(NOTE: The status of this decision is Published.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-3460-18T1
BAFFI SIMMONS and
AFRICAN AMERICAN DATA
AND RESEARCH INSTITUTE
APPROVED FOR PUBLICATION
Plaintiffs-Respondents, June 11, 2020
v. APPELLATE DIVISION
WENDY MERCADO, CITY OF
MILLVILLE, and CITY OF
MILLVILLE POLICE DEPARTMENT,
Submitted May 12, 2020 – Decided June 11, 2020
Before Judges Fisher, Accurso and Rose.
On appeal from the Superior Court of New Jersey,
Law Division, Cumberland County, Docket No. L-
Brock D. Russell, attorney for appellants.
Rotimi A. Owoh, attorney for respondents.
The opinion of the court was delivered by
In this appeal, we consider an order that held defendants City of
Millville, City of Millville Police Department, and Wendy Mercado, were
required to provide plaintiffs Baffi Simmons and the African American Data
and Research Institute records pursuant to plaintiffs' OPRA1 request.
Specifically, plaintiffs sought copies of the following that were issued by the
Millville Police Department from January 2017 to the date of the request:
"DWI/DUI complaints and summonses";
"drug possession complaints and summonses";
the department's "[a]rrest [l]istings"; and
"drug paraphernalia complaints and summons."
Defendants produced redacted records that allegedly satisfied the request for
the arrest listings, but as for the other three categories, defendants asserted
"there are no records responsive to your request" and advised that "[c]ourt
documents can be requested through the NJ Judiciary website."
The trial judge summarily ruled in plaintiffs' favor and, because
plaintiffs prevailed, awarded attorney's fees. Defendants appeal, primarily
arguing the judge erred in finding these documents to be government records
within their possession because Millville police officers merely input
Open Public Records Act, N.J.S.A. 47:1A-1 to -13.
information into electronic forms created by others and maintained by the
judiciary. We agree with defendants and reverse.
The record reveals that after receiving a response from defendants that
the records sought were maintained by the judiciary and not Millville or its
police department, plaintiffs filed in October 2018 a verified complaint. They
also applied for an order, which, when entered, required defendants to show
cause why they did not violate OPRA by denying plaintiffs access to the
requested DWI/DUI, drug possession, and drug paraphernalia complaints and
summonses. In responding to the order to show cause, defendants submitted
the affidavit of a Millville police lieutenant who asserted the department does
not maintain DWI/DUI, drug possession, and drug paraphernalia complaints
and summons records because they are in the possession of the Millville
Municipal Court, which places those records under the aegis of the judiciary.
That is, according to defendants, once those documents are electronically filed
through the State's Electronic Complaint Disposition Record (eCDR) system,
defendants no longer have access to those records and are no longer their
custodian. Defendants also argued that even if they had access to eCDR, they
would be unable to produce the requested records because the system does not
allow for the usage of a particular charge or complaint type as a search
The judge found plaintiffs were entitled to the requested records from
defendants. In rejecting defendants' argument that they no longer
"maintained" the records, the judge observed that "whether or not [defendants]
maintain [the records] . . . [is] not a standard under OPRA." The judge did,
however, provide defendants with additional time to both ascertain and
supplement the record with proof about whether they were able to access
eCDR for the complaints and summonses requested.
Defendants thereafter filed a supplemental brief, conceding "the
Millville Police Department has access to eCDR." Notwithstanding,
defendants argued: (1) the complaints and summonses requested by plaintiffs
are not records required by law to be maintained by Millville for any period of
time; and (2) requiring defendants to search and provide the requested records
from eCDR – of which defendants are not the custodian – exceeds OPRA's
intended reach. Defendants argued they would have to review nearly 5,000
arrest card files from the time period in question, identify those that included a
drug possession or drug paraphernalia charge, obtain the information necessary
Despite this position, plaintiffs were provided with redacted records
responsive to the request for DWI/DUI complaints and summonses.
