March 30, 2009
SIDNEY S. KANTER, PLAINTIFF-APPELLANT,
WITOLD T. BAGINSKI, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4222-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 10, 2009
Before Judges Parker and LeWinn.
Plaintiff Sidney S. Kanter appeals pro se from an order entered on July 10, 2008 finding that defendant Witold Baginski had not violated the provisions of the New Jersey Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, but ordered defendant to provide plaintiff with a copy of "any plans of Liberty Plaza, LLC, to the Wallington Zoning Board of Adjustment for Block 38, Lot 1 that [were] on file for public inspection as of 3:30 p.m. on May 19, 2008" and dismissed plaintiff's order to show cause and demand for damages. Plaintiff further appeals from an order entered on August 15, 2008 denying his motion for reconsideration of the July 10, 2008 order.
The facts relevant to this appeal are as follows. Defendant Baginski is the custodian of records for Wallington Borough. On May 19, 2008, plaintiff requested the applications and plans for Liberty Plaza, LLC, to the Zoning Board of Adjustment for Block 38, Lot 1. The documents were related to a notice of public hearing on the application before the Zoning Board. Defendant provided the documents in his custody within two days of plaintiff's request. Plaintiff, however, claims that the documents provided were not those requested.
Defendant's certification submitted to the trial court indicated that he went to great lengths to provide plaintiff with the documents requested, including having the site plans copied at a commercial copying center since the Borough did not have a copy machine capable of copying the large size site plans. When plaintiff's brother, Kenneth Kanter, came to defendant's office to pick up the documents, defendant gave them to Kenneth. Plaintiff contacted defendant after the documents were given to Kenneth and demanded a letter from defendant stating that the documents were not available on Monday, May 19, when they were requested.
The trial court found that defendant did not violate OPRA because he produced the documents to defendant's brother within two days of the request. The court nevertheless ordered defendant to furnish plaintiff, himself, with a copy of any plans of Liberty Plaza, LLC, that were on file for public inspection as of 3:30 p.m. on May 19, 2008. Defendant complied with the July 10, 2008 order immediately after it was entered at no cost to plaintiff. Plaintiff nevertheless pursued this appeal, arguing that (1) the custodian must tell whether the requested document exists; (2) the trial court's decision was based on incorrect facts, inadmissible evidence and was plainly incorrect; and (3) the custodian should be fined $1,000 for willful violation of OPRA.
Plaintiff argues that he did not request copies of the documents that became available after May 19, 2008. Rather, he requested the documents that were available at 3:30 p.m. on May 19 and that the custodian was obligated to respond to his request at that time. We disagree.
N.J.S.A. 47:1A-5 governs inspection, examination and copying of documents in the custody of the custodian of government records. The statute provides "immediate access" only for certain documents, N.J.S.A. 47:1A-5(e), and specifically provides that:
Unless a shorter time period is otherwise provided by statute, regulation, or executive order, a custodian of a government record shall grant access to a government record or deny a request for access to a government record as soon as possible, but not later than seven business days after receiving the request, provided that the record is currently available and not in storage or archived. In the event a custodian fails to respond within seven business days after receiving a request, the failure to respond shall be deemed a denial of the request, unless the requestor has elected not to provide a name, address or telephone number, or other means of contacting the requestor.
[N.J.S.A. 47:1A-5(i) (emphasis added).]
The custodian provided the documents requested well within the seven-day period.
We have carefully considered plaintiff's arguments in light of the record and the applicable law. We are satisfied that plaintiff's arguments lack sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
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