Prepared by the Court

SUPERIOR COURT OF NEW JERSEY

LAW DIVISION: BERGEN COUNTY

JEFF CARTER,

DOCKET NO. BER-L-761-17

Plaintiff,

vs.

CIVIL ACTION FILED

BOROUGH OF PARAMUS and

ANNEMARIE KRUSZNIS, RMC,

MAR 3 1 2017

in her official capacity as records

BONNIE J. MIZDOL, A.J.S.C.
custodian for the Borough of Paramus

Defendants. ORDER

TIDS MATTER having come before the Court upon the verified complaint of Plaintiff,

Jeff Carter, through his counsel, CJ Griffin, Esq. (Pashman Stein Walder Hayden, LLC), on notice

to and upon cross-motion of Justin D. Santagata, Esq. (Kaufman, Semeraro & Leibman, LLP),

attorney for Defendants, Borough of Paramus and Annemarie Krusznis, Records Custodian; and

the Court having considered the papers filed in this matter, arguments of counsel; and for good

cause shown,

IT IS on this 3 1 s t day of March, 2 0 1 7 , O RD E RE D

1. For the reasons set forth in the opinion annexed hereto, plaintiffs request for relief is

GRANTED,

2. For the reasons set forth in the opinion annexed hereto, Defendants request for

jurisdictional discovery is DENIED,

3. As the prevailing party, plaintiff is entitled to reasonable counsel fees ili,J.S.A. 47:lA-6).

Counsel shall attempt to agree upon a reasonable quantum of fees. Failing to accomplish
 the same, counsel for plaintiff shall submit a certification of services by April 3 0, 2 0 1 7 ,

and defendants' counsel shall have ten ( 1 0 ) days thereafter to respond.

FURTHER ORDERED that a copy of this Order is to be served upon all counsel ofrecord

within five (5) day(s) of the date of this Order.

 NOT TO BE PUBLISHED WITHOUT

THE APPROVAL OF THE COMMITTEE ON OPINIONS

SUPERIOR COURT OF NEW JERSEY

JEFF CARTER, FILED

LAW DIVISION

Plaintiff, MAR 3 1 2017

v. BERGEN COUNTY

BONNIE J. MIZDOL A.J.S.C.

1

BOROUGH OF PARAMUS and DOCKET NO. B E R - L - 7 6 1 - 1 7

ANNEMARIE KRUSZNIS, RMC, in

her official capacity as records CIVIL ACTION

custodian for the Borough of Paramus,

OPINION

Defendants .

. Argued: March 31, 2017

Decided: March 31, 2017

Honorable Bonnie J. Mizdol, A.J.S.C.

Introduction

This matter concerns Plaintiff, Jeff Carter's, right to access records under the Open Public

Records Act ("OPRA" or "the Act"), N . J . S . A . 4 7 : l A - 1 to - 1 3 , and the common law. Plaintiff, Jeff

Carter, ("Carter" or the "plaintiff') challenges the denial by the Borough of Paramus ("Paramus")

and its records custodian, Annemarie Kruszniz, (referenced collectively as "defendants") of four

(4) 2 0 1 7 OPRA requests.

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Facts and Procedural Posture

On January 17, 2017, plaintiff submitted an OPRA request to defendants, regarding

payments to Justin D. Santagata, Esq., an attorney for the Borough of Paramus. Specifically the

request stated:

1. Specific of identifiable record(s) requested: Complete

copies of any and all:

1.1 Purchase orders, including invoices/attachments

1.2 Vouchers, including invoices/attachments

1.3 Purchase Order Vouchers, including invoices/attachments

1.4 Warrants, including invoices/attachments

2. Specific date range of identifiable record(s) requested:

April 14, 2 0 1 4 through January 1 7 , 2 0 1 7 .

3. Specific content and/or subject matter contained within

identifiable record(s) requested: Legal services (including any

reasonable construed variation thereof).

4. Specific parties involved in identifiable record(s) requested

Justin D. Santagata, Esq. including members of his representative

firm(s).

On January 1 8 and 1 9 , 2 0 1 7 , plaintiff filed two additional requests related to legal services

provided to Paramus by two other attorneys. On January 25, 2 0 1 7 , plaintiff filed his fourth request,

a request for Paramus's check register. To date, defendants have not responded to three of the four

requests.

On January 25, 2 0 1 7 , plaintiff received a response from Paul Kaufman, Esq., of the law

firm Kaufman Semeraro & Leibman, LLP, regrading plaintiffs first request. Mr. Kaufman wrote:

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 As you know, we represent the Borough of Paramus ("Paramus").

