Opinion
DOCKET NO. A-3794-13T1
09-01-2015
SHIPYARD ASSOCIATES, L.P., Plaintiff-Appellant, v. CITY OF HOBOKEN, Defendant-Respondent.
Nicole B. Dory argued the cause for appellant (Connell Foley, LLP, attorneys; Kevin J. Coakley, of counsel; Genevieve L. Fairclough, on the brief). Victor A. Afanador argued the cause for respondent (Lite DePalma Greenberg, LLC, attorneys; Mr. Afanador, of counsel and on the brief; Jeffrey A. Shooman, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-0566-14. Nicole B. Dory argued the cause for appellant (Connell Foley, LLP, attorneys; Kevin J. Coakley, of counsel; Genevieve L. Fairclough, on the brief). Victor A. Afanador argued the cause for respondent (Lite DePalma Greenberg, LLC, attorneys; Mr. Afanador, of counsel and on the brief; Jeffrey A. Shooman, on the brief). PER CURIAM
This matter concerns three requests made by Shipyard Associates, L.P. (Shipyard) for records from the City Of Hoboken (Hoboken) concerning Ordinances Z-263 and Z-264. The issues presented are whether Hoboken provided Shipyard the responsive records in compliance with the Open Public Records Act, N.J.S.A. 47:1A-1 to -13, (OPRA or the Act) and with Shipyard's common-law right-of-access claim. The City Clerk denied each request contending each was "unclear, overly broad and vague."
I.
The record discloses the following facts and procedural history. Shipyard is the owner and developer of a planned unit development located in Hoboken. Since 2010, Shipyard has attempted to obtain approval to expand its development by constructing housing. According to Shipyard, Hoboken has opposed the project through various means, including filing a lawsuit to prevent the project, and intervening and opposing the project's land use approvals.
On December 18, 2013, Hoboken's City Council approved two new ordinances that amended its existing flood and zoning ordinances. Shipyard contends the amended ordinances affected its ability to move forward with the project.
On January 8, 2014, through counsel, Shipyard filed an OPRA request asking for:
Copies of any and all documents, including but not limited to, correspondence (including e-mails), transcripts, reports memos, notes and/or minutes of Hoboken
employees, Hoboken's agents, members of Hoboken City Council and others concerning Ordinances Z-264 and Z0263. This request includes, but is not limited to, any and all such documents related to the development, passage and/or adoption of Ordinance Z-264 and Ordinance Z-263. This request includes, but is not limited to, documents concerning Hoboken City Council meetings held on October 17, 2013, November 16, 2013, and December 18, 2013.
On January 10, 2014, the City Clerk denied the request, describing it as "unclear, overly broad and vague," and further stating that the "[r]equest for research and compilation is not a proper request for 'specific records' under OPRA."
On January 10, 2014, Shipyard submitted a revised OPRA request:
Copies of all correspondence (including e-mails), transcripts, reports, memos, notes minutes prepared by and received by Hoboken employees, Hoboken's agents, members of Hoboken City Council concerning Ordinance Z-264 and Z-263.
On January 10, 2014, the City Clerk again denied on the grounds that the request was "unclear, overly broad and vague."
On January 13, 2014, Shipyard submitted a third, revised, OPRA request stating, "[c]opies of all documents in the City of Hoboken's Clerk's office's files concerning Ordinance Z-264 and Z-263." That same day, the City Clerk denied the request, describing it as "unclear, overly broad and vague."
On February 4, 2014, Shipyard filed an order to show cause and verified complaint against Hoboken. Hoboken moved to dismiss the complaint on March 4, 2014.
The Law Division held a hearing on the applications on March 14, 2014, and preliminarily observed that plaintiff's requests were "overbroad" under MAG Entm't, LLC v. Div. Of Alcoholic Beverage Control, 375 N.J. Super. 534, 546 (App. Div. 2005). The court further observed that Hoboken "could" have responded in part to some elements of the request, but reasonably exercised its discretion in not doing so as it may have constituted a waiver of its entire refusal to produce. Burke v. Brandes, 429 N.J. Super. 169 (App. Div. 2012); Gannett N.J. Partners, L.P. v. Cnty. of Middlesex, 379 N.J. Super. 205 (App. Div. 2005). Moreover, the trial judge observed that the third request was the broadest of them all.
