Opinion
DOCKET NO. A-1699-12T3
04-30-2014
JUAN F. GARCIA, Plaintiff-Appellant, v. DOVER TOWN, CLERK OF DOVER TOWN, and DOVER TOWN TAX ASSESSOR, Defendants-Respondents.
Juan F. Garcia, appellant pro se. Respondents have not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Accurso.
On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2445-12.
Juan F. Garcia, appellant pro se.
Respondents have not filed a brief. PER CURIAM
Plaintiff Juan F. Garcia appeals from a November 7, 2012 order denying his motion to compel defendant Town of Dover (Dover) to produce documents responsive to his July 18, 2012 request under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and remanding to Dover to provide any documents not already provided in response to paragraph five of plaintiff's request, excepting those protected by the deliberative process privilege. We affirm, essentially for the reasons expressed by Judge Weisenbeck in his comprehensive fifteen-page statement of reasons accompanying the order.
Plaintiff owns a home in Dover. He filed his OPRA request seeking documents related to Dover's tax assessments of his home and two neighboring properties. Plaintiff requested five classes of documents:
[1.] The contract and work statement (hereinafter "contract"), or any documentation of a contractual relationship covering any day of the period 1 January 2011 to 17 July 2012 between Dover Town or Dover Town's Tax Assessor and Certified Valuations, Inc. from Randolph, NJ, (hereinafter "CVI") or any agent/employee acting under on behalf of CVI. If there are multiple contracts covering this period provide copies of all contracts.
[2.] The contract and work statement (hereinafter "contract" as well), or any documentation of a contractual relationship covering any day of the period 1 January 2011 to 17 July 2012 between Dover Town or Dover Town's Tax Assessor and any professionals or businesses, except CVI, engaged in the practice of real property appraisals (hereinafter "appraiser(s)"). If there are multiple contracts covering this period provide copies of all contracts.
[3.] If no standing contract between Dover Town or Dover Town's Tax Assessor and either CVI or any other appraiser(s) exists, then copies of the contract/work order/fee
arrangement (hereinafter "work assignments") by which CVI or any other appraiser(s) provided their property valuation/appraisal services or were assigned work the product of which was delivered to Dover Town or Dover Town's Tax Assessor between 1 January 2011 and 17 July 2012, concerning or including the properties known as 70 Boonton St., Dover, NJ; 76 Boonton St., Dover, NJ; and 80 Boonton St., Dover, NJ.
[4.] Billings, invoices, task orders, fee statements, or any similar document by which the aforementioned CVI or appraiser(s) billed Dover Town or Dover Town's Tax Assessor under the aforementioned contract(s) or work assignments, or their services to Dover Town or Dover Town's Tax Assessor were requested, ordered, or paid for, dated between 1 January 2011 and 17 July 2012, concerning or including the properties known as 70 Boonton St., Dover, NJ; 76 Boonton St., Dover, NJ; and 80 Boonton St., Dover, NJ.
[5.] Any and all work product, i.e.: opinions, documents, reports, charts, answers, etcetera, including non-work product supporting documentation, provided to Dover Town or Dover Town's Tax Assessor between 1 January 2011 and 17 July 2012 by either CVI or appraiser(s) under any of the above referenced contracts or work assignments, concerning or including the properties known as 70 Boonton St., Dover, NJ; 76 Boonton St., Dover, NJ; and 80 Boonton St., Dover, NJ, regardless of the form or length of the work product provided, i.e.: hard copy or electronic documents, appraisal reports, emails, letters, etcetera.
Judge Weisenbeck found that Dover had provided all documents responsive to plaintiff's first four requests. Specifically, the judge found that in response to plaintiff's first request, Dover provided plaintiff with the 2011 contract between the Town and its appraiser, Certified Valuations, Inc. (CVI), copies of all of CVI's billing invoices to Dover from January 1, 2011 to July 17, 2012, and copies of all purchase orders showing Dover's payments to CVI. The judge concluded that Dover "provided plaintiff with the contract and documentation [it] had on file, contacted CVI to see if it had any additional information, and subsequently forwarded any information it received to plaintiff. OPRA requires nothing more."
With regard to the second request, the judge found that Dover's response, that no documents other than the already-provided CVI contract exist, was an adequate response to plaintiff's request and did not constitute a denial of access.
