NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2016-16T1
NORTH JERSEY MEDIA GROUP INC.,
Plaintiff-Appellant,
v.
PASSAIC COUNTY PROSECUTOR'S OFFICE, and LISA VERLARDI in her capacity as OPRA Liaison for the Passaic County Prosecutor's Office,
Defendants-Respondents. __________________________________________
Submitted January 30, 2018 – Decided August 17, 2018
Before Judges Yannotti and Leone.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L- 1135-16.
Pashman Stein Walder Hayden, PC, and North Jersey Media Group Inc. n/k/a Fourth Edition Inc., attorneys for appellant (Samuel J. Samaro and Jennifer A. Borg, Of Counsel; CJ Griffin, on the briefs).
William J. Pascrell, III, Passaic County Counsel, attorney for respondents (Mary Catherine Ryan, Chief Assistant Prosecutor, and Robert J. Wisse, Assistant Prosecutor, Of Counsel and on the brief). PER CURIAM
Plaintiff North Jersey Media Group Inc., now known as Fourth
Edition Inc., appeals from the trial court's September 2, 2016
order denying its request for counsel fees under the Open Public
Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and from the December
2, 2016 final order. We affirm in part, reverse in part, and
remand.
I.
On January 27, 2016, plaintiff made a request under OPRA and
the common-law right of access to defendant Passaic County
Prosecutor's Office (PCPO) and defendant Lisa Verlardi, its chief
assistant prosecutor and OPRA liaison. The request sought records
of a May 2014 shooting incident in Wayne. The request included
"Incident reports, Operations reports, Investigation reports,
and/or Offence reports, along with their supplemental reports"
(Requested Reports), "Audio recordings of 9-1-1 calls" (9-1-1
Tape), and the information which must be released within twenty-
four hours under N.J.S.A. 47:1A-3(b).
On January 29, 2016, the PCPO through Verlardi sent plaintiff
a redacted indictment and the information under N.J.S.A. 47:1A-
3(b). After obtaining an extension, the PCPO through Verlardi
responses to the remaining requests on February 12, 2016. The
2 A-2016-16T1 response stated that PCPO lacked documents or recordings
responsive to some of the requests, and that the remainder of the
requested documents were confidential or otherwise exempt from
disclosure.
Regarding the Requested Reports, Verlardi's response stated
they were "criminal investigatory records that are exempt from
disclosure under N.J.S.A. 47:1A-1.1. Further, as this case
involves a domestic violence incident the record(s) are
confidential under the Prevention of Domestic Violence Act of
1991" (DV Act), N.J.S.A. 2C:25-17 to -35. The response referenced
several provisions, including N.J.S.A. 2C:25-33.
Regarding the 9-1-1 Tape, Verlardi's response stated: "As
this case involves a domestic violence incident the audio recording
of the 911 call is confidential under the [DV Act]," citing several
provisions. The response also stated "the Legislature intended
to provide protection against disclosure of 911 tapes in those
instances where a person had a reasonable expectation of privacy,"
citing case law and N.J.S.A. 47:1A-1. Finally, the response stated
the 9-1-1 Tape "contains information relating to medical,
psychiatric or psychological history, diagnosis, treatment and/or
evaluation, which are not government records subject to public
access pursuant to OPRA," citing Executive Order No. 26, ¶ 4(b)(1),
34 N.J.R. 3043 (Aug. 13, 2002).
3 A-2016-16T1 On March 28, 2016, plaintiff filed a complaint in the Law
Division. Plaintiff alleged that the 9-1-1 caller "claim[ed]
someone had not taken his medication and was in need of medical
assistance," that the suspect had grabbed his mother while holding
a large knife and held her hostage, that after police negotiated
with the suspect for ninety minutes an officer had fired a shot
and accidentally hit the hostage, and that the suspect was found
not guilty by reason of insanity. Plaintiff alleged defendants
had violated OPRA and the common-law right of access by not
releasing the requested documents and redacting any exempt
information. Plaintiff demanded that defendants identify each
responsive record, prepare a Vaughn index,1 release the documents
or submit them for in camera review and redaction, and that the
court award counsel fees under N.J.S.A. 47:1A-6.
The trial court issued an order to show cause. Defendants
answered the complaint and provided five certifications.
Verlardi's certification stated that during her review of the
Requested Reports, she located a one-page Supplementary Domestic
Violence Offense Report (DVO Report). Verlardi "conceded" that
1 A "Vaughn index" is a list of the records responsive to a request and of the exemptions claimed to warrant non-disclosure. N. Jersey Media Grp. v. Bergen Cty. Prosecutor's Office, 447 N.J. Super. 182, 191 (App. Div. 2016) (citing Vaughn v. Rosen, 484 F.2d 820, 826-27 (D.C. Cir. 1973)).
4 A-2016-16T1 the DVO Report was "required to be made pursuant to N.J.S.A. 2C:25-
24(a) and is therefore not a criminal investigatory record," and
"that I should have listed the [DVO Report] separately in my
[February 12] response . . . clearly indicating it does not fall
within a criminal investigatory record." She stated she did not
violate OPRA because the DVO Report was properly withheld as
confidential under the DV Act. Defendants later supplied Vaughn
indexes detailing the requested records and the reasons for non-
Meanwhile, the mother had sued numerous parties for her
injuries in May 2014. The trial court asked defendants to alert
her that records regarding the incident were the subject of OPRA
litigation.
On June 29, 2016, the mother's lawyer wrote Passaic County
stating he had discussed the OPRA request with the mother and her
daughter. He reported the "family" joined plaintiff's OPRA
request, and asked the trial court to order the release of all the
records, including the 9-1-1 Tape.
