FLAVIO L. KOMUVES v. TOWNSHIP OF EDISON, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3152-03T13152-03T1

FLAVIO L. KOMUVES,

Plaintiff-Appellant,

vs.

TOWNSHIP OF EDISON, REINA

MURPHY and LOUIS RAINONE,

Defendants-Respondents.

__________________________________

 

Argued: December 5, 2005- Decided August 21, 2006

Before Judges Cuff, Parrillo & Holston, Jr.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-5546-03.

Flavio L. Komuves, appellant, argued the cause pro se.

Jeffrey J. Miller argued the cause for respondents Township of Edison, Reina Murphy and Louis Rainone (DeCottis, Fitzpatrick, Cole & Wisler, attorneys; Michael R. Cole, of counsel and on the brief; R. Brian McLaughlin, on the brief).

Thomas J. Cafferty argued the cause for intervenor/amici curiae New Jersey Press Association (Scarinci & Hollenbeck, attorneys; Mr. Cafferty, of counsel; Arlene M. Turinchak, on the brief).

Lewis A. Scheindlin, Assistant Attorney General, argued the cause for amici curiae Peter C. Harvey, Attorney General (Patrick DeAlmeida, Assistant Attorney General, of counsel; Mr. Scheindlin, on the brief).

PER CURIAM

In this appeal, we are asked to consider the intersection of the Open Public Records Act (OPRA) and the Uniform Mediation Act (UMA). The issue arises out of a request for access to materials presented to a special master appointed in the course of a builder's remedy action. At oral argument, we raised the issue of whether the timing of the access to the records was moot. Having thoroughly considered the record in this matter, we are convinced that the issue of when the documents should be made accessible is moot in this case.

The Township of Edison (Township) was a defendant in a builder's remedy action known as Durham Associates, Inc. v. Township of Edison, Docket No. L-2277-99. The matter commenced in 1999; by the summer of 2003, the Planning Board of the Township (Planning Board) was considering a revision of the Master Plan which included a housing plan element. At a July meeting of the Planning Board, attendees were advised that a compliance plan report for the affordable housing element of the Master Plan was expected in mid-August, at which time the Planning Board would proceed with, and hopefully conclude, its consideration of the Master Plan. The report entitled Compliance Plan and Affordable Housing Element and Fair Share Plan of the Edison Township Master Plan (Compliance Plan) was submitted to the court and the Planning Board in August 2003.

Plaintiff Flavio Komuves is a resident of the Township. Upon learning of the builder's remedy action, he filed a written request for the pleadings in the Durham Associates litigation, as well as all documents and reports that had been shared with or received from the court, the Special Master, or the adversary. Eventually, the Township replied that any documents submitted to the court would be available in three weeks and that plaintiff would be required to pay the costs of copying the documents. The Township asserted that the documents shared with or received from the Special Master were privileged and confidential.

Plaintiff filed a verified complaint on July 30, 2003, against the Township; Reina Murphy, the municipal clerk; and Louis Rainone, the municipal attorney. Plaintiff alleged that defendants violated his statutory and common law rights to access public records; he sought immediate review of his allegations due to the pending consideration of the Master Plan. Plaintiff also sought sanctions against defendant Rainone for willful violations of OPRA.

Plaintiff sought and obtained an Order to Show Cause returnable on August 18, 2003. The Township responded that papers submitted to a court-appointed special master in a Mount Laurel builder's remedy litigation are not subject to OPRA. On August 14, 2003, the judge ordered the Township to submit all documents within the scope of plaintiff's request for in camera review and to prepare a Vaughn index. The judge ordered that the Vaughn index was also to be submitted for in camera review and not shared with plaintiff. At hearings on September 29 and October 2, 2003, the judge granted in part and denied in part plaintiff access to the requested documents and entered an order on October 27, 2003, requiring the Township to produce for plaintiff's inspection all documents found by the judge not confidential. In a separate order dated December 22, 2003, the judge dismissed count four of the complaint which sought sanctions against the Township attorney for willful violation of OPRA.

