NEWARK MORNING LEDGER CO. v. CITY OF NEWARK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6144-04T16144-04T1

NEWARK MORNING LEDGER CO.,

Plaintiff-Respondent,

v.

CITY OF NEWARK,

Defendant-Appellant.

____________________________________

 

Submitted June 1, 2006 - Decided June 16, 2006

 

Before Judges Conley and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-3469-05.

Joanne Y. Watson, attorney for appellant (Catharine Reid Bruzzese, on the brief).

Robinson & Livelli, attorneys for respondent (Keith J. Miller, on the brief).

PER CURIAM

The City of Newark (City) appeals from a June 8, 2005, order compelling it to produce certain information contained in Uniform Construction Code (UCC) permit applications and their dispositions on file with the City from 2000 to 2005. Here are the pertinent terms of the order at issue:

ORDERED, that defendant City of Newark shall make available for inspection and copying, at the expense of and subject to reimbursement of costs by plaintiff, the requested UCC permit applications opposed or denied by the defendant and all receipts of permit fees appertaining thereto and for the period of time from 2000 to the present, within 45 days of the date of this Order, subject to the following restrictions:

1. Plaintiff has not requested access to information regarding any permits for security alarm systems, and such information is not required to be produced under this Order; and

2. Plaintiff ha[s] not requested access to any schematic drawings, diagrams, or structural information contained or included in the permit application files, and such information is not required to be produced under this Order; and

IT IS FURTHER ORDERED that The Star-Ledger is entitled to inspect and copy all information contained in the permit application files for the years 2000 to the present reflecting the name and address of the applicant, the name and address of the property owner, the name and address of the contractor, the name and address of any other interested party appearing in the permit file, the amount of the fee paid on the permit, the name of the person who paid the fee and the means by which payment was made, the date that the application was made, the date that the application was approved or denied, and the reasons for the approval or denial of the permit application; and

IT IS FURTHER ORDERED that to the extent that any of the above information is maintained by the City of Newark in electronic form, it shall be made available to The Star-Ledger in that form. To the extent that any of the above information is not maintained in electronic format by the City of Newark, it shall be made available for inspection and copying by The Star-Ledger in hard copy, at a time and location form reasonably convenient to both the City of Newark and to The Star-Ledger, and in a manner that will not substantially disrupt the operations of the City of Newark . . . .

[Emphasis added.]

The records of the City that are covered by this order are, undeniably, public records subject to public inspection under the Open Public Record Act (OPRA), N.J.S.A. 47:1A-1 to -13. Nonetheless, the City contends:

POINT I: AN OPEN PUBLIC RECORD ACT REQUEST THAT REQURIES THE REVIEW OF EVERY FILE CONTAINED WITH THE AGENCY DURING A FIVE-YEAR PERIOD CONSTITUTES AN IMPERMISSIBLE OPEN-ENDED SEARCH OF AGENCY FILES.

POINT II: WHERE THE GOVERNMENT AGENCY HAS RELIED UPON THE WRONG RATIONALE FOR DENIAL OF ACCESS TO A GOVERNMENT RECORD UNDER OPRA, BUT THE REQUEST IS NEVERTHELESS SUBJECT TO AN EXCLUSION UNDER AN ALTERNATIVE RATIONALE, THE DENIAL SHOULD BE UPHELD.

POINT III: N.J.S.A. 47A-1 ALLOWS AN EXECUTIVE ORDER OF THE GOVERNOR TO EXEMPT A GOVERNMENT RECORD FROM PUBLIC ACCESS.

POINT IV: EXECUTIVE ORDER 21 (2002) EXCLUDES FROM PUBLIC ACCESS GOVERNMENT RECORDS THAT MAY INCREASE THE RISK OF POTENTIAL ACTS OF SABOTAGE OR TERRORISM.

POINT V: DCA BULLETIN 03-0 DID NOT HAVE TO BE ADOPTED BY DCA IN ORDER TO HAVE FORCE AND EFFECT OF LAW BECAUSE DCA REGULATIONS IDENTIFY DOCUMENTS AVAILABLE FOR PUBLIC ACCESS AND UCC PERMITS ARE NOT LISTED THEREIN.

POINT VI: UNDER THE COMMON LAW, THE MERE FACT THAT PLAINTIFF BELIEVES THERE MAY BE FAVORITISM IN GRANTING OF UCC CONSTRUCTION PERMITS DOES NOT OVERCOME THE PUBLIC INTEREST IN CONFIDENTIALITY.

Because we are convinced the records that the order requires the City to make available to plaintiff are subject to inspection pursuant to OPRA, we need not address point VI. We have considered the City's remaining contentions in light of the record and applicable law, and the trial judge's decision. Particularly in light of the controls imposed upon plaintiff's access to the records, we are convinced the City's remaining contentions are of insufficient merit to require further opinion. R. 2:11-3(e)(1)(E).

 
Affirmed for the reasons set forth by Judge Theodore A. Winard in his May 24, 2005, oral decision.

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A-6144-04T1

June 16, 2006