ROBERT TOMBS v. BRICK TOWNSHIP MUNICIPAL UTILITIES AUTHORITY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3837-05T53837-05T5

ROBERT TOMBS,

Appellant,

v.

BRICK TOWNSHIP MUNICIPAL

UTILITIES AUTHORITY,

Respondent.

____________________________

 

Submitted November 15, 2006 - Decided December 7, 2006

Before Judges Lefelt and Parrillo.

On appeal from the Government Records Council,

Docket No. 2003-123.

Robert Tombs, appellant pro se.

Dasti, Murphy, McGuckin, Ulaky, Cherkos & Connors, attorneys for respondent Brick Township Municipal Utilities Authority (Jerry J. Dasti, on the brief).

Stuart Rabner, Attorney General of New Jersey, attorney for respondent Government Records Council (Debra A. Allen, Deputy Attorney General, filed a statement in lieu of brief).

PER CURIAM

Appellant Robert Bradley Tombs appeals from a February 17, 2006 final administrative decision of the Government Records Council (GRC) denying his request under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -18, for access to a topographic map in digital format from the Brick Township Municipal Utilities Authority (BTMUA), finding the record exempt from disclosure pursuant to federal law. We now affirm.

On April 18, 2003, appellant filed an OPRA request with the BTMUA for a digital copy (.DWG) format of its Geographical Information System (GIS) topographic mapping data. The BTMUA's Executive Director denied the request, claiming the information sought was proprietary, subject to alteration, and concerned the township's "critical infrastructure" or "assets" in need of protection under New Jersey's Domestic Security Preparedness Act of 2001, L. 2001, c. 246. As an alternative, the BTMUA offered to provide appellant with paper copies of maps of Brick Township at a standard cost of $5.00. Appellant then filed a "denial of access" complaint with the GRC, who, on July 8, 2004, referred the matter to the Office of Administrative Law (OAL) as a contested case to determine precisely what appellant was seeking and further whether the information sought was exempt from disclosure.

The matter before the OAL was stayed by order of the administrative law judge (ALJ) on January 24, 2004, pending a decision by the United States Department of Homeland Security (DHS) on an application submitted voluntarily by BTMUA for protection of its .DWG formatted GIS topographic mapping data in accordance with the Critical Infrastructure Information Act of 2002 (CIIA), 6 U.S.C. 131-134. On June 3, 2005, the DHS granted protected critical infrastructure information (PCII) status to the material submitted, declaring that it would be "handled and safeguarded as required by the CII[A] and 6 C.F.R. 29[,]" namely that such material "shall not be made available pursuant to any State or local law requiring disclosure of records or information." 6 C.F.R. 29.8(g).

Following DHS's determination, the matter proceeded to conclusion in the OAL. On December 15, 2005, the ALJ issued an Initial Decision, concluding that "the digital copy (.dwg) format of BTMUA's GIS topographical mapping data sought by Tombs was [exempted] from disclosure due to its Protected CII status." The ALJ reasoned:

In his letter brief, Mr. Tombs argues that as the OPRA is to be construed in favor of the public's right to access, the MUA must bear the burden of establishing any exemption from its reach. I agree with that analysis. Here, the MUA, which would not voluntarily produce the information he sought, has pleaded that the information Mr. Tombs wants cannot be the subject of an order for production by the GRC due to the effect of the provisions of federal law. And that federal law does not appear to prevent the GRC from ordering the production of material allotted the Protected CII status that the DHS gave to the digital copy (.DWG) format GIS topographic mapping data. Whether the DHS decision to grant such status was appropriate is surely not for either this forum or the GRC to consider.

On February 17, 2006, the GRC issued its Final Decision, adopting the ALJ's Initial Decision, modified only to include reference to applicable OPRA provisions, and finding that the GIS data in issue was exempt from disclosure.

On appeal, appellant raises the following issues:

I. GRC'S RULING VIOLATED OPRA REQUIREMENT THAT THE BRICK TOWNSHIP MUA "INDICATE THE SPECIFIC BASIS" FOR ANY DENIAL OF ACCESS.

II. GRC IN RULING A "FEDERAL EXEMPTION" FAILED TO FOLLOW THAT SAME FEDERAL PROCEDURE, IGNORED THE WRITTEN INSTRUCTION BY THAT AUTHORITATIVE FEDERAL AGENCY, AND VIOLATED OPRA REQUIREMENT THAT BTMUA "SHALL HAVE THE BURDEN OF PROVING THAT THE DENIAL OF ACCESS IS AUTHORIZED BY LAW."

III. GRC VIOLATED APPELLANT'S STATUTORY RIGHT TO AN "EXPEDITED" PROCEEDING, DUE PROCESS RIGHTS, AND VIOLATED OPRA REQUIREMENT THAT BTMUA "SHALL HAVE THE BURDEN OF PROVING THAT THE DENIAL OF ACCESS IS AUTHORIZED BY LAW."

From our review of the record, we find these issues to be without merit, R. 2:11-3(e)(1)(D) and (E), and therefore affirm substantially for the reasons expressed in the ALJ's comprehensive written opinion of December 13, 2005. We add only the following comments.

