"Any Person" Can Use NJ Public Records Law: 3/31/17 Order by Judge Bonnie J. Mizdol, Superior Court of New Jersey in Bergen County, Jeff Carter v. The Borough of Paramus
"Any Person" Can Use NJ Public Records Law: 3/31/17 Order by Judge Bonnie J. Mizdol, Superior Court of New Jersey in Bergen County, Jeff Carter v. The Borough of Paramus
"Any Person" Can Use NJ Public Records Law: 3/31/17 Order by Judge Bonnie J. Mizdol, Superior Court of New Jersey in Bergen County, Jeff Carter v. The Borough of Paramus
JEFF CARTER,
Plaintiff,
vs.
Defendants. ORDER
TIDS MATTER having come before the Court upon the verified complaint of Plaintiff,
Jeff Carter, through his counsel, CJ Griffin, Esq. (Pashman Stein Walder Hayden, LLC), on notice
to and upon cross-motion of Justin D. Santagata, Esq. (Kaufman, Semeraro & Leibman, LLP),
attorney for Defendants, Borough of Paramus and Annemarie Krusznis, Records Custodian; and
the Court having considered the papers filed in this matter, arguments of counsel; and for good
cause shown,
1. For the reasons set forth in the opinion annexed hereto, plaintiffs request for relief is
GRANTED,
2. For the reasons set forth in the opinion annexed hereto, Defendants request for
3. As the prevailing party, plaintiff is entitled to reasonable counsel fees ili,J.S.A. 47:lA-6).
Counsel shall attempt to agree upon a reasonable quantum of fees. Failing to accomplish
the same, counsel for plaintiff shall submit a certification of services by April 3 0, 2 0 1 7 ,
FURTHER ORDERED that a copy of this Order is to be served upon all counsel ofrecord
Defendants .
Introduction
This matter concerns Plaintiff, Jeff Carter's, right to access records under the Open Public
Records Act ("OPRA" or "the Act"), N . J . S . A . 4 7 : l A - 1 to - 1 3 , and the common law. Plaintiff, Jeff
Carter, ("Carter" or the "plaintiff') challenges the denial by the Borough of Paramus ("Paramus")
and its records custodian, Annemarie Kruszniz, (referenced collectively as "defendants") of four
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Facts and Procedural Posture
payments to Justin D. Santagata, Esq., an attorney for the Borough of Paramus. Specifically the
request stated:
firm(s).
On January 1 8 and 1 9 , 2 0 1 7 , plaintiff filed two additional requests related to legal services
provided to Paramus by two other attorneys. On January 25, 2 0 1 7 , plaintiff filed his fourth request,
a request for Paramus's check register. To date, defendants have not responded to three of the four
requests.
On January 25, 2 0 1 7 , plaintiff received a response from Paul Kaufman, Esq., of the law
firm Kaufman Semeraro & Leibman, LLP, regrading plaintiffs first request. Mr. Kaufman wrote:
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As you know, we represent the Borough of Paramus ("Paramus").
the request, you seek "any and all . . . purchase orders, including
January 1 7 , 2 0 1 7 . "
Mr. Santagata does not have a firm and has not submitted any
since well before the April 14 start date in your records request, your
clerk's office.
request was intended to harass Paramus because the Clerk did not
Shortly after, plaintiff replied, denying the allegation that the request was intended to harass
the Paramus. Plaintiff also asserted Paramus' basis for denial was unlawful, but "in the spirit of
cooperation" narrowed plaintiff's request to "all purchase orders and corresponding invoices
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involving 'Kaufman Semeraro & Liebman' for the period of April 14, 2 0 1 4 through June 14,
2014."'
Plaintiff responded, representing he is a New Jersey citizen, but refusing to provide his
home address. Paramus responded, declining to produce the requested records without "proof' of
plaintiffs residency.
and an accompanying brief, alleging violations of OPRA N.J.S.A. 4 7 : l A - 1 to - 1 3 and the common
law right of access. Plaintiff alleges defendants violated OPRA and the common law by denying
plaintiffs first request and failing to respond to plaintiffs second and third requests. Plaintiff also
they had not violated OPRA and the common law by denying access because plaintiff lacks
standing to make public records requests in the State of New Jersey as he is not a New Jersey
resident. In support, they cite to the Government Records Council ("GRC") opinion in Scheeler v.
