LIBERTARIANS GOVERNMENT v. THE COLLEGE OF NEW JERSEY

NOT FOR PUBLICATION WITHOUT THE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-1179-16T4


LIBERTARIANS       FOR   TRANSPARENT
GOVERNMENT,

        Plaintiff-Appellant,

v.

THE COLLEGE OF NEW JERSEY,

     Defendant-Respondent.
_________________________________

              Argued March 20, 2018 – Decided April 12, 2018

              Before Judges Hoffman and Mayer.

              On appeal from Superior Court of New Jersey,
              Law Division, Mercer County, Docket No.
              L-1534-16.

              Richard M.       Gutman    argued    the    cause    for
              appellant.

              Lauren A. Jensen, Deputy Attorney General,
              argued the cause for respondent (Gurbir S.
              Grewal, Attorney General, attorney; Raymond R.
              Chance, III, Assistant Attorney General, of
              counsel; Geoffrey N. Stark, Deputy Attorney
              General, on the brief).

PER CURIAM
      Plaintiff    Libertarians      for    Transparent     Government    (LFTG)

appeals from an October 14, 2016 order denying its order to show

cause (OTSC) and dismissing its complaint with prejudice.                Because

the   October   14,   2016   order    relied     on   the   unsworn,     hearsay

assertions of counsel for defendant The College of New Jersey

(TCNJ), we vacate the order and remand for further proceedings.

      The facts are undisputed.            TCNJ was involved in litigation

entitled Guerrini v. The College of New Jersey.                The parties to

the Guerrini case reached a settlement in principle.                 On July 13,

2016, the judge dismissed the Guerrini matter, subject to either

party reopening the case within sixty days if the settlement could

not be finalized.

      Three days after the dismissal of the Guerrini litigation,

LFTG filed a request pursuant to the Open Public Records Act

(OPRA), 
N.J.S.A. 47:1A-1 to -13, seeking documents related to the

Guerrini   case,      including      draft     agreements      and    documents

demonstrating the terms of the settlement.             TCNJ responded there

was no final settlement agreement and denied LFTG's request for

documents reflecting ongoing settlement negotiations.

      On August 1, 2016, LFTG filed an OTSC and complaint alleging

TCNJ violated OPRA.     On September 6, 2016, the Guerrini settlement

was finalized and Ms. Guerrini signed a release containing the



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settlement terms.1 According to TCNJ's counsel, prior to September

6, 2016, the matter was under negotiation and any settlement terms

were tentative.

     On September 19, 2016, TCNJ sent the signed Guerrini release

to LFTG.    That same day, TCNJ filed opposition to the OTSC and

requested   dismissal   of   LFTG's       complaint.   In   its    brief    in

opposition to the OTSC, TCNJ's counsel wrote "the only document

arguably responsive to [LFTG's] request is a single email message

from the Guerrini plaintiff's counsel to TCNJ's counsel proposing

a particular term of the proposed settlement."              However, TCNJ

failed to provide an affidavit or certification that the withheld

document    was   in    furtherance        of   confidential      settlement

negotiations.

      The judge heard argument on October 14, 2016.               Relying on


N.J.S.A. 47:1A-9(b), the judge found that settlement negotiations

and communications in furtherance of settlement are privileged

and, thus, protected from disclosure under OPRA.               Based on her

finding, the judge denied the OTSC and dismissed LFTG's complaint.

     LFTG appeals from dismissal of its OPRA litigation.                    On

appeal, LFTG raises several arguments. We need only address LFTG's



1
  The trial court was not given a copy of the release in Guerrini.
Nor does the appellate appendix contain a copy of the release.


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claim that the judge erred in dismissing its complaint based on

an unsworn, hearsay statement made by TCNJ's counsel in opposition

to LFTG's OTSC.

     OPRA affords requestors the right to bring an action in

Superior Court as a summary proceeding.           
N.J.S.A. 47:1A-6.      Under

Rule 4:67-5, "[i]f no objection is made by any party, or . . . the

affidavits show palpably that there is no genuine issue as to any

material fact, the court may try the action on the pleadings and

affidavits, and render final judgment thereon."             R. 4:67-5.

