Simmons v. Mercado

SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.

                Baffi Simmons v. Wendy Mercado (A-18-20) (084695)

Argued March 31, 2021 -- Decided June 17, 2021

PIERRE-LOUIS, J., writing for a unanimous Court.

       In this appeal, the Court considers whether a records request for complaint-
summonses from a municipal police department is proper under the Open Public Records
Act (OPRA),  N.J.S.A. 47:1A-1 to -13. The key question is whether the complaint-
summonses -- electronic records populated with information by local police officers but
stored on Judiciary servers -- are the police department’s government records under
OPRA and, if so, whether the records request at issue here was sufficiently narrow.

       Plaintiffs Baffi Simmons and the African American Data and Research Institute
(collectively, AADARI) submitted a request under OPRA to defendants Millville City
Clerk Wendy Mercado, the City of Millville, and the City of Millville Police Department
(collectively, MPD) for complaint-summonses, known as CDR-1s, for certain classes of
drug-related offenses. Specifically, AADARI requested copies of the following four
categories of documents prepared by MPD from January 2017 onward: (1) driving while
intoxicated/driving under the influence (DWI/DUI) complaints and summonses; (2) drug
possession complaints and summonses; (3) MPD’s “Arrest Listings”; and (4) drug
paraphernalia complaints and summonses. AADARI requested those records as part of a
comparative data analysis on the subject of disparate treatment in the administration and
enforcement of marijuana and other drug-related offenses in New Jersey.

       In response to AADARI’s OPRA request, MPD provided documents responsive to
category 3 and advised AADARI to request the other three categories of items from the
Millville Municipal Court. AADARI filed a complaint and an order to show cause, after
which MPD provided AADARI documents responsive to category 1. So when the parties
appeared before the trial court on the order to show cause, the only outstanding requests
were the documents in categories 2 and 4 -- the drug-related complaints and summonses.

       The trial court ruled in favor of AADARI, rejecting MPD’s claims that it did not
need to produce the pertinent records because MPD did not maintain them. The court
also found that the records request did not require MPD to conduct research and therefore
did not go beyond OPRA’s scope.


                                            1
       The Appellate Division reversed, finding that the requested records are in the
custody of the Judiciary and that AADARI must therefore direct its records request to the
Judiciary, not MPD.  464 N.J. Super. 77, 79, 84 (App. Div. 2020). The appellate court
did not address whether AADARI’s request would require research. Id. at 84.

      The Court granted AADARI’s petition for certification.  244 N.J. 342 (2020).

HELD: Because MPD officers create the information contained in the CDR-1s, the
CDR-1s fall well within OPRA’s definition of a government record. Further, AADARI’s
records request is narrowly tailored and would not constitute research beyond OPRA’s
scope.

1. New Jersey boasts of a long and proud tradition of openness and hostility to secrecy in
government. 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. To effectuate its mission to make government records “readily accessible” to the
state’s citizens, OPRA substantively provides that “all government records shall be
subject to public access unless exempt,”  N.J.S.A. 47:1A-1, and it places on the
government the burden of establishing an exemption,  N.J.S.A. 47:1A-6. Although OPRA
favors broad public access to government records, it is not intended to be a research tool
that litigants may use to force government officials to identify and siphon useful
information. Thus, to prompt disclosure under OPRA, requests for information must be
properly circumscribed. (pp. 15-17)

2. In furtherance of OPRA’s goal of transparency and public access to government
records, the Legislature broadly defines a “government record” subject to OPRA to
include “information stored or maintained electronically . . . 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.”
 N.J.S.A. 47:1A-1.1 (emphases added). “Information” is the key word. Applying those
principles to the present case, and bearing in mind OPRA’s goals, it is evident that the
CDR-1s sought in this matter are government records subject to disclosure by MPD
under OPRA. (pp. 17-18)

3. MPD’s argument that members of the Judiciary, not law enforcement officers, “make”
the CDR-1 forms obscures the nature of the information being sought here. AADARI is
not seeking blank forms that provide zero information regarding arrests made by MPD.
It is the substantive information regarding arrests used to populate the CDR-1s that is at
issue here, and that information is inputted by MPD and only MPD. The CDR-1 form
developed by the Judiciary is nothing but an empty shell until law enforcement officers,
in the course of their official business, make that shell into an official government
document by inputting the information that is sought in this case. (pp. 18-19)