Burlington, GRC 2 0 1 5 - 9 3 , (GRC Sept. 2 9 , 2016 ) , where it held a requester "may not request
records under OPRA" if the requester is "not a citizen." Scheeler v. Burlington, GRC 2 0 1 5 - 9 3 ,
claims to include the defendants' failure to respond the to the January 25, 2 0 1 7 , request.
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On March 2, 2 0 1 7 , defendants filed a Notice of Cross-Motion for jurisdictional discovery
and an accompanying brief in support of the cross-motion. Defendant also filed an answer to
plaintiff's First Amended Complaint. Defendants argue plaintiff should be required to prove his
citizenship as a prerequisite to pursuing the OTSC, and further, that defendants be permitted to
On March 16, 2 0 1 7 , plaintiff submitted a reply brief arguing the GRC erred in finding New
Jersey "citizenship" to be a prerequisite to access to government records under OPRA, citing three
April 14, 2 0 1 6 ) ; Heimlich v. Educational Information & Resource Center, Docket No. GLO-L-
7 7 9 - 1 6 (Law Div. Oct. 24, 2 0 1 6 ) . In these matters, Judges Bookbinder, Troncone, and Curio
concluded that "any person" may utilize OPRA. Ibid; N.J.S.A. 4 7 : l A - 5 . Plaintiff argues adherence
to the "any person" interpretation precludes the need for defendant to conduct discovery regarding
plaintiffs home address. Further, plaintiff argues requiring plaintiff publicly disclose his home
address in order to gain access to public records implicates plaintiff's right to privacy.
On March 31, 2017, the court entertained oral argument on plaintiffs OTSC and
Law
A. OPRA
a. Generally
The purpose ofOPRA, N.J.S.A. 4 7 : l A - 1 to - 1 3 , is plainly set forth in the statute: "to insure
that government records, unless exempted, are readily accessible to citizens of New Jersey for the
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protection of the public interest." Mason v. City of Hoboken, 1 9 6 N.J. 51, 57 (2008) (citing
N.J.S.A. 4 7 : l A - 1 ) . The Act replaced the former Right to Know Law (RTKL), N.J.S.A. 4 7 : l A - 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, 3 8 1 N.J. Super. 30, 36 (App.
Div. 2005) (quoting Serrano v. S. Brunswick Twp., 3 5 8 NJ. Super. 352, 363 (App. Div. 2003)).
To effectuate that purpose, OPRA establishes a comprehensive framework for access to public
records. Mason, supra, 1 9 6 N.J. at 57. Specifically, the Act 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
deliberative material.
[N.J.S.A. 4 7 : l A - l . l . ]
The OPRA framework contemplates a swift timeline for disclosure of government records.
Mason, supra, 1 9 6 N.J. at 5 7 . Unless a shorter time period is prescribed by statute, regulation or
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executive order, a records custodian must grant or deny access to a government record "as soon as
possible, but not later than seven business days after receiving the request." N.J.S.A. 47:lA-S(i).
A public agency's failure to respond within seven business days "shall be deemed a denial of the
request." Ibid. If the record is in storage or archived, and a response cannot be made timely, the
custodian must report that information within seven business days and advise when the record will
be made available. Ibid. Courts have repeatedly found providing redacted documents is also a
denial and to redact information, it must fall under an exemption to OPRA. See e.g., Newark
Morning Ledger Co. v. N.J. Sports & Exposition Auth., 423 N.J. Super. 140, 1 4 8 (App. Div. 2 0 1 1 )
(holding the redacted portions of the records must be disclosed as they did not meet the trade secret
exemption).