Following submission of the Compliance Plan, the Planning Board adopted the affordable housing plan. In October 2003, the Township issued a public notice of the proposed compliance hearing in the Durham Associates matter. The compliance hearing was scheduled for November 10, 2003. In addition, the public was informed that it sought a Judgment of Compliance that would declare the Township "compliant with its obligations to provide a realistic opportunity to meet the Township's cumulative second round fair share" of low and moderate income housing. The public was informed that the builder's remedy portion of the litigation was settled and an order authorizing the settlement was entered on August 23, 2001. The public was also informed that "[t]he full text of the adopted Housing Element and Fair Share Plan, the proposed affirmative marketing ordinance and the proposed affordable housing ordinance, as well as the report of the Court-appointed Special Master regarding the Township's proposed compliance plan" was available for inspection at the office of the Township Clerk. We have been informed that the court entered a Judgment of Compliance on December 2, 2003.

Plaintiff's request to review documents implicated on-going litigation in the nature of a builder's remedy action. The Township asserted that the documents submitted to and exchanged with the court-appointed Special Master were confidential on a number of bases: attorney-client privilege, work product doctrine, and a general privilege accorded to settlement negotiations. As the matter developed, the issue began to focus on when the documents associated with the mediation process should be available for review. Plaintiff asserted that he should have access to the documents before the November 2003 fairness hearing.

The judge ruled that the documents submitted to the Special Master by the Township and the developers participating in the mediation process and any documents generated by the Special Master during the mediation process were privileged. Therefore, these documents were not released to plaintiff before the November 2003 fairness hearing. The judge held, however, that the Special Master's report to the court was not privileged and that all documents should be available for review upon the entry of final judgment. On appeal, plaintiff contends that he should have had access to all documents prior to the fairness hearing. The Township contends that access prior to the fairness hearing may have endangered the delicate negotiations that attend the resolution of affordable housing litigation and that the judicial fairness hearing adequately protects the public interest.

The threshold issue is whether this matter is moot. This matter was initially submitted to this court for disposition in February 2005. In light of the issues raised by this appeal, we requested the Attorney General to submit a brief, which it did. We also granted the motion of the New Jersey Press Association to appear as amicus curiae. By the time of oral argument, it was clear that the matter was moot and had been so for some time before this matter was initially submitted to the court in February 2005. In the interim, the UMA was enacted effective November 22, 2004. Plaintiff and the New Jersey Press Association urge that the matter is not moot because the builder's remedy actions continue to be filed and citizens will continue to request disclosure of the information that leads to the resolution of litigation. Thus, the issue will recur and should be addressed. Nevertheless, we can grant no effective relief to plaintiff because the fairness hearing has been concluded.

Moreover, the impact of the UMA on requests for access to documents in builder's remedy actions does not arise in this case. The Durham Associates litigation commenced in 1999 and the Special Master was appointed no later than 2000. The UMA effects agreements to mediate made on or after November 22, 2004. L. 2004, c. 157, 14. Although the issues raised by the intersection of OPRA and the UMA, and the issue of whether the UMA trumps the common law right to know are interesting and important issues, our discussion should await a case that directly raises these issues. To do otherwise relegates this court to rendering an advisory opinion, which is not our province. Indep. Realty Co. v. Twp. of N. Bergen, 376 N.J. Super. 295, 301 (App. Div. 2005).

On the other hand, the judge ordered that plaintiff should gain access to the requested documents at the conclusion of the litigation. At oral argument, counsel for the Township conceded that any need for confidentiality does not survive the entry of final judgment. Thus, if plaintiff has not received access to the documents withheld due to the privilege determination, those documents should be made accessible to him.

Although we consider plaintiff's appeal regarding when he should have had access to requested documents moot, two issues deserve comment; indeed, the second issue is not moot. Plaintiff argues that the judge erred when he ordered the Township to prepare a Vaughn index and to submit the purported confidential documents to him for an in camera review but to withhold the Vaughn index from plaintiff. Although we agree that the Vaughn index should have been provided to plaintiff, we do not perceive the error to be of such magnitude to warrant reversal.