to conduct a search of eCDR, and then locate the corresponding records in
The trial judge found that because the Millville Police Department has
access to the system that contains the records requested by plaintiffs,
defendants violated OPRA by not turning the records over. The judge entered
a conforming order on January 3, 2019, and invited plaintiffs to submit a
certification of services in support of their request for counsel fees. Later, the
judge denied defendants' reconsideration motion, which emphasized
defendants' arguments that the requested documents are not government
records but are court records maintained by the judiciary and that their ability
to access the records does not mean they are the custodian of those records
obligated to comply with an OPRA request. The judge rejected these
arguments and denied reconsideration by order entered on February 18, 2019.
The following month, the judge considered the parties' submissions on
plaintiffs' request for counsel fees, and, on March 22, 2019, ordered defendants
to pay plaintiffs $5424 in fees. The judge also stayed the order pending
In appealing, defendants reprise their arguments that the complaints and
summonses sought by plaintiffs exist in electronic form, are maintained by the
judiciary, and in its custody, not their custody. We agree. To explain, we first
briefly review OPRA's requirements and how OPRA has been applied in
The Legislature's purpose in enacting OPRA was "to promote
transparency in the operation of government." Sussex Commons Assocs., LLC
v. Rutgers, 210 N.J. 531, 541 (2012). To fulfill that purpose, OPRA requires
that "government records shall be readily accessible for inspection, copying, or
examination by the citizens of this State, with certain exceptions, for the
protection of the public interest, and any limitations on the right of acces s . . .
shall be construed in favor of the public's right of access." N.J.S.A. 47:1A-1;
see also N. Jersey Media Grp., Inc. v. Twp. of Lyndhurst, 229 N.J. 541, 555
The statute defines "government record" broadly, but also excludes
twenty-one categories of items from the definition. See N.J.S.A. 47:1A-1.1;
Mason v. City of Hoboken, 196 N.J. 51, 65 (2008). A "government record" is
defined to include "any 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[.]" N.J.S.A. 47:1A-1.1.
To be considered a "government record," the item must be made, maintained,
kept on file, or received "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." Ibid.
Despite this strong interest in transparency, OPRA is "not intended [to
be] a research tool [that] litigants may use to force government officials to
identify and siphon useful information." MAG Entm't, LLC v. Div. of
Alcoholic Beverage Control, 375 N.J. Super. 534, 546 (App. Div. 2005).
OPRA instead operates to make identifiable government records "readily
accessible for inspection, copying, or examination." N.J.S.A. 47:1A-1.
Accordingly, OPRA requires a party requesting access to a public record to
specifically describe the record sought. Gannett N.J. Partners, LP v. Cty. of
Middlesex, 379 N.J. Super. 205, 212 (App. Div. 2005); N.J.S.A. 47:1A-5(f). A
proper OPRA request must identify with reasonable clarity the desired
documents, and a party cannot satisfy this requirement by simply requesting all
of an agency's documents. Bent v. Twp. of Stafford Police Dep't, Custodian of
Records, 381 N.J. Super. 30, 37 (App. Div. 2005). And OPRA only allows
requests for access to records – not requests for information. MAG Entm't,
375 N.J. Super. at 546-47.
OPRA does not require a records custodian "to conduct research among
its records . . . and correlate data from various government records in the
custodian's possession." Ibid. OPRA also imposes on public agencies "the
burden of proving that the denial of access is authorized by law," N.J.S.A.
47:1A-6, which is not satisfied by reliance on "conclusory and generalized
allegations of exemptions[,]" but requires instead the specific basis for
withholding the requested documents, Newark Morning Ledger Co. v. N.J.
Sports & Exposition Auth., 423 N.J. Super. 140, 162 (App. Div. 2011). Under
this framework, a "government record" is subject to disclosure unless a public
agency can make a "clear showing" that one of the statute's listed exemptions
is applicable. N. Jersey Media Grp., 229 N.J. at 555. That presupposes, of
course, that the requested record is a "government record." And all we have
said presupposes that the party to whom the request was sent is the custodian
of the government record sought.