                                            2
4. Further, MPD’s argument that it is not obligated to produce the CDR-1s because it
does not “maintain” the records does not square with the provision that, if a government
official makes, maintains, or keeps on file electronic information in the course of his or
her official business, it is a “government record” subject to OPRA. See  N.J.S.A. 47:1A-
1.1. The use of “or” plainly indicates that any of those three listed actions is sufficient to
satisfy the statutory definition. Thus, regardless of who maintains the files, the fact that
MPD “makes” the CDR-1s means that it can be called upon to disclose those government
records. Nothing in the text of OPRA or Rule 1:38 or the Court’s jurisprudence suggests
that information cannot be both a court record and a government record. Indeed, the
language of the statute that defines a government record as one that has been “made,
maintained, or kept on file” itself suggests the possibility that different government
entities, working cooperatively, could be simultaneous custodians of the same
information. The statutory language presupposes that there may be more than one proper
place where a requestor can submit an OPRA request. That the Judiciary might maintain
on its servers the information that MPD made does not absolve MPD of its obligation to
produce that information pursuant to a proper OPRA request made to MPD. (pp. 19-22)

5. The Court therefore turns to MPD’s argument that the request at issue here was not a
proper request for OPRA purposes because it required research. In Paff v. Galloway
Township, the Court explained the proper parameters of OPRA requests, stating that “[a]
records request must be well defined so that the custodian knows precisely what records
are sought. The request should not require the records custodian to undertake a
subjective analysis to understand the nature of the request. Seeking particular
information from the custodian is permissible; expecting the custodian to do research is
not.”  229 N.J. 340, 355 (2017). The Court reviews MAG Entertainment, LLC v.
Division of Alcoholic Beverage Control,  375 N.J. Super. 534 (App. Div. 2005), in which
the Appellate Division found a request requiring research to be beyond OPRA’s statutory
ambit, and Paff, in which the Court found that the challenged request did not require
research. The distinction between a research and non-research request lies with whether
the plaintiff’s request demands the government agency engage in analysis or the exercise
of judgment in identifying responsive records. (pp. 22-25)

6. The Court explains why AADARI’s records request is distinguishable from the
request at issue in MAG and is instead akin to the permissible request in Paff. The
request was well within OPRA’s scope and does not require research by MPD. The
Court therefore reinstates the trial court’s order granting AADARI’s OPRA request.
MPD must comply with the trial court order and provide the requested documents to
AADARI within five business days of the filing of the Court’s opinion. (pp. 25-27)

       REVERSED. The order of the trial court is REINSTATED.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,
FERNANDEZ-VINA, and SOLOMON join in JUSTICE PIERRE-LOUIS’s opinion.

                                              3
       SUPREME COURT OF NEW JERSEY
             A-
18 September Term 2020
                       084695


                Baffi Simmons and
               African American Data
               and Research Institute
                    (AADARI),

                Plaintiffs-Appellants,

                          v.

             Wendy Mercado, City of
               Millville, and City of
            Millville Police Department,

              Defendants-Respondents.

       On certification to the Superior Court,
   Appellate Division, whose opinion is reported at
         464 N.J. Super. 77 (App. Div. 2020).

      Argued                       Decided
   March 31, 2021                June 17, 2021


Rotimi A. Owoh argued the cause for appellants (Rotimi
A. Owoh, on the brief).

Brock D. Russell argued the cause for respondents
(Brock D. Russell, on the brief).

Karen Thompson argued the cause for amicus curiae
American Civil Liberties Union of New Jersey (American
Civil Liberties Union of New Jersey Foundation,
attorneys; Karen Thompson, Alexander Shalom, and
Jeanne LoCicero, on the brief).

                          1
            Robert E. Levy argued the cause for amici curiae
            Adelinny Plaza, Town of West New York Police
            Department, and Town of West New York (Scarinci
            Hollenbeck, attorneys; Robert E. Levy, of counsel and on
            the brief, and Jorge R. de Armas and Kevin M. Foltmer,
            on the brief).


        JUSTICE PIERRE-LOUIS delivered the opinion of the Court.


      In this appeal, the Court considers whether a records request for

complaint-summonses from a municipal police department is proper under the

Open Public Records Act (OPRA),  N.J.S.A. 47:1A-1 to -13. The key question

is whether the complaint-summonses -- electronic records populated with

information by local police officers but stored on Judiciary servers -- are the

police department’s government records under OPRA. If so, we must also

consider whether the records request was sufficiently narrow.

      Plaintiffs Baffi Simmons and the African American Data and Research

Institute (collectively, AADARI) submitted a request under OPRA to

defendants Millville City Clerk Wendy Mercado, the City of Millville, and the

City of Millville Police Department (collectively, MPD) for complaint-

summonses, known as CDR-1s, for certain classes of drug-related offenses.

MPD denied the request, explaining that such records could only be obtained

from the Judiciary pursuant to Rule 1:38 and that, even if MPD could access



                                        2
the records, such a request was overly broad and would require research

beyond the scope of OPRA.