This letter is a response to your January 1 7, 201 7 records request. In

the request, you seek "any and all . . . purchase orders, including

invoices, vouchers . . . " for "Justin D. Santagata, Esq. including

members of his respective firm(s)" form "April 14, 2 0 1 4 through

January 1 7 , 2 0 1 7 . "

Mr. Santagata does not have a firm and has not submitted any

vouchers to Paramus. Because my firm has been counsel to Paramus

since well before the April 14 start date in your records request, your

request is overly broad and would substantially disrupt the

operations of the clerk's office in Paramus. N.J.S.A. 47:1A-5(g). As

written, your request encompasses three years' worth of billing

invoices and vouchers, all of which would have to be reviewed and

potentially redacted because many of the matters in the invoices and

vouchers are still ongoing. See, e . g . , Signature Info. Sols., LLC v.

Jersey City Mun. Utilities Auth., 2 0 1 6 WL 1 0 6 4 3 8 9 at *5 (App. Div.

Mar. 1 8 , 2 0 1 6 ) : Fisher v. Div. of Law, 400 N.J. Super. 6 1 , 73 (App.

Div. 2008). Your records request is not for an easily accessible or

produce-able legal invoice that can be quickly reviewed by the

clerk's office.

Paramus has no interest in denying your records request. You are

fully capable of refining this request in a way that balances your

interest in disclosure against the substantial disruption to the clerk's

office that would be caused by the breadth of this request. Please do

so and you will be provided with the requisite documentation.

Lastly, we believe that, considering the suspect timing, this OPRA

request was intended to harass Paramus because the Clerk did not

possess the records initially sought. Notwithstanding, upon receipt

of your refined request, we will provide the documentation sought

within a reasonable time.

Shortly after, plaintiff replied, denying the allegation that the request was intended to harass

the Paramus. Plaintiff also asserted Paramus' basis for denial was unlawful, but "in the spirit of

cooperation" narrowed plaintiff's request to "all purchase orders and corresponding invoices

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involving 'Kaufman Semeraro & Liebman' for the period of April 14, 2 0 1 4 through June 14,

2014."'

Paramus denied plaintiffs request a second time, stating:

Non-New Jersey residents are not entitled to documents under

OPRA. This has been confirmed by a recent GRC decision. A PO

Box is not a residence. At this time we have no evidence that you

are a New Jersey resident. We have no problem providing the

documents electronically once are assured that you qualify.

Plaintiff responded, representing he is a New Jersey citizen, but refusing to provide his

home address. Paramus responded, declining to produce the requested records without "proof' of

plaintiffs residency.

On January 3 1 , 2 0 1 7 , plaintiff filed an Order to Show Cause (OTSC), Verified Complaint,

and an accompanying brief, alleging violations of OPRA N.J.S.A. 4 7 : l A - 1 to - 1 3 and the common

law right of access. Plaintiff alleges defendants violated OPRA and the common law by denying

plaintiffs first request and failing to respond to plaintiffs second and third requests. Plaintiff also

argues he is entitled to fees, pursuant to N.J.S.A. 4 7 : l A - 6 .

On February 07, 2 0 1 7 , defendants submitted opposition to plaintiffs OTSC, arguing that

they had not violated OPRA and the common law by denying access because plaintiff lacks

standing to make public records requests in the State of New Jersey as he is not a New Jersey

resident. In support, they cite to the Government Records Council ("GRC") opinion in Scheeler v.

Burlington, GRC 2 0 1 5 - 9 3 , (GRC Sept. 2 9 , 2016 ) , where it held a requester "may not request

records under OPRA" if the requester is "not a citizen." Scheeler v. Burlington, GRC 2 0 1 5 - 9 3 ,

Findings/Recommendations at 4 (GRC Sept. 29, 201 6) .

On February 1 6 , 2 0 1 7 , plaintiff filed a First Amended Verified Complaint, amending his

claims to include the defendants' failure to respond the to the January 25, 2 0 1 7 , request.

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 On March 2, 2 0 1 7 , defendants filed a Notice of Cross-Motion for jurisdictional discovery

and an accompanying brief in support of the cross-motion. Defendant also filed an answer to

plaintiff's First Amended Complaint. Defendants argue plaintiff should be required to prove his

citizenship as a prerequisite to pursuing the OTSC, and further, that defendants be permitted to

conduct discovery regarding plaintiffs alleged citizenship in New Jersey.