In an order dated March 14, 2014, the Law Division denied the order to show cause and granted Hoboken's motion to dismiss. The court, in its eight-page written findings of fact and conclusions of law, concluded, "[t]he OPRA requests did not seek identifiable documents and, therefore, Hoboken was not required to produce documents in response to those requests." It is from that decision that Shipyard appeals.
II.
On appeal, Shipyard argues the Law Division judge's decision "is counter to OPRA's underlying policy and must be reversed." It also contends the judge erred because the requests were made with sufficient specificity, were not overly broad or vague, did not require compilation or research, and in any event, were valid "under the common law right to access."
"We review de novo the issue of whether access to public records under OPRA and the manner of its effectuation are warranted." MAG Entm't, supra, 375 N.J. Super. at 543. We note the purpose of OPRA is plainly set forth in the statute: "to insure that government records, unless exempted, are readily accessible to citizens of New Jersey for the protection of the public interest." Mason v. City of Hoboken, 196 N.J. 51, 57 (2008) (citing N.J.S.A. 47:1A-1). OPRA replaced the former Right to Know Law, N.J.S.A. 47:1A-1 to -4 (repealed 2002), and perpetuates "the State's long-standing public policy favoring ready access to most public records." Bent v. Twp. of Stafford Police Dep't, 381 N.J. Super. 30, 36 (App. Div. 2005) (quoting Serrano v. S. Brunswick Twp., 358 N.J. Super. 352, 363 (App. Div. 2003)). To effectuate that purpose, OPRA establishes a comprehensive framework for access to public records. Mason, supra, 196 N.J. at 57. OPRA requires, among other things, prompt disclosure of records and provides different procedures to challenge a custodian's decision denying access. Ibid.
Above all, OPRA mandates "all government records shall be subject to public access unless exempt." N.J.S.A. 47:1A-1. Therefore, records must be covered by a specific exclusion to prevent disclosure. Ibid. OPRA defines "government record" as follows:
[A]ny 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. The terms shall not include inter-agency or intra-agency advisory, consultative, or deliberative material.The OPRA structure contemplates a swift timeline for disclosure of government records. Mason, supra, 196 N.J. at 57.
[N. J.S.A. 47:1A-1.1.]
If access to a government record is denied by the custodian, the requestor may challenge that decision by filing an action in Superior Court or a complaint with the Government Records Council (GRC). N.J.S.A. 47:1A-6. OPRA proceedings "are to be conducted in a 'summary or expedited manner.' This means that a trial court is to proceed under the procedures prescribed in Rule 4:67-1(a). The action is commenced by an order to show cause supported by a verified complaint." MAG Entm't, supra, 375 N.J. Super. at 550 (citations omitted). If the court finds the application is sufficient, "[it] shall order the defendant to show cause . . . [and] try the case on the return date." Id. at 550-51 (citing R. 4:67-2(a); R. 4:67-5). "Unlike Rule 4:67-2(b), which allows for conversion of a plenary action into a summary action, and, therefore, may require an elaborated record, Rule 4:67-2(a), which governs OPRA actions, does not permit the record to be supplemented by depositions or other forms of discovery." Id. at 551-52. In short, actions brought under Rule 4:67-2(a), as are OPRA proceedings, may not be supplemented by discovery absent some legitimate need. Id. at 552.
If a public agency denies a requestor access, OPRA places the burden on the agency to prove the denial was authorized by law. N.J.S.A. 47:1A-6. As such, an agency "seeking to restrict the public's right of access to government records must produce specific reliable evidence sufficient to meet a statutorily recognized basis for confidentiality." Courier News v. Hunterdon Cnty. Prosecutor's Office, 358 N.J. Super. 373, 382-83 (App. Div. 2003). Absent the necessary proofs, "a citizen's right of access is unfettered." Id. at 383. In assessing the sufficiency of the agency's proofs submitted in support of its claim for nondisclosure, "a court must be guided by the overarching public policy in favor of a citizen's right of access." Ibid. If it is determined access has been improperly denied, the access sought shall be granted, and a prevailing party shall be entitled to a reasonable attorney's fee. N.J.S.A. 47:1A-6.