The trial court held a show cause hearing. On September 2,
2016, the court denied plaintiff's request for a declaration that
the non-disclosure of the Requested Reports and 9-1-1 Tape violated
OPRA. The court also denied plaintiff's request for counsel fees
under N.J.S.A. 47:1A-6. Nonetheless, the court granted
5 A-2016-16T1 plaintiff's request for access to all requested documents under
the common law, subject to redactions by the court. The court
ordered defendants to provide the documents, with suggested
redactions, for in camera review.
The prosecutor supplied the trial court with the documents,
and provided an index of requested redactions. On September 14,
2016, the mother's counsel wrote the trial court stating he had
reviewed the index, and had no objection to the disclosure of the
documents, but had an objection to some of the redactions.
In a December 2, 2016 order, the trial court ruled that the
documents could be released with defendants' proposed redactions.
Defendants supplied to plaintiff the unredacted DVO Report, the
unredacted 9-1-1 Tape, and the other unredacted and redacted
documents. Plaintiff appeals the denial of counsel fees.
II.
Plaintiff claims it was entitled to counsel fees because
defendants violated OPRA by not disclosing the 9-1-1 Tape and the
DVO Report. We must hew to our standard of review.
"[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 to Provide
Relief Applications Under Open Pub. Records Act, 230 N.J. 258,
273-74 (2017) (citations omitted). "We also conduct plenary review
6 A-2016-16T1 of the trial court's legal conclusion that a privilege exempts the
requested records from disclosure, . . . as well as its
determination . . . whether plaintiff is entitled to attorney's
fees." K.L. v. Evesham Twp. Bd. of Educ., 423 N.J. Super. 337,
349 (App. Div. 2011) (citations omitted).
III.
OPRA succinctly sets forth the State's policy in favor of broad access to public records: (1) 'government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions, for the protection of the public interest,' N.J.S.A. 47:1A-1; (2) "any limitations on the right of access . . . shall be construed in favor of the public's right of access," ibid.; and (3) public agencies "shall have the burden of proving that the denial of access is authorized by law," N.J.S.A. 47:1A-6.
[N. Jersey Media Grp. v. Twp. of Lyndhurst, 229 N.J. 541, 555 (2017).]
"OPRA broadly defines the term 'government record.'" Brennan
v. Bergen Cty. Prosecutor's Office, 233 N.J. 330, 337 (2018).
"Government record" includes any document or sound-recording "that
has been made, maintained or kept on file in the course of . . .
its official business by any . . . agency or authority of the
State or of any political subdivision." N.J.S.A. 47:1A-1.1. "The
custodian of a government record shall permit the record to be
inspected, examined, and copied by any person . . . unless a
7 A-2016-16T1 government record is exempt from public access by . . . any other
statute; . . . Executive Order of the Governor; [or] Rules of
Court[.]" N.J.S.A. 47:1A-5(a).
"A government record shall not include" a "criminal
investigatory record[]," "which is deemed to be confidential for
the purposes of [OPRA]." N.J.S.A. 47:1A-1.1. "'Criminal
investigatory record' means a record which is not required by law
to be made, maintained or kept on file that is held by a law
enforcement agency which pertains to any criminal investigation
or related civil enforcement proceeding." Ibid. Thus, "OPRA's
criminal investigatory records exception does not apply to records
that are 'required by law to be made, maintained or kept on file.'"
Lyndhurst, 229 N.J. at 551 (quoting N.J.S.A. 47:1A-1.1); see id.
at 565-66 (finding "Use Of Force" reports are required by law as
they are required by the Attorney General's Use of Force Policy).2
A.
We first address the 9-1-1 Tape. Defendants do not dispute
that it is a government record but not a criminal investigatory
record. We have found "that 911 calls are required by law to be
recorded by a government agency and that these tapes must be
2 No claim was made here that the documents "pertain to an investigation in progress by any public agency." N.J.S.A. 47:1A- 3(a).
8 A-2016-16T1 retained for 'no less than 31 days.'" Serrano v. S. Brunswick
Twp., 358 N.J. Super. 352, 364 (App. Div. 2003) (quoting N.J.A.C.
17:24-2.4).3 "From this, we conclude[d] that the subject 911 tape
comes within the definition of a government record for purposes
of N.J.S.A. 47:1A-1." Ibid. "Because the tape falls within the
definition of a 'government record' in N.J.S.A. 47:1A-1.1, and
because the law requires that such tapes be made and kept, it does
not qualify as a 'criminal investigatory record.'" Id. at 365;
see N. Jersey Media Grp. v. Twp. of Lyndhurst, 441 N.J. Super. 70,
107 & n.22 (App. Div. 2015), aff'd in part & rev'd in part on
other grounds, 229 N.J. 541 (2017).
However, we made clear in Serrano that 9-1-1 calls are not
necessarily discoverable under OPRA. We pointed out that OPRA
contained a privacy provision stating that "a public agency has a
responsibility and an obligation to safeguard from public access
a citizen’s personal information with which it has been entrusted
3 The Administrative Code's Chapter 17:24 "establishes the technical requirements and operational standards for all components of the Statewide 9-1-1 Enhanced Emergency Telephone System." N.J.A.C. 17:24-1.1. The chapter requires that "[e]ach 9-1-1 line or each 9-1-1 terminal shall be connected to a logging recorder that records" all voice communications in "all 9-1-1 calls." N.J.A.C. 17:24-2.1(f); see N.J.A.C. 17:24-1.1. N.J.A.C. 17:24-2.4 provides that each entity receiving a 9-1-1 call "shall maintain the . . . [r]ecordings produced by the logging recorder and all documents or records related to 9-1-1 calls in a secured area for no less than 31 days[.]" N.J.A.C. 17:24-2.4(a), (a)(1); see N.J.A.C. 17:24-1.1.