On March 16, 2 0 1 7 , plaintiff submitted a reply brief arguing the GRC erred in finding New

Jersey "citizenship" to be a prerequisite to access to government records under OPRA, citing three

trial court opinions. Specifically, Scheeler v. Atlantic County ACMJIF, 2 0 1 5 WL 9 9 1 0 1 1 7 (Law

Div. Oct. 2, 2 0 1 5 ) ; Scheeler v. Ocean County Prosecutor's Office, 2 0 1 6 WL 1 5 8 7 3 4 1 (Law Div.

April 14, 2 0 1 6 ) ; Heimlich v. Educational Information & Resource Center, Docket No. GLO-L-

7 7 9 - 1 6 (Law Div. Oct. 24, 2 0 1 6 ) . In these matters, Judges Bookbinder, Troncone, and Curio

concluded that "any person" may utilize OPRA. Ibid; N.J.S.A. 4 7 : l A - 5 . Plaintiff argues adherence

to the "any person" interpretation precludes the need for defendant to conduct discovery regarding

plaintiffs home address. Further, plaintiff argues requiring plaintiff publicly disclose his home

address in order to gain access to public records implicates plaintiff's right to privacy.

On March 28, 2 0 1 7 , defendants submitted a reply in support of their cross-motion.

On March 31, 2017, the court entertained oral argument on plaintiffs OTSC and

defendants' cross-motion for discovery.

Law

A. OPRA

a. Generally

The purpose ofOPRA, N.J.S.A. 4 7 : l A - 1 to - 1 3 , is plainly set forth in the statute: "to insure

that government records, unless exempted, are readily accessible to citizens of New Jersey for the

5
protection of the public interest." Mason v. City of Hoboken, 1 9 6 N.J. 51, 57 (2008) (citing

N.J.S.A. 4 7 : l A - 1 ) . The Act replaced the former Right to Know Law (RTKL), N.J.S.A. 4 7 : l A - 1

to -4 (repealed 2002), and perpetuates "the State's long-standing public policy favoring ready

access to most public records." Bent v. Twp. of Stafford Police Dep't, 3 8 1 N.J. Super. 30, 36 (App.

Div. 2005) (quoting Serrano v. S. Brunswick Twp., 3 5 8 NJ. Super. 352, 363 (App. Div. 2003)).

To effectuate that purpose, OPRA establishes a comprehensive framework for access to public

records. Mason, supra, 1 9 6 N.J. at 57. Specifically, the Act requires, among other things, prompt

disclosure of records and provides different procedures to challenge a custodian's decision denying

access. Ibid.

Above all, OPRA mandates "all government records shall be subject to public access unless

exempt." N.J.S.A. 47:lA-l. Therefore, records must be covered by an exclusion to prevent

disclosure. Ibid. The Act defines "government record" as follows:

[A]ny 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. 4 7 : l A - l . l . ]

The OPRA framework contemplates a swift timeline for disclosure of government records.

Mason, supra, 1 9 6 N.J. at 5 7 . Unless a shorter time period is prescribed by statute, regulation or

6
executive order, a records custodian must grant or deny access to a government record "as soon as

possible, but not later than seven business days after receiving the request." N.J.S.A. 47:lA-S(i).

A public agency's failure to respond within seven business days "shall be deemed a denial of the

request." Ibid. If the record is in storage or archived, and a response cannot be made timely, the

custodian must report that information within seven business days and advise when the record will

be made available. Ibid. Courts have repeatedly found providing redacted documents is also a

denial and to redact information, it must fall under an exemption to OPRA. See e.g., Newark

Morning Ledger Co. v. N.J. Sports & Exposition Auth., 423 N.J. Super. 140, 1 4 8 (App. Div. 2 0 1 1 )

(holding the redacted portions of the records must be disclosed as they did not meet the trade secret

exemption).

If the custodian denies access to a government record, the requestor may challenge that

decision by filing an action in Superior Court or a complaint with the Government Records Council

("GRC"). N.J.S.A. 4 7 : l A - 6 . The right to institute any proceeding under this section, however,

belongs solely to the requestor. Ibid. If the requestor elects to file an action in Superior Court, the

application must be brought within forty-five days of the denial or be dismissed with prejudice as

untimely. See Mason, supra, 1 9 6 N.J. at 70 (holding, explicitly, a 45-day statute of limitations

applies to OPRA actions). The statute of limitations period "assures citizens receive swift access

to public records, and also provides public bodies with certainty regarding possible disputes

regarding the accessibility of records." Newark Morning Ledger Co. v. New Jersey Sports &

Exposition Authority, 423 N.J. Super. 140, 1 5 8 - 1 5 9 (App. Div. 2 0 1 1 ) (internal quotation marks

omitted). However, "[t]he Court has also made clear trial courts can enlarge the time period in the

interest of justice" in instances of good faith delay. Ibid.

