BERNARD REID v. GOVERNMENT RECORDS COUNCIL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

BERNARD REID,

Appellant,

v.

GOVERNMENT RECORDS COUNCIL

and NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondents.

______________________________

October 30, 2013

Submitted July 16, 2013 Decided

Before Judges Ostrer and Hayden.

On appeal from the Government Records Council, Complaint No. 2010-83.

Bernard Reid, appellant pro se.

Genova Burns Giantomasi & Webster, attorneys for respondent Government Records Council (Celia S. Bosco, of counsel and on the brief; Joseph V. Manney, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Department of Corrections (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Erin M. Greene, Deputy Attorney General, on the brief).

PER CURIAM

Bernard Reid, an inmate in a State correctional facility, appeals from a May 24, 2011, final decision of the Government Records Council (Council), and an October 25, 2011, decision denying reconsideration, arising out of a complaint seeking various documents from the Department of Corrections (Department). Reid also purports to appeal from the Department's March 8, 2010, decision, denying his request to that agency for documents.

As a threshold matter, we dismiss as untimely that part of Reid's appeal that directly challenges the Department's March 8, 2010, decision. Reid had the option under the appeal provision of the Open Public Records Act (OPRA), N.J.S.A. 47:1A-6, to challenge the Department's decision by filing a complaint in the Superior Court, or by filing a complaint with the Council pursuant to N.J.S.A. 47:1A-7. He chose the latter. Therefore, the only matter before us is the appeal from the Council's decision.

Defendant submitted a government records request form to the Department seeking a copy of his pre-sentence investigation report, a copy of the Department's ethical standards, and its officers' code of conduct. The Department initially denied the request, asserting the first document was exempt under OPRA and the other two requests were overly broad and did not adequately identify the documents requested.

Reid then filed a complaint with the Council seeking disclosure of the three documents. After mediation, the Department offered to produce the Department's Code of Ethics (Department Code), stating there was no separate officers' code, and the New Jersey State Ethics Commission Uniform Ethics Code (State Code). The Department did so conditioned on Reid paying the copying charges of $32.25. Reid declined, asserting he was entitled to a waiver of fees, plus $350 to reimburse him for costs he allegedly incurred in the matter; and $7500 in compensatory damages.

Reid thereafter filed an amended complaint with the Council seeking the State Code and Department Code, a waiver of copying fees, costs of $350, and damages of $7500. Reid also asserted various constitutional and civil rights claims.

In its May 24, 2011, final decision, the Council, adopting its executive director's recommendations and findings, found that Reid was entitled to disclosure of both the Department Code and State Code and rejected the Department's initial basis for denial. The Council determined that Reid was not entitled to a waiver of the copying costs, which are authorized by N.J.S.A. 47:1A-5b, and the fee schedule the Department promulgated pursuant to OPRA, N.J.A.C. 10A:1-1.4. The Council rejected Reid's argument that he was entitled to a fee waiver pursuant to Rule 1:13-2(a), because he had been declared indigent and, consequently, exempt from filing fees in connection with a pending court matter. The Council relied in part on our decision in In re Adoption of a Child by M.W., 116 N.J. Super. 506, 511-13 (App. Div. 1971), where we held that the Court Rule, which exempts a party from paying filing fees, did not exempt an indigent person from paying statutorily-imposed costs incurred by the Bureau of Children's Services of the then Department of Institutions and Agencies.

Inasmuch as the Department offered the records upon payment of copying costs, the Council also found that the Department's denial did not "rise to the level of a knowing and willful violation of OPRA and unreasonable denial of access." Cf. N.J.S.A. 47:1A-11 (stating that the Council may impose civil penalties upon a public official who "knowingly and willfully violates" OPRA and "is found to have unreasonably denied access under the totality of the circumstances"). The Council then denied Reid's application for reconsideration. This appeal followed.

In our review, we accord deference to the Council's decision, reversing the Council's actions only if they are arbitrary, capricious or unreasonable, or unsupported by substantial credible evidence in the record. McGee v. Twp. of E. Amwell, 416 N.J. Super. 602, 612 (App. Div. 2010).

On appeal, Reid renews various constitutional and civil rights claims. These exceeded the Council's jurisdiction, which is limited to OPRA-based claims. See Ciesla v. N.J. Dep't of Health & Human Servs., 429 N.J. Super. 127, 147 (App. Div. 2012). Therefore, they are not properly before us, and we do not reach them.

As for Reid's challenge to the Council's decision regarding his claim for a waiver of fees, and the award of costs and damages, we affirm substantially for the reasons set forth in the Council's May 24, 2011, decision, incorporating the executive director's findings and recommendations. Further discussion of Reid's arguments is not warranted in a written opinion. R. 2:11-3(e)(1)(E).