his official capacity as Records Custodian, SUPERIOR COURT OF NEW JERSEY LAW DIVISION: MERCER COUNTY DOCKET NO. CIVIL ACTION CERTIFICATION OF WALTER M. LUERS Defendants. WALTER M. LUERS, of full age, who is the attorney for the Plaintiff in this action, hereby certifies and says: 1. Attached as Exhibit 1 is a copy of Plaintiff's December 17, 2013 OPRA request. 2. Attached as Exhibit 2 is the Custodian's December 30, 2013 response. 3. Attached as Exhibit 3 is Plaintiff's January 2, 2014 reply 4. Attached as Exhibit 4 is the Records Custodian's final response on January 6, Attached as Exhibit 5 are press releases from the Office of the Governor dated June 1, 2010, August 23, 2010 and July 31, All attached documents are true copies thereof

25 The foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false I am subject to punishment. DATED: February 11, 2014 Walter M. Luers

26 12/17/2013 3:27 PM Please accept this /fax as my request for government records pursuant to the Open Public Records Act and the common law right of access. Please respond to this request and send all responsive documents to me at paff@pobox.com. Thank you. Background: I am interesting in learning the identities of each of the eleven persons, along with their 4 year term expiration date, who served on Fish and Game Council as of the Council's June 27, 2012 meeting and a similar roster for the Council's current composition. Records requested: 1. The minutes of all public and executive minutes of the Fish and Game Council's June 27, 2012 meeting(s). 2. Roster of members, along with term expiration dates, of the Council as it was composed on June 27, Roster of members, along with term expiration dates, as the Council is comprised as of the date of your receipt of this request. Page 1 of 1

27 State of New Jersey Department of Environmental Protection GOVERNMENT RECORDS REQUEST FORM IMPORTANT NOTICE Please read this entire form carefully as it contains important information concerning the response to your record request, accessing records, disputing denials, and your rights concerning government records. For further information, access Requestor Information State Use Only First Name: JOHN MI Last Name PAFF Company: Mailing Address: 1605 AMWELL RD City: Somerset State: NJ Zip: Business Telephone: (732) Extension Facsimile Telephone: (908) Tracking # Received Date Access Method 12/17/2013 Send Electronic copies All matters relating to the response and access of any records identified for this request should be directed to: NJDEP Office of Record Access 401 East State Street PO Box 420 Mail Code Q Trenton, New Jersey Tele #: (609) Fax #: (609) Record Request Details: Please accept this /fax as my request for government records pursuant to the Open Public Records Act and the common law right of access. Please respond to this request and send all responsive documents to me at paff@pobox.com. Thank you.background:i am interesting in learning the identities of each of the eleven persons, along with their 4 year term expiration date, who served on Fish and Game Council as of the Council's June 27, 2012 meeting and a similar roster for the Council's current composition.records requested:1. The minutes of all public and executive minutes of the Fish and Game Council's June 27, 2012 meeting(s).2. Roster of members, along with term expiration dates, of the Council as it was composed on June 27, Roster of members, along with term expiration dates, as the Council is comprised as of the date of your receipt of this request. Disposition Notes Based on this record request, responsive records were located. Contact us at to schedule access. Some records are exempt pursuant to N.J.S.A. 47:1A-1 and not subject to public access. See Addendum Disposition Notes for further information. Addendum Disposition Notes: Please see the "Revised Addendum Disposition Notes" on Page 3. The NJDEP is sending this revised response as the first part of the NJDEP's original response was missing. In Progress Record Request Response - Open Filled - Closed Denied - Closed Partial - Closed X Custodian Signature 12/30/2013 Date

28 Access to Government Records Under the New Jersey Open Public Records Act (N.J.S.A. 47:1A-1 et seq.) Information Regarding the Requested Records If your request is in reference to a single facility, please provide the name of the facility, and the name of the operator name of the facility: Please provide the owner name the facility or parcel of land: Facility Name: Operator Name: Owner Name: If your request is in reference to a specific parcel of land, please provide the street address, block, lot and property owner of the parcel of land: (Note: if the property in question is over multiple blocks and lots, please list all in the description field below) If your request is in reference to a facility, site or parcel of land, please provide the Municipality and County where the facility, site or parcel of land is located: If the request is in reference to a particular permit issued by NJDEP, please provide the type of permit and any identifying numbers such as permit, incident or case numbers. (i.e. Fishing, Hunting, Hazardous Waste, Solid Waste, Land Use, NJPDES, Pesticides, Stream Encroachment, TWA, UST, Water Allocation) Street Address 1: Street Address 2: Block: Lot: County: Municipality: List Permit Type: List ID Numbers: If your request is in reference to an individual, please provide the individual's name and type, and if the individual is a DEP employee, your relationship with the individual: Individual s name: Type of Individual: Relationship: If the an individual was specified above, the individual was DEP Licensed, please specify the license type the individual holds: License Type: The New Jersey Department of Environmental Protection has responded to your submitted Open Public Records Act (OPRA) record request. The following information will help you understand the response and your next available actions. Tracking #: This is the Department s assigned Tracking # to your OPRA record request, which should be used in all corresponding matters. Record Request Response: In Progress Based on the nature of the request, the records sought, and/or the manner to which the records may exists, the Department requires additional time to investigate and respond to the request. Filled Based on the information provided in your request, the Department was able to investigate and respond to your record request. Denied Based on the nature of the request and/or the records sought, the Department has denied your request pursuant to a specific exemption(s) cited in N.J.S.A. 47:1A-1 seq. Partial The Department has identified both responsive government records and records being denied based on the nature of the request and/or the records sought, that do not meet the definition of a government record pursuant to a specific exemption(s) cited in N.J.S.A. 47:1A-1 seq. Disposition Notes: Provides detailed information concerning the Department s response to your request. Accessing Records: Dependent on the volume of records and your interest, there are five (5) methods available to access the responsive government records: File Review Schedule a file review with the Department to directly access the records and take notes or tag records of interest for copying. Copying can be performed by either the Department s onsite Copying Unit at State duplication fee costs or by the requester employing a Copy Vendor Service. If there are records stored in archives, a five-day processing period will be included prior to scheduling a review. Copy Request All records of interest will be copied by the Department s onsite Copying Unit at State duplication fee costs unless a Copy Vendor Service is employed. Electronic Records Request Dependent on the size & nature of the e-records, the Department will the records or provide a CD or DVD. Fax Request Based on the number of pages, the Department faxes the responsive records. Web Access The responsive records can be access directly through the Department s web site. Web address will be provided. SONJ-RRF-2 OPRA #

29 Access to Government Records Under the New Jersey Open Public Records Act (N.J.S.A. 47:1A-1 et seq.) 1. The fees for duplication of a government record are specified below. We will notify you of any special charges, special service charges or other additional charges authorized by State law or regulation before processing your request. Payment shall be made by check or money order payable to the State of New Jersey and mailed to the address specified below. Hard Copies: Letter & Legal size = $0.05 per page Electronic Records: CDs = $2.00 per CD Oversized Maps (Color) = $5.00 per map DVDs = $2.00 per DVD Oversized Maps (B&W) = $3.00 per map 2. Pursuant to OPRA (C.47:1A-5c & C47:1A-5d), the Department will apply special service charge for any extraordinary expenditure of time and effort to accommodate a request. The special service charge will be based on the actual direct cost of providing the records. The requester shall have the opportunity to review and object to the charge prior to it being incurred; however, in the event the requester objects to the special service charge, the request will be closed and access to the records will not be granted. 3. By law, the Department must notify you that it grants or denies a request for access to government records within seven business days after the custodian of the record requested receives the request, provided that the record is currently available and not in storage. If the record requested is not currently available or is in storage, the custodian will advise you within seven business days when the record can be made available and the estimated cost. You may agree with the custodian to extend the time for making records available, or granting or denying your request. 4. You may be denied access to a government record if your request would substantially disrupt agency operations and the custodian is unable to reach a reasonable solution with you. 5. If the Department was unable to comply with your request for access to a government record, the custodian will indicate the reasons for denial on the request form. 6. Except as otherwise provided by law or by agreement with the requester, if the custodian of the record requested fails to respond to you within seven business days of receiving a request form, the failure to respond will be considered a denial of your request. 7. Resolution of Disputed Findings: In the event that a requester does not agree with the Department s record response, the requester should: No Records - Reexamined the request details to evaluate if all of the information was provided that could aid the Department in locating records. The Department s ability to identify records of interest is in direct correlation to matching the Department information with the information provided on the request. Such important identifiers are Facility/Site Name, Address, Case #, Permit #, Block/Lot. Denial - If your request for access to a government record has been denied or unfilled within the time permitted by law, you have a right to challenge the decision by the Department to deny access. The Department denies access to records only when those records do not meet the definition of a government record and/or public access is not allowed pursuant to the law. At your option, you may either: a. Contact the Office of Record Access to re-visit the matter or provide further explanation. b. Institute a proceeding in the Superior Court of New Jersey c. File a complaint in writing with the Government Records Council (GRC). You may contact the GRC by toll-free telephone at , by mail at PO Box 819, Trenton, NJ, 08625, by at grc@dca.state.nj.us, or at their web site at The Council can also respond to other questions about the law. 8. Information provided on this form may be subject to disclosure under the Open Public Records Act. Revised Addendum Disposition Notes: The NJDEP has no responsive records for Request Item # 1 (Minutes for the June 27, 2012 meeting) as no meeting was held that day. The responsive record for Request Item # 2 & 3 is the same record as the Council Members have not changed for the specified period. Part of the responsive record for Request Item # 2 & 3 has been denied on the basis that the NJDEP redacts the Council Member's personal address, phone # and address pursuant to N.J.S.A. 47:1A-1 (reasonable expectation of privacy) and by applying a balancing test whereby the NJDEP believes that the public interest for confidentiality in the info sought outweighs the interest of the requestor seeking access to and disclosure of such records. The provided record will identify the name and term dates. These members are volunteers and there exists the potential for harassment or unwanted contact of the members at their personal addresses (home & ) as well as their home telephone; the NJDEP does not provide this information. SONJ-RRF-2 OPRA #