American Civil Liberties Union of New Jersey v. New Jersey Division of Criminal Justice and Bruce Solomon

89 A.3d 636, 435 N.J. Super. 533

• Court: New Jersey Superior Court Appellate Division
• Decided: May 13, 2014
• Docket: A-3381-12
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3381-12T1 AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY, a non-profit organization located in Newark, New Jersey, Plaintiff-Appellant, APPROVED FOR PUBLICATION v. May 13, 2014 NEW JERSEY DIVISION OF CRIMINAL JUSTICE and BRUCE SOLOMON, APPELLATE DIVISION Custodian of Records for the New Jersey Division of Criminal Justice, Defendants-Respondents. _____________________________________________

Telephonically Argued January 23, 2014 – Decided May 13, 2014 Before Judges Fuentes, Simonelli and Haas. On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2562-12. Thomas W. MacLeod argued the cause for appellant (American Civil Liberties Union of New Jersey Foundation, attorneys; Mr. MacLeod, on the brief).

Mary Beth Wood, Senior Deputy Attorney General, argued the cause for respondents (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Wood, on the brief).

The opinion of the court was delivered by FUENTES, P.J.A.D. We are asked to determine whether, in response to a request

for government records brought under the Open Public Records Act

(OPRA), N.J.S.A. 47:1A-1 to 47:1A-13, and our common law right

of access, a government agency has the authority to redact an

admittedly responsive document to withhold information the

agency deems to be outside the scope of the request. In

defending the right to adopt such a policy, the public agency

concedes the information it withheld is not supported by any

claim of privilege or other recognized exemption to disclosure

in OPRA or under our State's common law right of access.

The legal question raised here derives from an OPRA request

made by the American Civil Liberties Union of New Jersey (ACLU)

to the New Jersey Division of Criminal Justice (DCJ), seeking

records "pertaining to all forms of Automatic License Plate

Recognition (ALPR) technology." The DCJ responded by sending

the ACLU seventy-nine pages of redacted documents, including

certain pages of a grant application that were completely

blacked-out. In taking this action, the DCJ redacted from the

grant application information that, in the DCJ's opinion, did

not pertain to ALPR technology and thus was outside the scope of

the request.

The ACLU filed an order to show cause and verified

complaint in the Law Division against the DCJ seeking

2 A-3381-12T1 declaratory and injunctive relief with respect to this redaction

policy, and an award of counsel fees under OPRA's fee-shifting

provision. The matter came before the Law Division as a summary

action under N.J.S.A. 47:1A-6. After considering the arguments

of counsel, the Law Division dismissed the ACLU's complaint,

finding the DCJ's actions were "an appropriate way to respond."

As framed by the trial court, the policy adopted by the DCJ

presented two questions: (1) in responding to a request for a

public document "under either OPRA or the common law" can a

custodian determine to withhold information he or she believes

falls outside the scope of the request, without first seeking

consent or clarification from the requestor? And if so, (2) is

it reasonable to impose the "onus" on the requestor to clarify

the request or attempt to obtain the voluntary release of the

redacted information before initiating legal action? The court

ultimately decided to answer "yes" to both of these questions.

It is important to emphasize that the decision of the trial

court to uphold the DCJ's redaction policy did not rest on how

the court characterized the ACLU's request. The court viewed

the documents requested by the ACLU as "public records,"

unambiguously available to the public under both OPRA and the

common law right of access. Analytically, the court did not

find, and the DCJ did not argue, that the redaction policy was

3 A-3381-12T1 in any way predicated on or supported by any claim of privilege

or statutorily recognized exemption to disclosure under either

OPRA or the common law right of access.

In the trial judge's view, the action taken by the

custodian constituted a reasonable, good faith determination by

the agency that the redacted records fell outside the scope of

the request. If the requestor is dissatisfied with the

government agency's response, it is "not unreasonable to ask the

requestor to make a follow[-]up request, which is what could

have happened here and would have resolved this particular

issue."

We disagree with the Law Division and reverse. The

redaction protocol adopted by the DCJ here cannot stand because

it is not grounded on any of the statutorily recognized

exemptions to disclosure in OPRA, N.J.S.A. 47:1A-1.1, or on a

claim of confidentiality under the common law. Absent a legally

recognized exception to disclosure, a citizen's right of access

to public information is unfettered. Courier News v. Hunterdon

Cty. Prosecutor's Office, 358 N.J. Super. 373, 383 (App. Div.

2003).

The redaction policy adopted by DCJ is based entirely on

the unilateral determination by the custodian of records of

what, in his or her opinion, is relevant to the ACLU's request.

4 A-3381-12T1 This approach confers upon the custodian of government records

quasi-judicial powers to determine what information contained

within a "government record," as defined in N.J.S.A. 47:1A-1.1,

is relevant to a request and therefore subject to disclosure

and, conversely, what information contained in this same

document will be withheld from the public, based only on the

custodian's notion of relevancy. We discern no legal support

for such a policy in OPRA.

