ELIZABETH MASON v. CITY OF HOBOKEN et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0508-06T50508-06T5

ELIZABETH MASON,

Plaintiff-Appellant,

v.

CITY OF HOBOKEN and JAMES

FARINA, CITY CLERK OF THE CITY

OF HOBOKEN in his professional

capacity as CITY CLERK OF THE

CITY OF HOBOKEN,

Defendants-Respondents.

_____________________________________

 

Argued October 10, 2007 - Decided

Before Judges Coburn, Fuentes and Chambers.

On appeal from Superior Court of New Jersey,

Law Division, Hudson County, Docket No.

L-156-06.

Jeffrey Kantowitz argued the cause for

appellant (Goldberg, Mufson & Spar, attorneys;

Mr. Kantowitz, of counsel and on the brief).

Christopher K. Harriott argued the cause for

respondents (Florio & Kenny, attorneys;

Mr. Harriott, of counsel and on the brief).

PER CURIAM

Plaintiff, Elizabeth Mason, a resident of defendant City of Hoboken, appeals the dismissal of her complaint alleging violations of various provisions of the Open Public Records Act (OPRA). N.J.S.A. 47:1A-1 to -13. Specifically, plaintiff argues that the trial judge erred by concluding that defendants had not violated OPRA by failing to respond, within the time frame provided by the statute, to her specific requests for government records. We affirm

We agree with plaintiff that the municipal clerk, as the custodian of government records, failed to provide a timely response to her requests. In the context of this case, however, we deem such error inconsequential. We are in full agreement with the trial judge's determination that plaintiff's requests were over-broad and did not specify the documents that she was seeking.

We gather the following facts from the record developed before the trial judge.

I

On November 22, 2005, plaintiff submitted four OPRA requests to defendant James Farina in his capacity as Municipal Clerk of Hoboken. These requests, numbered 05-2721, 05-2722, 05-2723, and 05-2724 by the Clerk's office, and stamped "Received" by the "City Clerk, Hoboken, NJ 07030," read as follows:

(1) OPRA request #05-2721 ("Mayor's Park Plan Request"):

To review all written & electronic voice mails, correspondence, between City of Hoboken and its representatives and vendors/suppliers consultants on the Mayor's Park Plan. To include, but not limited to artists, photographer, printer, outdoor, media, etc.. If available in electronic form please supply in that form.

(2) OPRA request #05-2722 ("Skating Rink Request"):

To review all correspondence (include contracts, agreements, etc.) between the City of Hoboken, its representatives, and Steven's Institute regarding the skating rink (Magic Ice).

(3) OPRA request #05-2723 ("URSA/Mayor's Park Plan Request"):

To review all correspondence (include contracts, agreements, etc) between the City of Hoboken and its consultants, representatives and URSA Development regarding the Mayor's Park Plan.

(4) OPRA request #05-2724 ("Financial Summary Sheet Request"):

Copy of financial summary sheets provided to City Council (per Councilman Russo's request) on the status of each account/department, etc at the time of the council meeting [] please include all backup given to council for the past fiscal year up to today.

It is undisputed that Farina did not respond to plaintiff's requests numbered (1), (2), and (3), within the seven-day period required under N.J.S.A. 47:1A-5(i). Plaintiff received a response to request number (4) on the same day as her filing. On the acknowledgment form of request number (4) plaintiff made the following notation:

[I hereby acknowledge that I have received] a document of one point in time that is provided in council packets. This is not the documentation that I understand was established under Councilman Russo when he came into office as it would not have been available for 11 years.

Five days later, on November 29, 2005, Farina sent plaintiff additional documents intended to supplement the initial response to the Financial Summary Sheet Request.

Approximately forty-two days after the expiration of the seven-day statutory deadline in N.J.S.A. 47:1A-5, plaintiff filed a verified complaint alleging violations under OPRA and the common law right to access public records. The complaint requested: (1) an order directing Hoboken to grant access and produce the requested documents immediately, either in electronic form, or in paper form; (2) an award of attorney's fees under N.J.S.A. 47:1A-6; (3) an award of costs of suit; (4) an order directing Hoboken to comply with future requests made by plaintiff; and (5) an order assessing civil penalties against Hoboken under N.J.S.A. 47:1A-11.

On January 12, 2006, approximately one month after the commencement of this action, Hoboken provided plaintiff with a response to her Mayor's Park Plan Request, Skating Rink Request, and URSA/Mayor's Park Plan Request.