9 A-2016-16T1 when disclosure thereof would violate the citizen’s reasonable
expectation of privacy." Id. at 368 (quoting N.J.S.A. 47:1A-1).
We emphasized that "no privacy claim has been asserted" in Serrano;
indeed, the 9-1-1 caller was represented by counsel in the OPRA
proceedings and made no objection to disclosure of the content of
the call to the news media. Id. at 368-69.
Nonetheless, we noted that in other cases privacy concerns
might present "complex and challenging" issues that "might entail
a consideration and balancing of the interests, not only of those
who call 911 or who utilize other police or emergency
communications services, but of others who are mentioned in or
affected by the calls." Id. at 369. "We emphasize[d] that our
disposition is based on the particular circumstances with which
we are confronted, including the characteristics of the 911 call
involved in this case, and in particular the caller's express lack
of objection to the disclosure." Id. at 362. We did "not predict
what disposition may be appropriate in other cases involving 911
tapes." Ibid.
The concurring opinion in Serrano similarly stressed that
because of the absence of a privacy objection "this case does not
provide the opportunity for a definitive ruling on the question
of whether 911 tapes are public records under OPRA," and that "the
court is not concluding that all 911 tapes are open to the public
10 A-2016-16T1 under OPRA." Id. at 371 (Coburn, J., concurring). Judge Coburn
pointed out that New Jersey's privacy provision was "patterned
after" and "almost identical to the provision in Kentucky," and
that a Kentucky court had held that provision exempted 911 calls
because "[r]eleasing the tapes of 911 calls seeking police
assistance, particularly in instances of domestic violence, would
have a chilling effect on those who might otherwise seek assistance
because they would become subject to . . . retaliation, harassment,
or public ridicule." Id. at 371-72 (quoting Bowling v.
Brandenburg, 37 S.W.3d 785, 788 (Ky. Ct. App. 2000)). Judge Coburn
concluded that 9-1-1 calls should be confidential and not disclosed
unless either the caller consents or "disclosure would not 'violate
the citizen's reasonable expectation of privacy.'" Id. at 373
(quoting N.J.S.A. 47:1A-1).
Based on the majority and concurring opinions in Serrano, the
Law Division denied access to a 9-1-1 tape under OPRA in Asbury
Park Press v. Ocean Cty. Prosecutor's Office, 374 N.J. Super. 312,
316-18 (Law Div. 2004). After a thorough review of OPRA's
legislative history, the court ruled "that the Legislature
intended to provide protection against disclosure in those
instances in which a person had a reasonable expectation of
privacy." Id. at 326-29, 331.
11 A-2016-16T1 Our Supreme Court has cited the discussion in Serrano and
Asbury Park Press about the protection of 9-1-1 calls by OPRA's
privacy provision, and has concluded it "imposes an obligation on
public agencies to protect against disclosure of personal
information which would run contrary to reasonable privacy
interests." Burnett v. Cty. of Bergen, 198 N.J. 408, 423-24
(2009). The Court found OPRA required balancing "ready access to
government documents while safeguarding the citizen's reasonable
expectation of privacy." Id. at 425-26. The Court endorsed "a
balancing test that weighs both the public's strong interest in
disclosure with the need to safeguard from public access personal
information that would violate a reasonable expectation of
privacy." Id. at 427. The factors to be considered are:
(1) the type of record requested; (2) the information it does or might contain; (3) the potential for harm in any subsequent nonconsensual disclosure; (4) the injury from disclosure to the relationship in which the record was generated; (5) the adequacy of safeguards to prevent unauthorized disclosure; (6) the degree of need for access; and (7) whether there is an express statutory mandate, articulated public policy, or other recognized public interest militating toward access.
[Ibid. (quoting Doe v. Poritz, 142 N.J. 1, 88 (1995).]
The Burnett "balancing exercise requires a case-specific
analysis, and appellate review of the trial court's application
12 A-2016-16T1 of the factors is de novo." Paff v. Ocean Cty. Prosecutor's
Office, 446 N.J. Super. 163, 193 (App. Div.) (citation omitted),
rev'd on other grounds, ___ N.J. ___ (2018).
In denying plaintiff's request for the 9-1-1 Tape, defendants
argued OPRA provided protection against disclosure of 9-1-1 tapes
where a person has a reasonable expectation of privacy, citing
OPRA's privacy provision and Asbury Park Press. Defendants also
pointed out that the call involved a domestic violence incident
and contained information relating to medical, psychiatric, or
psychological history, diagnosis, or treatment.
Review of the now-revealed 9-1-1 Tape shows that the sister
reported she needed an ambulance and a police officer because her
brother has a psychiatric disorder, had not been taking his
medication, needed medical attention, sounded aggressive, and was
alone in the house with their mother. Particularly as the 9-1-1
call was soon followed by the brother wielding a knife, grabbing
the mother, and holding her hostage, disclosure would reveal that
the brother had mental health and medical issues, that the sister
had been the one calling the police, and that incipient crime was
between brother and mother and thus was domestic violence.