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 OPRA proceedings "are to be conducted in a 'summary or expedited manner.' This means

that a trial court is to proceed under the procedures prescribed in Rule 4 : 6 7 . R. 4:67-l(a). The

action is commenced by an order to show cause supported by a verified complaint." MAG Entm 't,

LLC v. Div. of Alcoholic Beverage Control, 3 7 5 N.J. Super. 534, 5 5 0 (App. Div. 2005) (citations

omitted). If the court finds the application is sufficient, "[it] shall order the defendant to show

cause . . . [and] try the case on the return date." Id. at 5 5 0 - 5 1 (citing R. 4:67-2(a); R. 4:67-5).

"Unlike Rule 4:67-2(b), which allows for conversion of a plenary action into a summary action,

and, therefore, may require an elaborated record, Rule 4:67-2(a), which governs OPRA actions,

does not permit the record to be supplemented by depositions or other forms of discovery." Id. at

551-52. In short, actions brought under R. 4:67-2(a), as OPRA proceedings, may not be

supplemented by discovery absent some legitimate need. Id. at 552.

If a public agency denies a requester access, OPRA places the burden on the agency to

prove the denial was authorized by law. N.J.S.A. 4 7 : l A - 6 . An agency "seeking to restrict the

public's right of access to government records must produce specific reliable evidence sufficient

to meet a statutorily recognized basis for confidentiality." Courier News v. Hunterdon Cnty.

Prosecutor's Office, 3 5 8 N.J. Super. 3 7 3 , 382-83 (App. Div. 2003). Absent the necessary proofs,

"a citizen's right of access is unfettered." Id. at 3 8 3 . In assessing the sufficiency of the agency's

proofs submitted in support of its claim for nondisclosure, "a court must be guided by the

overarching public policy in favor of a citizen's right of access." Ibid. If it is determined access

has been improperly denied, the access sought shall be granted, and a prevailing party shall be

entitled to a reasonable attorney's fee. N.J.S.A. 47:lA-6.

Although OPRA defines "government record" broadly, the public's right of access is not

absolute. Educ. Law Ctr. v. N.J. Dep't of Educ., 1 9 8 N.J. 274, 284 (2009) (citing Mason, supra,

8
1 9 6 N.J. at 65). The statute specifically exempts twenty-one categories of information from

disclosure. Mason, supra, 1 9 6 N.J. at 65. In addition, N . J . S . A . 4 7 : l A - 1 provides:

[A]ll government records shall be subject to public access unless

exempt from such access by: [ other provisions of OPRA]; any other

statute; resolution of either or both houses of the Legislature;

regulation promulgated under the authority of any statute or

Executive Order of the Governor; Executive Order of the Governor;

Rules of Court; any federal law, federal regulation, or federal order.

Therefore, a records custodian may rightfully deny a request if the record belongs to one

of the enumerated categories of exemptions, or was created by another statute or Executive Order,

which "significantly reduces the universe of publicly-accessible information. As the Legislature

acknowledged in N.J.S.A. 47:lA-1 and N.J.S.A. 47:lA-8, the only countervailing relief

mechanism for those seeking access to a statutorily excluded document is the common law right

of access." Bergen Cnty. Imp. Auth. v. N. Jersey Media Grp., Inc., 370 N.J. Super. 504, 5 1 6- 1 7

(App. Div. 2004), certif. denied, 1 8 2 N.J. 143 (2004).

b. Standing

In 2 0 0 1 , OPRA replaced its predecessor the RTKL. The operational provisions of the

RTKL, restricted access to "citizens of the state," whereas, OPRA's operational provisions refer

to "any person."

To date, neither the Appellate Division nor the Supreme Court of New Jersey have held

that New Jersey citizenship is a prerequisite to filing an OPRA request. This issue is currently

1
pending review by the Appellate Division. Although there is no controlling jurisprudence, various

1
Lawyers Committee For Civil Rights Under Law v. Atlantic City Board of Education, et al., Docket No. ATL-L-

8 3 2 - 1 5 (Law Div. Feb. 1 9 , 2016) (holding OPRA does not permit out-of-state requests), appeal pending A-2704-15;

Scheeler v. City of Cape May, et al, Docket No. CPM-L-444-15 (Law Div. Feb. 19, 2016) (holding OPRA does not

permit out-of-state requests), appeal pending A - 2 7 1 6 - 1 5 ; and Scheeler v. Atlantic County Municipal Joint Insurance

Fund, et al., Docket No. BUR-L-990-15 (Law Div. Oct. 2, 2 0 1 5 ) (tentative decision holding OPRA permits out-of

state requests), appeal pending A-2092-15.

