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North Jersey Media Group Inc. v. Borough of Paramus

August 3, 2009

NORTH JERSEY MEDIA GROUP INC., D/B/A THE RECORD, PLAINTIFF-APPELLANT,
v.
BOROUGH OF PARAMUS AND IAN SHORE, BOROUGH CLERK & CUSTODIAN OF RECORDS, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8373-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 11, 2009

Before Judges Reisner and Alvarez.

Plaintiff North Jersey Media Group Inc., doing business as The Record, appeals the denial of a motion for reconsideration of an order refusing them access to a Paramus Police Department (the Department) internal report (the Poole Report). For the reasons that follow, we affirm.

Plaintiff's request for the Poole Report was made pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and the common law right of access to public records. The Poole Report was authored by an outside consultant who conducted an anonymous survey of the Department's officers as a first step in a multi-year internal review process designed to improve the Department's operations.

Plaintiff's request, addressed to defendants Borough of Paramus (the Borough) and Ian Shore, Borough Clerk and Custodian of Records (the Borough Clerk), was first filed on February 27, 2007, by a reporter for The Record. On April 2, 2007, the Borough Clerk denied the request, attaching a letter from the Borough's counsel explaining the reasons for the refusal. Months later, on September 26, 2007, a second request was made via e-mail by The Record's counsel. The Borough again declined to release the Poole Report.

The Record subsequently filed a complaint and order to show cause on November 14, 2007, requesting that the court conduct an in-camera inspection of the Poole Report. On the December 21, 2007 return date of the order to show cause, counsel for The Record conceded that the Poole Report was "pre-decisional." On January 2, 2008, Judge Moses granted the application for in camera review, and on February 6, 2008, she denied access to the Poole Report, with one exception. The Borough was required to disclose the blank questionnaire form used in conducting the survey. On March 6, 2008, Judge Moses entered an order memorializing her decision.

On April 1, 2008, The Record filed a notice of motion for reconsideration pursuant to Rule 4:49-2, contending that reconsideration was appropriate because Judge Moses failed to rule on whether disclosure was required under the common law right of access to public records. Judge Polifroni, who had been assigned the matter, heard oral argument on May 9, 2008. He determined that the motion was untimely, pursuant to Rule 4:49-2, because it was filed fifty-four days after Judge Moses' written opinion was mailed and twenty-one days after service of the ensuing order.

Judge Polifroni nonetheless addressed the substantive issues, opining that The Record did not establish that Judge Moses either based her decision on a palpably incorrect or irrational basis or failed to consider the significance of probative, competent evidence. He further found that Judge Moses' decision included consideration of whether the common law right of access to public records compelled disclosure. His decision was memorialized in an order dated May 21, 2008, from which plaintiff appeals.

The Poole Report, the product of research conducted by Les Poole, a retired Scotland Yard detective and management consultant, included in-person interviews in addition to the written questionnaires completed by members of the Department. The focus of the Poole Report was to obtain the opinion of the Department's employees as to the effectiveness of its current operations and regarding ways in which policies and procedures could be improved. The Department intended to rely upon the survey results, along with other information, to create a long-term plan to improve the Department's effectiveness, including changes to staffing, scheduling and evaluative processes. Survey participants had been promised anonymity. The report included not only their opinions and advice concerning departmental policies, but Poole's own recommendations as well.

The Record is a daily newspaper circulated throughout the Borough and Bergen County. The Record has previously published several stories pertaining to the Department, including a sexual harassment claim against a former police chief, a hostile work environment lawsuit, and allegations that promotions hinge upon political affiliations.

An appellate court reviews de novo "the issue of whether access to public records under OPRA and the manner of its effectuation are warranted." MAG Entm't, LLC v. Div. of Alcohol Beverage Control, 375 N.J. Super. 534, 543 (App. Div. 2005). "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any ...


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