NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1764-22
MARGARET SUDHAKAR,
Plaintiff-Appellant,
v.
NEW JERSEY STATE POLICE and NEW JERSEY ATTORNEY GENERAL,
Defendants-Respondents,
and
GOVERNOR PHIL MURPHY,
Defendant. ___________________________
Argued October 29, 2024 – Decided December 23, 2024
Before Judges Smith, Chase and Vanek.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County Docket No. L-1706-22.
Kurt W. Perhach (Elm Ridge Legal Consulting) argued the cause for appellant. Vivek N. Mehta, Deputy Attorney General, argued the cause for respondents (Matthew J. Platkin, Attorney General, attorney; Sara M. Gregory, Assistant Attorney General, of counsel; Emily M. Bisnauth, Vivek N. Mehta and Daniel W. Knox, Deputy Attorneys General, on the brief).
PER CURIAM
Plaintiff Margaret Sudhakar appeals a trial court order denying her order
to show cause (OTSC) and dismissing her complaint against defendants New
Jersey State Police (NJSP), the New Jersey Attorney General (the AG), and
Governor Phil Murphy alleging the denial of requests to perform DNA testing
on historical documents from the Lindbergh kidnapping case constitutes a
violation of the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to 13, the
common law right of access, and Governor Brendan Byrne's Executive Order
110. After a thorough review of the record and our jurisprudence, we affirm.
I.
We glean the salient facts relevant to our disposition from the record.
This appeal centers on plaintiff's search for DNA evidence related to the
kidnapping of infant Charles A. Lindbergh, Jr. on March 1, 1932. Between the
kidnapping and the discovery of the infant's body, an unidentified individual
sent numerous ransom notes to the Lindbergh family home. After law
enforcement investigations, Bruno Richard Hauptmann was tried, convicted,
A-1764-22 2 and ultimately executed in 1936 for the kidnapping and murder of the infant.
Hauptmann proclaimed his innocence up until his death.
The NJSP Museum & Learning Center (the Museum) is the repository of
the NJSP's historical recordings, including approximately 225,000 documents
and other materials related to the Lindbergh case. Due to continued interest in
the case, Governor Brendan Byrne signed Executive Order 110 (the EO) on
October 9, 1981, providing the public with conditional access to evidence
associated with the Lindbergh case. Acknowledging that reasonable measures
needed to be implemented to ensure preservation of these historical items, the
EO authorized the Superintendent of the NJSP to establish procedures to
protect the files, records, and exhibits from the risk of damage or mutilation,
while allowing the public to examine, inspect, and copy them.
The NJSP maintains the historical items in a temperature and humidity
controlled locked room with monitored access. Evidence envelopes and their
contents are housed in polyester sleeves to allow individuals to inspect the
items without directly touching the artifacts or transferring any foreign
substance to them. Those sleeves are retained in manuscript folders encased in
archival boxes, both of which are acid-free.
On March 2, 2022, film director and producer Michael Braverman sent a
A-1764-22 3 letter to the NJSP by email, seeking permission to extract DNA through
undescribed "non-evasive"1 testing of fourteen envelopes, eleven stamps and a
piece of wood from the historical repository maintained by the NJSP under the
EO. Braverman did not describe how the DNA samples would be extracted
from the artifacts without damaging or altering them in any way. One week
later, the NJSP denied the request.
Braverman forwarded a similar request to the Governor's Office, which
responded that it was not the custodian of the items being sought. Braverman
then sent a July 19 email to "Frank Caruso/Gov. Records 609-292-6830," the
Executive Director of the Government Records Council (GRC), requesting
permission to accomplish DNA testing of items in the NJSP Museum. The
OAG's records custodian never received that request and no proof of delivery
to the OAG was submitted to the trial court.
On September 28, 2022, plaintiff filed a verified complaint in lieu of
prerogative writs and OTSC, alleging a violation of OPRA, the common law
right of access, and the EO, requesting that the court compel the DNA testing
of the envelopes and stamps maintained by the NJSP related to the Lindbergh
1 Neither party offered a definition of "non-evasive." A-1764-22 4 kidnapping.2 Braverman was not a plaintiff on the filing.
