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O.R. v. Kniewel

March 17, 2010

O.R. O/B/O O.R. (A MINOR), PLAINTIFF-APPELLANT,
v.
VICTORIA KNIEWEL, GERRI HUNTER AND WEST WINDSOR PLAINSBORO SCHOOL DISTRICT, DEFENDANTS-RESPONDENTS.
O.R. O/B/O O.R. (A MINOR), PLAINTIFF-APPELLANT,
v.
DONNA GIBBS-NINI, MARY ANN ISAACS, ARTHUR DOWNS, GERRI HUNTER AND WEST WINDSOR PLAINSBORO SCHOOL DISTRICT, DEFENDANTS-RESPONDENTS.
ROTIMI OWOH, PLAINTIFF-APPELLANT,
v.
WEST WINDSOR PLAINSBORO REGIONAL SCHOOL DISTRICT-CUSTODIAN OF RECORDS, DEFENDANT-APPELLANT.
JOHN DOE, JR., A MINOR BY HIS PARENT AND GUARDIAN, JOHN DOE, SR. AND JOHN DOE, SR., INDIVIDUALLY, PLAINTIFF-APPELLANT,
v.
WEST WINDSOR PLAINSBORO REGIONAL SCHOOL DISTRICT, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket Nos. L-2293-07, L-2380-07, L-2686-06, L-2316-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 28, 2009

Before Judges Graves, Sabatino, and J. N. Harris.

These four back-to-back appeals--which we hereby consolidate for purposes of this opinion--were presented by interrelated plaintiffs. Three of the appeals implicate issues that involve the statutory and common law right of public access to records created by governmental actors. The fourth appeal involves alleged deprivations of a juvenile's civil rights. We affirm the Law Division's rulings in the four separate matters because we are unable to detect any legal error of consequence.

The central grievance presented by plaintiffs is found in the disparate-treatment complaint captioned John Doe, Jr. v. West Windsor Plainsboro Reg. School District (A-1263-08T1). That action was originally bottomed upon putative violations of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -42 (LAD); the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2 (NJCRA); and the Federal Civil Rights Act, 42 U.S.C.A. § 1983 (§ 1983).*fn1 The lawsuit sought remedies for race and ethnicity-based discrimination that was allegedly carried out against a thirteen-year-old middle school student--John*fn2 --by school authorities in 2004, following the discovery of a knife in John's possession while on school grounds.

The three spin-off complaints*fn3 --commenced pursuant to the Open Public Records Act, N.J.S.A. 47:1A-1 to -13 (OPRA), and the common law right of access to public records--were engendered by Requestor's ongoing attempts to supplement and cross-check the litigational discovery that was being developed in John's civil rights action. Although these complaints espouse broader purposes--for example, "[t]he public [has] a right to know whether the 'chief school administrator' and other administrators in the [West Windsor Plainsboro] School District are complying with the specific reporting requirements of N.J.A.C. 6A:16-5.3 and N.J.A.C. 6A:16-6.3 when disciplining Caucasian (White) students for possession of knive[s] on school property"--they are, at their cores, strategic means to augment the litigational discovery that seeks to further John's goal of vindication for his perceived ill-treatment.

Instead of focusing upon the discovery in the primary discrimination case and thereby engage in the natural process of evidence collection through interrogatories, document demands, requests for admissions, preservation of electronically stored information, and depositions, Requestor and John took a much different and more complicated path. The plaintiffs devoted scarce resources--including the most precious of all: time--to hunt for public records through the collateral process of OPRA requests and the common law right of access. Ultimately, these collateral efforts and limited use of the discovery process in the civil rights action failed to generate sufficient proofs to demonstrate a prima facie case of discrimination when a motion for summary judgment beckoned.

These are not the first appeals to reach this court with respect to John's interaction with government. In 2007, we rejected John's sixteen-point appeal relating to his adjudication of delinquency for committing an act, which if committed by an adult, would have constituted fourth-degree possession of a weapon under circumstances not manifestly appropriate for such lawful uses as it may have while in or upon any school building, N.J.S.A. 2C:39-5(c)(2). In Re R.O., No. A-1540-05T3 (App. Div. June 13, 2007). In affirming the Family Part, we concluded that the trial court had not abused its discretion in denying defense counsel's request for broad-spectrum discovery relating to the alleged disparate treatment of students accused of weapons possession. Because John had not established a plausible basis for a claim of selective enforcement as part of the delinquency proceedings, he was neither permitted to obtain this extraordinary discovery nor entitled to a reversal of his adjudication of delinquency on such grounds.