OPRA was enacted so that "government records shall be readily accessible . . . with certain exceptions, for the protection of the public interest." N.J.S.A. 47:1A-1. The term "government records," from N.J.S.A. 47:1A-1, is "not as broad as the common law definition of 'public records.'" Bent v. Tp. of Stafford Police Dep't, 381 N.J. Super. 30, 36 (App. Div. 2005) (citing Bergen County Improvement Auth. v. N. Jersey Media Group, Inc., 370 N.J. Super. 504, 509-10 (App. Div.), certif. denied, 182 N.J. 143 (2004)). However, for present purposes, the definition does include "data processed or image processed document[s], [and] information stored or maintained electronically . . . ." N.J.S.A. 47:1A-1.1.

"OPRA affirmatively excludes . . . twenty-one separate categories of information," Bent, supra, 381 N.J. Super. at 36 (citing N.J.S.A. 47:1A-1.1), and includes a directive that "State custodians of public records . . . deny access to documents that are exempt from disclosure under federal law." Id. (citing N.J.S.A. 47:1A-5a, -9). If an exemption applies, "the custodian of the government record has the burden of proving that the denial of access is authorized by law." Id. (citing N.J.S.A. 47:1A-6).

To be sure, BUTMA's GIS topographic mapping data in a digital format comes within the definition of "government record" in N.J.S.A. 47:1A-1.1. However, the same information has been found by the DHS to be protected from disclosure by the CIIA.

The CIIA, 6 C.F.R. 29.1 to -.9, was designed to "prevent terrorist attacks within the United States and reduce the vulnerability of the United States to terrorism", 6 C.F.R. 29.1(a), by "encourage[ing] the voluntary submission of CII by safeguarding and protecting that information from unauthorized disclosure." Ibid. Pursuant to 6 C.F.R. 29.6, BTMUA submitted the electronic GIS data to DHS, obtained confirmation that the data had been received and was presumed protected and finally was informed that the data was validated as PCII. Clearly, information validated as "PCII shall be treated as exempt from disclosure under the Freedom of Information Act and any State or local law requiring disclosure of records or information." 6 C.F.R. 29.8(g).

On this score, appellant does not dispute that the information he seeks is that which the DHS designated as PCII, and consequently offers no reason to disturb the corresponding finding of the GRC that the information is therefore non-disclosable. In this regard, our "fundamental consideration

in reviewing agency actions is that a court may not substitute its judgment for the expertise of an agency so long as that action is statutorily authorized and not otherwise defective because arbitrary or unreasonable." In re Distrib. of Liquid Assets, 168 N.J. 1, 10 (2001) (internal quotation marks omitted); accord Merin v. Maglaki, 126 N.J. 430, 436-37 (1992) ("We give substantial deference to the interpretation of the agency charged with enforcing an act. The agency's interpretation will prevail provided it is not plainly unreasonable."); P.F. v. N.J. Div. of Dev. Disabilities, 139 N.J. 522, 529-30 (1995) ("Ordinarily, an appellate court will reverse the decision of an administrative agency only if it is arbitrary, capricious, or unreasonable, or if it is not supported by substantial credible evidence in the record as a whole."). Governed by this standard of review, we are satisfied the decision of the GRC is neither arbitrary, capricious nor unreasonable, and is supported amply by the record.

Appellant's further argument that the burden of proof was somehow unfairly shifted upon him, or that BTMUA has not carried its burden of proof, is equally without merit. Because the federal law exemption applies, "the custodian of the government record has the burden of proving that the denial of access is authorized by law." Bent, supra, 381 N.J. Super. at 36 (citing N.J.S.A. 47:1A-6). In Paff v. N.J. Dep't of Labor, the GRC's decision was reversed because the council merely accepted the record custodian's unsupported blanket assertion that a privilege applied. 379 N.J. Super. 346, 353-56 (App. Div. 2005). Here an adequate record was created, consisting of DHS documentation establishing that the GIS data had been validated as PCII, which federal law and OPRA protects from disclosure. By providing documentation of protection under the CIIA, BTMUA carried its burden of establishing that the denial of access was authorized by law.

Similarly, appellant's final argument that he was not afforded proceedings conducted in a "summary or expedited manner" pursuant to N.J.S.A. 47:1A-6 is unpersuasive. "Summary actions are, by definition, short, concise, and immediate, and further, are designed to accomplish the salutary purpose of swiftly and effectively disposing of matters which lend themselves to summary treatment." MAG Entm't, LLC v. Div. of Alcoholic Bev. Control, 375 N.J. Super. 534, 551 (App. Div. 2005) (internal quotation marks omitted). Although OPRA proceedings generally lend themselves to summary treatment, this particular case was not amenable to expedited proceedings because a thorough record had to be developed and necessarily awaited the DHS's evaluation of the GIS data under the CIIA. Furthermore, during the time that the DHS was conducting its assessment, the GIS data was protected from disclosure by federal law. 6 C.F.R. 29.6(b). Because OPRA recognizes federal disclosure protections, N.J.S.A. 47:1A-5a, appellant's OAL hearing could not realistically move forward during this time of temporary privilege. Of course, after the GIS data was validated as PCII, appellant was afforded a full and fair opportunity to distinguish his request from the data protected by the CIIA. Appellant was unable to do so and cannot now claim that he was prejudiced by this opportunity.

Affirmed.

 

Apparently, the GIS data requested by appellant is not only comprised of maps, but also information on treatment facilities, information systems and distribution lines of BTMUA which cannot be separated from the software program used to access and manipulate the data.

The Critical Infrastructure Information Act of 2002, 6 U.S.C. 131-134., is part of the broader Homeland Security Act, P.L. 107-296, enacted on November 25, 2002.

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A-3837-05T5

December 7, 2006