9
New Jersey trial courts and the GRC have issued decisions on the issue that fall into two distinct

schools of thought.

The first, strictly construes the "citizens of the state" language contained within "Section

l " of OPRA to place a citizenship limitation on the rights of access delineated throughout the entire

Act. The GRC recently held in Scheeler v. Burlington, GRC 2 0 1 5 - 9 3 , (GRC Sept. 29, 2 0 1 6 ) , that

a requestor "may not request records under OPRA" if the requestor is "not a citizen." Scheeler v.

Burlington, GRC 2 0 1 5 - 9 3 , Findings/Recommendations at 4 (GRC Sept. 29, 2016). Similarly, two

trial court level decisions have held OPRA does not permit out-of-state requests. Lawyers

Committee for Civil Rights Under Law v. Atlantic City Board of Education, et al., Docket No.

ATL-L-832-15 (Law Div. Feb. 1 9 , 2 0 1 6 ) , appeal pending A-2704-15; Scheeler v. City of Cape

May, et al., Docket No. CPM-L-444-15 (Law Div. Feb. 1 9 , 2016), appeal pending A - 2 7 1 6 - 1 5

The second school of thought interprets OPRA's operational provisions to afford standing

rights to "any person". Scheeler v. Atlantic County ACMJIF, 2 0 1 5 WL 9 9 1 0 1 1 7 (Law Div. Oct.

2, 2 0 1 5 ) ; Scheeler v. Ocean County Prosecutor's Office, 2 0 1 6 WL 1 5 8 7 3 4 1 (Law Div. April 14,

2 0 1 6 ) ; Heimlich v. Educational Information & Resource Center, Docket No. GLO-L-779-16 (Law

Div. Oct. 24, 2016). These cases distinguish between "Section 1" of OPRA and the Act's

operational provisions, equating "Section l " to that of simply a preamble, rather than a substantive

portion of the law. In the operational provisions of the statute, the more general term "person" is

used. This term is broader than "citizen" and compels a finding that the legislature did not intend

to so limit access to public records. Scheeler v. Ocean County Prosecutor's Office, 2 0 1 6 WL

1 5 8 7 3 4 1 (Law Div. April 1 4 , 2 0 1 6 ) ; In r e Zahn, 424 N.J. Super. 2 3 1 , 237 (App. Div. 2 0 1 2 ) . "[T]he

language of OPRA is clear and unambiguous. Access to public records under OPRA is not limited

to New Jersey 'citizens."' If the Legislature intended to limit access to citizens, "as the Virginia

10
Legislature did," it could have done so "by incorporating that term in the statute's operational

provisions." Scheeler v. Ocean County Prosecutor's Office, 2 0 1 6 WL 1 5 8 7 3 4 1 (Law Div. April

14, 2 0 1 6 ) .

B. New Jersey Common Law

In addition to OPRA, disclosure can be sought under the common law. The Act provides

"[n]othing contained in [OPRA] shall be construed as limiting the common law right of access to

a government record." N.J.S.A. 4 7 : l A - 8 . Thus, even if the information requested falls within one

of the exceptions to access under the statutory construct of OPRA, requesters may still prevail by

resorting to the common law right to access public records. To constitute a government record

under the common law, the item must be:

[O]ne required by law to be kept, or necessary to be kept in the

discharge of a duty imposed by law, or directed by law to serve as a

memorial and evidence of something written, said, or done, or a

written memorial made by a public officer authorized to perform

that function, or a writing filed in a public office. The elements

essential to constitute a public record are * * * that it be a written

memorial, that it be made by a public officer, and that the officer be

authorized by law to make it.

rs. Jersey Pub. Co. V. N.J. Expressway Auth., 124 N.J. 478, 487-

88 ( 1 9 9 1 ) (quoting Nero v. Hyland, 76 N.J. 2 1 3 , 222 (1978)).]