However, OPRA directs "requests for records, not requests for information." Burke, supra, 429 N.J. Super. at 174. The custodian is obliged to "locate and redact [the requested] documents, isolate exempt documents, . . . identify requests that require 'extraordinary expenditure of time and effort' and warrant assessment of a 'service charge,' and, when unable to comply with a request, 'indicate the specific basis'" thereof. Spectraserv, Inc. v. Middlesex Cnty. Utils. Auth., 416 N.J. Super. 565, 576 (App. Div. 2010) (quoting N.J. Builders Ass'n v. N.J. Council on Affordable Hous., 390 N.J. Super. 166, 177 (App. Div.), certif. denied, 190 N.J. 394 (2007). 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." N.J.S.A. 47:1A-5(g).
While an exact definition of an impermissibly overly broad request is abstract, courts have found requests that require a custodian to exercise his discretion, survey employees or undertake research to determine whether a record is responsive are overly broad and not encompassed by OPRA. We have concluded requests for "any and all documents and data . . . relied upon, considered, reviewed or otherwise utilized" were impermissibly overbroad. N.J. Builders Ass'n, supra, 390 N.J. Super. at 177. Whether any particular record was "relied upon, reviewed or otherwise utilized" by the agency required the custodian to survey employees, possibly requiring the custodian to exercise discretion, and was therefore overly broad. See id. at 179.
Calling for the custodian to research and compile a database of responsive records within a topic, prior to determining what records were exempted or could be redacted, was overbroad. See MAG Entm't, supra, 375 N.J. Super. at 549-50 (finding the request failed due to the lack of specificity or particularity, as plaintiff "provided neither names nor any identifiers other than a broad generic description of a brand or type of case prosecuted by the agency in the past." Such a broad request requires a custodian "to manually search through all of the agency's files, analyze, compile and collate the information contained therein, and identify . . . the cases relative to its requests prior to the process of determining what records were exempted or required redactions"). Notably, the agency did not already maintain a database or list of its records that was organized pursuant to, or contained a data field descriptor of, the general description of records sought that was provided by the requestor. As a result, the request would have required the custodian to create a database of all records under the general topic as the requestor's descriptor of the records sought was not otherwise used to identify records or materials within the agency. See ibid.
In contrast, courts have determined requests for "particularized identifiable government records . . . rather than information generally" are permissible. Burke, supra, 429 N.J. Super. at 176-77. We have determined requests that identified a specific subject matter with sufficient identifying information were not overly broad even where a custodian was required to search and locate records according to a specific topic area. For example, a request for "any and all settlements, releases or similar documents entered into, approved or accepted from 1/1/2006 to present" was permitted by OPRA. Burnett v. Cnty. of Gloucester, 415 N.J. Super. 506, 508- 09 (App. Div. 2010). "The fact that the plaintiff did not specify matters to which the settlements related 'did not render his request a general request for information obtained through research, rather than a request for a specific record.'" Burke, supra, 429 N.J. Super. at 176-77 (citing Burnett, supra, 415 N.J. Super. at 508-09). We have also permitted an OPRA request which was confined to a specific subject matter that was clearly and reasonably described with sufficient identifying information, namely, E-ZPass benefits provided to Port Authority retirees in that the request was limited to particularized identifiable government records, namely, correspondence with another government entity, rather than information generally. Although the request referred to "records," plaintiff made clear that he was specifically seeking written or electronic correspondence between the Governor's Office and the Port Authority. Ibid. These permissible requests did not require a custodian to exercise discretion, survey employees or conduct research, rather, the responsive records are self-evident.
Shipyard's first OPRA request failed to identify the documents sought with reasonable clarity, instead, it was a blanket request for access to an entire type of record over an unlimited period of time. It requested not only "any and all" information, but included the language "not limited to." This broad application lacks specificity and would require the clerk to conduct research to uncover "any and all" documents "concerning" the ordinances. As such, it was an improper request under both Bent, supra, 381 N.J. Super. at 37, and Spectraserv, supra, 416 N.J. Super. at 576 (finding a denial justified where compliance was overly cumbersome and time consuming.).