      The trial court ordered MPD to produce the CDR-1s, emphasizing that

although MPD did not maintain the records, it was still required to produce

them because MPD officers input the information to make the CDR-1s and had

access to them. The trial court further found that the request did not require

research, as it only required MPD to observe whether a designated offense was

drug-related or not.

      The Appellate Division reversed, agreeing with MPD that the records

were not in its possession. The court acknowledged that police officers input

information to trigger the creation of CDR-1s but determined that, because the

final product is maintained by the Judiciary, MPD was not obligated to

produce the items requested. Finding that the CDR-1s were not MPD’s

“government records” under OPRA, the court declined to address whether

AADARI’s request would require research.

      Because MPD officers create the information contained in the CDR-1s,

we find that they fall well within OPRA’s definition of a government record.

We further find that AADARI’s records request is narrowly tailored and would

not constitute research beyond OPRA’s scope. Accordingly, we reverse and




                                        3
reinstate the trial court’s order mandating that MPD produce the requested

records to AADARI.

                                        I.

                                       A.

      Pursuant to Rule 3:4-1(a)(1), after making an arrest without a warrant,

law enforcement officers are required to immediately prepare a complaint

setting forth the relevant facts and circumstances in support of probable cause

for the arrest. As part of the State’s compliance with the Criminal Justice

Reform Act,  N.J.S.A. 2A:162-15 to -26, the Attorney General has directed

local police departments to utilize the electronic Complaint Disposition Record

system (eCDR) to expedite the process of generating such complaints.

Attorney General Law Enforcement Directive No. 2016-06 (Oct. 11, 2016).

Using the eCDR system, law enforcement officers input into a blank electronic

form information about the arrest, including the offense allegedly committed,

the arrestee’s biographical information, and a description of the facts.

      Once the pertinent information is entered, the eCDR system allows law

enforcement officers to electronically submit the form to the court. No judge

or member of the Judiciary plays a role in the inputting or submission of

information by law enforcement officers through the eCDR system. At the

point at which a law enforcement officer is submitting the form, an arrest has

                                        4
already been made without any involvement by a judicial officer. The form

that the law enforcement officer submits becomes part of a CDR-1 complaint-

summons or a complaint-warrant, known as a CDR-2. R. 3:3-1. For low-level

offenses, law enforcement officers may issue the CDR-1 to the defendant

without any judicial input. R. 3:3-1(b)(2). For CDR-2s, once the form is

submitted to the court, an assigned judge makes a probable cause

determination. The information contained in those CDR-1 and CDR-2 forms

is stored on Judiciary servers, but because law enforcement officers enter the

substantive information about the arrests in the forms, local police departments

have access to the forms in the system.

      The forms at issue in the present case are CDR-1s, complaint-

summonses. CDR-1s are typically issued for low-level offenses that do not

involve defendants who pose a risk warranting pretrial detention. Such

defendants are always released, and the complaint-summons directs the

defendant to appear in court on a specified date.

      Prior to eCDR, the Judiciary manually stored paper files and records,

and police departments retained copies of complaint forms in their own records

departments. N.J. State Bar Ass’n, Capitol Report, 
223 N.J.L.J. 16 (June 5,

2017). Under statewide document retention schedules, even with eCDR it is

envisioned that police departments will maintain their own copies of CDR-1s

                                          5
for thirty days after disposition of the matter. See Div. of Archives & Record

Mgmt., Municipal Police Departments: Records Retention & Disposition

Schedule, https://www.nj.gov/treasury/revenue/rms/pdf/m900000.pdf.

                                       B.

      On September 10, 2018, a representative from AADARI emailed a

records request pursuant to OPRA 1 to MPD. AADARI requested copies of the

following four categories of documents prepared by MPD from January 2017

onward: (1) driving while intoxicated/driving under the influence (DWI/DUI)

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

(3) MPD’s “Arrest Listings”; and (4) drug paraphernalia complaints and

summonses. AADARI requested those records as part of a comparative data

analysis on the subject of disparate treatment in the administration and

enforcement of marijuana and other drug-related offenses in New Jersey.

      In response to AADARI’s OPRA request, on September 13, 2018, MPD

provided documents responsive to category 3, the arrest listings. MPD did not

provide any documents responsive to categories 1, 2, or 4, the DUI and drug-




1
  The original records request was also made pursuant to the common law
right of access. The parties, however, never litigated the applicability of the
common law right of access in this case.

                                        6
related complaints and summonses, and advised AADARI to request those

items from the Millville Municipal Court.

      On October 2, 2018, AADARI filed a complaint and an order to show

cause against MPD, asking for a court order to provide AADARI with

immediate access to the requested records pursuant to OPRA. After AADARI

filed the complaint and order to show cause, MPD, “in an abundance of

caution,” provided AADARI documents responsive to category 1, the DUI

complaints and summonses, although MPD continued to maintain that those

documents are court records. So when the parties appeared before the trial

court on the order to show cause, the only outstanding requests were the

documents in categories 2 and 4 -- the drug-related complaints and

summonses.