These were legitimate privacy concerns. Defendants had to
consider "what the impact would be on [the victim,] the victim's
family and loved ones" if the recording was released to the news
13 A-2016-16T1 media. Asbury Park Press, 374 N.J. Super. at 330. "[I]s it
necessary for families to have their most tragic and personal
moments broadcast for all to hear? Does a personal tragedy become
a public spectacle simply because a person phones the police for
aid?" Id. at 320 (quoting Cincinnati Enquirer v. Hamilton Cty.,
662 N.E.2d 334, 339 (Ohio 1996) (Pfeifer, J., concurring)); accord
Serrano, 358 N.J. Super. at 372-73 (Coburn, J., concurring).
Unredacted disclosure of the 9-1-1 Tape would raise such
privacy concerns not only for this family but among future
potential 9-1-1 callers. The release of 9-1-1 information could
"create a chilling effect" among potential 9-1-1 callers "for fear
that the information may be subject to public scrutiny," and could
"discourage citizens" from calling 9-1-1. See N.J. Firemen's
Ass'n, 230 N.J. at 280, 282 (denying disclosure of relief payments
under the Burnett privacy test).
Moreover, there was "'an express statutory mandate,
articulated public policy, or other recognized public interest
militating [against] access.'" Burnett, 198 N.J. at 427 (citation
omitted); see id. at 435-37. The DV Act provides that "[a]ll
records maintained pursuant to this act shall be confidential and
shall not be made available to any individual or institution except
as otherwise provided by law and rule." N.J.S.A. 2C:25-33(a); see
R. 1:38-3(d)(9). Other provisions protect the names and addresses
14 A-2016-16T1 of victims of domestic violence. E.g., N.J.S.A. 2C:25-25(c);
N.J.S.A. 47:4-4; R. 1:38-3(c)(12), (d)(10). Even though the 9-1-
1 Tape was maintained pursuant to a different act, these provisions
articulated the public policy militating against disclosure of
information concerning domestic violence and its victims.
In addition, the 9-1-1 Tape contained "[i]nformation relating
to medical, psychiatric or psychological history, diagnosis,
treatment and/or evaluation." Exec. Order No. 26, ¶ 4(b)(1), 34
N.J.R. 3043(b) (Aug. 13, 2002). Such records "shall not be
considered to be government records subject to public access
pursuant to [OPRA]." Id. at ¶ 4. Thus, an "Executive Order of
the Governor" exempted at least that information from disclosure
under OPRA. N.J.S.A. 47:1A-1; see N.J.S.A. 47:1a-9(a); Michelson
v. Wyatt, 379 N.J. Super. 611, 619-20, 622, 624 (App. Div. 2005)
(citing this executive order to bar access to medical information).
Nevertheless, those privacy concerns could have been
addressed by redacting the name of the caller (no other persons
were named), the address of the victim, references to the brother's
psychiatric disorder, and the familial relationships that revealed
this was a domestic violence situation and would aid in identifying
the caller. The redactions could have been performed by redacting
the tape or, if that was unreasonable, by preparing a redacted
transcript of the tape, which was less than two minutes long. See
15 A-2016-16T1 Paff v. Ocean Cty. Prosecutor's Office, ___ N.J. ___, ___ (2018)
(slip op. at 34) (noting "a third party’s reasonable expectation
of privacy may warrant withholding a record from disclosure under
N.J.S.A. 47:1A-1," but "redaction prior to disclosure . . . may
resolve a privacy concern").
OPRA provides in N.J.S.A. 47:1A-5(g):
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.
Although the statutory reference is to the former Right to
Know Law, L. 1963, c. 73, both we and our Supreme Court have cited
N.J.S.A. 47:1A-5(g) as authorizing redaction of any exempt
material. Paff v. Galloway Twp., 229 N.J. 340, 358 (2017) ("OPRA
also permits redaction of parts of government records that are not
subject to disclosure."); Commc'ns Workers of Am. v. Rousseau, 417
N.J. Super. 341, 368 (App. Div. 2010). Indeed, defendants redacted
the indictment to remove items exempted under the DV Act.
In withholding the entire 9-1-1 Tape, defendants cited Asbury
Park Press. Plaintiff argues the 9-1-1 Tape is a far cry from the
"chilling [and] wrenching" 9-1-1 call in Asbury Park Press,
containing the last words of a man after he and a woman had been
16 A-2016-16T1 fatally shot by her son. 374 N.J. Super. at 314-15, 330. We have
listened to the 9-1-1 Tape and agree it lacks such emotional
content. The 9-1-1 call was calmly made by the sister before she
arrived on the scene, and before any acts of domestic violence
were known to have occurred. Revelation of a redacted 9-1-1 Tape
or transcript would not have posed the same risk of inflicting
emotional anguish. See Asbury Park Press, 374 N.J. Super. at 331
(finding that, even if redacted, disclosure of the 9-1-1 call
"would intrude on the reasonable expectation of privacy").
Weighing the Burnett factors convinces us that the privacy
concerns at the time of defendant's decision justified release of
a redacted 9-1-1 Tape, but not the release of the entire tape as
requested by plaintiff, or defendants' refusal to release any of
the tape. (1) The type of record requested, a 9-1-1 tape,
primarily records the caller's statement but can reflect on
government actions during and after the call. (2) The 9-1-1
contained some private and exempt information, but also other
relevant information. (3) Release of the private and exempt
information to the news media had the potential to cause harm.
(4) Disclosure of the private and exempt information could injure
the relationship between this caller and future 9-1-1 callers and
the police. (5) No safeguards against unauthorized disclosure
were offered or obvious once the private and exempt information
17 A-2016-16T1 was revealed to the news media. (6) The degree of need for access
was not so strong to override the need to protect the private and
exempt information. (7) There was an express statutory mandate
and an articulated public policy militating against the release
of the private and exempt information.
The need for access requires further comment. Burnett states:
when legitimate privacy concerns exist that require a balancing of interests and consideration of the need for access, it is appropriate to ask whether unredacted disclosure will further the core purposes of OPRA: "to maximize public knowledge about public affairs in order to ensure an informed citizenry and to minimize the evils inherent in a secluded process."
[198 N.J. at 435 (quoting Mason v. City of Hoboken, 196 N.J. 51, 64 (2008) (quoting Asbury Park Press, 374 N.J. Super. at 329)).]
Although plaintiff's OPRA request gave no reason for seeking
the twenty-month-old 9-1-1 Tape, the PCPO undoubtedly knew its
prosecutors were conducting the brother's ongoing trial when
plaintiff's request was made. Moreover, our Supreme Court has
recently instructed that "the need for transparency, which OPRA
is designed to foster, . . . weighs heavily, particularly when law
enforcement uses its most awesome authority — deadly force."
Lyndhurst, 229 N.J. at 574.
On the other hand, the 9-1-1 Tape has little bearing on the
officer's use of deadly force, and no relevance to the alleged
18 A-2016-16T1 delay in disclosing who was shot. The 9-1-1 call was made before
any acts of domestic violence were known. Moreover, the officer's
decision to shoot came after more than an hour of negotiating with
the brother and observing his actions in the armed hostage-taking.
By contrast, Lyndhurst involved disclosure of "Use of Force"
reports, which must be completed whenever an officer uses deadly
force. Id. at 553, 565. Such forms are directly relevant to the
use of deadly force. Thus, the "need for access" to the 9-1-1
Tape was limited and justified disclosure only of a redacted
version. See Burnett, 198 N.J. at 434-35.
Plaintiff argues the 9-1-1 Tape should have been released
because its details were already known. Plaintiff cites its two
May 2014 news articles and a police email to the press stating
there was "a 9-1-1 call seeking medical assistance" and "an
ambulance." Those documents also named the mother and gave her
address, said she was the mother of the brother and named him, and
described the domestic violence witnessed by the officers and the
alleged shooting of the brother. However, those documents did not
identify the 9-1-1 caller as the sister, or mention that the
brother had a psychiatric disorder or was off his medications.
Plaintiff also cites the opinion in the brother's bench trial
and another news article, both issued on February 3, 2016, after
plaintiff's OPRA request but before defendants' response. Those
19 A-2016-16T1 documents: identified the mother, brother, sister, and their
relationship; described the brother's psychiatric disorder in
detail and said he was off his medications, resulting in the 9-1-
1 call; and described the domestic violence witnessed by the
officers and the officer shooting the mother. The bench opinion
also gave the mother's address and identified the sister as the
9-1-1 caller. The article added that family members repeatedly
told police he was mentally ill.
Those documents do not change our conclusion. First, there
is no evidence defendants were aware of the news articles when
making the decision. Plaintiff did not provide them to support
its request. Moreover, custodians should not be required to search
the media to determine whether private or exempt information in
government documents has been revealed.
The custodian normally has only seven days in which to locate,
review, and decide whether to release records under OPRA. N.J.S.A.
47:1A-5(i). The difficulties faced by a custodian in deciding in
a few days whether documents are government records or fall within
an exemption are already compounded when the custodian must apply
a balancing test, such as determining whether disclosure "would
violate the citizen’s reasonable expectation of privacy" under
N.J.S.A. 47:1A-1 and Burnett. We would greatly increase those
20 A-2016-16T1 difficulties if we require custodians to gather and consider
external information not presented to them.
Second, the custodian's obligations under OPRA are not lifted
by such revelation. OPRA places on the custodian "a responsibility
and an obligation to safeguard from public access a citizen’s
personal information with which it has been entrusted when
disclosure thereof would violate the citizen’s reasonable
expectation of privacy." N.J.S.A. 47:1A-1. OPRA also precludes
the custodian from releasing "a government record [that] is exempt
from public access," and requires the custodian "to delete or
excise from a copy of the record that portion which the custodian
asserts is exempt from access." N.J.S.A. 47:1A-5(a), (g). Nothing
in OPRA, the DV Act, or the executive order lifts those obligations
if the information has otherwise become public. Nor had any of
the persons thus protected explicitly waived that protection when
defendants responded to plaintiff's OPRA request.
Third, while revelation of the information by the news media
or in court proceedings may reduce the potential harm, it also
reduces the need for access. Thus, it does not necessarily change
the balancing of the Burnett factors. We do not preclude the
consideration of such revelation by a custodian or court performing
the Burnett balancing, or the balancing under the common-law right
of access. However, we will not overturn a custodian's Burnett
21 A-2016-16T1 balancing if the news articles were not brought to the custodian's
attention, and the protected parties had not agreed to revelation.
Plaintiff faults defendants for not contacting the family
members to ascertain their view about disclosure. However, nothing
in OPRA requires custodians during their brief period of review
to make such inquiries before enforcing OPRA's provisions. If
plaintiff wished to support its OPRA request with the consent of
the protected persons, plaintiff could have contacted them itself,
as it was aware of the identity of the family members from its
earlier news articles and from covering the ongoing trial.
Plaintiff argues the trial "court must have agreed that
releasing the 911 call would not have violated anyone's reasonable
expectation of privacy because it granted access to the full 911
call." However, the court only granted access after the lawyer
for the mother discussed the matter with her and the sister and
reported they joined the request to release the records.
The trial court found defendants "had a good faith basis to"
deny disclosure the 9-1-1 Tape because "there was no waiver yet.
