LIBERTARIANS FOR TRANSPARENT GOVERNMENT, A NJ NONPROFIT CORPORATION v. THE OCEAN COUNTY PROSECUTOR'S OFFICE
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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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-1608-16T1
LIBERTARIANS FOR TRANSPARENT
GOVERNMENT, A NJ NONPROFIT
CORPORATION,
Plaintiff-Appellant,
v.
THE OCEAN COUNTY PROSECUTOR'S
OFFICE and JOHN C. TASSINI,
in his official capacity as
Records Custodian for the Ocean
County Prosecutor's Office,
Defendants-Respondents.
_________________________________
Argued September 11, 2017 – Decided January 5, 2018
Before Judges Messano, Accurso and Vernoia.
On appeal from Superior Court of New Jersey,
Law Division, Ocean County, Docket No. L-1699-
16.
Michael J. Zoller argued the cause for
appellant (Pashman Stein Walder Hayden, PC,
attorneys; CJ Griffin, of counsel and on the
briefs).
John C. Tassini, Assistant Prosecutor, argued
the cause for respondents (Joseph D. Coronato,
Ocean County Prosecutor, attorney; Samuel
Marzarella, Chief Appellate Attorney, of
counsel; John C. Tassini, on the brief).
PER CURIAM
Plaintiff Libertarians For Transparent Government appeals
from an order rejecting its request for an order finding the Ocean
County Prosecutor's Office (OCPO) and its records custodian
violated the Open Public Records Act (OPRA),
N.J.S.A. 47:1A-1 to
-13, by denying access to the reason for former OCPO employee John
Doe's1 separation from employment, and denying its request for
access to records under OPRA and for an award of attorney's fees.
We affirm the court's order finding the OCPO did not violate OPRA
by providing a memorandum to Doe's personnel file noting the
effective date of his resignation, but we vacate the order to the
extent it includes a finding that the OCPO conducted the required
search for the requested records, and remand for further
proceedings.
I.
Plaintiff claims it received an anonymous tip that Doe failed
a drug test and was told by the OCPO that he must resign or be
terminated. Plaintiff served the OCPO with an OPRA request seeking
Doe's "'name, title, position, salary, date of separation and
1
Throughout the proceedings before the trial court and this
court, the parties identified the employee by the pseudonym John
Doe in order to protect the employee's privacy. We use the
pseudonym for the same reason here.
2 A-1608-16T1
reason therefor'" and "any agreement" concerning "[Doe]'s
separation from employment."
The OCPO replied in a letter and provided documents it stated
were "responsive to [the] OPRA request." The documents showed
Doe's name, title, position and salary, but did not include
information concerning the reason for the date of Doe's separation
from employment.
Plaintiff advised the OCPO that its response did not include
the reason for Doe's separation from employment. Plaintiff also
asserted it was unclear if the OCPO's response addressed the
request for any agreements concerning Doe's separation. Plaintiff
demanded a "complete response" to its OPRA request.
The OCPO's records custodian responded in an email that
included a May 6, 2016 memorandum2 from the OCPO First Assistant
Prosecutor to Doe's personnel file. The memorandum stated "[Doe]'s
resignation became effective" on a specified date. In the email,
the records custodian represented that there was "no 'agreement'
pertaining to [Doe]'s departure."
Plaintiff served a second OPRA request, which was prefaced
by a statement that plaintiff had been informed Doe's "resignation
2
The memorandum post-dated plaintiff's OPRA request and the
OCPO's initial response to the request. In the records custodian's
email, he advised that the memorandum had not been completed when
the OCPO served its initial response to plaintiff's request.
3 A-1608-16T1
was compelled by the threat of adverse employment action against
him if he refused to resign." Plaintiff asserted it was entitled
to a "more descriptive" explanation of the reason for Doe's
separation beyond the date of his separation and that he resigned.