      At oral argument on November 13, 2018, MPD alleged that it did not

have the requested complaints in categories 2 and 4 and submitted an affidavit

from an MPD lieutenant stating that the police department does not have

access to those records. Specifically, MPD contended (1) it was not the

custodian of the eCDR records, so AADARI would need to request the records

from the municipal court, and (2) even if MPD had access to the records, it

could not search by complaint type and, thus, AADARI’s request was overly

broad.

                                       7
      AADARI disputed MPD’s lack of access to eCDR, asserting that each

local police department had a password to access eCDR and “the government

is [e]ssentially sending them paper copies. They are stored as a PDF on [an]

electronic system,” from which MPD could print the complaints. AADARI

further emphasized that just because other government officials, including

prosecutors and public defenders, have access to the system, that did not

render MPD exempt from its OPRA obligations.

      As to MPD’s ability to conduct a specific records search, counsel for

AADARI asserted that MPD could use the first and last names of arrestees to

narrow the group of individuals with relevant search results. By using the

charge numbers included on the arrest listings, AADARI explained, MPD

would be able to look up the individual complaints of everyone MPD arrested

for the class of drug offenses AADARI requested. AADARI represents that it

identified 162 cases from MPD’s arrest listings that corresponded to the

requested CDR-1s in categories 2 and 4.

      The trial court ruled in favor of AADARI, rejecting MPD’s claims that it

did not need to produce the pertinent records because MPD did not maintain

them. The court found that “the issue of whether or not they maintain [the

records] . . . is not a relevant issue for OPRA,” under the statute’s definition of

a government record,  N.J.S.A. 47:1A-1.1. The judge emphasized that the

                                         8
language of the definition included any record “that has been made,

maintained, or kept [] on file . . . in the course of . . . official business”

(emphasis added), and that there was no dispute here that MPD made the

documents in its official business.

      Relying on Burnett v. County of Gloucester,  415 N.J. Super. 506 (App.

Div. 2010), the court held that “even though you don’t maintain [a record], if

it’s a governmental record you still have an obligation to turn it over.”

Otherwise, the court cautioned, “a governmental agency seeking to protect its

records from scrutiny could simply relinquish possession to third parties

thereby thwarting the policy of transparency that underlies OPRA.” Thus, the

court held that MPD was in violation of OPRA for failing to turn over any

CDR-1s it maintained for the thirty-day period mandated by State document

retention policies. The court further found that AADARI was entitled to the

rest of the requested records but allowed MPD an additional two weeks to

submit proof that it did not have the ability to access the complaints.

      At a subsequent hearing on December 18, 2018, MPD conceded that

“[t]he police department does have access [to eCDR] -- to be clear it’s not

disputed.” However, MPD relied upon MAG Entertainment, LLC v. Division

of Alcoholic Beverage Control,  375 N.J. Super. 534, 540 (App. Div. 2005),

and continued to assert that AADARI’s records request would constitute

                                           9
research for MPD and would go beyond OPRA’s scope. The court disagreed,

finding MAG to be distinguishable because there, the records custodian was

asked to read through individual documents to interpret whether they fell into

the category of information that the requestor was seeking. By contrast, here,

“the only thing that’s requested is for the custodian of records to see what the

charge is,” which “[d]oesn’t require any thinking, doesn’t require any

interpretation.” The decision in favor of AADARI was reduced to a formal

order on January 3, 2019. 2

                                        C.

      MPD appealed from the order and the Appellate Division reversed.

Simmons v. Mercado,  464 N.J. Super. 77, 79 (App. Div. 2020). The court

agreed with MPD that it was not obligated to produce the requested records

under OPRA because “the manner in which the requested complaint-

summonses were created demonstrates that they are not government records in

their possession but are records in the custody of the judiciary.” Id. at 84.

Although local police “input the information that triggers the process” of



2
  Thereafter, MPD filed a motion for reconsideration, arguing that complaints
and summonses are pleadings within the scope of Rule 1:38 and are not subject
to OPRA. The court denied the motion, holding that “even if [the CDR-1s] are
court records[,] it doesn’t mean that the requestor has to go through the court”
to obtain them. The court emphasized “[t]here’s no exceptions under
OPRA . . . if it’s available through the court from some other source.”
                                        10
generating a CDR-1, the fact that “the final product is governed by other forces

and the resulting product is maintained by others” meant, according to the

court, that a CDR-1 “is, in reality, not a government record maintained by the

municipality but a record maintained by the judiciary.” Ibid. The court

highlighted that judicial officers have the discretion to decide whether the

eCDR system will generate a CDR-1 (summons) or a CDR-2 (warrant) based

upon the data input by police. Id. at 85. In the court’s view, Rule 3:4-1(a)(1)

did not require a different result because it does not reveal whether a

complaint-summons “constitutes a municipal record or a judiciary record.” Id.

at 85. The court further observed that the fact that MPD has access to eCDR

“does not alter the fact that the record is maintained by the judiciary.” Id. at

86.