If the custodian denies access to a government record, 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. 4 7 : l A - 6 . The right to institute any proceeding under this section, however,
belongs solely to the requestor. Ibid. If the requestor elects to file an action in Superior Court, the
application must be brought within forty-five days of the denial or be dismissed with prejudice as
untimely. See Mason, supra, 1 9 6 N.J. at 70 (holding, explicitly, a 45-day statute of limitations
applies to OPRA actions). The statute of limitations period "assures citizens receive swift access
to public records, and also provides public bodies with certainty regarding possible disputes
regarding the accessibility of records." Newark Morning Ledger Co. v. New Jersey Sports &
Exposition Authority, 423 N.J. Super. 140, 1 5 8 - 1 5 9 (App. Div. 2 0 1 1 ) (internal quotation marks
omitted). However, "[t]he Court has also made clear trial courts can enlarge the time period in the
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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 : 6 7 . R. 4:67-l(a). The
action is commenced by an order to show cause supported by a verified complaint." MAG Entm 't,
LLC v. Div. of Alcoholic Beverage Control, 3 7 5 N.J. Super. 534, 5 5 0 (App. Div. 2005) (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 5 5 0 - 5 1 (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 R. 4:67-2(a), as OPRA proceedings, may not be
If a public agency denies a requester access, OPRA places the burden on the agency to
prove the denial was authorized by law. N.J.S.A. 4 7 : l A - 6 . 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, 3 5 8 N.J. Super. 3 7 3 , 382-83 (App. Div. 2003). Absent the necessary proofs,
"a citizen's right of access is unfettered." Id. at 3 8 3 . 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
Although OPRA defines "government record" broadly, the public's right of access is not
absolute. Educ. Law Ctr. v. N.J. Dep't of Educ., 1 9 8 N.J. 274, 284 (2009) (citing Mason, supra,
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1 9 6 N.J. at 65). The statute specifically exempts twenty-one categories of information from
exempt from such access by: [ other provisions of OPRA]; any other
Therefore, a records custodian may rightfully deny a request if the record belongs to one
of the enumerated categories of exemptions, or was created by another statute or Executive Order,
acknowledged in N.J.S.A. 47:lA-1 and N.J.S.A. 47:lA-8, the only countervailing relief
mechanism for those seeking access to a statutorily excluded document is the common law right
of access." Bergen Cnty. Imp. Auth. v. N. Jersey Media Grp., Inc., 370 N.J. Super. 504, 5 1 6- 1 7
b. Standing
In 2 0 0 1 , OPRA replaced its predecessor the RTKL. The operational provisions of the
RTKL, restricted access to "citizens of the state," whereas, OPRA's operational provisions refer
to "any person."
To date, neither the Appellate Division nor the Supreme Court of New Jersey have held
that New Jersey citizenship is a prerequisite to filing an OPRA request. This issue is currently
1
pending review by the Appellate Division. Although there is no controlling jurisprudence, various
1
Lawyers Committee For Civil Rights Under Law v. Atlantic City Board of Education, et al., Docket No. ATL-L-
8 3 2 - 1 5 (Law Div. Feb. 1 9 , 2016) (holding OPRA does not permit out-of-state requests), appeal pending A-2704-15;
Scheeler v. City of Cape May, et al, Docket No. CPM-L-444-15 (Law Div. Feb. 19, 2016) (holding OPRA does not
permit out-of-state requests), appeal pending A - 2 7 1 6 - 1 5 ; and Scheeler v. Atlantic County Municipal Joint Insurance
Fund, et al., Docket No. BUR-L-990-15 (Law Div. Oct. 2, 2 0 1 5 ) (tentative decision holding OPRA permits out-of
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New Jersey trial courts and the GRC have issued decisions on the issue that fall into two distinct
schools of thought.
The first, strictly construes the "citizens of the state" language contained within "Section
l " of OPRA to place a citizenship limitation on the rights of access delineated throughout the entire
Act. The GRC recently held in Scheeler v. Burlington, GRC 2 0 1 5 - 9 3 , (GRC Sept. 29, 2 0 1 6 ) , that
a requestor "may not request records under OPRA" if the requestor is "not a citizen." Scheeler v.
trial court level decisions have held OPRA does not permit out-of-state requests. Lawyers
Committee for Civil Rights Under Law v. Atlantic City Board of Education, et al., Docket No.
ATL-L-832-15 (Law Div. Feb. 1 9 , 2 0 1 6 ) , appeal pending A-2704-15; Scheeler v. City of Cape
May, et al., Docket No. CPM-L-444-15 (Law Div. Feb. 1 9 , 2016), appeal pending A - 2 7 1 6 - 1 5
The second school of thought interprets OPRA's operational provisions to afford standing
rights to "any person". Scheeler v. Atlantic County ACMJIF, 2 0 1 5 WL 9 9 1 0 1 1 7 (Law Div. Oct.