The OTSC was coupled with a letter from a forensic biology specialist,
Arthur Young of Guardian Forensics, describing the methodology for the DNA
testing he proposed to undertake to determine whether Hauptmann had licked
the stamps and sealed the envelopes of the ransom letters sent to the Lindbergh
home. Although Young characterized his untested "canned-air technique" for
extracting DNA samples from the envelopes and stamps as "non-destructive,"
the technique required him to "neutraliz[e]" the adhesive on the historical
artifacts by directly applying a chemical fluid to expose approximately ninety
percent of the back flap of each envelope and the back of each stamp . After
removal of a portion of the adhesive on the historical document and swabbing
for DNA, he then proposed to reattach the envelopes and stamps in their
original position with a new adhesive. Young advised that this method had
only been carried out once on an envelope from 2002, and he did not rule out
damage resulting from the proposed testing.
The OAG opposed the OTSC with multiple certifications including one
from Gregory Ferrara, who stated the Museum regularly facilitates and
2 Plaintiff initially sought permission to test wood from a ladder allegedly related to the kidnapping but has abandoned that request on appeal. Thus, our decision does not address that issue.
A-1764-22 5 responds to requests for information from researchers, allowing access under
the direct supervision of museum archivists and implementing specific
precautions or conditions depending on the item being examined. Ferrara
certified that researchers are not permitted to expose Museum artifacts to
foreign chemicals or other substances, nor are they permitted to alter the
condition of the items. The OAG also submitted a certification from Michael
J. Kennedy, Jr., the Director of NJSP Office of Forensic Sciences, opining that
the DNA extraction tests proposed by plaintiff will permanently alter the
condition of each of the historical items tested and is potentially destructive to
the artifacts.
After the OAG opposed the OTSC, plaintiff submitted her own OPRA
requests to the OAG and NJSP on December 15, seeking the same DNA
testing as Braverman. 3 The OAG denied plaintiff's requests. Plaintiff did not
move for leave to file an amended verified complaint to seek relief related to
her OPRA requests.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1764-22
MARGARET SUDHAKAR,
Plaintiff-Appellant,
v.
NEW JERSEY STATE POLICE and NEW JERSEY ATTORNEY GENERAL,
Defendants-Respondents,
and
GOVERNOR PHIL MURPHY,
Defendant. ___________________________
Argued October 29, 2024 – Decided December 23, 2024
Before Judges Smith, Chase and Vanek.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County Docket No. L-1706-22.
Kurt W. Perhach (Elm Ridge Legal Consulting) argued the cause for appellant. Vivek N. Mehta, Deputy Attorney General, argued the cause for respondents (Matthew J. Platkin, Attorney General, attorney; Sara M. Gregory, Assistant Attorney General, of counsel; Emily M. Bisnauth, Vivek N. Mehta and Daniel W. Knox, Deputy Attorneys General, on the brief).
PER CURIAM
Plaintiff Margaret Sudhakar appeals a trial court order denying her order
to show cause (OTSC) and dismissing her complaint against defendants New
Jersey State Police (NJSP), the New Jersey Attorney General (the AG), and
Governor Phil Murphy alleging the denial of requests to perform DNA testing
on historical documents from the Lindbergh kidnapping case constitutes a
violation of the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to 13, the
common law right of access, and Governor Brendan Byrne's Executive Order
110. After a thorough review of the record and our jurisprudence, we affirm.
I.
We glean the salient facts relevant to our disposition from the record.
This appeal centers on plaintiff's search for DNA evidence related to the
kidnapping of infant Charles A. Lindbergh, Jr. on March 1, 1932. Between the
kidnapping and the discovery of the infant's body, an unidentified individual
sent numerous ransom notes to the Lindbergh family home. After law
enforcement investigations, Bruno Richard Hauptmann was tried, convicted,
A-1764-22 2 and ultimately executed in 1936 for the kidnapping and murder of the infant.
Hauptmann proclaimed his innocence up until his death.
The NJSP Museum & Learning Center (the Museum) is the repository of
the NJSP's historical recordings, including approximately 225,000 documents
and other materials related to the Lindbergh case. Due to continued interest in
the case, Governor Brendan Byrne signed Executive Order 110 (the EO) on
October 9, 1981, providing the public with conditional access to evidence
associated with the Lindbergh case. Acknowledging that reasonable measures
needed to be implemented to ensure preservation of these historical items, the
EO authorized the Superintendent of the NJSP to establish procedures to
protect the files, records, and exhibits from the risk of damage or mutilation,
while allowing the public to examine, inspect, and copy them.
The NJSP maintains the historical items in a temperature and humidity
controlled locked room with monitored access. Evidence envelopes and their
contents are housed in polyester sleeves to allow individuals to inspect the
items without directly touching the artifacts or transferring any foreign
substance to them. Those sleeves are retained in manuscript folders encased in
archival boxes, both of which are acid-free.