II

The case initially proceeded in the Law Division by the parties engaging in motion practice. Hoboken moved to dismiss plaintiff's complaint as moot. Plaintiff filed a cross-motion to compel production of the documents she had requested. Plaintiff argued that she was entitled to immediate relief because of Hoboken's admitted failure to respond to her Mayor's Park Plan Request, Skating Rink Request, and URSA/Mayor's Park Plan Request within the seven-day timeframe provided for in N.J.S.A. 47:1A-5(i).

According to plaintiff, regardless of any subsequent responses, Hoboken's conduct here amounted to a per se improper denial under OPRA. Plaintiff emphasized that the City's Clerk's reliance on a part-time clerk to respond to OPRA requests constituted either a negligent or willful "dereliction" of the City's duty as a custodian of government records.

At this juncture of the proceedings, the trial judge held that in his view, the only relief available to a requestor under OPRA is a court order compelling Hoboken to produce the documents requested. Because Hoboken asserted that it had reasonably complied with plaintiff's requests, the judge was inclined to consider the matter moot.

In response, plaintiff argued that Hoboken's responses were inadequate and incomplete. If this is established, the case would not be moot because the court could also award attorney's fees and costs. Faced with this allegation, the trial judge offered plaintiff the opportunity to provide supplemental materials to the court demonstrating that there were additional documents not produced by Hoboken. In response, plaintiff produced various materials in support of her claim that Hoboken's production of documents was incomplete.

The trial judge rejected plaintiff's argument based on Hoboken's failure to respond to her request within the seven-day time period established under N.J.S.A. 47:1A-5(i). Relying, in large part, on a previous unpublished opinion from this court involving the same parties, the judge held that the only relief permitted under OPRA was an order granting access to government records. Thus, the trial judge concluded that the municipality's failure to respond within the timeframe established by the statute did not entitle plaintiff to any relief. The court further noted that the availability, under the statute, for an award of attorney's fees and assessment of penalties was not applicable here because Hoboken responded to plaintiff's request before the court compelled it to do so.

Turning next to plaintiff's argument attacking the adequacy and completeness of Hoboken's supplemental responses, the trial judge held that plaintiff's requests did not identify, with specificity, the records at issue. MAG Entertainment, LLC v. Division of Alcoholic Beverage Control, 375 N.J. Super. 534 (App. Div. 2005); Bent v. Stafford Twp. Police Dep't, 381 N.J. Super. 30 (App. Div. 2005). In light of these rulings, the trial court granted Hoboken's motion to dismiss plaintiff's cause of action as moot.

III

We start our analysis by going directly to the provisions of the statute. OPRA provides that "government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions . . . ." N.J.S.A. 47:1A-1. A "government record" is defined as

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, that has been made, maintained or kept on file in the course of . . . official business by any officer, commission, agency or authority of the State . . . or that has been received [by the same] . . . .

[N.J.S.A. 47:1A-1.1.]

The timeliness of a response under OPRA is governed by N.J.S.A. 47:1A-5(i), which states, in pertinent part,

a custodian of a government record shall grant access to a government record or deny a request for access to a government record as soon as possible, but not later than seven business days after receiving the request . . . . In the event a custodian fails to respond within seven business days after receiving a request, the failure to respond shall be deemed a denial of the request . . . .

[Emphasis added.]

If a custodian is unable to comply with an OPRA request, "the custodian shall indicate the specific basis therefore on the request form and promptly return it to the requestor." N.J.S.A. 47:1A-5(g). The burden of proof is on the custodian of the records to show that a denial of access was lawful. N.J.S.A. 47:1A-6. If a requestor is a prevailing party in a proceeding challenging a custodian's denial of access, the requestor is entitled to reasonable attorney's fees. Ibid.; New Jerseyans for a Death Penalty Moratorium v. N.J. Dep't of Corr., 185 N.J. 137, 153 (2005); Courier News v. Hunterdon County Prosecutor's Office, 378 N.J. Super. 539, 546 (App. Div. 2005).

Relying on our recent decision in New Jersey Builders Ass'n v. New Jersey Council on Affordable Hous., 390 N.J. Super. 166 (App. Div.), certif. denied, 190 N.J. 394 (2007), Hoboken argues that it was not required to respond within the timeframe established in N.J.S.A. 47:1A-5(i). According to Hoboken, plaintiff's requests were so complex that it required a vast amount of time and resources to respond.

We find Hoboken's argument that plaintiff's requests were too complex unpersuasive. In New Jersey Builders Ass'n, supra, the OPRA request was complex because it was five-pages long and listed thirty-eight separate items, most of which were broad and unspecific. 390 N.J. Super. at 172. Realizing that it could not comply with the seven-day statutory deadline, the public agency (New Jersey Council on Affordable Housing, "COAH") sent a response to the requestors (New Jersey Builders Association,) informing them that the responses to the requests would not be available for 30 days. Ibid.