      Although the Appellate Division recounted caselaw to highlight that

OPRA does not require records custodians to conduct research, it ultimately

did not address the question as to whether AADARI’s request would require

research, because “[t]hat presupposes, of course, that the requested record is a

'government record.’” Id. at 84. Finding that the requested records were not

government records subject to OPRA, the court concluded that AADARI must

direct its records request to the Judiciary, not MPD. Id. at 86.




                                        11
      We granted AADARI’s petition for certification.  244 N.J. 342 (2020).

We also granted leave to participate as amici curiae to the American Civil

Liberties Union of New Jersey (ACLU) and to the Town of West New York,

Town of West New York Police Department, and the West New York Deputy

Clerk Adelinny Plaza (collectively, West New York).

                                      II.

                                      A.

      AADARI contends that the trial court properly ordered MPD to produce

the requested CDR-1s because MPD has direct access to those summonses and

the ability to retrieve and print them from eCDR. Although AADARI

concedes that eCDR is maintained by the Judiciary, it argues that the public

could easily gain access to CDR-1s from police departments before they were

computerized and that technological advancements should not diminish the

right to access government records. To find otherwise, AADARI submits,

would run counter to the purpose of OPRA: to grant quick and expeditious

access to public records as part of promoting transparency in government.

AADARI further asserts that its request for the CDR-1s is a valid and

identifiable request for public records in accordance with Burke v. Brandes,

 429 N.J. Super. 169 (App. Div. 2012), and that no research is required for

MPD to produce the requested records.

                                      12
      Amicus ACLU, like AADARI, urges this Court to reverse the Appellate

Division, arguing that its findings are “not supported by the statutory text or

case law” and that its decision “creates unjustifiable limitations on government

transparency obligations by fashioning arbitrary boundaries around the

public’s access to government records.” The ACLU asserts that the CDR-1s

are MPD’s government records under OPRA because its officers generate the

electronic information that is sought by AADARI and that the Appellate

Division erred by relying upon where the document is stored. Amicus also

warns that the Appellate Division’s decision would burden judicial resources

“by re-assigning to the judiciary the work of individual police departments . . .

forcing the judiciary to dispense aggregated data from nearly 200 municipal

police departments across the state.” The ACLU asserts that this would stymie

the purpose of OPRA, which is “to maximize public knowledge about public

affairs so as to build an informed populace and to minimize the evils inherent

in a secluded process.”

                                        B.

      MPD asks this Court to affirm the Appellate Division decision. It claims

that it does not own or maintain the CDR-1s at issue, emphasizing that

although officers initiate the process of generating a complaint by inputting

information into an electronic form in eCDR, the Judiciary has already

                                       13
completed preprinted fields and the decision of whether to issue a CDR-1 or

CDR-2 is made by a judicial officer. Because the information filled in by

officers is “deliberative” and maintained on Judiciary servers, MPD contends

that CDR-1s are not its government records under OPRA. MPD also asserts

that CDR-1s fall within the definition of court records under Rule 1:38-2(a)(4)

and that AADARI should therefore request such pleadings from the Judiciary

under the framework of Rule 1:38. A ruling to the contrary, according to

MPD, would contravene its understanding that “OPRA does not apply to the

Judiciary which is a separate and distinct branch of government under the State

Constitution.”

      Amicus West New York largely echoes MPD’s arguments. West New

York asserts that municipal clerks are not required under OPRA “to take court

records from Judiciary files without authorization, in violation of Judiciary

Rules and policy, in order to provide them to an OPRA requestor, all und er the

threat of serious sanction.” Like MPD, West New York argues that the CDR-

1s are court records deliberately exempted from OPRA under the New Jersey

Constitution and separation of power principles. West New York disputes that

mere access is insufficient to create “legal access” to the requested records and

contends that a ruling in favor of AADARI would create a scenario where any




                                       14
government office could be required to produce otherwise non-discoverable

court records simply because they have access to them.

                                      III.

      Our state boasts “of a long and proud 'tradition[] of openness and

hostility to secrecy in government.’” Educ. Law Ctr. v. Dep’t of Educ.,  198 N.J. 274, 283 (2009) (alteration in original) (quoting N. Jersey Newspapers v.

Passaic Cnty. Bd. of Chosen Freeholders,  127 N.J. 9, 16 (1992)). To further

enhance government transparency, 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.” Mason v. City of

Hoboken,  196 N.J. 51, 64 (2008) (quoting Asbury Park Press v. Ocean Cnty.