To reach this broader class of documents, requesters must satisfy a higher burden than

required under OPRA: "(1) the person seeking access must establish an interest in the subject

matter of the material; and (2) the citizen's right to access must be balanced against the State's

interest in preventing disclosure." Mason, supra, 1 9 6 N.J. at 67-68 (quoting Keddie v. Rutgers,

148 N.J. 36, 50 (1997)) (internal quotations and citations omitted). The Supreme Court has

articulated several factors for a court to consider in performing its balancing:

( 1 ) the extent to which disclosure will impede agency functions by

discouraging citizens from providing information to the

11
 government; (2) the effect disclosure may have upon persons who

have given such information, and whether they did so in reliance

that their identities would not be disclosed; (3) the extent to which

agency self-evaluation, program improvement, or other decision

making will be chilled by disclosure; (4) the degree to which the

information sought includes factual data as opposed to evaluative

reports of policymakers; (5) whether any findings of public

misconduct have been insufficiently corrected by remedial measures

instituted by the investigative agency; and (6) whether any agency

disciplinary or investigatory proceedings have arisen that may

circumscribe the individual's asserted need for the materials.

rs. Jersey Pub., supra, 124 N.J. at 488 (quoting Loigman V.

Kimmelman, 1 0 2 N.J. 98, 1 1 3 ( 1 9 8 6 ) ) .

Analysis

Plaintiff seeks records related to payment vouchers and legal invoices paid out to legal

counsel for their services representing the Borough of Paramus. Defendants argue plaintiff lacks

standing to make the requests underlying the matter without proving New Jersey citizenship.

Accordingly, defendants request they be permitted to conduct jurisdictional discovery regarding

whether plaintiff is a "citizen" of New Jersey.

This court finds plaintiff has standing to file OPRA requests. N.J.S.A. 4 7 : I A - l to - 1 3 . The

court finds New Jersey citizenship is not a prerequisite to gain access to government records in the

state. Accordingly, defendants' cross-motion for jurisdictional discovery is denied, as they cannot

demonstrate a legitimate need for it.

A. OPRA

a. Generally

In order to trigger OPRA's disclosure requirements, the information sought must qualify

as a "government record." N.J.S.A. 4 7 : I A - l . There is no dispute amongst the parties that the

requested documents are government records for the purposes of OPRA. The statute defines a

government record broadly, in the following comprehensive fashion:

12
 [A]ny 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.

lli.J.S.A. 4 7: l A - 1 . 1 . ]

Here, the payment vouchers and legal bills are "government records," as they were made,

maintained and/or kept on file by the Borough of Paramus in the course of official business.

N.J.S.A. 4 7 : l A - l . l .

Furthermore, although N .J .S .A. 4 7: 1 A - 1 . 1 . exempts from disclosure "any record within the

attorney-client privilege," the Act specifically states that it "shall not be construed as exempting

from access attorney or consultant bills or invoices except that such bills or invoices may be

redacted to remove any information protected by the attorney-client privilege." (emphasis added).

Immediate access shall be granted to plaintiff to inspect "bills, vouchers, contracts, including

collective negotiations agreements and individual employment contracts, and public employee

salary and overtime information," (emphasis added) as mandated by the Act under N.J.S.A 47: lA-

S(e).

b. Standing

The court finds that plaintiff or "any person" has standing to make public records requests

underOPRA.

Defendant argues OPRA's use of the word "citizen" in the Act's first section connotes a

legislative intent to limit the right to access public records in the state of New Jersey to those who

13
are residents of the state. Defendant relies upon the GRC's decision in Scheeler v. Burlington,

GRC 2015-93, (GRC Sept. 29, 2016). In Scheeler v. Burlington, the GRC construed the

legislature's failure to modify the "citizen" language when they amended OPRA's predecessor,

Right to Know Law ("RTKL"), as a purposeful act connoting legislative intent to retain the

RTKL's limitation on filing to that of "citizens".

Despite the GRC's recent ruling, its Handbook for Records Custodians articulates a

contrary policy supporting standing for all individuals to file requests:

"[w]ho may file an OPRA request? Anyone! Although OPRA

specifically references 'citizens of the state,' the Attorney General's

Office advises that OPRA does not prohibit access to residents of

other states." N.J. Gov't Records Council, Handbook for Records

Custodians (5th ed. January 2 0 1 1 ) , at 6.

Thus, the GRC's own policies, as advised by the Office of the Attorney General, interpret OPRA

to expand access to government records beyond that of the RTKL. Mason v. City of Hoboken, 196

N.J. 5 1 , 64 (2008).

OPRA substantially broadened the definition of"government record" N.J.S.A 4 7 : l A - l . l . ,

and made fee awards mandatory rather than permissible. N.J.S.A 4 7: lA-6. The legislature repealed

the operational provisions of the RTKL containing "citizen of this state" language and replaced

them with OPRA's operational provisions allowing "any person" to inspect records N.J.S.A

4 7 : l A - 5 and initiate legal proceedings in order to gain access N.J.S.A 47:lA-6.