On March 2, 2022, film director and producer Michael Braverman sent a
A-1764-22 3 letter to the NJSP by email, seeking permission to extract DNA through
undescribed "non-evasive"1 testing of fourteen envelopes, eleven stamps and a
piece of wood from the historical repository maintained by the NJSP under the
EO. Braverman did not describe how the DNA samples would be extracted
from the artifacts without damaging or altering them in any way. One week
later, the NJSP denied the request.
Braverman forwarded a similar request to the Governor's Office, which
responded that it was not the custodian of the items being sought. Braverman
then sent a July 19 email to "Frank Caruso/Gov. Records 609-292-6830," the
Executive Director of the Government Records Council (GRC), requesting
permission to accomplish DNA testing of items in the NJSP Museum. The
OAG's records custodian never received that request and no proof of delivery
to the OAG was submitted to the trial court.
On September 28, 2022, plaintiff filed a verified complaint in lieu of
prerogative writs and OTSC, alleging a violation of OPRA, the common law
right of access, and the EO, requesting that the court compel the DNA testing
of the envelopes and stamps maintained by the NJSP related to the Lindbergh
1 Neither party offered a definition of "non-evasive." A-1764-22 4 kidnapping.2 Braverman was not a plaintiff on the filing.
The OTSC was coupled with a letter from a forensic biology specialist,
Arthur Young of Guardian Forensics, describing the methodology for the DNA
testing he proposed to undertake to determine whether Hauptmann had licked
the stamps and sealed the envelopes of the ransom letters sent to the Lindbergh
home. Although Young characterized his untested "canned-air technique" for
extracting DNA samples from the envelopes and stamps as "non-destructive,"
the technique required him to "neutraliz[e]" the adhesive on the historical
artifacts by directly applying a chemical fluid to expose approximately ninety
percent of the back flap of each envelope and the back of each stamp . After
removal of a portion of the adhesive on the historical document and swabbing
for DNA, he then proposed to reattach the envelopes and stamps in their
original position with a new adhesive. Young advised that this method had
only been carried out once on an envelope from 2002, and he did not rule out
damage resulting from the proposed testing.
The OAG opposed the OTSC with multiple certifications including one
from Gregory Ferrara, who stated the Museum regularly facilitates and
2 Plaintiff initially sought permission to test wood from a ladder allegedly related to the kidnapping but has abandoned that request on appeal. Thus, our decision does not address that issue.
A-1764-22 5 responds to requests for information from researchers, allowing access under
the direct supervision of museum archivists and implementing specific
precautions or conditions depending on the item being examined. Ferrara
certified that researchers are not permitted to expose Museum artifacts to
foreign chemicals or other substances, nor are they permitted to alter the
condition of the items. The OAG also submitted a certification from Michael
J. Kennedy, Jr., the Director of NJSP Office of Forensic Sciences, opining that
the DNA extraction tests proposed by plaintiff will permanently alter the
condition of each of the historical items tested and is potentially destructive to
the artifacts.
After the OAG opposed the OTSC, plaintiff submitted her own OPRA
requests to the OAG and NJSP on December 15, seeking the same DNA
testing as Braverman. 3 The OAG denied plaintiff's requests. Plaintiff did not
move for leave to file an amended verified complaint to seek relief related to
her OPRA requests. Instead, she submitted reply certifications informally
asking that her requests be "merged" with this case and that Braverman be
considered a plaintiff on the litigation she filed.
Plaintiff also submitted a reply certification from Young asserting that
3 Plaintiff had not submitted her own OPRA request prior to the filing of her verified complaint and OTSC. A-1764-22 6 he was working on obtaining several envelopes from the 1920s and 1930s to
test his technique, since he had not successfully utilized this extraction method
on historical documents of the same age as the ones he sought to test.
Nonetheless, Young offered to show how he can extract a DNA swab by
opening the sealed back flaps of the envelopes and removing a portion of each
stamp prior to reattaching them. The testing he described involves removal of
some of the existing adhesive on the historical document through
"neutralizing" and then adding another type of adhesive to the artifact.
Plaintiff also included photographs and a certification that the Museum
suffered from a water leak on or about March 24, 2022, in her reply. However,
plaintiff did not assert any items she sought to test were damaged or destroyed
as a result of the leak.
After oral arguments, the trial court issued a January 5, 2023 order
accompanied by a written decision denying plaintiff's OTSC and dismissing
the verified complaint. The trial court found that because "[p]laintiff filed her
complaint prior to submitting an OPRA request and receiving a denial," this
"by itself, [was] enough to dismiss her complaint in its entirety ." The trial
court reasoned that since "[p]laintiff did not file an OPRA request . . .