During the last court term, we affirmed the denial of John's OPRA and common law right of access to public records claim that he pursued against the Plainsboro Police Department (PPD). In that action, John sought a judgment to compel the PPD to produce investigative reports, narrative documents, and complaints relating to other incidents of weapons possession reported by John's school district from 2000 through 2006. R.O. (A Minor) v. Plainsboro Police Dept., Custodian of Records, No. A-5906-07T2 (App. Div. June 17, 2009).*fn4 There, we held that the PPD records sought by John: (1) were properly classified as criminal investigatory records, which were exempt from production under OPRA, N.J.S.A. 47:1A-1.1, and (2) predominately contained juvenile records, which were therefore confidential and not subject to public inspection or copying pursuant to OPRA, N.J.A.C. 13:94-1.5(3).

John's father sought further remedies on his son's behalf from the Department of Education, which were twice unsuccessful.*fn5

As part of that process before the state administrative agency, the father's discovery practices were characterized by the Commissioner of Education as "very close to constituting 'overzealous, burdensome and harassing conduct,'" but did not rise to a level that warranted sanctions. The Administrative Law Judge who initially considered the matter described John's father's actions as that of a "discovery juggernaut."

After a full consideration of the copious and interconnected record before us, we are confident that the decisions rendered by the several judges in the Law Division who considered these issues were consistent with the applicable law and comport with New Jersey's high standards relating to the fair administration of justice.

I.

On March 3, 2004, John (then thirteen years old) was found in possession of a folding, lock-blade knife while attending the Community Middle School, which is under the auspices of defendant West Windsor Plainsboro Regional School District (the District).*fn6 As a result, John was suspended from school for ten days. In obedience to N.J.A.C. 6A:16-6.3 (requiring school administrators to report incidents involving deadly weapons unlawfully on school grounds to law enforcement authorities), the District alerted the PPD as to John's possession of a knife. Shortly thereafter, a one-count juvenile complaint was lodged against John, alleging delinquency.

After various procedural events in the Family Part, the juvenile complaint was amended. When the matter was eventually tried in 2005, John was adjudicated delinquent and sentenced accordingly. As noted earlier, we affirmed all aspects of the Family Part's treatment of John's case. Among John's allegations on appeal was the claim that the Family Part erroneously denied his request for the desired expansive discovery materials in connection with his defense of selective enforcement. We rejected that contention, and further found that the defense had failed to establish a "colorable case of selective enforcement to warrant reversal of [John's] adjudication."

On February 8, 2005, John's father began the pursuit of two administrative appeals with the Department of Education that challenged, and sought to undo, John's ten-day suspension. While the petitions were unsuccessful in reversing the suspension, the process unearthed additional discovery materials that John and his father believed supported their claims of selective enforcement and disparate treatment. The Commissioner of Education issued final decisions dismissing the petitions on March 17 and June 28, 2006.

Although the record is incomplete in this one respect, it appears that John (or by another on his behalf) filed some type of complaint or application for various remedies with the New Jersey Division of Civil Rights (the Division), but then abandoned the claim. It is unclear for how long that matter remained with the Division or the extent of any further discovery that was derived therefrom.

What is apparent from the record, however, is that John obtained sizeable caches of information from extra-judicial processes, including statistics related to sixty-two incidents of weapons offenses at twenty-one different elementary and secondary schools spanning the course of seven years. While none of these data involved John's school, they were sufficient, nevertheless, to impel the Middlesex County Prosecutor's Office to convene a task force to review the information, but no selective enforcement was found to exist.

On September 7, 2006, John filed his five-count civil rights complaint against the District. Notably, the complaint did not seek remedies against any individual school administrator. An answer, dated October 12, 2006, was filed by the District, which denied all of the allegations of discrimination.

The centerpiece of John's disparate treatment grievances is contained in the following paragraphs of the complaint:

3. [] John Doe belongs to a protected class in that he is a dark skin Black and of Nigerian ancestry.

7. Defendant [District] discriminated against [] John Doe, in that he was suspended from school for ten days while a similarly situated student whose mother is Caucasian was suspended from school for less than 10 days.

In an amended complaint filed six months after the first, John expanded these allegations to include:

7(a). Defendant discriminated against [] John Doe, in that he was referred to the police for possession of [a] knife on school property while a similarly situated student whose mother is Caucasian was not referred to the police for threatening to stab another student with a scissors.

Rather than immediately pursue conventional methods of discovery in the civil rights action, Requestor--on John's behalf--began ancillary discovery using OPRA. What followed were a series of requests for public records and the commencement of numerous actions in the Law Division pursuant to OPRA and common law right of access.

The first such collateral endeavor was Requestor's two-count complaint against the District's custodian of records, filed on October 17, 2006. This complaint indicated that a few weeks earlier (but after the filing of the civil rights action) Requestor had sought "statistical information pursuant to OPRA about incidents of violence in [the District]." Believing there to be a discrepancy between the District's response to this OPRA request and information Requestor had previously received from the PPD, Requestor also "requested the name of the police department that was notified [by the District] when the incidents of weapons possession occurred as required by N.J.A.C. 6A:16-6.3(b)." Requestor further "asked for the number and racial composition of the students who were reported or referred to law enforcement for possession of [a] weapon on school grounds and the nature of the weapon involved in each incident." Dissatisfied with the District's responses, Requestor filed the first complaint in the Law Division.

Meanwhile, discovery in the civil rights action was underway, helped along by several motions to enforce discovery obligations that were ultimately resolved by Judge Wilbur H. Mathesius. On February 28, 2007, an order was entered directing the District to provide copies of all of its redacted*fn7 internal disciplinary records for the 2002-2003, 2003-2004, and 2005-2006 school years. Notwithstanding John's claim to the contrary, this order appears to have been complied by March 2007, together with printouts of computer screens (screenshots) provided by the District showing electronically stored information relating to weapons incidents at the Community Middle School for the aforementioned school years.

After developing other leads, Requestor again sought extra-litigational discovery. Utilizing OPRA once more, he requested more records that he believed the District maintained relating to its obligation to report weapons incidents to law enforcement authorities. When the response of the District was not what Requestor hoped for, he filed yet another OPRA and common law right of access complaint in the Law Division against the District, superintendent of schools Victoria Kniewel, and custodian of the District's records, Gerri Hutner*fn8 on September 11, 2007. Requestor sought the names of the police officers and police departments who were contacted by the District when forty-seven specifically-identified weapons-related incidents occurred between January 31, 2001 and April 24, 2007, plus an additional "six (6) weapons possession incidents [] reported during the 2000/2001 school year." As for OPRA, the complaint averred:

8. The public ha[s] a right to know whether the "chief school administrator" and other administrators in the [West Windsor Plainsboro] School District are complying with the specific reporting requirements of N.J.A.C. 6A:16.5.3 and N.J.A.C. 6A:16-6.3 when disciplining Caucasian (White) students for possession of knife on school property.

Requestor further asserted that the information sought also fell under the common law right of access to public records for the following stated purpose:

3. Plaintiff also has a common law right of interest to use the records to show that [West Windsor Plainsboro] school officials and their lawyers (Methfessel and Werbel) may have filed an Answer in court that the school officials knew or should have known contained material INACCURATE information. [(Emphasis in original.)]

Less than two weeks later, on September 20, 2007, Requestor filed another OPRA and common law right of access complaint in the Law Division against the District and Hutner, but added two school principals and one assistant principal as defendants. In this third action, Requestor sought copies of "incident reports" relating to "the bullet incident," an alleged disciplinary matter involving a Millstone River School student's sale of bullets to other students. Requestor next sought several "incident details and discipline reports" for events that allegedly occurred at the District's Community Middle School on various dates in years 2004, 2005, and 2006. Finally, Requestor sought "a redacted copy of the form used to refer a student with ID #[] to a child study team."