We agree with defendants that the manner in which the requested
complaint-summonses were created demonstrates they are not government
records in their possession but are records in the custody of the judiciary.
While it may be local police who input the information that triggers the
process, the final product is governed by other forces and the resulting product
is maintained by others.
The production of a complaint-summons comes about through use of an
electronic form created by the Administrative Office of the Courts. This
process generates and lodges the complaint in the judiciary's computerized
case management system. Rules 3:2-2 and 3:2-3 require the use of certain
forms to generate a criminal complaint on either a summons, known as the
CDR-1, or on a warrant, known as the CDR-2.
When intending to generate a criminal complaint, a law enforcement
officer must utilize the judiciary's computerized case management system and
enter information into certain designated fields. Other sections of the CDR
forms are designated for completion by a judge or judicial officer. In short,
while a local law enforcement officer begins the process, it is a judicial officer
who retains the final authority as to whether the system will generate a CDR-1
or CDR-2. We agree with defendants that the manner in which the document
is produced demonstrates that it is, in reality, not a government record
maintained by the municipality but a record maintained by the judiciary.
Plaintiffs place too much emphasis on how the process that creates the
document commences without sufficient consideration for how it ends and
where the document ends up. Rule 3:4-1(a)(1),3 upon which plaintiffs rely,
does not require a different result; the Rule in fact reveals the importance of
3 Rule 3:4-1(a)(1) provides that "[a] law enforcement officer shall take a
person who was arrested without a warrant to a police station where a
complaint shall be prepared immediately," and further requires that when
"issuance of a warrant is authorized by Rule 3:3-1(d) . . ., the complaint may
be prepared on a Complaint-Warrant (CDR-2) form," or "[o]therwise, the
complaint shall be prepared on a Complaint-Summons (CDR-1) form."
generating a complaint-summons upon an arrest, not whether it constitutes a
municipal record or a judiciary record.
To review, when a law enforcement officer makes an arrest without a
warrant, the person arrested must be taken to a police station where the
arresting officer is to immediately prepare a complaint. R. 3:4-1(a)(1). The
Attorney General has directed all law enforcement agencies operating under
the authority of the laws of this State to utilize a particular electronic interface
system when preparing a complaint. Attorney General Law Enforcement
Directive No. 2016-06 (Oct. 11, 2016). Pursuant to the directive:
The State Police and AOC have established an
interface between the Live Scan fingerprint system
and eCDR. The interface transmits confirmed Live
Scan records to the eCDR system so that when police
generate a complaint, Live Scan record data
automatically will populate many of the required
fields on the eCDR. The interface in this way reduces
the time needed to enter data, enhances data quality,
and ensures positive identification of defendants.
When a defendant is arrested and fingerprinted
at the time of complaint processing, the Live Scan
fingerprinting must be completed before beginning an
eCDR complaint. Once the Live Scan confirmation is
received, the law enforcement officer or agency shall
proceed to the eCDR system to begin generating a
The Supreme Court has recognized that as the State's chief law
enforcement officer, the Attorney General retains the authority to adopt
guidelines, directives, and policies that bind police departments statewide .
Paff v. Ocean Cty. Prosecutor's Office, 235 N.J. 1, 19 (2018). While a
Millville police officer commences preparation of a complaint-summons
through use of the electronic interface system described in the Attorney
General's directive, the document is completed by eCDR and the finished
product is maintained by the municipal court or, in a larger sense, the
We also observe that it may be true that the Millville Police Department
has access to the electronic interface system, but that does not alter the fact
that the record is maintained by the judiciary. We conclude that it is to the
judiciary that plaintiffs must direct their request for the production of such
records. The burden should not be placed on local authorities to search for
records maintained by others for those records that fall into plaintiffs' broad
requests. See MAG Entm't, 375 N.J. Super. at 546-47.