In Vaughn, supra, the court considered the difficulty of evaluating and ruling on an agency's claim of exemption from disclosure under the Freedom of Information Act. The court recognized that an in camera review of the document or documents can be performed but "is necessarily conducted without benefit of criticism and illumination by a party with the actual interest in forcing disclosure." 484 F.2d at 825. In order to assure that a party's right to information is "not submerged beneath governmental obfuscation and mischaracterization" and to permit effective and efficient evaluation of the factual nature of the disputed information, the court directed that an index be prepared that identifies the document and itemizes which portions of the document are disclosable and which portions are exempt from disclosure and why. Id. at 826-27. Such an index allows the requesting party to be apprised of and comment on the items that the other party wants excluded from review. Id. at 827. This has become known in litigation practice as a Vaughn index or privilege log.

The purpose of the Vaughn index or privilege log is to enable "'the adversary system to operate by giving the requester as much information as possible, on the basis of which he can present his case to the trial court.'" Philadelphia Newspapers, Inc. v. Dep't of Health & Human Servs., 69 F. Supp. 2d 63, 66 (D.D.C. 1999) (citation omitted). Here, the impact of denying plaintiff access to the index is readily apparent from the record.

In Loigman v. Kimmelman, 102 N.J. 98 (1986), the Court endorsed the use of Vaughn indices in Right to Know litigation. In Loigman, a citizen requested information from a county board of freeholders regarding disbursements made from a county prosecutor's confidential account, his petty cash account, and confiscated money accounts. Id. at 101. The Court directed that rather than dealing with blanket claims of exemptions, the custodian of the documents should prepare a description of the document and the claimed exemption, which will allow the judge to determine whether any documents should be subject to an in camera review. Id. at 112-13. Notably, the Court also noted that the Vaughn index should be withheld from the party requesting access only in rare instances. Id. at 111. Indeed, in Hartz Mountain Industries, Inc. v. New Jersey Sports & Exposition Authority, 369 N.J. Super. 175, 185 (App. Div.), certif. denied, 182 N.J. 147 (2004), the party requesting documents in order to effectively prosecute its bid protest was furnished with the privilege log prepared by the agency. Here, the judge explained that the index and the documents were submitted to him and he reviewed the documents in conjunction with the asserted exemption. The judge noted that he questioned the asserted exemption or privilege on some documents and requested that the attorney for the Township review those documents and provide a further statement of his objection. At the September 29, 2003 hearing, the judge referred to documents as a group, depending on whether the documents had been tabbed and, if so, the markings on the tabs. In all but one or two instances, the documents were not referred to in any fashion that would allow plaintiff or this court to determine which document was the subject of discussion.

At the October 2, 2003 hearing, the judge proceeded to review certain documents individually. Unfortunately, in some instances the documents were not referred to by date or other readily distinguishing identifier. We cannot discern how plaintiff could offer any cogent comment on the issue of privilege. For our purposes, it also makes it very difficult, if not impossible, to review whether the specific document is privileged. At our request, the documents that were subject to in camera review were forwarded to our attention, but we have not been provided with the Vaughn index.

The better practice would have been to submit the Vaughn index to plaintiff. The judge indicated his concern that the summary on the privilege log may disclose too much information and inadvertently waive any privilege. Careful drafting would have avoided such a consequence. Loigman, supra, 102 N.J. at 110. If the judge was concerned about the ability of counsel to provide a proper summary, the log could have been subject to preliminary review and redrafting, if required. Moreover, in this case the nature of the information sought does not fall within that rare circumstance where the index should be withheld. Plaintiff should have received a copy of the log.

On the other hand, we do not view the error as so serious as to require reversal. In the end, the documents determined to be privileged were not extensive. Moreover, the withholding of the documents did not inhibit plaintiff from advancing his central legal argument that the documents reflecting various proposals and counter-proposals should have been disclosed in advance of the fairness hearing to allow a full airing of whether the housing element of the Master Plan affords a realistic opportunity to provide affordable housing in the Township.