Equally troubling is the court's decision to place the

"onus" on the requestor to clarify or engage in negotiations

with the custodian as a jurisdictional prerequisite to

instituting legal action to enforce his or her rights to access

public information. This extra hurdle the requestor must clear

before getting to the courthouse doors is not only untethered to

any provision in OPRA, but contravenes the clear public policy

expressed by the Legislature in OPRA, directing the courts to

construe "any limitations on the right of access . . . in favor

of the public's right of access." N.J.S.A. 47:1A-1.

I

These facts are not disputed. On July 30, 2012, the ACLU

filed a formal OPRA request1 to the DCJ seeking records

1 The ACLU transmitted the request using the State of New Jersey's electronic request form.

5 A-3381-12T1 "pertaining to all forms of Automatic License Plate Recognition

(ALPR) technology." The ACLU specifically requested:

1. Records of all federal funds sought, received, or managed by your agency in connection with procurement and use of ALPR technology;

2. Records of all police departments and other agencies that received or purchased ALPR technology using funds from grants managed, arranged, or assisted by your agency;

3. All policies, procedures, and other general guidelines set for your agency by federal grant-making agencies, and for police departments and other agencies by your agency, with respect to procurement and use of ALPR technology, and to storage, access and sharing of data scanned with ALPR technology, including but not limited to those governing use of, access to, and auditing of databases, data mining programs, and other computerized management systems into which data from two or more police departments or other agencies is deposited;

4. All training materials relating to procurement and use of ALPR technology, and to storage, access, and sharing of data scanned with ALPR technology;

5. All records of the purchase, sale, or other transfer of ALPR data to any individual or entity; and

6. All ALPR data sharing agreements with any agency of the federal government, including but not limited to memoranda of understanding/agreement between your agency and any division or department of the U.S. Department of Justice, U.S. Department of Homeland Security, U.S. Department of

6 A-3381-12T1 Transportation, Federal Aviation Administration, and Department of Defense.

In a transmittal letter submitted simultaneously with the

OPRA request, the attorney representing the ACLU apprised the

"OPRA custodian of government records" that if "any portions of

the requested materials are exempt from disclosure, please

redact only what you believe is exempt and provide the

remaining, non-exempt portions."

The DCJ confirmed receipt of the ACLU's request on

September 14, 2012, and sent an ostensible response to the

request that included "electronic copies of 79 pages of redacted

records[.]" As described by the ACLU in its brief, "[t]he

redactions were made line-by-line in some cases; on other pages,

particular pieces of data within the record were blacked out."

The only explanation or justification the OPRA custodian

provided for taking this action consisted of the following curt

statement: "redacted information not relevant to request."

(Emphasis added).

On November 2, 2012, the ACLU filed a verified complaint

in the Law Division alleging the redacted documents sent by the

custodian violated the disclosure provisions under OPRA and the

common law right of access. The ACLU alleged the records

requested fell within the definition of "government records"

under N.J.S.A. 47:1A-1.1. As such, the DCJ did not have the

7 A-3381-12T1 legal authority to redact a government record and withhold

information from it based on the DCJ's unilateral determination

of what may or may not have been relevant to the requestor's

purpose.

By way of relief, the ACLU sought: (1) a judicial

declaration that the DCJ's redaction policy violated OPRA and

the common law right of access; (2) an order enjoining the DCJ

from denying access to nonexempt portions of government records

"based on claims that they are not relevant to the request" and

compelling the DCJ to issue a clear policy statement and

training protocol to avoid similar violations of the laws

governing the public's right to inspect and copy government

records; and (3) an award of counsel of fees pursuant to

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

The following colloquy between the trial judge and the

Deputy Attorney General representing the DCJ captured the

essence of the dilemma created by the public agency's position

here.

[DEPUTY ATTORNEY GENERAL]: . . . [The ACLU] asked for a very limited piece of information and we gave it to them. Had they come back and said, wait, I want the grant application or even what they're arguing now, I want grant materials concerning the law enforcement initiatives, we would have given them that. But they've never asked for it. . . . [T]heir request was very, very specific. . . . It said very,

8 A-3381-12T1 very clearly and in a very limited way, I want the grant materials for ALPR technology, and that's what we gave them.

THE COURT: But, . . . they're concerned that you are exercising judgment and that they can't trust the judgment of a defendant to determine what is responsive and what's not and that the better rule is to provide it all. And there's something appealing to that because then you take any sort of judgment out of the mix.

[DEPUTY ATTORNEY GENERAL]: . . . [Y]our Honor, it's not judgment. . . . [I]f you look at the records, . . . the custodian here made clear that he was redacting - - he left the headings in for everything. So, for example, at PA-14, . . . he left open D reentry and redacted underneath it. So you can see that it had nothing to do with ALPR technology. The redacted portion had to do with reentry. And in . . . subcategory (c), the heading is prevention. It has nothing to do with ALPR technology. And the custodian was really very careful in doing that so that they could see that it had nothing to do with their request.