Prosecutor’s Off.,  374 N.J. Super. 312, 329 (Law Div. 2004)). The Legislature

passed OPRA in 2001 to replace the then-existing Right to Know Law,

L. 1963, c. 73, which “did not keep pace with the vast technological advances

that changed the ways citizens and public officials communicate and store

information.” Paff v. Galloway Township,  229 N.J. 340, 352 (2017). To

effectuate its mission “to make government records 'readily accessible’ to the

state’s citizens,” OPRA “substantively provides that 'all government records

shall be subject to public access unless exempt,’  N.J.S.A. 47:1A-1, and it




                                      15
places on the government the burden of establishing an exemption, N.J.S.A.

47:1A-6.” Gilleran v. Township of Bloomfield,  227 N.J. 159, 170 (2016).

      Although OPRA favors broad public access to government records, it 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) (alterations in original)

(quoting MAG,  375 N.J. Super. at 546). Thus, to prompt disclosure under

OPRA, requests for information must be properly circumscribed. Paff,  229 N.J. at 355.

      In this appeal, we consider, first, whether the requested CDR-1s are

government records subject to disclosure under OPRA and, second, whether

the requests were sufficiently circumscribed. “[D]eterminations about the

applicability of OPRA and its exemptions are legal conclusions and are

therefore subject to de novo review.” In re N.J. Firemen’s Ass’n Obligation,

 230 N.J. at 273-74 (citations omitted). “[T]herefore, we owe no deference to

the interpretive conclusions reached by either the trial court or the Appellate

Division.” Paff,  229 N.J. at 351. In our review, we are mindful of the

Legislature’s direction that “OPRA 'shall be construed in favor of the public’s

right of access’” and “imposes on public agencies 'the burden of proving that

the denial of access is authorized by law.’” Paff v. Ocean Cnty. Prosecutor’s

                                        16
Off.,  235 N.J. 1, 16 (2018) (first quoting  N.J.S.A. 47:1A-1; and then quoting

 N.J.S.A. 47:1A-6).

                                        IV.

                                        A.

      In determining whether certain information falls within OPRA’s scope,

the plain language of the statute is our best guide. In furtherance of OPRA’s

goal of transparency and public access to government records, the Legislature

broadly defines a “government record” subject to OPRA 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 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 . . . .

            [ N.J.S.A. 47:1A-1.1 (emphases added).]

In Paff, we clarified that this definition includes electronic records, as “[t]he

Legislature apparently decided against defining government record[s] as

documents or files stored or maintained electronically. 'Information’ is the

key word.”  229 N.J. at 353. We noted that “[t]his logical conclusion flows

directly from OPRA’s language,” ibid., and that a contrary position could not

“be squared with OPRA’s plain language or its objectives in dealing with

                                        17
electronically stored information,” id. at 356. Applying those principles to the

present case, and bearing in mind OPRA’s goals, it is evident that the CDR -1s

sought in this matter are government records subject to disclosure by MPD

under OPRA.

      MPD’s argument that members of the Judiciary, not law enforcement

officers, “make” the CDR-1 forms completely obscures the nature of the

information being sought here. AADARI is not seeking blank forms that

provide zero information regarding arrests made by MPD. We recognize that

the Judiciary developed the CDR-1 template, or the electronic shell that

categorizes the substantive information that must be entered by law

enforcement officers. But it is the substantive information regarding arrests

used to populate the CDR-1s that is at issue here, and that information is

inputted by MPD and only MPD. No judicial officer or judge plays a role in

creating the document or inputting any information into the CDR-1s at the

moment the law enforcement officer fills out the form and submits it to the

Judiciary. That is what AADARI is seeking here -- the actual completed

official document that contains details of an arrest, probable cause, and an

arrestee’s biographical information.

      As we made clear in Paff, and continue to emphasize, “'[i]nformation’ is

the key word” for purposes of OPRA.  229 N.J. at 353. The CDR-1 form

                                       18
developed by the Judiciary is nothing but an empty shell until law enforcement

officers, in the course of their official business, make that shell into an official

government document by inputting the information that is sought in this case.

See Burnett,  415 N.J. Super. at 517 (finding that the requested documents were

government records under OPRA because they “were 'made’ by or on behalf

of the Board in the course of its official business”). Pursuant to OPRA’s

definition of “government record,” there is no question that CDR-1s are

documents that are made in the course of a law enforcement officer’s official

business. See  N.J.S.A. 47:1A-1.1. Because MPD officers create the

completed CDR-1s by populating the forms with the information necessary to

generate a summons and submit it to the court, there is no question that the

CDR-1s are government records subject to disclosure pursuant to OPRA.