By contrast here, the requests made by plaintiff were not complex because of their breadth. The four requests were only a few short sentences, each concerning a discrete area of documents. While the unspecific nature of the requests may have legally justified Hoboken's denial of access, the denial was certainly not justified because the requests were "complex." Additionally, unlike the actions taken by the custodian of government records in New Jersey Builders Ass'n, Hoboken did not send plaintiff a notice informing her that, because of the "complexity" or "lack of specificity" of her requests, additional time would be required to compile an adequate response, or that Hoboken would not respond at all.

IV

We next consider the issue of the lack of specificity of plaintiff's requests. Relying on our holdings in MAG Entertainment and Bent, the trial judge found that plaintiff's requests did not comply with the specificity requirements. We agree.

In MAG Entertainment, supra, we held that

[u]nder OPRA, agencies are required to disclose only 'identifiable' governmental records not otherwise exempt. Wholesale requests for general information to be analyzed, collated and compiled by the responding government entity are not encompassed therein. In short, OPRA does not countenance open-ended searches of an agency's files.

[375 N.J. Super. at 549.]

The requestor in MAG Entertainment sought documents relating to any instances of the defendant seeking, obtaining or revoking a liquor license because the licensee sold alcohol to an intoxicated person who was later involved in a fatal auto accident after leaving the licensed facility. Id. at 539-40.

We reversed both of the trial judge's findings. First, we disagreed that the OPRA requests complied with the specificity requirements; second, we found defendant's failure to respond was incorrectly deemed a "denial of access." Id. at 539. Similarly, in Bent, supra, we noted that OPRA is not intended as a research tool. 381 N.J. Super. at 37. Therefore, to qualify as a "proper request" under OPRA, the request must "reasonably identify a record and not generally data, information or statistics;" it cannot simply make a "blanket request for every document . . . on file." Ibid.

In Bent, supra, we affirmed the Government Records Council's dismissal with prejudice, of the plaintiff's complaint pursuant to OPRA. Id. at 33. Bent requested "information," but failed to identify or describe with any "specificity or particularity" the records he was requesting. Id. at 39. The plaintiff's request sought "third party documents, which had been denied or withheld, and are missing from the 'entire [Stafford Police Department] file.'" Ibid.

We found that these requests were seeking "general information to support his unsubstantiated claim of police misconduct." Ibid. Therefore, the request did not meet the standards required under OPRA and the trial judge properly dismissed his complaint on those grounds. Id. at 40.

Here, the trial judge found that "each and every request that was made in this case rivaled an open ended search of the entire Hoboken government's files with respect to a specific subject, and clearly was not . . . with any specific clarity, tailored or designed to get a request or make a request for a specific document or documents." The trial judge, reviewing the specific language of the requests, found that the requests forced Hoboken to "search throughout its records for what might or might not fit the description" of the requested documents.

We agree. Although plaintiff's requests here are not as blatantly problematic as the requests in either MAG Entertainment, or Bent, they are nevertheless tainted by a fatal lack of specificity. By way of example, with respect to the Mayor's Park Plan Request, plaintiff sought all correspondence relating to this specific government objective. As was the concern in MAG Entertainment and Bent, it is likely here that the Hoboken City Clerk would have to search through all of the municipal records to locate responsive documents to this request.

As we emphasized in both MAG Entertainment and Bent, OPRA is not intended to be used as a fishing expedition or as a research tool to compile unknown documents. Because plaintiff did not specify the documents she was seeking, nor did she specifically identify documents, her request did not comply with the requirements of an OPRA request. As such, Hoboken was under no statutory obligation to provide responses.

In light of the lack of specificity in plaintiff's requests, Hoboken's failure to comply with the timeframe in N.J.S.A. 47:1A-5(i) did not violate the statute and thus is not compensable under OPRA. The better practice, however, is for the custodian of government records to follow the course of action taken by the public entity in New Jersey Builders Ass'n, supra. That is, if the custodian of government records reasonably believes that he or she will be unable to respond to a particular request within seven days of its receipt, because of either the complexity of the subject matter requested, or the breadth of the request, it should so advise the requestor in writing. If the parties are thereafter unable to agree upon an extension of time for the custodian to respond, the request would be deemed denied under the express provisions of N.J.S.A. 47:1A-5(i).

Affirmed.

(continued)

(continued)

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A-0508-06T5

January 29, 2008