JESSE WOLOSKY v. SPARTA BOARD OF EDUCATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JESSE WOLOSKY,

Plaintiff-Appellant,

v.

SPARTA BOARD OF EDUCATION

and LINDA A. ALVAREZ in her

official capacity as records

custodian for the Sparta

Board of Education,

Defendants-Respondents.

_______________________________

January 13, 2017

Argued December 13, 2016 Decided

Before Judges Yannotti and Fasciale.

On appeal from Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-0756-14.

CJ Griffin argued the cause for appellant (Pashman Stein Walder Hayden, attorneys; Ms. Griffin, of counsel and on the brief; Ranit Shiff, on the brief).

Rodney T. Hara argued the cause for respondents (Fogarty & Hara, attorneys; Mr. Hara, of counsel and on the brief; Amy E. Canning, on the brief).

PER CURIAM

Plaintiff appeals from a February 20, 2015 order denying in part plaintiff's request for records pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. Judge Thomas L. Weisenbeck entered the order and rendered a comprehensive written decision. We affirm.

Plaintiff sought from defendant Sparta Board of Education (the Board) invoices from the Board's attorney for a three-month period. The Board produced the documents but redacted reference on the invoices to student initials. Judge Weisenbeck found that the Board had properly redacted the students' initials from the attorney records. He pointed out that the potential for disclosure of the students' identities weighed against disclosure of the initials under OPRA, and that plaintiff was not entitled to disclosure of this information under the common law.

On appeal, plaintiff argues (1) the judge erred by finding that the redaction of the students' initials was proper; (2) use of the minors' initials is all that is required to protect their identities; (3) the Board failed to meet its burden of proving that it lawfully redacted the students' initials from the invoices; (4) the balancing test under Burnett v. County of Bergen, 198 N.J. 408 (2009), requires disclosure of the initials; and (5) he is entitled to un-redacted copies of the records pursuant to the common law.

Our review of a court's "legal conclusions concerning access to public records under OPRA [is] de novo." Paff v. Ocean Cty.Prosecutor's Office, 446 N.J. Super. 163, 175 (App. Div. 2016) (citing Drinker Biddle & Reath, LLP v. N.J. Dep't of Law and Pub. Safety, 421 N.J. Super. 489, 497 (App. Div. 2011)). We do not disturb factual findings so "long as they are supported by adequate, substantial, and credible evidence." Id. at 175-76 (citing Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988)). We apply the same standard of review "to the court's legal conclusions with respect to whether access to public records is appropriate under the common-law right of access." Drinker, supra, 421 N.J. Super. at 497.

The Legislature explained that the purpose of OPRA was "to insure that government records, unless exempted, are readily accessible to citizens of New Jersey for the protection of the public interest." Mason v. City of Hoboken, 196 N.J. 51, 57 (2008). OPRA seeks "to maximize public knowledge about public affairs in order to ensure an informed citizenry and to minimize the evils inherent in a secluded process." Id. at 64-65 (quoting Asbury Park Press v. Ocean Cty. Prosecutor's Office, 375 N.J. Super. 312, 329 (Law. Div. 2004)). Thus, "government records shall be readily accessible for inspection, copying, or examination by the citizens of [New Jersey], with certain exceptions, for the protection of the public interest, and any limitations on the right of access . . . as amended and supplemented, shall be construed in favor of the public's right of access[.]" N.J.S.A. 47:1A-1.

"Government record" has been broadly defined by OPRA "to include all documents and similar materials, and all information and data, including electronically stored data, that have been made or received by government in its official business." Asbury Park Press v. County of Monmouth, 406 N.J. Super. 1, 7 (App. Div. 2009), aff'd, 201 N.J. 5 (2010). While this definition is broad in scope, OPRA does provide a list of "descriptive categories of information that are expressly excluded" from the meaning of "government record." Ibid.; N.J.S.A. 47:1A-1.1.