     On appeal, we will not disturb a motion judge's factual

findings    unless   "they   are   so       manifestly   unsupported    by    or

inconsistent with the competent, relevant and reasonably credible

evidence as to offend the interests of justice."                 Rova Farms

Resort, Inc. v. Inv'rs Ins. Co., 
65 N.J. 474, 484 (1974) (quoting

Fagliarone v. Twp. of N. Bergen, 
78 N.J.Super. 154, 155 (App. Div.

1963)).    However, "determinations about the applicability of OPRA

and its exemptions are legal conclusions, and are therefore subject

to de novo review."      Carter v. Doe (In re N.J. Firemen's Ass'n

Obligation), 
230 N.J. 258, 273–74 (2017) (citations omitted).

     LFTG claims the judge mistakenly dismissed the complaint

because TCNJ failed to present competent evidence that settlement

negotiations were ongoing when LFTG served the OPRA request.                 LFTG

requests TCNJ be required to disclose all withheld documents,

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specifically the e-mail from plaintiff's counsel in Guerrini to

TCNJ's counsel.      LFTG argues remanding the case for further fact-

finding would impermissibly give TCNJ a second chance to argue the

document is exempt under OPRA.

     TCNJ contends there was sufficient evidence in the record to

support the judge's conclusion that the withheld email reflected

on-going settlement negotiations.              TCNJ argues that because there

was no final settlement when LFTG served the OPRA request, any

emails   pre-dating       execution     of    the    agreement       could   not   have

reflected a final document.

     The record in this case lacks competent evidence reflecting

the content and context of the disputed document.                     Without a full

record of exactly what was withheld, the date of the withheld

document,    and    the    date   the    settlement      was     executed,      it    is

impossible to determine whether TCNJ violated OPRA.                     "If a motion

is based on facts not appearing of record or not judicially

noticeable, the court may hear it on affidavits made on personal

knowledge,   setting      forth   only       facts   which     are    admissible      in

evidence to which the affiant is competent to testify . . . ."                        R.

1:6-6.   In reviewing an OPRA determination, if the record below

is incomplete, we are constrained to remand for development of a

full record.       See Kovalcik v. Somerset Cty. Prosecutor's Office,


206 N.J. 581, 595 (2011) ("We . . . are constrained to remand this

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matter to the trial court for a further proceeding during which

the parties shall be given an adequate opportunity to marshal

sufficient    proofs   as   to   the    nature      of    the   contents    of   the

particular documents . . . .").

     TCNJ's     counsel     asserted     there      was    only    one     document

responsive to LFTG's OPRA request, and the document reflected

ongoing settlement negotiations.              There is no affidavit or other

evidence proving negotiations were ongoing when LFTG made the OPRA

request.

     The judge acknowledged the absence of competent evidence in

the record, and expressed her concern regarding "[w]hat [to] do

with [a] record that is so bare?"           The judge determined that "a[n]

email exchange between attorneys after the [Guerrini] case has

been noted to be settled . . . , but within the [sixty] day period

when either party could reopen the case, is a document that is

entitled   to   protection"      as    part    of   settlement     negotiations.

However, the judge relied on an unsworn representation of counsel

despite an admission by TCNJ's attorney that he did "not have the

date of the email."         The judge also relied on TCNJ's unsworn

response to LFTG's OPRA request in concluding that TCNJ did not

violate OPRA.    Thus, we are compelled to remand the matter for the

submission of competent proofs as to the content of the document

or documents withheld by TCNJ.

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    LFTG argues a remand would unfairly benefit TCNJ by affording

another chance to defend against its OPRA litigation.   Based upon

the incomplete record, we cannot summarily compel disclosure of a

document or documents that may be exempt from disclosure under

OPRA.   See Kovalcik, 
206 N.J. at 594-95.

    Vacated and remanded.   We do not retain jurisdiction.




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