2 0 1 6 ) ; Heimlich v. Educational Information & Resource Center, Docket No. GLO-L-779-16 (Law
Div. Oct. 24, 2016). These cases distinguish between "Section 1" of OPRA and the Act's
operational provisions, equating "Section l " to that of simply a preamble, rather than a substantive
portion of the law. In the operational provisions of the statute, the more general term "person" is
used. This term is broader than "citizen" and compels a finding that the legislature did not intend
1 5 8 7 3 4 1 (Law Div. April 1 4 , 2 0 1 6 ) ; In r e Zahn, 424 N.J. Super. 2 3 1 , 237 (App. Div. 2 0 1 2 ) . "[T]he
language of OPRA is clear and unambiguous. Access to public records under OPRA is not limited
to New Jersey 'citizens."' If the Legislature intended to limit access to citizens, "as the Virginia
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Legislature did," it could have done so "by incorporating that term in the statute's operational
14, 2 0 1 6 ) .
In addition to OPRA, disclosure can be sought under the common law. The Act 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. 4 7 : l A - 8 . Thus, even if the information requested falls within one
of the exceptions to access under the statutory construct of OPRA, requesters may still prevail by
resorting to the common law right to access public records. To constitute a government record
rs. Jersey Pub. Co. V. N.J. Expressway Auth., 124 N.J. 478, 487-
To reach this broader class of documents, requesters 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, 1 9 6 N.J. at 67-68 (quoting Keddie v. Rutgers,
148 N.J. 36, 50 (1997)) (internal quotations and citations omitted). The Supreme Court has
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government; (2) the effect disclosure may have upon persons who
that their identities would not be disclosed; (3) the extent to which
Analysis
Plaintiff seeks records related to payment vouchers and legal invoices paid out to legal
counsel for their services representing the Borough of Paramus. Defendants argue plaintiff lacks
standing to make the requests underlying the matter without proving New Jersey citizenship.
This court finds plaintiff has standing to file OPRA requests. N.J.S.A. 4 7 : I A - l to - 1 3 . The
court finds New Jersey citizenship is not a prerequisite to gain access to government records in the
state. Accordingly, defendants' cross-motion for jurisdictional discovery is denied, as they cannot
A. OPRA
a. Generally
In order to trigger OPRA's disclosure requirements, the information sought must qualify
as a "government record." N.J.S.A. 4 7 : I A - l . There is no dispute amongst the parties that the
requested documents are government records for the purposes of OPRA. The statute defines a
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[A]ny paper, written or printed book, document, drawing, map, plan,
lli.J.S.A. 4 7: l A - 1 . 1 . ]
Here, the payment vouchers and legal bills are "government records," as they were made,
maintained and/or kept on file by the Borough of Paramus in the course of official business.
N.J.S.A. 4 7 : l A - l . l .
Furthermore, although N .J .S .A. 4 7: 1 A - 1 . 1 . exempts from disclosure "any record within the
attorney-client privilege," the Act specifically states that it "shall not be construed as exempting
from access attorney or consultant bills or invoices except that such bills or invoices may be
redacted to remove any information protected by the attorney-client privilege." (emphasis added).
Immediate access shall be granted to plaintiff to inspect "bills, vouchers, contracts, including
collective negotiations agreements and individual employment contracts, and public employee
salary and overtime information," (emphasis added) as mandated by the Act under N.J.S.A 47: lA-
S(e).
b. Standing
The court finds that plaintiff or "any person" has standing to make public records requests
underOPRA.
Defendant argues OPRA's use of the word "citizen" in the Act's first section connotes a
legislative intent to limit the right to access public records in the state of New Jersey to those who
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are residents of the state. Defendant relies upon the GRC's decision in Scheeler v. Burlington,
GRC 2015-93, (GRC Sept. 29, 2016). In Scheeler v. Burlington, the GRC construed the
legislature's failure to modify the "citizen" language when they amended OPRA's predecessor,
Right to Know Law ("RTKL"), as a purposeful act connoting legislative intent to retain the
Despite the GRC's recent ruling, its Handbook for Records Custodians articulates a
Thus, the GRC's own policies, as advised by the Office of the Attorney General, interpret OPRA
to expand access to government records beyond that of the RTKL. Mason v. City of Hoboken, 196
N.J. 5 1 , 64 (2008).