Now that there's a waiver, [plaintiff] get[s] it." The court
explained that because "now they have a waiver which they didn't
have at the time of your request from [the sister] and her mother,"
it would "provide that [9-1-1 Tape] under the common law." The
court found "that there wasn't an OPRA violation because there
22 A-2016-16T1 were privileges asserted that . . . were waived subsequent to the
denial."
We agree that a custodian's proper decision to deny an OPRA
request does not become an OPRA violation because protected persons
join in the request for disclosure more than four months after the
custodian's decision. OPRA provides that "[a] person who is denied
access to a government record by the custodian of the record . . .
may[] institute a proceeding to challenge the custodian’s decision
by filing an action in Superior Court." N.J.S.A. 47:1A-6. Thus,
the proceeding challenges the "custodian's decision" to deny
access, and the proceeding challenging that decision must be
adjudicated based on the facts known to the custodian at the time,
not based on subsequent developments. As the trial court stated,
the consent of the mother and sister was "after the denial" and
thus "after the fact," and properly refused to find an OPRA
violation based on "hindsight."
Such consent by the protected parties can be considered
thereafter. A new OPRA request based on the consent can be filed.
A court adjudicating the proceeding challenging the earlier
decision can take the consent into account under the common law,
as here. A court that has found an OPRA violation can take the
consent into account in shaping its remedy. See Serrano, 358 N.J.
23 A-2016-16T1 Super. at 368-69. But such developments cannot turn a custodian's
proper OPRA decision into an OPRA violation after the fact.
In sum, we agree with the trial court that defendants could
properly refuse to reveal the private and exempt information in
the 9-1-1 Tape, and thus did not have to disclose the entire tape.
However, we find defendants erred by not providing a redacted
version of the tape as required by N.J.S.A. 47:1A-5(g). To that
extent only, defendants violated OPRA.
B.
Similar privacy concerns arise concerning the DVO Report.
However, we need not analyze whether the DVO Report was protected
under OPRA's privacy provision because it was made confidential
and exempted from disclosure by the DV Act, and thus by OPRA.
The DVO Report is "required by law to be made, maintained or
kept on file," and thus is not a "[c]riminal investigatory record."
N.J.S.A. 47:1A-1.1. The DV Act provides in N.J.S.A. 2C:25-24(a):
It shall be the duty of a law enforcement officer who responds to a domestic violence call to complete a domestic violence offense report. All information contained in the domestic violence offense report shall be forwarded to the appropriate county bureau of identification and to the State bureau of records and identification in the Division of State Police in the Department of Law and Public Safety. A copy of the domestic violence offense report shall be forwarded to the municipal court where the offense was
24 A-2016-16T1 committed unless the case has been transferred to the Superior Court.
The State Police with the Department of Law and Public Safety must
"compile and report annually to the Governor, the Legislature and
the Advisory Council on Domestic Violence on the tabulated data
from the domestic violence offense reports[.]" N.J.S.A. 2C:25-
24(c).
Because the DV Act requires the making and maintaining of the
DVO Report, it is covered by the confidentiality provision of the
DV Act of 1991: "All records maintained pursuant to this act shall
be confidential and shall not be made available to any individual
or institution except as otherwise provided by law." N.J.S.A.
2C:25-33(a). The Rules of Court since at least 2009 have similarly
required the courts to "exclude[] from public access" all
"[d]omestic violence records and reports pursuant to N.J.S.A.
2C:25-33." R. 1:38-3(d), (d)(9).
In enacting OPRA in 2002, the Legislature explicitly
preserved and incorporated such provisions exempting confidential
records from public access. "The provisions of this act shall not
abrogate any exemption of a public record or government record
from public access heretofore made pursuant to . . . any other
25 A-2016-16T1 statute." N.J.S.A. 47:1A-9(a).4 OPRA states "all government
records shall be subject to public access unless exempt from such
access by . . . any other statute . . . [or] Rules of Court."
N.J.S.A. 47:1A-1.
Thus, "N.J.S.A. 47:1A-1 explicitly recognizes that records
may be exempt from public access based upon authorities other than
the exemptions enumerated within OPRA." Bergen Cty. Prosecutor's
Office, 447 N.J. Super. at 202. For example, our Supreme Court
recently noted "OPRA also exempts from disclosure any information
that is protected by any other state or federal statute,
regulation, or executive order. As a result, the home address of
a victim of domestic violence cannot be obtained through OPRA."
Brennan, 233 N.J. at 338 (citing N.J.S.A. 47:1A-9(a) and N.J.S.A.
47:4-2 to -4).
Plaintiff argues N.J.S.A. 2C:25-33(a) does not provide an
absolute privilege. However, its language is absolute - "All
records maintained pursuant to this act shall be confidential and
shall not be made available to any individual or institution except
as otherwise provided by law," ibid. - unless another law provides
4 Moreover, N.J.S.A. 47:1A-9(b) provides that OPRA "shall not abrogate or erode any . . . grant of confidentiality heretofore established or recognized by . . . statute, . . . , which privilege or grant of confidentiality may duly be claimed to restrict public access to a public record or government record."
26 A-2016-16T1 otherwise. OPRA does not provide otherwise, because "N.J.S.A.
47:1A-9 codifies the Legislature's unambiguous intent that OPRA
not abrogate or erode existing exemptions to public access."
Bergen Cty. Prosecutor's Office, 447 N.J. Super. at 202.
Plaintiff relies on a Chancery Division decision, Pepe v.
Pepe, 258 N.J. Super. 157 (Ch. Div. 1992). There, the judge faced
a constitutional challenge to the sealing of court records, relied
on cases about the public's right to attend court proceedings, and
found "that the confidentiality provision under N.J.S.A. 2C:25-33
is not absolute and that under certain circumstances the court may
permit access to that which has been designated confidential by
statute." Id. at 163-64. However, no constitutional challenge
was raised here. Nor does this case involve a request to access
court records, let alone attend court proceedings. Under the
circumstances, we will not address a constitutional issue, or
consider the validity of Pepe.
Plaintiff argues the Legislature has acquiesced in Pepe
because it did not amend the DV Act to overrule Pepe. However,
"[l]egislative inaction is a thin reed generally on which to base
an interpretive argument." State v. Hudson, 209 N.J. 513, 536
(2012). It is a particularly untenable argument here, because
Pepe is a trial court opinion that may never have come to the
Legislature's attention, and which was non-binding on any court.
27 A-2016-16T1 See State v. Haliski, 140 N.J. 1, 15-16 (1995) (noting legislative
inaction is unreliable as it may be attributable to the
Legislature's "'unawareness'" or "'indifference'" to a judicial
decision).
In any event, Pepe's three factors for consideration included
whether "the release of the court documents be detrimental or
potentially harmful to the victim." Id. at 165. Disclosure and
publication of the DV Form would have been potentially harmful by
drawing attention to the details of the domestic violence.
Moreover, the only published decision to consider Pepe's test
"add[ed] one additional factor that ought to be considered in its
analysis: whether this court's decision will deter others
similarly situated from filing actions under the Act for fear of
possible disclosure of their records in the future." Taub v.
Cullen, 373 N.J. Super. 435, 439 (Ch. Div. 2004). Allowing
disclosure of the news media of the DVO Reports prepared in every
domestic violence case could discourage victims from coming
forward, as attested to in on of the certifications defendants
presented to the trial court. See id. at 440; see also Pepe, 258
N.J. Super. at 162. This was not "one of those rare exceptions
where the public interest and the press's right to know outweigh
28 A-2016-16T1 the general expectation of privacy accorded to victims of domestic
violence." Taub, 373 N.J. Super. at 441.5
Thus, defendants properly enforced the DV Act's prohibition
of the disclosure of the confidential DVO Report by denying
plaintiff's OPRA request. Indeed, Pepe only released court records
after the parties named in the DVO "advised the court that they
have no objection to the [media]'s application." 258 N.J. Super.
at 165. Here, it was not until four months later that the mother
and sister indicated they had no objection to release of the
record, and the trial court similarly relied on their consent in
its decision to disclose the DVO Report under the common law. As
set forth above, that subsequent development did not convert a
proper decision into an OPRA violation ex post facto.
Therefore, the custodian's decision not to disclose the DVO
Report was not a violation of OPRA. Redaction was not required
under N.J.S.A. 47:1A-5(g) because "that section of the statute
cannot apply" where "the entire document is privileged and exempt."
Libertarians for Transparent Gov't v. Gov't Records Council, 453
N.J. Super. 83, 93 (App. Div.), certif. denied, __ N.J. __ (2018).
IV.
5 The judge found Taub was such a rare case because the defendant was a "serial killer," and "[t]he front page of the newspaper on a regular basis contains stories of" his crimes. Id. at 440-42. No such pervasive coverage was shown here.
29 A-2016-16T1 Defendant ultimately challenges the trial court's denial of
counsel fees. OPRA provides in N.J.S.A. 47:1A-6:
A person who is denied access to a government record by the custodian of the record . . . may[] institute a proceeding to challenge the custodian’s decision by filing an action in Superior Court . . . . If it is determined that access has been improperly denied, the court or agency head shall order that access be allowed. A requestor who prevails in any proceeding shall be entitled to a reasonable attorney’s fee.
A requestor prevails in an OPRA proceeding
(1) [when] records are disclosed "after the entry of some form of court order or enforceable settlement" granting access, or (2) "when a government agency voluntarily discloses records after a lawsuit is filed" and under the catalyst theory the plaintiff "can establish a 'causal nexus' between the litigation and the production of requested records" and "'that the relief ultimately secured by plaintiffs had a basis in law.'"
[Stop & Shop Supermarket Co. v. Cty. of Bergen, 450 N.J. Super. 286, 292 (App. Div. 2017) (quoting Mason, 196 N.J. at 57, 76-77, 79).]
Both the 9-1-1 Tape and the DVO Report were disclosed in the
trial court's September 2, 2016 order, but under the common-law
right of access rather than OPRA. Plaintiff contends that the
court erred in relying on the common law in granting disclosure.
However, in our de novo review, we have found that defendants'
decisions not to disclose the DVO Tape or the unredacted 9-1-1
30 A-2016-16T1 Tape were proper under OPRA, and that defendants violated OPRA
only by not providing a redacted version of the 9-1-1 Tape.
Therefore, defendant is entitled to counsel fees under OPRA only
to the extent they are attributable to that OPRA violation. We
remand to the trial court to determine the reasonable counsel fees
attributable to that violation.
Plaintiff does not argue that obtaining a judgment under the
common law entitled it to counsel fees under OPRA. Rather,
plaintiff argues its OPRA lawsuit was the catalyst for its receipt
of the DVO Report and the unredacted 9-1-1 Tape. However,
plaintiff failed to show defendants violated OPRA by not providing
those documents in its response to plaintiff's OPRA request.
Moreover, the trial court released those documents under the common
law only because, more than four months later, the mother and
sister waived their privacy interests in those documents. Thus,
as to those documents, plaintiff failed to show that its OPRA
lawsuit had "some basis in law" when it was filed, or that their
OPRA lawsuit "was causally related to securing the relief
obtained." Mason, 196 N.J. at 57.