The legislature replaced the operational provisions of the RTKL with OPRA's operational

provisions referring to "any person" no less than twelve (12) times:

N.J.S.A. 47:1A-5(a) provides that, "[t]he custodian of a

government record shall permit the record to be inspected,

examined, and copied by any person during regular business

hours." (emphasis added);

14
 N.J.S.A. 47:1A-5(b) provides that, "[a] copy or copies of a

government record may be purchased by any person upon

payment of the fee prescribed by law or regulation" (emphasis

added);

N.J.S.A. 4 7 : 1 A - 5 ( f) provides that, "The custodian of a public

agency shall adopt a form for the use of any person who

requests access to a government record held or controlled by the

public agency." (emphasis added);

N.J.S.A. 4 7 : 1 A - 5 (j ) provides that, "statement that sets forth in

clear, concise and specific terms the right to appeal a denial of,

or failure to provide, access to a government record by any

person for inspection, examination, or copying." (emphasis

added);

N.J.S.A. 47:1A-5(k) provides that, "files maintained by the

Office of the Public Defender that relate to the handling of any

case shall be considered confidential and shall not be open to

inspection by any person unless authorized by law." (emphasis

added);

N.J.S.A. 4 7 : l A - 6 provides that, "A person who is denied

access to a government record by the custodian of the record, at

the option of the requester may institute a proceeding . . . "

(emphasis added);

N.J.S.A. 47:1A-7(b) provides that, the GRC shall "receive,

hear, review and adjudicate a complaint filed by any person

concerning a denial of access to a government record by a

records custodian . . . " (emphasis added);

N.J.S.A. 47:1A-7(b) provides that, the GRC shall "allow any

person to request mediation or to file a complaint with the

council when access has been denied." (emphasis added);

N.J.S.A. 47:1A-6(d) provides that, the GRC must provide

mediation opportunities "[ u]pon receipt of a written complaint

signed by any person alleging that a custodian of a

government record has improperly denied that person access to

a government record . . . " (emphasis added);

N .J. S .A. 4 7: 1 A - 1 . 1 provides that, personal firearms records are

exempt except "for use by any person authorized by law to

15
 have access to these records or for use by any government

agency . . . " ( emphasis added);

N.J.S.A. 4 7 : l A - l . 1 provides that a government record does not

include, "that portion of any document which discloses the

social security number, credit card number, unlisted telephone

number or driver license number of any person." (emphasis

added);

N.J.S.A. 4 7: l A - 1 . 1 provides that, "that portion of any

document which discloses the social security number, credit

card number, unlisted telephone number or driver license

number of any person." (emphasis added).

The court agrees with Judge Troncone's well-reasoned findings in Scheeler v. Ocean

County Prosecutor's Office that the term "person" is broader than "citizen," and its liberalizing

modification indicates a legislative intent to broaden access to government records.

Under OPRA, the term "citizen" is not defined and appears nowhere

other than in the statement of Legislature Findings and Declarations

which is essentially a preamble of the statute. In the operational

provisions of the statute, the more general term "person" is used.

This term is broader than "citizen" and compels a finding that the

legislature did not intend to so limit access to public records. See

dep 't of Labor v. cruz, 45 N.J. 3 72, 3 8 0 (1965) and In re Zhan, 424

N.J. Super. 2 3 1 , 237 (App. Div. 2 0 1 2 ) .

Scheeler v. Ocean County Prosecutor's Office, 2 0 1 6 WL 1 5 8 7 3 4 1

(Law Div. April 14, 2 0 1 6 )

Limiting OPRA standing to "citizens" would greatly limit the public's right of access to

records under OPRA. The court agrees with plaintiff that such a limitation would produce "absurd"

results.

Such a limitation would leave many individuals with a legitimate interest or need for access

without recourse.

For example, a non-resident property owner and taxpayer could not

obtain public records affecting his property; the out-of-state motorist

16
 involved in an accident would be unable to access documents from

law enforcement officials relating to the incident; and a newspaper,

published in a neighboring state but circulated in New Jersey,

investigating a claim of alleged official misconduct or corruption

would be barred from obtaining public records.

Ibid.

Even in-state entities and organizations would be precluded, as New Jersey law does not recognize

the term "citizen" to share the same statutory inclusiveness as the term "persons." "Persons"

include corporations, associations, firms, etc. when referred to in statute. N.J.S.A. 1 : 1 - 2 . The term

"citizens" does not. Precluding "persons" with a legitimate interest in records would frustrate the

intent and purpose ofOPRA.

