JESSE ROSENBLUM v. BOROUGH OF CLOSTER
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-1856-05T11856-05T1
BOROUGH OF CLOSTER,
Submitted October 30, 2006 - Decided December 5, 2006
Before Judges S.L. Reisner and Seltzer.
On appeal from a Final Decision of
Government Records Council, 2005-16.
Jesse Rosenblum, appellant pro se.
John McCann, attorney for respondent
Borough of Closter.
Stuart Rabner, Attorney General, attorney
for respondent Government Records Council
(Debra A. Allen, Deputy Attorney General,
on the brief).
Petitioner appeals from a final agency decision of the Government Records Council (GRC) dated October 28, 2005, dismissing his denial of access complaint filed pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. We affirm.
N.J.S.A. 54:4-3.30 provides a real estate tax exemption for the homes of certain honorably discharged members of the Armed Forces of the United States who suffer from one of the physical conditions enumerated in the statute. N.J.S.A. 54:4-3.31 requires that an application for the exemption be supported by a "certificate of the claimant's honorable discharge" and a "certificate from the United States Veterans Administration
. . . certifying to a service-connected disability" that falls within one of the categories of disability described in N.J.S.A. 54:4-3.30. That certificate is provided on "Form DD-214."
On October 26, 2004, petitioner, a resident of the Borough of Closter, submitted a government records request form seeking a copy of the "Certificate of Military Discharge for 100% Tax Exemption per N.J.S.A. 54:4-3.31" relating to a specified lot and block. On October 28, 2004, the request was denied with the advice "that supporting documentation for any exemption Veteran or Senior is not considered public record. The application for the exemption is the only public record document."
On January 12, 2005, petitioner, asserting that the document he sought was a government record that OPRA required to be disclosed, filed a complaint with the GRC seeking a copy of the certificate of military discharge issued in support of the application for tax exemption. For reasons not clear from this record, all involved treated the request as encompassing both the certificate of discharge and Form DD-214. While the complaint was pending, N.J.S.A. 47:1A-1.1 was amended, effective August 5, 2005, to exclude Form DD-214 "or any other certificate of honorable discharge . . . that has been filed by an individual with a public agency" from the definition of a government record required to be disclosed pursuant to OPRA. Accordingly, the Executive Director of GRC recommended, on October 7, 2005, that GRC find that: "The Form DD214 is now exempt from disclosure pursuant to the recent amendment to N.J.S.A. 47:1A-1.1." He explained the reason for his recommendation:
Although the denial was unlawful at the time of the request, on August 5, 2005, Acting Governor Richard Codey approved an amendment to the OPRA that states in part that Form DD 214 is exempt from disclosure (N.J.S.A. 47:1A-1.1). Since the Form DD214 is now exempt from disclosure pursuant to OPRA, the request for access cannot lawfully be granted.
Again, while the denial of access was unlawful at the time of the request, the Council may not grant access to the Form DD 214 due to the amendment of OPRA that occurred on August 5, 2005, which precludes disclosure.
The recommendations and findings of the Executive Director were adopted by the GRC.
The scope of our review of a decision of an administrative agency is strictly limited. We will not reverse an agency's determination unless it is arbitrary, capricious, unreasonable, or unsupported by substantial credible evidence in the record. In re Taylor, 158 N.J. 644, 657 (1999) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). That is not the case here. In any event, we agree completely with the rationale of the Executive Director that was adopted by the GRC.
In his brief, petitioner also argues that the record he sought was available under common law principles. The GRC is not empowered to adjudicate disputes concerning the scope of common law rights. It is an agency, "within the Department of Community Affairs . . . charged with adjudicating OPRA disputes" in the event the person seeking the record chooses not to file an action in Superior Court. Bent v. Twp. of Stafford Police Dep't., 381 N.J. Super. 30, 38 (App. Div. 2005); N.J.S.A. 47:1A-6. Even if the GRC had jurisdiction to consider common law claims, petitioner did not raise those grounds before the Council and may not advance them here for the first time. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
The initial decision contained recommendations that the GRC also find that the Custodian unlawfully denied access, had failed to carry her burden of proving that the document was exempt from disclosure, and that her actions did not rise to a willful violation of OPRA. Those recommendations, also adopted by the GRC, are not challenged on this appeal.
December 5, 2006