AFRICAN AMERICAN DATA AND RESEARCH INSTITUTE v. ADELINNY PLAZA

NOT FOR PUBLICATION WITHOUT THE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-0792-20

AFRICAN AMERICAN DATA
AND RESEARCH INSTITUTE
("AADARI"),

          Plaintiff-Appellant,

v.

ADELINNY PLAZA, TOWN OF
WEST NEW YORK POLICE
DEPARTMENT, and TOWN OF
WEST NEW YORK,

          Defendants-Respondents.


                   Submitted February 15, 2022 – Decided April 13, 2022

                   Before Judges Currier and Smith.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Hudson County, Docket No. L-0031-20.

                   Rotimi A. Owoh, attorney for appellant.

                   Scarinci Hollenbeck, LLC, attorneys for respondents
                   (Robert E. Levy, of counsel and on the brief; Jorge R.
                   de Armas, on the brief).
PER CURIAM

      This appeal arises out of a denial of plaintiff's New Jersey Open Public

Records Act (OPRA) request.          Although the trial court initially ordered

disclosure of the requested records, it subsequently granted defendants' motion

for reconsideration and denied plaintiff's request for counsel fees. While these

appeals were pending, the New Jersey Supreme Court issued an opinion in

Simmons v. Mercado,  247 N.J. 24 (2021) that definitively resolved the issues

before us. Therefore, we reverse the October 30, 2020 order and remand to the

trial court for reinstatement of its February 28, 2020 order. On remand, the trial

court shall also consider plaintiff's application for attorney's fees.

      The issue arises from plaintiff's request for the following records:

             Copies of DUI and DWI summonses and complaints
             that were prepared by your Police Department from
             January of 2019 to the present.

             Copies of drug possession summonses and complaints
             that were prepared by your Police Department from
             January of 2019 to the present.

             Copies of drug paraphernalia summonses and
             complaints that were prepared by your Police
             Department from January of 2019 to the present.

      Defendants responded that the police department was not in possession of

the requested documents and plaintiff should contact the West New York


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Municipal Court for the records.        Plaintiff filed an order to show cause

compelling defendants to produce the requested documents.

      The trial court found plaintiff was entitled to the records and ordered their

production in a February 28, 2020 order.         In addition, as plaintiff was a

prevailing party, the order permitted plaintiff to submit a certification of counsel

fees under  N.J.S.A. 47:1A-6. Plaintiff filed its counsel fee application on March

5, 2020.

      In June 2020, this court considered an identical OPRA request in Simmons

v. Mercado,  464 N.J. Super. 77 (App. Div. 2020). We concluded that the trial

court did not err in denying the OPRA request made to the municipality's police

department because the request should have been directed to the municipal

court. Id. at 82.

      Defendants moved for reconsideration. On October 30, 2020, the trial

court granted reconsideration, vacated its prior order, and denied plaintiff's

application for counsel fees. After the Supreme Court granted certification in

Simmons v. Mercado,  244 N.J. 342 (2020), we stayed this appeal. The Court

issued its decision on June 17, 2021. Simmons,  247 N.J. at 24.

      In Simmons, the plaintiffs requested the Millville Police Department

(MPD) provide the following documents: (1) DWI/DUI complaints and


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                                         3
summonses; (2) drug possession complaints and summonses; and (3) drug

paraphernalia complaints and summonses. Id. at 32. As here, MPD declined to

produce the records, stating they were within the possession of the municipal

court.

         The Court concluded the requested documents were subject to OPRA

because the documents were "made, maintained or kept on file in the course of

[the police department's] official business . . . ." Id. at 39 (citing  N.J.S.A. 47:1A-

1.1). The Court noted that to create the documents, the police department would

input the substantive information regarding arrests and that information was

used to populate the documents. Id. at 40. No judge or judicial officer played

any part in creating the documents or inputting information into the documents.

Ibid. Therefore, to advance OPRA's policy of government transparency in light

of modern-day technology, MPD was required to produce the documents

responsive to the plaintiff's OPRA request. Id. at 42.

         The Court's decision in Simmons resolves the issue presented in this

appeal. Defendants concede they no longer have a legal basis for withholding

the requested documents. However, defendants contend plaintiff is not entitled

to counsel fees because of "the previous unclear status of the law." We disagree.




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                                          4
      Plaintiff was a prevailing party under the February 28, 2020 order. The

trial court directed plaintiff to submit a certification of services. Plaintiff did

so. The court did not rule on that application until October 2020, after this

court's Simmons decision was issued and the trial court granted defendants'

reconsideration motion. Had the trial court ruled promptly after plaintiff's filing

in March 2020, an order for fees would have issued. Plaintiff was then, and is

now, a prevailing party entitled to fees under  N.J.S.A. 47:1A-6.

      The order granting reconsideration is reversed. On remand, the trial court

shall reinstate its February 28, 2020 order compelling production of the records

and consider plaintiff's application for counsel fees.

      Reversed and remanded for further proceedings in accordance with this

opinion. We do not retain jurisdiction.




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