Plaintiff suggested the appropriate response might include
statements such as Doe "resigned voluntarily" or "resigned under
threat of adverse employment action."
In plaintiff's second OPRA request, it sought:
1. [Doe]'s "date of separation and the reason
therefor" as required by [
N.J.S.A.] 47:1A-10.
2. Any memorandum, letter, e-mail or other
writing that advised [Doe] that he would
suffer adverse employment action if he did not
resign.
3. Records that disclose the reason, such as
the nature of [Doe]s' misconduct, underlying
your agency's decision to seek [Doe]'s
resignation.
4. Payroll records showing all money [Doe]
received during 2015 and 2016. [And] records
that identify the reason for each payment
received, such as "regular salary," "sick
leave" or "severance."
The OCPO's records custodian responded to the second OPRA
request in a letter stating he reviewed Doe's personnel file and
it did not contain any additional documents concerning the reason
for Doe's resignation and the OCPO did not enter into an agreement
with Doe concerning his separation from employment. The records
4 A-1608-16T1
custodian further asserted that the OCPO was not obligated "to
generate new documents or otherwise supply information other than
what it is in its existing records," and that the OCPO was not
required to create a record or supply information characterizing
Doe's resignation as voluntary or otherwise as plaintiff
requested. In addition to the letter, the OCPO supplied payroll
records in response to the second OPRA request.
Plaintiff filed a verified complaint and order to show cause
alleging the OCPO and its records custodian violated OPRA3 by
failing to provide the reasons for Doe's separation from the OCPO.
Plaintiff also alleged the OCPO violated OPRA because "Attorney
General Guidelines" required the termination of a sworn law
enforcement officer4 who fails a drug test, and the results of any
failed drug test by Doe "constitute[d] 'data contained in
information which disclose conformity with specific experiential,
3
Plaintiff also claimed the OCPO and its records custodian
violated plaintiff's common law right of access to government
records. We do not address plaintiff's common law claim because
it does not challenge on appeal the court's dismissal of the claim.
See Jefferson Loan Co. v. Session,
397 N.J. Super. 520, 525 n.4
(App. Div. 2008) (finding any argument not briefed on appeal is
waived).
4
Plaintiff relies on the Attorney General's Law Enforcement Drug
Testing Policy (May 2012). The record on appeal does not permit
a determination as to whether the portion of the policy requiring
termination based on a failed drug test is applicable here. The
termination policy applies to "sworn law enforcement officer[s]."
Id. at § VIII(C)(1) to (4).
5 A-1608-16T1
educational or medical qualifications required for government
employment or for receipt of a public pension'" to which plaintiff
was entitled under
N.J.S.A. 47:1A-10. Following the filing of an
answer by the OCPO and its records custodian, the court heard
argument on the order to show cause.
In a written opinion and order, the judge rejected plaintiff's
assertion that it was entitled to a more detailed statement of the
reason for Doe's separation. The judge found the OCPO provided
the records responsive to the OPRA requests and satisfied OPRA's
requirements. The judge further determined the OCPO was not
obligated to create a record showing a more specific reason for
Doe's separation than the one contained in the record provided.
Plaintiff appealed.
On appeal, plaintiff makes the following arguments:
POINT I
IF . . . DOE RESIGNED IN LIEU OF TERMINATION
OR DISCIPLINE BECAUSE HE FAILED A DRUG TEST,
[
N.J.S.A.] 47:1A-10 REQUIRES DISCLOSURE OF
THAT FACT BECAUSE IT IS THE REAL "REASON" FOR
HIS SEPARATION.
A. Section 10 Requires Full Disclosure of the
Reason an Employee Separated From Employment
with an Agency.
B. Section 10 Requires Disclosure of Both
Information and Records.
6 A-1608-16T1
C. Any Failed Drug Test Results Would Be a
Tangible Record Which States John Doe's Real
Reason for Separation.
II.