THE COURT: But, . . . they believe they don't have to accept the limitation because it's a public record and there's no exemption that prevents them from - - that should prevent them from getting access to the material.

After a thorough review of the ACLU's request, the trial

judge found the State's grant application attached to the ACLU's

verified complaint noted that only a certain amount of the funds

of the total grant would be committed to purchasing "license

plate readers for strategic deployment throughout the state."

9 A-3381-12T1 Other sections of the grant application focused on different law

enforcement initiatives, such as reducing recidivism, discharge

planning for juvenile delinquents, and establishing a pilot

program for defendants with mental health needs.

After carefully scrutinizing the ACLU's request for ALPR-

related records and the DCJ's responsive documents, the judge

found "it was reasonable to conclude that prevention . . . and

reentry aspects of the grant have nothing to do with automatic

license plate readers." The judge noted that the ACLU had

conceded that its initial request did not seek information

pertaining to other projects that were included in the grant

application. Against these findings, the court agreed with the

DCJ and concluded "[t]his case is not about an exemption and it

is about the reasonable scope of a request and whether the

records provided by the agency were responsive to that request."

Despite these findings, the judge acknowledged what she

characterized as the ACLU's "underlying concerns" that this

approach left the door ajar for less scrupulous custodians to

redact more information than would be proper when they were responding to a request and that you don't want to put the custodian in that situation. And I think, sure, that's something that would need to be carefully looked at in any particular case and I surely accept that that's something that could happen. But that particular danger to me is not at all supported by this record where their request was very specific and

10 A-3381-12T1 they were provided with documents that responded to their request. And I think if there were - - if they determined after they viewed the documents that they received with portions deleted that they wanted the entire document, I think it was reasonable to require any requestor to make a follow[-]up request. Now they want the additional document that they did not ask for the first time.

II

The Legislature has carefully described the responsibility

of the custodian in responding to a request for a government

record under OPRA:

A request for access to a government record shall be in writing and hand-delivered, mailed, transmitted electronically, or otherwise conveyed to the appropriate custodian. A custodian shall promptly comply with a request to inspect, examine, copy, or provide a copy of a government record. If the custodian is unable to comply with a request for access, the custodian shall indicate the specific basis therefor on the request form and promptly return it to the requestor. The custodian shall sign and date the form and provide the requestor with a copy thereof. If the custodian of a government record asserts that part of a particular record is exempt from public access pursuant to P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented, the custodian shall delete or excise from a copy of the record that portion which the custodian asserts is exempt from access and shall promptly permit access to the remainder of the record. If the government record requested is temporarily unavailable because it is in use or in storage, the custodian shall so advise the requestor and shall make arrangements to

11 A-3381-12T1 promptly make available a copy of the record. If a request for access to a government record would substantially disrupt agency operations, the custodian may deny access to the record after attempting to reach a reasonable solution with the requestor that accommodates the interests of the requestor and the agency.

[N.J.S.A. 47:1A-5(g) (emphasis added).]

In our view, the fact-sensitive approach employed by the

trial court here authorizes the custodian to unilaterally

determine what sections of an indisputably public document falls

within the scope of a request, and thereafter deny access to

that record without "attempting to reach a reasonable solution

with the requestor that accommodates the interests of the

requestor and the agency." Ibid. We discern no legal basis to

expand the custodian's role beyond what the Legislature

specifically described in N.J.S.A. 47:1A-5(g).

The public's right of access is further undermined by

shifting the burden to the requestor to explain or justify with

greater specificity than the law requires the need to copy and

examine a public record. Shifting the burden to the requestor

to make a follow-up request, as suggested by the trial court

here, imposes a bureaucratic hurdle that runs counter to our

State's strong public policy favoring "the prompt disclosure of

government records." Mason v. City of Hoboken, 196 N.J. 51, 65

(2008); N.J.S.A. 47:1A-1.

12 A-3381-12T1 The DCJ does not dispute that the documents requested by

the ACLU are "government records" as defined in N.J.S.A. 47:1A-

1.1. A government agency's policy to restrict the public's

right of access to "government records" under OPRA must be

supported by one or more of the twenty-one categories of

information recognized in N.J.S.A. 47:1A-1, or by establishing,

under the common law balancing test established in Nero v.

Hyland, 76 N.J. 213, 223-24 (1978), that the public interest for

confidentiality outweighs the private right of access. N.J.S.A.

47:1A-9; Bergen Cty. Improvement Auth. v. N. Jersey Media Group,

Inc., 370 N.J. Super. 504, 517 (App. Div.), certif. denied, 182

N.J. 143 (2004). Absent establishing such a showing, a

citizen's right of access is unfettered. Courier News, supra,

358 N.J. Super. at 383.2

Reversed.

2 Because we have decided this case based exclusively on statutory grounds under OPRA, we need not and specifically do not reach the ACLU's alternative arguments based on the common law right of access.

13 A-3381-12T1