      MPD also argues that it is not obligated to produce the CDR-1s because

it does not “maintain” the records. The Appellate Division, in line with that

argument, found that the CDR-1s were not government records because

although local police input the information, “the resulting product is

maintained by others.”  464 N.J. Super. at 84. But that interpretation of what

constitutes a government record does not square with the explicit language in

OPRA.




                                         19
      Any reliance here on the maintenance of the records is misplaced

because it completely ignores the fact that MPD officers “make” the

information by inputting substantive data about the arrests into eCDR , as noted

above. The plain language of the statutory provision at issue here is clear: if a

government official makes, maintains, or keeps on file electronic information

in the course of his or her official business, it is a “government record” subject

to OPRA. See  N.J.S.A. 47:1A-1.1. The use of “or” plainly indicates that any

of those three listed actions is sufficient to satisfy the statutory definition. See,

e.g., State v. Frank,  445 N.J. Super. 98, 106 (App. Div. 2016) (noting that the

word “or” in a statute generally indicates an alternative and that, “where items

in a list are joined by a comma, with an “or” preceding the last item, the items

are disjunctive, meaning distinct and separate from each other” (alterations and

quotations omitted)). Thus, regardless of who maintains the files, the fact that

MPD “makes” the CDR-1s means that it can be called upon to disclose those

government records.

      MPD also appears to argue that, even if it had a disclosure obligation as

to the CDR-1s, its obligations under OPRA are preempted because the CDR-




                                         20
1s, once submitted, become court records that can be obtained only from the

Judiciary pursuant to Rule 1:38.3

      Certainly, once the CDR-1 is created by law enforcement and submitted

to the court, the document falls under Rule 1:38-2’s definition of a court

record in that it is “information maintained by a court in any form in

connection with a case or judicial proceeding.” But nothing in the text of

OPRA or Rule 1:38 or our jurisprudence suggests that information cannot be

both a court record and a government record. Indeed, the language of the

statute that defines a government record as one that has been “made,

maintained, or kept on file” itself suggests the possibility that different

government entities, working cooperatively, could be simultaneous custodians

of the same information. See  N.J.S.A. 47:1A-1.1 (emphasis added). The

statutory language presupposes that there may be more than one proper place

where a requestor can submit an OPRA request.




 3 Rule 1:38 governs public access to court records, which include “any
information maintained by a court in any form in connection with a case or
judicial proceeding.” R. 1:38-2(a)(1). Court records also encompass “any
information in a computerized case management system created or prepared by
the court in connection with a case or judicial proceeding.” Id. at -2(a)(4).
Requests for municipal court records under Rule 1:38 must be directed to a
“Municipal Court Director or Administrator.” Id. at -10(a)(7). The Rule
further lists numerous categories of court records that are excluded from public
access. Id. at -3.
                                        21
      Moreover, the contention by MPD that because government records may

be available elsewhere an agency can relinquish its obligations under OPRA

runs counter to “the State’s policy in favor of broad access to public records”

embodied by OPRA. N. Jersey Media Grp., Inc. v. Township of Lyndhurst,

 229 N.J. 541, 555 (2017). Were we to engraft upon OPRA an exception for

when a government agency has created but no longer maintains a record, it

would create a perverse incentive for officials to relinquish electronic records

to a third party in order to prevent their public disclosure. That would conflict

with OPRA’s policy of government transparency and would ignore the fact

that modern-day technological advancements have, in many cases, resulted in

the possibility for there to be multiple concurrent or simultaneous custodians

of the same electronic information. That the Judiciary might maintain on its

servers the information that MPD made does not absolve MPD of its obligation

to produce that information pursuant to a proper OPRA request made to MPD.

      That brings us to MPD’s argument that the request at issue here was not

a proper request for OPRA purposes because it required research.

                                       B.

      In Paff, we explained the proper parameters of OPRA records requests as

follows:

            A records request must be well defined so that the
            custodian knows precisely what records are sought.
                                       22
            The request should not require the records custodian to
            undertake a subjective analysis to understand the nature
            of the request. Seeking particular information from the
            custodian is permissible; expecting the custodian to do
            research is not.

            [ 229 N.J. at 355.]

Thus, a records request must not be so broad as to require the record custodian

to exercise subjective judgment in determining which records must be

produced. See N.J. Builders Ass’n v. N.J. Council on Affordable Hous.,  390 N.J. Super 166, 171-72 (App. Div. 2007) (finding that an OPRA request for

“[a]ny and all documents and data which [were] relied upon, considered,

reviewed, or otherwise utilized by any employee or staff member of COAH”

was overly broad and did not specify the information sought (alterations in

original)). To avoid submitting a broad request outside the scope of OPRA,

the requestor must “describe[] the records sought with the requisite specificity

and narrow[] the scope of the inquiry to a discrete and limited subject matter.”