A "trial court's determinations with respect to the
applicability of OPRA are legal conclusions subject to de novo
review." K.L. v. Evesham Twp. Bd. of Educ.,
423 N.J. Super. 337,
349 (App. Div. 2011) (quoting O'Shea v. Twp. of W. Milford,
410 N.J. Super. 371, 379 (App. Div. 2009)); accord Paff v. Ocean Cty.
Prosecutor's Office,
446 N.J. Super. 163, 175 (App. Div.), certif.
granted,
228 N.J. 403 (2016). "Our standard of review is plenary
with respect to [a trial court's] interpretation of OPRA and its
exclusions." Gilleran v. Twp. of Bloomfield,
440 N.J. Super. 490,
497 (App. Div. 2015), rev'd on other grounds,
227 N.J. 159 (2016);
see also State v. Goodwin,
224 N.J. 102, 110 (2016) ("In construing
the meaning of a statute, our review is de novo.") (emphasis in
original).
"OPRA was enacted 'to maximize public knowledge about public
affairs in order to ensure an informed citizenry and to minimize
the evils inherent in a secluded process.'" Scheeler v. Office
of the Governor,
448 N.J. Super. 333, 342 (App. Div. 2017) (quoting
Mason v. City of Hoboken,
196 N.J. 51, 64 (2008)). The statute
mandates that "government records shall be readily accessible for
inspection, copying or examination by the citizens of [New Jersey],
7 A-1608-16T1
with certain exceptions, for the public interest, and any
limitations on the right of access . . . shall be construed in
favor of the public's right of access."
N.J.S.A. 47:1A-1.
Government records are 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 his or its official business by any
officer, commission, agency or authority of
the State or of any political subdivision
thereof, including subordinate boards
thereof, or that has been received in the
course of his or its official business by any
such officer, commission, agency, or authority
of the State or of any political subdivision
thereof, including subordinate boards
thereof. The terms shall not include inter-
agency or intra-agency advisory,
consultative, or deliberative material.
[N.J.S.A. 47:1A-1.1.]
The right to access to government records under OPRA is not
absolute. Kovalcik v. Somerset Cty. Prosecutor's Office,
206 N.J.
581, 588 (2011); accord Scheeler,
448 N.J. Super. at 343. OPRA
exempts certain categories of information from the definition of
a government record. Kovalcik,
206 N.J. at 588.
N.J.S.A. 47:1A-
1.1 "excludes twenty-one categories of information from the
definition of a 'government record.'" Scheeler,
448 N.J. Super.
at 343.
8 A-1608-16T1
In addition,
N.J.S.A. 47:1A-10 exempts employee personnel and
pension records from "government records" that must be provided
under OPRA. The statute provides that "[n]othwithstanding the
provisions of [OPRA] or any other law to the contrary, the
personnel or pension records of any individual in possession of a
public agency . . . shall not be considered a government record
and shall not be made available for public access . . . ."
N.J.S.A.
47:1A-10. Thus, under
N.J.S.A. 47:1A-10, "personnel records are,
by definition, not classified as government records at all."
Kovalcik,
206 N.J. at 592. Documents that qualify as personnel
records are not subject to being disclosed notwithstanding" OPRA's
other provisions. Ibid.
N.J.S.A. 47:1A-10, however, provides the following three
exceptions to the exemption of personnel records from OPRA's
definition of government records:
[1] an individual's name, title, position,
salary, payroll record, length of service,
date of separation and the reason therefor,
and the amount and type of any pension
received shall be a government record;
[2] personnel or pension records of any
individual shall be accessible when required
to be disclosed by another law, when
disclosure is essential to the performance of
official duties of a person duly authorized
by this State or the United States, or when
authorized by an individual in interest; and
9 A-1608-16T1
[3] data contained in information which
disclose conformity with specific
experiential, educational or medical
qualifications required for government
employment or for receipt of a public pension,
but not including any detailed medical or
psychological information, shall be a
government record.
[N.J.S.A. 47:1A-10.]
Plaintiff relies on the first exception to the personnel
records exemption under
N.J.S.A. 47:1A-10 and argues it requires
more information than the OCPO provided here. Plaintiff claims
the reason for Doe's separation constitutes a government record
under the first exception, and therefore the OCPO is required to
explain the circumstances surrounding Doe's resignation and the
"real" reason Doe resigned, even if that information does not
otherwise exist in a document containing a personnel record "that
has been made, maintained or kept on file in the course of" the
OCPO's "official business." See
N.J.S.A. 47:1A-1.1.
When interpreting a statute, we are required to determine the
"intent of the Legislature," Hardy v. Abdul-Matin,
198 N.J. 95,
101 (2009), and must first consider the plain language of the
statute because that is the best indicator of legislative intent.
DiProspero v. Penn,
183 N.J. 477, 492 (2005). We apply the
"generally accepted meaning" of the statute's words,
N.J.S.A. 1:1-
1, and "read them in context with related provisions so as to give
10 A-1608-16T1
sense to the legislation as a whole," DiProspero,
183 N.J. at 492.
Accord N. Jersey Media Group, Inc. v. Twp. of Lyndhurst,
229 N.J.
541, 570 (2017).
The plain language of the first exception to the personnel
records exemption under
N.J.S.A. 47:1A-10 expressly defines
certain information as a "government record." Notably, the statute
does not provide that documents containing the information are
government records and does not limit its definition of government
records to include only documents which contain the information.
Instead, the first exception simply and unequivocally provides
that an "individual's name, title, position, salary, . . . date
of separation and the reason therefor . . . shall be a government
record."
N.J.S.A. 47:1A-10 (emphasis added). The information
itself is therefore a government record that must be provided in
accordance with OPRA's disclosure requirements independent of
whether the information is reflected in a document.5 See N.J.S.A.
5
Similarly,
N.J.S.A. 47:1A-3 requires the production of
information. The statute provides that a public agency must "make
available" certain defined "information concerning a criminal
investigation."
N.J.S.A. 47:1A-3(b). Our Supreme Court has
observed that the plain text of
N.J.S.A. 47:1A-3(b) requires the
disclosure of "information and not the release of records." Twp.
of Lyndhurst,
229 N.J. at 573. In Paff v. Galloway Township,
229 N.J. 340 (2017), the Court considered a public agency's duty to
produce "information stored or maintained electronically," which
N.J.S.A. 47:1A-1.1 expressly defines as a government record. Id.
at 352-53. The Court determined that a public agency is required
11 A-1608-16T1
47:1A-5 (requiring provision of access to government records).
However, where "a document otherwise classified as a personnel
record fits within" the first exception under
N.J.S.A. 47:1A-10,
the document "becomes subject to disclosure" under OPRA as well.
Kovalcik,
206 N.J. at 592.
Here, the OCPO did not rely on the
N.J.S.A. 47:1A-10 personnel
records exemption for its refusal to provide additional
information in response to plaintiff's request for the "real
reason" for Doe's separation from employment. The OCPO does not
dispute that the first exception to the personnel records exemption
under
N.J.S.A. 47:1A-10 required that it provide Doe's "name,
title, position, salary, payroll record, length of service, date
of separation and the reason therefor."
The record shows that in response to plaintiff's OPRA
requests, the OCPO provided plaintiff with documents containing
the information required under the first exception, including a
memorandum explaining that the reason for Doe's date of separation
was his resignation. The OCPO also informed plaintiff that Doe's
personnel file does not contain any additional records disclosing
any other reason for Doe's date of separation.
to make the information available, but only to the extent it exists
at the time the OPRA request is made. Id. at 354.
12 A-1608-16T1
Plaintiff contends the OCPO's response is deficient because
the information provided indicates only that Doe resigned, and
does not describe the circumstances surrounding his resignation
or the reasons he decided to resign. We are not persuaded.
We turn again to the plain language of the first exception.
See DiProspero,
183 N.J. at 492. It requires only the provision
of the reason for an employee's date of separation.
N.J.S.A. 47:1A-
10. It does not require the provision of the circumstances that
may have caused an employee to choose to resign, the employee's
motivation for resigning, or anything beyond the reason for the
employee's "date of separation." In other words, the statute does
not require the provision of the information that plaintiff argues
the OCPO failed to provide here.
Limiting the definition of government record to include only
the specified information in the first exception is also in accord
with the Legislature's intent to maintain the confidentiality of
personnel records. The
N.J.S.A. 47:1A-10 personnel records
exemption "begins with a presumption of non-disclosure" and
permits disclosure only within the statute's "narrow exceptions."
Kovalcik,
206 N.J. at 594. Thus, in interpreting the scope of the
personnel records exemption, "courts have tended to favor the
protection of employee confidentiality." McGee v. Twp. of E.
Amwell,
416 N.J. Super. 602, 615 (App. Div. 2010); see, e.g., N.
13 A-1608-16T1
Jersey Media Grp., Inc. v. Bergen Cty. Prosecutor's Office,
405 N.J. Super. 386, 390 (App. Div. 2009) (finding disclosure of
prosecutor's office employee's outside employment was not required
under
N.J.S.A. 47:1A-10).
Moreover, a "general rule of construction [is] that
enumerated exceptions in a statute indicate a legislative intent
that the statute be applied to all cases not specifically
excepted." State v. Reed,
34 N.J. 554, 558 (1961); accord In re
Plan for the Abolition of the Council on Affordable Hous.,
214 N.J. 444, 487 (2013). "'[W]here a general provision in a statute
has certain limited exceptions, all doubts should be resolved in
favor of the general provision rather than the exceptions.'" Nini
v. Mercer Cty. Cmty. Coll.,
202 N.J. 98, 109 (2010) (alteration
in original) (quoting Prado v. State,
186 N.J. 413, 426-27 (2006));
accord In re Plan for the Abolition of the Council on Affordable
Hous.,
214 N.J. at 487.
Although we are mindful that under OPRA "any limitation on
the right of access . . . shall be construed in favor of the
public's right to access," Gilleran v. Twp. of Bloomfield,
227 N.J. 159, 185 (2016) (quoting
N.J.S.A. 47:1A-1), we are convinced
the plain language of the first exception does not support
plaintiff's assertion that the OCPO was obligated to provide
information concerning the circumstances surrounding Doe's
14 A-1608-16T1
decision to resign or his motivation for doing so. We discern no
basis in the plain language of the first exception to require that
the OCPO provide anything more than the information it provided –
the effective date of his resignation.
Plaintiff argues our Supreme Court's decision in South Jersey
Publishing Company Inc. v. New Jersey Expressway Authority,
124 N.J. 478 (1991), requires the OCPO to provide information
concerning the circumstances resulting in Doe's decision to resign
beyond what was supplied in the First Assistant Prosecutor's
memorandum. In New Jersey Expressway Authority, the Court
considered a request for a public agency's executive session
meeting minutes under the common right of access to public records,
the Open Public Meetings Act,
N.J.S.A. 10:4-6 to -21, and the
Right To Know Law,
N.J.S.A. 47:1A-1 to -4.6 Id. at 495. The
plaintiff requested the minutes of a meeting during which the
termination of the executive director was addressed. Id. at 485-
86.
In its discussion of the right of public access to the meeting
minutes, the Court considered Executive Order No. 11, which
includes language that parallels the first exception to the
personnel records exemption in
N.J.S.A. 47:1A-10. Id. at 495-96.
6
The Right to Know Law was repealed and replaced by OPRA in 2002.