In response to the third request, Dover provided the same documents it provided in response to plaintiff's first request. The judge found that Dover adequately responded to this request and sufficiently indicated in correspondence to plaintiff that no additional responsive documents were being withheld.
In response to plaintiff's fourth request, Dover supplied plaintiff with a printout of all payments it made to CVI from January 1, 2011 to July 17, 2012. When plaintiff informed the Town he thought its response incomplete, Dover provided plaintiff with an additional one hundred and fifteen pages of backup information from its finance department. Plaintiff argued to the trial court that Dover's production was incomplete because there were no documents referencing his several telephone conversations with CVI regarding his property. Reasoning that those conversations could not take place without specific direction from Dover and that corresponding evidence of such direction must exist in the Town's records, he contended that Dover's production was incomplete and that he was denied access under OPRA. The judge found that Dover's production of all CVI's billing invoices, all of the Town's purchase orders showing its payments to CVI, a summary of all of its payments to CVI and specific assessor data, including appraisals, for the three properties plaintiff was interested in satisfied plaintiff's fourth request. The judge found no basis to conclude that plaintiff's telephone conversations with the third-party appraiser were required to be documented or that such records existed and were being withheld from plaintiff.
As to plaintiff's fifth request, the judge concluded that Dover was reasonable in seeking clarification from plaintiff because "work product," depending on how it is defined, may be unavailable under OPRA. Plaintiff responded to the Town by seeking clarification as to the clarification the Town was requesting. Plaintiff thus failed to clarify his request and the judge found that plaintiff's two separate definitions of work product lead the reader in circles without a firm answer as to what was being requested. The judge concluded
. . . [T]o the extent that plaintiff's broad OPRA request does not seek those documents "that reflect advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and polices are formulated[,]" ostensibly referring to reports prepared by CVI for use by the Town attorney and tax assessor in preparation of appeals and deliberations regarding the value of properties, he has an OPRA or common law right of access to those documents. [Education Law Center v. N.J. Dep't of Educ., 198 N.J. 274, 299 (2007).]
Because of plaintiff's choice of wording in this request, the Court cannot find that plaintiff was denied access to documents which he was entitled pursuant to OPRA.
The Court, however remands this matter to Dover Town to provide to plaintiff any documents not already provided to him that would fall within plaintiff's paragraph five (5) request, excepting those documents that would "expose [the Town's] deliberative thought process," within twenty (20) days hereof.
Plaintiff has appealed. He raises the following issues for our consideration.
POINT I: PURCHASE ORDERS OF AN OPEN-END PUBLIC CONTRACT ARE PART OF THE BASE
CONTRACT. CHANGES TO ANY PUBLIC CONTRACT MUST BE IN WRITING. PUBLIC CONTRACTS ARE PUBLIC RECORDS TO WHICH THE TOWNSHIP UNREASONABLY DENIED ACCESS TO.
A. APPELLANT'S OPRA REQUEST SATISFIED THE LEGAL REQUIREMENT TO IDENTIFY THE REQUESTED CONTRACTS RECORDS.
B. THE LOWER COURT ERRED BY FINDING THAT THE OPRA REQUEST FOR CONTRACT RECORDS WAS A VAGUE REQUEST FOR INFORMATION.
C. THE LOWER COURT ERRONEOUSLY UPHELD THE TOWNSHIP'S ALLEGATIONS, WHICH CONTRADICTED EACH OTHER, THE RECORDS RELEASED, AND PUBLIC CONTRACT LAW.
D. CVI'S 2011 CONTRACT DOESN'T STATE WHAT PROPERTIES CVI SHALL APPRAISE IN EITHER 2011 OR 2012. THE TOWNSHIP'S SUBSEQUENT DIRECTIVES TO CVI WERE "PURCHASE ORDERS," WHICH ARE PART OF THE BASE CONTRACT AND SUBJECT TO PUBLIC ACCESS.
E. THE TOWNSHIP'S RECORDS AND ALLEGATIONS REVEAL AN UNREASONABLE WITHHOLDING OF RECORDS, AND REDACTIONS TO RELEASED RECORDS WITHOUT JUSTIFYING OPRA EXEMPTIONS.