To rule plaintiff was entitled to fees under OPRA for those
documents would reward plaintiff for filing an OPRA lawsuit the
court properly found lacked merit, and penalize defendants for
making a correct decision under OPRA to withhold those documents.
31 A-2016-16T1 As to those documents, plaintiff "is not entitled to attorney's
fees because its OPRA request was improper and the [PCPO's]
response was reasonable" and correct. Spectraserv, Inc. v.
Middlesex Cty. Utils. Auth., 416 N.J. Super. 565, 583 (App. Div.
2010). Moreover, there was no "causal connection" because the
trial court ordered those documents produced under the common law
after the mother and sister "withdrew [any] objection" to the
production of documents "deemed privileged and confidential." See
id. at 584 (finding no causal connection where the custodian
produced confidential documents after a licensor withdrew its
objection).
"A requestor . . . is not a prevailing party simply because
the agency produced documents after an OPRA suit was filed." Id.
at 583. "Our Supreme Court in Mason refused to presume OPRA
litigants are entitled to counsel fees even when records are
produced after suit is filed." Stop & Shop, 450 N.J. Super. at
292 (citing Mason, 196 N.J. at 78-79). "A plaintiff is considered
a prevailing party 'when actual relief on the merits of [the OPRA]
claim materially alters the relationship between the parties by
modifying the defendant's behavior in a way that directly benefits
the plaintiff.'" Teeters v. Div. of Youth & Family Servs., 387
N.J. Super. 423, 432 (App. Div. 2006) (citation omitted).
Plaintiff failed to show that here.
32 A-2016-16T1 Plaintiff cites comments in the trial court's oral opinion
which allegedly represented a misunderstanding of OPRA and its
counsel fee provision. As we have reviewed the OPRA issue de
novo, such alleged misunderstandings are irrelevant to our
decision. We comment briefly to avoid any confusion on remand.
OPRA's fee-shifting provision serves "[t]o ensure that the
average citizen is not deterred from challenging an agency's
decision due to the financial risk involved." N.J. Firemen's
Ass'n, 230 N.J. at 276. Nonetheless, any requestor who prevails
is entitled to counsel fees, including media companies. See,
e.g., Courier News v. Hunterdon Cty. Prosecutor's Office, 378 N.J.
Super. 539, 540, 548 (App. Div. 2005). Where a requestor prevails
in obtaining a document withheld in violation of OPRA, the award
of fees is "mandatory," with the amount "subject to a rule of
reasonableness with no expressed monetary limitation." Teeters,
387 N.J. Super. at 433; see Mason, 196 N.J. at 75.
If the requestor prevails in an OPRA proceeding, the requestor
is entitled to counsel fees even if the custodian acted in good
faith, did not willfully violate OPRA, applied a reasonable if
erroneous interpretation of the statute, or faced conflicting
judicial decisions. See, e.g., Am. Civil Liberties Union of N.J.
v. N.J. Div. of Criminal Justice, 435 N.J. Super. 533, 536 (App.
Div. 2014); Smith v. Hudson Cty. Register, 422 N.J. Super. 387,
33 A-2016-16T1 397-98 (App. Div. 2011). Custodians must apply OPRA, its
exemptions, and its balancing test to the best of their ability.
If the custodian correctly applies the exemption or balancing
test, there is no OPRA violation and counsel fees are
inappropriate. If the custodian incorrectly applies the exemption
or balancing test, there is an OPRA violation and counsel fees are
appropriate.
The trial court recognized this standard, but noted its
harshness for custodians. The court expressed concern that the
balancing test is too analytical for custodians, but that concern
is lessened here where the custodian was the chief assistant
prosecutor. The court was also concerned public agencies might
open themselves to suit if they released information that was
potentially private under N.J.S.A. 47:1A-1 without the consent of
the persons whose privacy was being protected. We understand
those concerns, but under current law courts must review de novo
the decisions of custodians, even where they applied a balancing
test.6
6 It has not been argued here that courts should review custodians' application of a balancing test under a deferential standard, such as the standard we apply to review decisions of the Government Record Council, created by OPRA as an alternate body in which to challenge a custodian's actions. N.J.S.A. 47:1A-7. In reviewing the Council's decisions, we "accord deference to final agency actions, reversing those actions if they are 'arbitrary,
34 A-2016-16T1 Affirmed in part, reversed in part, and remanded to determine
the reasonable counsel fees attributable to the failure to provide
a redacted version of the 9-1-1 Tape.7 We do not retain
jurisdiction.
capricious or unreasonable or [if the action] is not supported by substantial credible evidence in the record as a whole.'" E.g., McGee v. Twp. of E. Amwell, 416 N.J. Super. 602, 612 (App. Div. 2010) (quoting N.J. Soc'y for the Prevention of Cruelty to Animals v. N.J. Dep't of Agric., 196 N.J. 366, 384-85 (2008) (alteration in original) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)); Bart v. City of Paterson Hous. Auth., 403 N.J. Super. 609, 618 (App. Div. 2008). 7 The counsel fees should be assessed against PCPO, not Verlardi. Courier News, 378 N.J. Super. at 541. "Individuals, such as public officials, officers, employees or custodians, are only personally liable if they 'knowingly and willfully' violate the provisions of OPRA, and are 'found to have unreasonably denied access [to the government records] under the totality of the circumstances.'" Id. at 546 (quoting N.J.S.A. 47:1A-11(a)). That has not been claimed or shown here.
35 A-2016-16T1