See Gilleran,
227 N.J. at 184 n.6.
15 A-1608-16T1
Executive Order No. 11 provided "a general ban on release of
personal records" but authorized disclosure of an employee's
"name, title, position, salary, payroll record, length of service
. . . and . . . date of separation from the government service and
the reasons therefor." Id. at 495 (quoting Executive Order No. 11
(Nov. 15, 1974)).
The Court interpreted the Executive Order's "authorization
of disclosure of 'reasons' for 'separation' . . . to include the
results of" the public agency's investigation concerning the
executive director. Id. at 496. The Court, however, did not find
the Executive Order required that the public agency create new
records concerning its investigation or explain the reasons for
the employee's termination independent of what was shown in
existing records. To the contrary, the Court limited the public
agency's disclosure obligation to the provision of only what was
contained in the existing "executive-session minutes." Ibid.
Similarly, plaintiff relies on Atlantic City Convention
Center Authority v. South Jersey Publishing Company., Inc.,
135 N.J. 53, 66 (1994), where the Court determined that audio tapes
of two public agency executive session meetings "constitute[ed]
public records subject to the common-law right to inspection[.]"
During the first meeting, an employee's personnel performance was
discussed. Id. at 57-58. Following the meeting, the employee was
16 A-1608-16T1
fired or resigned. Id. at 57. In the second meeting, the employee
was rehired. Id. at 58. The public agency sought a declaration
as to whether it had an obligation to disclose the audio tapes of
the meetings. Ibid.
The Court noted that in conducting the common-law "balancing
test" to determine if the public should have access to the tapes,
the trial court should consider if the tapes were necessary to
determine the reasons for the employee's prior discharge from the
agency, "if [that information] were not fully disclosed by the
[meeting] minutes." Id. at 69. The Court did not require the
public agency to create a record or explain the reason for any
action taken. The Court discussed only potential access to
existing government records. Ibid.
Plaintiff's reliance on the Court's decisions in New Jersey
Expressway Authority and Atlantic City Convention Center is
misplaced. To be sure, in both cases the Court required the
disclosure of information concerning the reasons for an employee's
separation from employment, but the Court limited the disclosure
obligation to the reasons reflected in existing government
records. The Court did not require the public agency in either
case to create new records or to disclose any information
concerning an employee's separation beyond what was contained in
existing records.
17 A-1608-16T1
New Jersey Expressway Authority and Atlantic City Convention
Center were decided prior to OPRA's enactment in 2002. In neither
case was the Court required to determine if the requested records
were exempt from disclosure under
N.J.S.A. 47:1A-10 of if
disclosure was required under any of the statute's three
exceptions. The Court's decisions do not support plaintiff's
assertion the OCPO is required to provide more than the precise
information detailed in the first exception under
N.J.S.A. 47:1A-
10, or create documents containing that information for production
under OPRA. The Court has observed that "OPRA does not require
public agencies to create records," Sussex Commons Assocs., LLC
v. Rutgers Univ.,
210 N.J. 531, 544 (2012), and "is 'not intended
[to be] a research tool [that] litigants may use to force
government officials to identify and siphon useful information,'"
In re N.J. Firemen's Ass'n Obligation,
230 N.J. 258, 276 (2017)
(quoting MAG Entm't, LLC v. Div. of Alcoholic Beverage Control,
375 N.J. Super. 534, 546 (App. Div. 2005)).
In response to plaintiff's requests for the reason for Doe's
separation from employment, the OCPO produced what it represented
was the sole personnel record showing that Doe separated from
employment on a particular date because he resigned. We find no
basis in the plain language of
N.J.S.A. 47:1A-10 to conclude that
in addition to providing the reason for Doe's date of separation,
18 A-1608-16T1
the OCPO was required to investigate, determine and disclose Doe's
motivation for resigning or the circumstances surrounding his
decision to resign. The first exception requires only the
production of the specified information and, as the Court found
in Kovalcik,
206 N.J. at 592, existing "document[s] otherwise
classified as personnel records fit[ting]" within the exception.