F. PUBLIC CONTRACT LAW REQUIRES PUBLIC ACCESS TO NON-COMPETITIVELY AWARDED CONTRACTS, AND THAT CHANGES TO SAID CONTRACTS BE MADE IN WRITING.
POINT II: THE REQUESTED PROPERTY APPRAISALS ARE NOT EXEMPT FROM PUBLIC ACCESS UNDER OPRA.
A. OPRA EXPRESSLY REQUIRES ITS EXEMPTIONS TO BE CONSTRUED IN FAVOR OF PUBLIC ACCESS AND PLACES THE BURDEN OF PROOF ON THE PUBLIC AGENCY.
B. THE LOWER COURT MADE A FACTUAL ERROR BY MISCHARACTERIZING THE "WORK PRODUCT"
REQUESTS BY APPELLANT, AND BY UPHOLDING THE TOWNSHIP'S CLAIM OF "WORK-PRODUCT DOCTRINE" OPRA EXEMPTION FOR PROPERTY APPRAISALS.
C. ASSESSING REAL PROPERTY IS THE SOLE FUNCTION OF THE TAX ASSESSOR IN WHICH THE TOWNSHIP CANNOT INTERVENE. NOR CAN IT, THEREFORE, CLAIM [THE] TOWNSHIP'S DELIBERATIVE PROCESS PRIVILEGE TO DENY ACCESS TO TAX ASSESSOR'S RECORDS.
D. THE TAX ASSESSOR'S PROPERTY VALUATION FUNCTION IS NOT THE GOVERNMENT'S DECISION-MAKING PROCESS THE DELIBERATIVE PROCESS PRIVILEGE IS INTENDED TO PROTECT. FURTHER N.J.S.A. 40:48B-19 MANDATES ACCESS TO TAX ASSESSOR RECORDS.
E. EVEN IF THE TAX ASSESSOR COULD CLAIM "DELIBERATIVE PROCESS" PRIVILEGE ON THE APPRAISALS, OR THE TOWNSHIP COULD CLAIM IT FOR ITSELF OR ON THE TAX ASSESSOR'S BEHALF, THE LOWER COURT ERRED BY UPHOLDING SAID CLAIM AS A PEREMPTORY PRIVILEGE.
F. DISTRICT AND APPELLATE COURTS OF THE UNITED STATES, AND SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION, HAVE RULED THAT PRIVATE-FIRM PROPERTY APPRAISALS DO NOT EXPOSE THE GOVERNMENT'S DELIBERATIVE PROCESS.
G. EVEN IF THE TOWNSHIP OR TAX ASSESSOR SATISFIED INTEGRITY'S AND EDUCATION LAW CENTER'S "DELIBERATIVE PROCESS" OPRA EXEMPTION TESTS, THE APPRAISALS ARE STILL SUBJECT TO PUBLIC ACCESS IF THAT SERVES THE PUBLIC INTEREST.
POINT III: THE REQUESTED APPRAISALS WERE ORDERED FOR THE TAX ASSESSOR'S USE. UNDER OPRA, N.J.S.A. [47:1A-1 to -13], AND COMMON LAW, THE TAX ASSESSOR'S RECORDS ARE SUBJECT TO PUBLIC ACCESS.
POINT IV: NEW JERSEY'S RIGHT-TO-KNOW-LAW FAVORS PUBLIC ACCESS TO THE GOVERNMENT-ORDERED APPRAISALS REQUESTED BY APPELLANT.
A. APPELLANT HAS AN INTEREST IN THE SUBJECT MATTER OF THE APPRAISALS.
B. NEW JERSEY HAS NO INTEREST IN PREVENTING THE REQUESTED APPRAISAL'S DISCLOSURE.
POINT V: NEW JERSEY FAVORS GOVERNMENT TRANSPARENCY AND REDUCING THE LIKELIHOOD OF LITIGATION, GOALS WHICH ARE SERVED BY RELEASING THE REQUESTED PROPERTY APPRAISALS.
All of these arguments are premised on the contention that plaintiff was denied access to records, including the appraisals conducted of the three properties at issue. As that contention appears to be completely belied by the facts found by the trial judge, which are amply supported by the record, we deem plaintiff's arguments without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A), (E). We affirm substantially for the reasons expressed by Judge Weisenbeck in his comprehensive statement of reasons accompanying the order.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION