On appeal from an Order of the Superior Court of New Jersey, Law Division, Civil Part, Mercer County, Docket No. L-2766-03.
Before Judges Skillman, Parrillo and Riva.
The opinion of the court was delivered by: Parrillo, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
In this interlocutory appeal, we consider whether a request under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to - 13, for information for use in collateral administrative proceedings with the governmental entity required to respond to the OPRA request was proper. Specifically, we granted leave to review an order of the Law Division: (1) granting plaintiff, MAG Entertainment, LLC (MAG), the right, under OPRA, to obtain documents from defendant, the Division of Alcoholic Beverage Control (Division or ABC), which were previously denied during discovery in the agency's pending enforcement action against MAG; and (2) compelling the deposition of an agency representative in furtherance of document production. We now reverse.
In October 2001, the Division filed administrative charges seeking to revoke MAG's plenary retail liquor license for allegedly serving alcohol to an intoxicated patron, who was then involved in a fatal car accident, and for alleged acts of"lewdness" by female dancers. In January, 2003, in the enforcement proceeding pending in the Office of Administrative Law (OAL), MAG requested documents and records regarding the Division's handling of other enforcement actions against similarly situated liquor licensees in order to potentially pursue a selective enforcement defense. When the Division refused to disclose this information, MAG filed a motion to compel discovery, which was granted by the administrative law judge (ALJ) in June, 2003. The Division appealed that decision and, in July, 2003, the ABC Director reversed on the ground that the discovery demand was burdensome and would require the agency to"undertake an extensive search of its records."
Rather than seeking interlocutory review here, Rule 2:2-3(a)(2), MAG filed a request under OPRA for"all documents or records evidencing that the ABC sought, obtained or ordered revocation of a liquor license for the charge of selling alcoholic beverages to an intoxicated person in which such person, after leaving the licensed premises, was involved in a fatal auto accident," and"all documents or records evidencing that the ABC sought, obtained or ordered suspension of a liquor license exceeding 45 days for charges of lewd or immoral activity." MAG's request did not identify any specific case by name, date, docket number or any other citation, but instead demanded that:
[T]he documents or records should set forth the persons and/or parties involved, the name and citation of each such case, including unreported cases, the dates of filing, hearing and decision, the tribunals or courts involved, the substance of the allegations made, the docket numbers, the outcome of each matter, the names and addresses of all persons involved, including all witnesses and counsel, and copies of all pleadings, interrogatory answers, case documents, expert reports, transcripts, findings, opinions, orders, case resolutions, published or unpublished case decisions, statutes, rules and regulations.
On October 3, 2003, the Division's records custodian rejected MAG's request, deeming it a"[general] request for information" obtained through research, rather than a"request for a specific record." She further explained that the request was not limited to a particular time frame, thus necessitating a search of both open and closed Division files. More significantly, since the agency's case tracking system did not have a search engine that could readily extract a list of cases that fit MAG's request, the custodian would have to manually review the contents of every Division case file to determine the factual basis for the charges brought, and their disposition. In other words, MAG's request required the custodian to collect, evaluate, and compile information from each file and amounted, in effect, to an improper demand for research.
Consequently, on October 27, 2003, while the enforcement action was still pending in the OAL, MAG appealed the denial of its request to the Law Division by way of order to show cause and verified complaint pursuant to N.J.S.A. 47:1A-6. Prior to the return date, and in connection with its OPRA request, on December 10, 2003, MAG served the Division with a notice to take the oral depositions of both an Assistant Attorney General in charge of the ABC's Enforcement Bureau and a Deputy Attorney General previously assigned to the agency. The deposition notice also demanded the production of all documents related to the matter. Immediately thereafter, the Division filed its answer to the show cause order, denying the allegations and asserting various defenses, most notably lack of jurisdiction and failure to exhaust administrative remedies. On January 2, 2004, the Division also filed a notice of motion for a protective order quashing the depositions, pursuant to Rule 4:10-3.
At the hearing on the return date, January 9, 2004, the Division maintained that MAG's request was untenable due to its scope and the type and amount of work it required, and that, in any event, depositions were not the appropriate means of narrowing the request. MAG argued, to the contrary, that depositions would be an effective way to identify the relevant case files and the pertinent information therein that it was seeking under OPRA. The motion judge did not rule on the matter, but rather ordered the parties to"honestly talk to each other... and [s]ee if you [can] define the object of your inquiry, if there's some reasonable ways to do that."
As a result of this directive, the parties undertook settlement discussions. Over the course of the negotiations, the Division identified three cases that involved the sale of alcohol to an intoxicated patron who then caused a fatal motor vehicle accident and approximately 296 cases involving lewdness charges.*fn1 Nevertheless, despite this effort and the passage of seven months, no settlement was reached because the parties disagreed over which contents were privileged or otherwise exempted from OPRA's reach.
Consequently, another hearing was held on July 30, 2004, at which time the Division objected to blanket production, claiming application of a number of exemptions within OPRA, and citing the fact that the case files contained documents, such as criminal investigatory records, settlement negotiations, legal research, counsel's draft documents, and records of correspondence, that were not subject to disclosure. The Division also maintained that selective disclosure of the charges and depositions of all 300 cases would obviate the purported need for depositions of agency officials since MAG could not properly question either attorney about any other information in the files. MAG argued in response that it was not interested in the mental impression of the deponents, but only in the precise contents of the case files, and that depositions were necessary to identify with more specificity the documents, such as hearing transcripts, OAL decisions, reports and recommendations, and pleadings, that were disclosable.
Without an in-camera inspection of documents, and without findings on the Division's claims of privilege and exemptions, the court, by order of August 26, 2004, denied the agency's request for a protective order and allowed the deposition of the Assistant Attorney General in order"to move this thing along." However, the court limited the deposition"to an understanding of what these files are comprised of, with particularity, limited to how they're maintained, what type of disposition is made of materials once the case is over." As for which documents must be made available, the motion judge stated,"... it seems to me that the charges and dispositions certainly should be made available. Whether there is more that's made available will be subject to the deposition and the sharpening of the focus that has to come about in this case." In other words, the judge allowed MAG to depose an agency official for the purpose of more clearly refining its OPRA request and obtaining documents for use in a collateral OAL proceeding ...