We are therefore convinced the OCPO provided plaintiff with what
it was entitled under N.J.S.A. 47:1A-10: a government record, in
the form of the First Assistant Prosecutor's memorandum, stating
the effective date of Doe's resignation.
Plaintiff also claims the OCPO's response to the OPRA requests
was deficient because the records custodian limited his search to
a review of Doe's personnel file. Plaintiff asserts the OCPO was
required to conduct a review of records beyond Doe's personnel
file to determine if there are records responsive to plaintiff's
OPRA requests. We agree.
OPRA broadly defines "government records,"
N.J.S.A. 47:1A-
1.1, and provides that "government records shall be readily
accessible . . . by the citizens of this State, with certain
exceptions, for the protection of the public interest,"
N.J.S.A.
47:1A-1. Although the first exception to the personnel records
exemption requires the production of specified information,
including the reason for an employee's date of separation, N.J.S.A.
19 A-1608-16T1
47:1A-10, existing records "fitting within" the exception must
also be disclosed in response to an OPRA request, Kovalcik,
206 N.J. at 592. OPRA's purpose of "maxmiz[ing] public knowledge
about public affairs," Times of Trenton Publ'g Corp. v. Lafayette
Yard Cmty. Dev. Corp.,
183 N.J. 519, 535 (2005) (quoting Asbury
Park Press v. Ocean Cty. Prosecutor's Office,
374 N.J. Super. 312,
329 (Law Div. 2004)), would be easily defeated if a public agency
could limit its obligation to provide access to records by its
placement of a record in a particular file or by limiting its
search to particular files.
We discern no permissible reason the OCPO limited its search
for the requested records to Doe's personnel file, and perceive
no justification for it. We therefore remand for the court to
direct that the OCPO conduct a reasonable and thorough search of
its agency records to determine if there are additional government
records fitting within the first exception under
N.J.S.A. 47:1A-
10 that are responsive to plaintiff's OPRA requests.
In Paff v. New Jersey Department of Labor,
392 N.J. Super.
334, 341 (App. Div. 2007), we required the public agency to produce
an affidavit detailing the following information concerning its
search for records in response to an OPRA request:
1) the search undertaken to satisfy the
request;
20 A-1608-16T1
2) the documents found that are responsive to
the request;
3) the determination of whether the document
or any part thereof is confidential and the
source of confidential information;
4) a statement of the agency's document
retention/destruction policy and the last date
on which documents that may have been
responsive to the request were destroyed.
[Id. at 341.]
On remand, the OCPO shall provide an affidavit containing that
information as well. If any additional government records
responsive to plaintiff's requests are recovered, access to the
records shall be granted in accordance with OPRA's requirements.7
Plaintiff's remaining arguments are without sufficient merit
to warrant discussion in a written opinion.8 R. 2:11-3(e)(1)(E).
We add only that we have not addressed, and do not offer any
opinion on, plaintiff's claim that the OCPO was required to produce
records of Doe's purported failed drug test under the third
exception to the personnel record's exemption in
N.J.S.A. 47:1A-
7
Any objections, assertions of privilege or reliance on claimed
exemptions to the provision of access under OPRA that are asserted
by the OCPO shall be determined by the remand court.
8
Plaintiff does not present any argument that the court erred by
denying its request for an attorney fee award. Because we remand
for further proceedings, any request for attorney's fees shall
abide the remand proceedings and shall be decided by the remand
court.
21 A-1608-16T1
10. Plaintiff did not request records concerning the alleged
test. In addition, plaintiff's claimed entitlement to the putative
records is based on the Attorney General's Law Enforcement Drug
Testing Policy (May 2012), which applies to "sworn law enforcement
officers," id. at § VIII(C)(1) to (4), and the record is devoid
of evidence showing Doe was employed in that capacity.
Affirmed in part, vacated in part. Remanded for further
proceedings in accordance with this opinion. We do not retain
jurisdiction.
22 A-1608-16T1
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