Finally, we address plaintiff's contention that the judge erred when he dismissed count four of plaintiff's complaint, which sought sanctions against the municipal attorney pursuant to N.J.S.A. 47:1A-11. In his opinion, the judge held that the custodian of records for the municipality is the municipal clerk. He also found that the municipal attorney was the custodian of the litigation file and recounted that he had reviewed the documents in the file and had held that many were privileged. Therefore, the privileged documents were to be withheld until the conclusion of the litigation. The judge then found that the delay was not unreasonable and declined to impose sanctions against the municipal attorney. We agree.

N.J.S.A. 47:1A-1.1 defines the municipal clerk of a municipality as the "[c]ustodian of a government record" or "custodian." N.J.S.A. 47:1A-5a provides that a "custodian of a government record shall permit the record to be inspected, examined, or copied by any person during regular business hours." N.J.S.A. 47:1A-5g provides that "[a] request for access to a government record shall be in writing . . . and conveyed to the appropriate custodian," and the custodian should promptly comply with the request. N.J.S.A. 47:1A-5i requires a custodian to allow access to the government record or deny a request for access not later than seven business days after receipt of the request. "Any officer or employee of a public agency who receives a request for access to a government record" is obligated to forward the request to the custodian. N.J.S.A. 47:1A-5h.

N.J.S.A. 47:1A-11 allows the imposition of a civil penalty of $1000 for an initial violation and more for subsequent violations. Notably, the statute requires a public official, employee or custodian "knowingly and willfully" violate the statute and that the conduct "unreasonably denied access under the totality of the circumstances." Ibid. As Township attorney and Director of the Department of Law, Rainone is a public official and subject to sanctions. Under the totality of the circumstances, however, he did not unreasonably deny access.

On July 3, 2003, plaintiff sent an e-mail to Rainone requesting access to the documents held by the Township in the builder's remedy action pending against the Township. As a public official, Rainone had an obligation to forward the request to the municipal clerk, N.J.S.A. 47:1A-5h; however, he cannot forward what he did not receive. Rainone denied receiving the e-mail communication. He asserts that he did not have a municipal e-mail address, and plaintiff did not refute that contention.

Plaintiff submitted his request to the municipal clerk on July 18, 2003. She responded to his request on July 28, 2003, asserting that the requested documents were privileged. The custodian replied within seven business days as required by N.J.S.A. 47:1A-5i. Plaintiff immediately filed a complaint in the Superior Court where he was afforded some relief. This is not a chronology that is indicative of unreasonable delay, particularly when the request involved documents related to a matter currently in litigation. The judge properly denied sanctions and dismissed this count.

The appeal concerning access to records is dismissed as moot; the order dismissing count four of the complaint is affirmed.

 

"If a trial court determines that a municipality has not met its Mount Laurel obligation, it shall order the municipality to revise its zoning ordinance" to allow a realistic opportunity for the provision of affordable housing. S. Burlington County NAACP v. Twp. of Mount Laurel, 92 N.J. 158, 278 (1983) (Mount Laurel II). If the municipality fails to do so, the court must consider the appropriate remedy for non-compliance. Ibid. "[I]f plaintiff is a developer, the court shall determine whether a builder's remedy should be granted." Ibid. A builder's remedy usually is a site specific plan that incorporates a number of affordable housing units. Id. at 279-80.

S. Burlington County NAACP v. Twp. of Mount Laurel, 67 N.J. 151 (Mount Laurel I), cert. denied, 423 U.S. 808, 96 S. Ct. 18, 46 L. Ed. 2d 28 (1975); Mount Laurel II, supra, 92 N.J. 158.

Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973).

The Right to Know Law, N.J.S.A. 47:1A-1 to -4 governed requests for public records prior to the 2003 enactment of OPRA.

(continued)

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A-3152-03T1

 

August 21, 2006