Here, the attorney invoices indicating billable work done are subject to public access. N.J.S.A. 47:1A-1.1. While records that are "within the attorney-client privilege" are confidential, OPRA explicitly precludes from exemption "attorney or consultant bills or invoices[,]" although such records "may be redacted to remove any information protected by the attorney-client privilege." Ibid.; see also O'Boyle v. Borough of Longport, 218 N.J. 168, 184-85 (2014) (holding that "a document by a third party, such as a bill for services prepared by an attorney retained by a public entity and submitted to it for payment, is subject to public access pursuant to OPRA").

OPRA cautions, however, that "a public agency has a responsibility and an obligation to safeguard from public access a citizen's personal information with which it has been entrusted when disclosure thereof would violate the citizen's reasonable expectation of privacy[.]" N.J.S.A. 47:1A-1. Furthermore, "OPRA's twin aims of ready access to government records and protection of a citizen's personal information require a careful balancing of the interests at stake." Burnett, supra, 198 N.J.at 414.

In striking this balance, the Supreme Court has adopted the following factors used by the Court in Doe v. Poritz, 142 N.J. 1 (1995), for concerns regarding statutory privacy provisions

(1) the type of record requested; (2) the information it does or might contain; (3) the potential for harm in any subsequent nonconsensual disclosure; (4) the injury from disclosure to the relationship in which the record was generated; (5) the adequacy of safeguards to prevent unauthorized disclosure; (6) the degree of need for access; and (7) whether there is an express statutory mandate, articulated public policy, or other recognized public interest militating toward access.

[Burnett, supra, 198 N.J. at 427 (quoting Doe, supra, 142 N.J. at 88).]

Plaintiff contends that courts have generally used initials in court proceedings to protect the identity of a minor. While plaintiff makes a compelling argument, the Law Division addressed this argument in a recent opinion stating

simply because information may ordinarily be available to and accessible by the public, this does not ipso facto mean that no legitimate privacy interest predominates, or duty to maintain confidentiality exists. As to the latter, the question of whether certain records must be disclosed may in fact depend on the public body from whom they are sought. Records provided by [a board of education] that jeopardize parents' and students' privacy simultaneously jeopardize [the board's] entitlement to funding under and compliance with [the Family and Educational Records Privacy Act, 20 U.S.C. 1232(g)]. Mandatory disclosure is an issue that must be viewed in context.

[C.G. v. Winslow Twp. Bd. of Educ., 443 N.J. Super. 415, 423-24 (Law Div. 2015).]

The judge also found that "initials contained within government records, when produced by educational institutions, may be properly redacted" in order to prevent the use of such information to identify a student. Id. at 427. As a result, the judge held that the initials that plaintiff sought were "exempt from access under OPRA." Id. at 428.

We conclude that plaintiff's OPRA arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), and we affirm for the reasons expressed by Judge Weisenbeck. As to the OPRA contentions, we add the following brief remarks.

Here, the judge properly performed the balancing test, derived from Doe, supra, 142 N.J. at 88, and applied in Burnett, supra, 198 N.J. at 427, for determining whether a privacy interest precludes disclosure of certain information in public records. As the Board argues, the students' privacy interests outweigh plaintiff's asserted reasons for demanded access to the information. The disclosure of un-redacted attorney billing records, with the students' initials, could reveal information about the students' special education classifications and the extent of legal involvement in their educations. The students have significant interests in maintaining the confidentiality of this information.

We also reject plaintiff's common-law contentions. A common law right of access to public records exists parallel and unrestricted by OPRA. See Mason, supra, 196 N.J. at 67. A public record under the common law is "one that is made by a public official in the exercise of his or her public function, either because the record was required or directed by law to be made or kept, or because it was filed in a public office." Keddie v. Rutgers, 148 N.J. 36, 49 (1997) (citing Higg-A-Rella, Inc. v. County of Essex, 141 N.J. 35, 46 (1995); N. Jersey Newspapers Co. v. Passaic Cty. Bd. of Chosen Freeholders, 127 N.J. 9, 13 (1992); Nero v. Hyland, 76 N.J. 213, 221-22 (1978)). Compared to OPRA, the definition of public record under the common law is much broader. Mason, supra, 196 N.J. at 67.