Further, the GRC's recent ruling neglects to address that requiring someone to prove

citizenship would completely defeat OPRA's anonymity provisions or that an out-of-state

requestor could easily evade the citizenship requirement by filing anonymously. When legislative

intent is unclear, courts disfavor interpretations that would be unenforceable or evadable.

Habrouck Heights Hospital Ass'n v. Borough of Hasbrouck Heights, 1 5 N.J. 447, 453 ( 1 9 5 4 ) ("A

statute should not be construed to permit its purpose to be defeated by evasion[.]").

B. Common Law Right of Access

Records that are not disclosed under OPRA may still be disclosed under the common law

right of access. This Court finds plaintiff is entitled to the requested items pursuant to the common

law.

To constitute a government record under the common law, the item must be:

[O]ne required by law to be kept, or necessary to be kept in the

discharge of a duty imposed by law, or directed by law to serve as a

memorial and evidence of something written, said, or done, or a

written memorial made by a public officer authorized to perform

that function, or a writing filed in a public office. The elements

17
 essential to constitute a public record are * * * that it be a written

memorial, that it be made by a public officer, and that the officer be

authorized by law to make it.

[S. Jersey Pub. Co. v. N.J. Expressway Auth., 124 N.J. 478, 487-88

( 1 9 9 1 ) (quoting Nero v. Hyland, 76 N.J. 2 1 3 , 222 (1978)).]

To reach this broader class of documents, requestors must satisfy a higher burden than

required under OPRA: "(1) the person seeking access must establish an interest in the subject

matter of the material; and (2) the citizen's right to access must be balanced against the State's

interest in preventing disclosure." Mason v. City of Hoboken, 1 9 6 N.J. 5 1 , 67-68 (2008) (quoting

Keddie v. Rutgers, 1 4 8 N.J. 3 6 , 50 (1997)) (internal quotations and citations omitted).

The Supreme Court has articulated several factors for a court to consider in performing its

balancing:

( 1 ) the extent to which disclosure will impede agency functions by

discouraging citizens from providing information to the

government; (2) the effect disclosure may have upon persons who

have given such information, and whether they did so in reliance

that their identities would not be disclosed; (3) the extent to which

agency self-evaluation, program improvement, or other decision

making will be chilled by disclosure; (4) the degree to which the

information sought includes factual data as opposed to evaluative

reports of policymakers; (5) whether any findings of public

misconduct have been insufficiently corrected by remedial measures

instituted by the investigative agency; and (6) whether any agency

disciplinary or investigatory proceedings have arisen that may

circumscribe the individual's asserted need for the materials.

rs. Jersey Pub., supra, 124 N.J. at 488 (quoting Loigman V.

Kimmelman, 1 0 2 N.J. 98, 1 1 3 ( 1 9 8 6 ) ) .

The court finds the Loigman factors weigh in favor of disclosure. The court finds there is no

legitimate basis for denying access to legal invoices concerning the expenditure of public funds.

Interest in the records and advancing government transparency substantially outweigh any

government interest in confidentiality.

18
 C. Cross-Motion for Jurisdictional Discovery

The court finds "citizenship" is not a prerequisite to file an OPRA request. Thus, defendant

cannot demonstrate a legitimate need for the requested discovery. Accordingly, defendants' cross

motion for jurisdictional discovery is denied.

D. Fees

As the prevailing party within the context of OPRA, plaintiff is entitled to reasonable

counsel fees N.J.S.A. 4 7 : l A - 6 ("A requestor who prevails in any proceeding shall be entitled to a

reasonable attorney's fee."). Counsel shall attempt to agree upon a reasonable quantum of fees.

Failing to accomplish the same, counsel for plaintiff shall submit a certification of services by

April 30, 2 0 1 7 , and defendants' counsel shall have ten ( 1 0 ) days thereafter to respond.

Conclusion

For the foregoing reasons, Plaintiffs requests for disclosure of records under OPRA and

the common law right of access are granted. The court finds defendants violated OPRA by failing

to provide plaintiff access to responsive legal invoices and payment vouchers. Defendants shall

produce the documents not later than April 1 5 , 2 0 1 7 . Defendants may redact any information they

determine is protected by attorney-client privilege or the work-product doctrine, supplying

plaintiff with a Vaughn Index identifying and justifying each redaction. N.J.S.A 47:lA-1.l;

O'Boyle v. Borough of Longport, 2 1 8 N.J. 1 6 8 , 1 8 5 (2014); ""-

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392 N.J. Super. 334, 341 (App. Div. 2007).

19