Burke,  429 N.J. Super. at 177-78.

      In MAG, the Appellate Division reviewed an order granting MAG

Entertainment (MAG) a right under OPRA to obtain documents from the

Division of Alcoholic Beverages Control (ABC).  375 N.J. Super. at 539.

ABC had a pending enforcement action against MAG, and MAG was pursuing

a selective enforcement defense. Ibid. To substantiate its defense, MAG filed

                                       23
an OPRA request for all documents pertaining to past instances where ABC

sought to revoke liquor licenses for certain alcohol-related criminal charges,

but “MAG’s request did not identify any specific case by name, date, docket

number or any other citation.” Id. at 539-40.

      The Appellate Division reversed the order granting MAG’s OPRA

request, explaining that

            the request failed to identify with any specificity or
            particularity the governmental records sought. MAG
            provided neither names nor any identifiers other than a
            broad generic description of a brand or type of case
            prosecuted by the agency in the past. Such an open-
            ended demand required the Division’s records
            custodian to manually search through all of the
            agency’s files, analyze, compile and collate the
            information contained therein, and identify for MAG
            the cases relative to its selective enforcement defense
            in the . . . litigation. Further, once the cases were
            identified, the records custodian would then be required
            to evaluate, sort out, and determine the documents to be
            produced and those otherwise exempted.

            [Id. at 549.]

Accordingly, the court concluded that ABC “was asked to do the very research

and investigation MAG needed to do in the administrative proceeding in order

to establish a 'colorable claim’ of selective enforcement,” which was

“decidedly outside [of OPRA’s] statutory ambit.” Id. at 549-50. The court

held that OPRA does not encompass “[w]holesale requests for general


                                       24
information to be analyzed, collated and compiled by the responding

government entity.” Id. at 549.

      By contrast, in Paff, we held that a plaintiff’s OPRA request did not

require research.  229 N.J. at 356. There, Paff submitted an OPRA request to

Galloway Township “for specific information in emails sent by the Township’s

Municipal Clerk and Chief of Police over a two-week period,” seeking only

information in the “sender,” “recipient,” “date,” and “subject” fields. Id. at

343. We rejected the Township’s analogy to MAG, emphasizing that

            [u]nlike the request in MAG, Paff circumscribed his
            request to a two-week period and identified the discrete
            information he sought. The records custodian did not
            have to make a subjective judgment to determine the
            nature of the information covered by the request. The
            custodian simply had to search for -- not research the
            identity of -- the records requested.

            [Id. at 356.]

Thus, the distinction between a research and non-research request lies with

whether the plaintiff’s request demands the government agency engage in

analysis or “the exercise of judgment in identifying responsive records.”

Burke,  429 N.J. Super. at 177.

      Here, MPD likens AADARI’s records request to the request rejected in

MAG, arguing that it would require research and was thus beyond the scope of

OPRA. The trial court rejected that argument, finding that MPD does not need

                                       25
to interpret any documents to determine whether they need to be produced.

We agree.

      We are not persuaded that AADARI’s records request would require

MPD to engage in any analysis to produce the requested CDR-1s. As

AADARI has explained, because it already has MPD’s arrest listings for the

relevant time period, which include drug-related incidents, it has identified 162

cases that correspond to the requested CDR-1s. The arrest listings contain the

first and last names of the offenders, their dates of birth, the dates of each

incident, the incident numbers, and the specific offense charged -- in this case,

drug possession. MPD merely needs to use any of those already-provided data

points to retrieve the corresponding CDR-1s and produce them to AADARI.

Such an exercise would not require any subjective judgment, only the

objective activity of producing the CDR-1s referenced in the arrest listings.

      MPD’s reliance on MAG is misplaced. This is far from a case where the

requestor did not provide anything more than a “broad generic description of a

brand or type of case prosecuted by the agency in the past.” See MAG,  375 N.J. Super. at 549. Rather, it is akin to the request in Paff, wherein the

requestor “circumscribed his request to a two-week period and identified the

discrete information he sought,”  229 N.J. at 356, or Burke, where the request

“was confined to a specific subject matter that was clearly and reasonably

                                        26
described with sufficient identifying information,”  429 N.J. Super. at 177.

Similar to those cases, we conclude that AADARI’s request was well within

OPRA’s scope and does not require research by MPD.

                                       V.

      For the reasons set forth above, we reverse the judgment of the

Appellate Division and reinstate the trial court’s order granting AADARI’s

OPRA request. MPD must comply with the trial court order and provide the

requested documents to AADARI within five business days of the filing of this

opinion.



    CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, FERNANDEZ-VINA, and SOLOMON join in JUSTICE PIERRE-
LOUIS’s opinion.




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