The common law right to access, however, is not absolute. Keddie, supra, 148 N.J. at 50. There are three specific requirements for an individual to seek public records under the common law. Ibid. The records sought "must be common-law public documents." Ibid. "[T]the person seeking access must 'establish an interest in the subject matter of the material.'" Ibid. (quoting S. Jersey Publ'g Co. v. N.J. Expressway Auth., 124 N.J. 478, 487 (1991)). And a "citizen's right to access 'must be balanced against the State's interest in preventing disclosure.'" Ibid. (quoting Higg-A-Rella, supra, 141 N.J. at 46).

As to the first prong, and undisputed by the parties, attorney invoices are considered public records under the common law right to access, since "they were created by, or at the behest of, public officers in the exercise of a public function." Ibid. (holding records documenting legal fees to outside counsel are considered public records under the common law right to access).

As to the second prong, plaintiff contends that he need not establish a personal interest to gain access to a public record, but an individual seeking access must establish at least some interest in the matter. S. Jersey Publ'g Co., supra, 124 N.J. at 487; see also Loigman v. Kimmelman, 102 N.J. 98, 112 (1986) (finding that an individual must establish either "'a wholesome public interest or a legitimate private interest'" in seeking public records (citation omitted)). This interest, however, may be slight, as "'one citizen or taxpayer out of many, concerned with a public problem or issue, [] might demand and be accorded access to public records bearing upon the problem. . . .'" S. Jersey Publ'g Co., supra, 124 N.J. at 487 (quoting Irval Realty, Inc. v. Bd. of Pub. Util. Comm'rs, 61 N.J. 366, 372 (1972)).

Here, plaintiff indicates that his interest lies in the way in which the Board expends its resources on legal fees, and if such resources are being used efficiently by counsel. As a resident and taxpayer of the township, plaintiff demonstrates an interest in the matter, and access to public records that indicate the time and manner expended by counsel on work performed bears upon how taxpayer resources are used. Keddie, supra, 148 N.J. at 50.

As to the third prong, "[t]o gain access, that person's interest in disclosure of the document must outweigh the State's interest in nondisclosure[,]" with the State's interest often being framed as a "need to maintain the confidentiality of the information sought." Higg-A-Rella, Inc., supra, 141 N.J. at 47-48. The Supreme Court has described a sliding scale, with one interest inversely affecting the other

[a]s the considerations justifying confidentiality become less relevant, a party asserting a need for the materials will have a lesser burden in showing justification. If the reasons for maintaining confidentiality do not apply at all in a given situation, or apply only to an insignificant degree, the party seeking disclosure should not be required to demonstrate a compelling need.

[McClain v. Coll. Hosp., 99 N.J. 346, 362 (1985).]

In balancing these competing interests, the Supreme Court has recommended such action as in camera review of the documents before determining confidentiality or "releasing the records in a redacted form while editing out any privileged or confidential subject matter. . . ." S. N.J. Newspapers v. Township of Mt. Laurel, 141 N.J. 56, 73 (1995).

Here, it is evident that even before litigation, the Board attempted to strike a balance with plaintiff when it accommodated his request for the Board's legal invoices. Where it could not flatly reject the request, the Board redacted as little as possible before fulfilling plaintiff's request. The primary reason plaintiff argues against redaction is to compare the entries to determine how much work was spent on each legal matter comparatively. Without the identifying initials, it is still clear from the records provided that plaintiff is able to determine what work was done, how much time was spent on each task, the amount charged, and the amount of entries entered by counsel. Such a course eliminates plaintiff's need for student initials altogether, while preserving defendants' interest in maintaining the confidentiality of the students' identities.

Affirmed.