Similarly, the third and final request ask for "[c]opies of all documents in the City of Hoboken's Clerk's office's files concerning Ordinance Z-264 and Z-263" is overly broad and lacks any specificity, merely requesting "all documents" without specificity as to which documents.
Shipyard's second request appears to be the most specific and narrow of the attempts, requesting:
Copies of all correspondence (including e-mails), transcripts, reports, memos, notes minutes prepared by and received by Hoboken employees, Hoboken's agents, members of Hoboken City Council concerning Ordinance Z-264 and Z-263.This attempt is somewhat analogous to the request in Burke. There is a specific subject matter narrowing the search and the "any and all" language is removed and specific requests made. However, this request still lacks specificity or particularity. In this request, plaintiff failed to provide names for any of "Hoboken's employees, [and] Hoboken's agents" nor any identifiers other than a broad generic description of all "reports," "transcripts," "memos," and "notes" concerning the ordinance. Further, in contrast to Burke, the parties involved in the requested correspondence lacks specificity. In Burke, the search was limited to correspondence between the Governor's office and the Port Authority. In the present matter, plaintiff requests any correspondences made or received by Hoboken's agents, employees, and City Council, and is not limited to correspondence between these parties. Such an open-ended demand is tantamount to an "any and all" request and would require the custodian to search through all of the files and analyze the information contained therein in order to identify for plaintiff the records relevant to the request.
For these reasons, we conclude that the trial judge was correct in dismissing plaintiff's OPRA complaint. However, this does not end our analysis. Once an agency determines a request is overbroad, OPRA also requires "[i]f 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). The record is devoid of any attempt at a reasonable solution by either Shipyard or Hoboken. For example, after the denial Shipyard did not separately request, nor did Hoboken offer, copies of the ordinances and the minutes of the meetings at which they were adopted, documents that are clearly subject to OPRA disclosure. The record evinces a lack of any attempt at a reasonable solution by either party, and, should Shipyard again request documents, we direct the trial judge to ensure that the parties follow OPRA's dictates.
Although we affirm the denial of Shipyard's requests as overbroad, we reach a different conclusion as to Shipyard's common-law right-of-access claim. In addition to OPRA, disclosure can be sought under the common law. OPRA provides "[n]othing contained in [OPRA] shall be construed as limiting the common law right of access to a government record." N.J.S.A. 47:1A-8. Whether the documents requested by Shipyard are accessible under the common law depends on three requirements: "(1) the records must be common-law public documents; (2) the person seeking access must establish an interest in the subject matter of the material; and (3) the citizen's right to access must be balanced against the State's interest in preventing disclosure." Keddie v. Rutgers, 148 N.J. 36, 50 (1997) (citations and internal quotation marks omitted).
Thus, even if the information requested is overly broad under the statutory construct of OPRA, Shipyard may still prevail by resorting to the common law right to access public records. "The common-law definition of public record is broader than the [OPRA] definition." S. N.J. Newspapers v. Twp. of Mt. Laurel, 141 N.J. 56, 71 (1995). "Simply stated, a common-law public record is a record made by public officers in the exercise of public functions." Id. at 72 (citation and internal quotation marks omitted).
To reach this broader class of documents, Shipyard must satisfy a higher burden than required under OPRA: "(1) the person seeking access must establish an interest in the subject matter of the material; and (2) the citizen's right to access must be balanced against the State's interest in preventing disclosure." Mason, supra, 196 N.J. at 67-68 (quoting Keddie, supra, 148 N.J. 50 (internal quotations and citations omitted)). We note the Supreme Court has articulated several factors for a court to consider in performing its balancing. See S. Jersey Pub. v. N.J. Expressway Auth., 124 N.J. 478, 488 (1991).
In this case, the judge only addressed the question of whether the requested documents were withheld in contravention of OPRA. His opinion did not address Shipyard's contention, in its complaint, that the documents be disclosed pursuant to its common law right of access. Accordingly, we remand this claim for the court to conduct the appropriate inquiry and balancing test.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION