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New Jersey Builders Association v. New Jersey Council on Affordable Housing

January 24, 2007


On appeal from Superior Court of New Jersey, Law Division, Mercer County, L-2291-04.

The opinion of the court was delivered by: Grall, J.A.D.



Argued May 10, 2006*fn1

Before Judges Stern, Grall and King.

Plaintiff New Jersey Builders Association (NJBA) filed an action in the Law Division to obtain public records held by defendant New Jersey Council on Affordable Housing (COAH), Department of Community Affairs. NJBA asserted rights of access under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and the common law. NJBA alleged that "without any legal justification," COAH said it would provide the information beyond the seven-day deadline provided in OPRA, N.J.S.A. 47:1A-5(i).*fn2 Judge Feinberg dismissed NJBA's complaint after COAH produced the documents it had and created additional documents responsive to NJBA's demands for information. The judge determined that NJBA was not a prevailing party entitled to fees pursuant to N.J.S.A. 47:1A-6. NJBA appeals from the order denying its request for fees.

We granted the New Jersey Press Association (Press Association) leave to participate as amicus curiae. After oral argument, we directed NJBA to provide transcripts of the hearing that led to the dismissal of its complaint and directed both parties to provide additional briefs discussing the relevance of this court's decision in MAG Entertainment, LLC v. Division of Alcoholic Beverage Control, 375 N.J. Super. 534, 546 (App. Div. 2005), which was issued after Judge Feinberg denied NJBA's fee application. Those briefs were filed on October 2, 2006.

We hold that NJBA was not entitled to fees as a prevailing party under OPRA. N.J.S.A. 47:1A-6. Because NJBA's request did not specifically identify the documents it sought, as required by N.J.S.A. 47:1A-5(f), OPRA did not require COAH to produce the records within seven business days, N.J.S.A. 47:1A-5(i). Moreover, NJBA's request required COAH's custodian to survey COAH employees, gather responsive information and produce new documents. Because OPRA does not require an agency to perform such tasks and because NJBA needed more than ten business days to review COAH's response, COAH established that compliance within seven business days would "substantially disrupt" COAH's operations. N.J.S.A. 47:1A-5(g). Accordingly, pursuant to N.J.S.A. 47:1A-5(g), COAH was authorized to offer a "reasonable solution" - production at a later date - that accommodated the needs of NJBA and COAH. COAH established that its response was "authorized by law," and, for that reason, NJBA was not entitled to an attorney's fee pursuant to N.J.S.A. 47:1A-6.

The essential facts are undisputed. On October 6, 2003, COAH proposed new rules for determination of fair-share housing obligations. 35 N.J.R. 4636(a). On August 16, 2004, COAH reproposed those rules. 36 N.J.R. 3691(a).

On August 19, 2004, NJBA submitted a request for government documents using a "Government Records Request Form" made available by COAH. The form provides space for "Record Request Information." COAH's form directs: "To expedite the request, be as specific as possible in describing the records being requested." In the space provided, NJBA simply referenced "Attachment 'A,'" which is a five-page document listing thirty-eight separate requests all of which include a request for "any and all documents and data." A thirty-ninth request asked COAH to advise where documents not in the possession of DCA, COAH or its consultant, Dr. Burchell, could be obtained.

NJBA's thirty-eight requests describe the documents and data sought as those "used" or "considered" by COAH or "support[ing]," "demonstrat[ing]," "justif[ying]" or "verif[ying]" various determinations relevant to COAH's determinations about fair-share housing obligations. For example, NJBA's tenth request was for "[a]ny and all documents and data which [were] relied upon, considered, reviewed, or otherwise utilized by any employee or staff member of COAH or DCA, or by Dr. Burchell in calculating the second proposed third round affordable housing methodology and the regulations proposed on July 13, 2004 to be published in August 2004."

On August 27, 2004, within six business days of NJBA's request, COAH's "Records Custodian" responded. The custodian's response advises that NJBA's "submission" includes thirty-nine "separate requests for information," and explains that "due to the enormity of the request, COAH requires additional time with which to assess the submittal and gather the relevant information." The custodian informed NJBA that COAH could not provide the information until September 20, 2004.

NJBA notified COAH that it would agree to the September 20 date only if COAH agreed to extend the period for public comment on its proposed regulations. The last of four public hearings on COAH's proposal was scheduled for September 29, 2004, and the public comment period was scheduled to close on October 15, 2004. 36 N.J.R. 3691(a).

On September 9, 2004, NJBA commenced this action in the Law Division to enforce its rights ...

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