Requestor's stated purpose in the First Count for obtaining these documents was as follows:

11. The public has a right to know whether West Windsor Plainsboro School District intentionally UNDER REPORTED the total number of violence and weapon possession incidents that occurred in the school district to the Department of Education. [(Emphasis in original.)]

In the Second Count, Requestor asserted:

5. Plaintiff also has a common law right of interest to use some of the records to show that the following interrogatory answers given by Mrs. Donna Gibbs-Nini (assistant principal of [West Windsor Plainsboro] Community Middle School) are simply inaccurate[.]

As is evident from the foregoing, the parties were engaged in litigation on two major fronts. In the first--the civil rights action--John and the District sparred conventionally during the discovery phase, each side attempting to assemble and exchange the relevant discovery materials. On the other front, Requestor and the District litigated through three separate, but interrelated, actions pursuant to OPRA and common law right of access to ferret out additional data that might be used to bolster John's civil rights claims.

The three OPRA and common law right of access cases were the first to reach resolution. On May 5, 2008, in a series of rulings, Judge Linda R. Feinberg began by refining Requestor's allegations concerning the District's document delinquency, thereby reducing the inflated number of claimed statutory and common law violations.

Among her conclusions, Judge Feinberg determined that the District was not obliged by the Federal Educational Rights and Privacy Act, 20 U.S.C.A. 1232(g) (FERPA); N.J.S.A. 18A:36-19; or their implementing regulations to refuse Requestor's OPRA demand simply because it would be turning over redacted documents after removing all student identifying information. Accordingly, she required the District to affirmatively indicate whether it had been fully compliant with Requestor's demand for all Violence, Vandalism and Substance Abuse Incident Reports (VVSA Reports) (in accordance with N.J.S.A. 18A:17-46 and N.J.A.C. 6A:16-5.3) for the period 2001 through 2006.*fn9

Thereafter, Judge Feinberg dismissed all of Requestor's remaining claims for the allegedly withheld VVSA Reports. She determined, after carefully reviewing the record presented to her, that Requestor had received voluminous data from the District, including thousands of documents that, arguably, Requestor had no right to obtain. Rejecting Requestor's demand for an evidentiary hearing as to the truthfulness of the District's representatives who asserted that diligent searches were conducted and that the District's document production was complete, the judge determined that the allegedly missing 249 VVSA Reports did not in fact exist. After determining that there were no genuine disputes about the District's substantial compliance, Judge Feinberg determined that a hearing pursuant to Rule 4:67-5 was unnecessary, and dismissed Requestor's complaint.

Judge Feinberg also addressed and rejected Requestor's persistent demands for documents relating to specific incidents of misconduct by a specific student, a form showing the date that the student was referred to the Child Study Team, and a written authorization by the child's parent referring the child to the Child Study Team. The judge also considered the level of compliance of the District with her order requiring the District to provide a variety of public records to Requestor, including:

1. disciplinary reports of Millstone River School relating to "the bullet incidents."

2. incident reports of Millstone River School relating to "the bullet incidents."

3. copies of all disciplinary and incident reports relating to weapons' possession and violence at the Millstone River School from 2000 through 2007.

4. copies of incident details and discipline reports relating to an incident that occurred on June 13, 2005.

5. copies of incident details and discipline reports relating to three other identified incidents.

The court determined that there was a "sufficient response under the OPRA" and that the District had "complied with plaintiff's common law request for documents." It held that to the extent Requestor sought the District's performance of research, analysis of records, and report of "incident details," these acts were barred by OPRA's allowance for records, not requests for information. Accordingly, the court dismissed these aspects of Requestor's claims.

Finally, Judge Feinberg determined that Requestor's OPRA and common law access claims (1) to obtain from the District the names of police departments notified of weapons possession incidents and (2) to identify the names of police officers who informed the District whether complaints were lodged against students involved in specific incidents were fully satisfied and, therefore, moot. The trial court was unable to discern any remaining factual dispute after concluding that the District had not withheld documents or that more documents were still available. When Requestor moved for reconsideration, Judge Feinberg amplified her decision by noting that Requestor's demands were ...


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