[d]efendants did not deny her access under OPRA."
A-1764-22 7 Nonetheless, the trial court addressed the substance of the complaint,
ruling plaintiff had no right under either OPRA or the common law to proceed
with the requested DNA testing, which risked permanently altering the
condition of the items. The trial court found "OPRA is not the vehicle by
which a citizen can march up to a museum and demand that the custodians of
historical artifacts and documents surrender the [AG's] treasures for analysis,
alteration and destruction" and that the request was inconsistent with the right
of common law access.
This appeal followed. 4
II.
After our de novo review, we are unpersuaded that the trial court erred in
finding plaintiff's complaint was procedurally deficient. In re N.J. Firemen's
Ass'n Obligation to Provide Relief Applications Under Open Pub. Recs. Act,
230 N.J. 258, 273-74 (2017) (a court's "determinations about the applicability
of OPRA and its exemptions are legal conclusions and are therefore subject to
de novo review").
"OPRA's purpose is 'to maximize public knowledge about public affairs
4 Plaintiff appealed the denial of her December 15, 2022 OPRA requests to the GRC on March 2, 2023 (GRC Complaints No. 2023-49 and 2023-50). The GRC denied relief due to the pendency of this appeal. A-1764-22 8 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, 64-65 (2008)
(quoting Asbury Park Press v. Ocean Cnty. Prosecutor's Off., 374 N.J. Super.
312, 329 (Law Div. 2004)). 5 OPRA establishes with specificity the process by
which a requestor may challenge an OPRA denial, id. at 66 (citing N.J.S.A.
47:1A-6), providing that:
[a] person who is denied access to a government record by the custodian of the record, at the option of the requestor . . . may . . . institute a proceeding to challenge the custodian's decision by filing an action in Superior Court which shall be heard in the vicinage where it is filed by a Superior Court Judge who has been designated to hear such cases because of that judge's knowledge and expertise in matters relating to access to government records; . . . .
[N.J.S.A. 47:1A-6.]
OPRA additionally provides that "[t]he right to institute any proceeding under
this section shall be solely that of the requestor." Ibid.
OPRA actions are subject to a forty-five-day limitations period. Mason,
196 N.J. at 68. The Court in Mason reasoned that the forty-five-day time
frame "provides certainty and repose to public bodies faced with numerous
OPRA requests. At the same time, it offers the public ample opportunity to
5 We apply the OPRA statute in effect at the time plaintiff's OTSC was decided, prior to the 2024 amendment. A-1764-22 9 challenge a denial of access." Id. at 70.
We find no error with the trial court's determination that plaintiff's
verified complaint was procedurally improper. The Court in Firemen's Ass'n,
230 N.J. at 278, made clear that litigation cannot be initiated except by the
requestor, after a public agency's denial. Plaintiff submitted the December 15,
2022 OPRA requests after she filed suit and then failed to move for leave of
court to amend the verified complaint to seek relief from the denial of those
requests. The trial court lacked the authority under OPRA to consider
plaintiff's newly-filed requests because they were not the subject of the
verified complaint before the court. Plaintiff's argument that there was no
procedural defect since the trial court and the OAG were aware of her post-
filing OPRA requests and subsequent denials through her reply brief filed prior
to the OTSC hearing is not supported by prevailing law.
Since OPRA explicitly confers the right to initiate suit only upon the
requestor, Braverman was the only individual with the right to challenge the
denial. Ibid. Even if we considered Braverman's requests, we discern no error
with the trial court's finding that the verified complaint was barred by the
forty-five-day limitations period. Braverman's request was filed on March 2,
2022, while plaintiff's verified complaint and OTSC was not filed until
A-1764-22 10 September 28, 2022. There is no evidence in the record that the OAG received
any further requests from Braverman within the forty-five-day limitations
period. Therefore, even if we had considered plaintiff's verified complaint and
OTSC as properly pursuing Braverman's requests, the action would be time-
barred as filed more than forty-five days from the March 9, 2022 denial.
For these reasons, we conclude the trial court did not err in denying
plaintiff's OTSC and dismissing the verified complaint based solely on
procedural deficiencies. Although the trial court substantively addressed the
relief plaintiff sought, since the claims are procedurally barred our analysis
need not go further.
To the extent we have not addressed any of plaintiff's remaining
arguments on the procedural issues, we conclude they lack sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-1764-22 11