and made fee awards mandatory rather than permissible. N.J.S.A 4 7: lA-6. The legislature repealed
the operational provisions of the RTKL containing "citizen of this state" language and replaced
them with OPRA's operational provisions allowing "any person" to inspect records N.J.S.A
The legislature replaced the operational provisions of the RTKL with OPRA's operational
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N.J.S.A. 47:1A-5(b) provides that, "[a] copy or copies of a
added);
agency shall adopt a form for the use of any person who
clear, concise and specific terms the right to appeal a denial of,
added);
added);
(emphasis added);
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have access to these records or for use by any government
added);
The court agrees with Judge Troncone's well-reasoned findings in Scheeler v. Ocean
County Prosecutor's Office that the term "person" is broader than "citizen," and its liberalizing
Under OPRA, the term "citizen" is not defined and appears nowhere
This term is broader than "citizen" and compels a finding that the
dep 't of Labor v. cruz, 45 N.J. 3 72, 3 8 0 (1965) and In re Zhan, 424
Limiting OPRA standing to "citizens" would greatly limit the public's right of access to
records under OPRA. The court agrees with plaintiff that such a limitation would produce "absurd"
results.
Such a limitation would leave many individuals with a legitimate interest or need for access
without recourse.
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involved in an accident would be unable to access documents from
Ibid.
Even in-state entities and organizations would be precluded, as New Jersey law does not recognize
the term "citizen" to share the same statutory inclusiveness as the term "persons." "Persons"
include corporations, associations, firms, etc. when referred to in statute. N.J.S.A. 1 : 1 - 2 . The term
"citizens" does not. Precluding "persons" with a legitimate interest in records would frustrate the
Further, the GRC's recent ruling neglects to address that requiring someone to prove
requestor could easily evade the citizenship requirement by filing anonymously. When legislative
Habrouck Heights Hospital Ass'n v. Borough of Hasbrouck Heights, 1 5 N.J. 447, 453 ( 1 9 5 4 ) ("A
Records that are not disclosed under OPRA may still be disclosed under the common law
right of access. This Court finds plaintiff is entitled to the requested items pursuant to the common
law.
To constitute a government record under the common law, the item must be:
17
essential to constitute a public record are * * * that it be a written
[S. Jersey Pub. Co. v. N.J. Expressway Auth., 124 N.J. 478, 487-88
To reach this broader class of documents, requestors 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 v. City of Hoboken, 1 9 6 N.J. 5 1 , 67-68 (2008) (quoting
The Supreme Court has articulated several factors for a court to consider in performing its
balancing:
government; (2) the effect disclosure may have upon persons who
that their identities would not be disclosed; (3) the extent to which
The court finds the Loigman factors weigh in favor of disclosure. The court finds there is no
legitimate basis for denying access to legal invoices concerning the expenditure of public funds.
Interest in the records and advancing government transparency substantially outweigh any
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C. Cross-Motion for Jurisdictional Discovery
The court finds "citizenship" is not a prerequisite to file an OPRA request. Thus, defendant
cannot demonstrate a legitimate need for the requested discovery. Accordingly, defendants' cross
D. Fees
As the prevailing party within the context of OPRA, plaintiff is entitled to reasonable
counsel fees N.J.S.A. 4 7 : l A - 6 ("A requestor who prevails in any proceeding shall be entitled to a
reasonable attorney's fee."). Counsel shall attempt to agree upon a reasonable quantum of fees.
Failing to accomplish the same, counsel for plaintiff shall submit a certification of services by
April 30, 2 0 1 7 , and defendants' counsel shall have ten ( 1 0 ) days thereafter to respond.
Conclusion
For the foregoing reasons, Plaintiffs requests for disclosure of records under OPRA and
the common law right of access are granted. The court finds defendants violated OPRA by failing
to provide plaintiff access to responsive legal invoices and payment vouchers. Defendants shall
produce the documents not later than April 1 5 , 2 0 1 7 . Defendants may redact any information they
plaintiff with a Vaughn Index identifying and justifying each redaction. N.J.S.A 47:lA-1.l;
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