On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-930-08.
The opinion of the court was delivered by: Payne, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne, Miniman and Waugh.
Plaintiff, David B. Burnett, appeals from an order of summary judgment entered against him in his suit to compel production by the County of Gloucester of documents requested pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, consisting of "[a]ny and all settlements, releases or similar documents entered into, approved or accepted from 1/1/2006 to present." His appeal raises three issues: (1) whether settlements executed by third parties on behalf of a governmental entity constitute government records as defined by OPRA; (2) whether a request for "settlement agreements" without specification of the matters to which they pertain constitutes a request for information obtained through research, as to which OPRA is inapplicable, or constitutes a request for a specific document, triggering OPRA's disclosure requirements; and (3) whether the County was excused from its OPRA obligations because the requested documents were not in its possession. Following the filing of this appeal, we granted leave to the American Civil Liberties Union of New Jersey and the North Jersey Media Group Inc. to participate as amici curiae. Having considered the facts of the matter, relevant statutory enactments, precedent, and the arguments of counsel, we now reverse and remand the matter to the trial court for further proceedings.
We preface our opinion by a brief recitation of the history of this matter. The request at issue was one of three submitted by attorney Mark Cimino, on March 14, 2008, to the Clerk of the Gloucester County Board of Chosen Freeholders. The other two requests sought "[a]ny and all meeting minutes of the freeholder board whether open, closed or otherwise from 1/1/2008 to the present" and "[a]ny and all Open Public Records Request Forms or similar documents submitted from 1/1/2006 to present." Compliance with the latter two requests has not been challenged.
According to the certification of Robert N. DiLella, the Clerk of the Gloucester County Board of Chosen Freeholders and the person designated to administer OPRA requests, Gloucester County does not maintain a central list of settlements. Documents providing evidence of such actions may be in the hands of the County's insurance broker, the Dalton Agency, one of the County's insurers, or outside counsel. Inho Yuh, an employee of the Dalton Agency, has certified that, on March 18, 2008, County Counsel requested him to identify cases that met the criteria of the request. At the time, the County was insured for various risks by five carriers. Yuh was able to access loss runs containing information that would lead to the identification of the relevant documents for the Travelers Insurance Company from his own computer, and he supplied that information to the County. He requested such runs from the remaining carriers, receiving their responses and relaying them to the County in the period between March 25, 2008 and April 1, 2008.
On March 25, 2008, Debra Press-Costello, the Deputy Clerk of the Board of Chosen Freeholders, wrote to Cimino advising that "relative to your OPRA request for settlement information, be advised we will need an extension of the statutory seven days. We anticipate having this ready on 02 April 2008." On March 26, 2008, Press-Costello telefaxed a letter to Cimino that stated:
Regarding one of your recent Open Public Records Act request[s], I am writing to request some clarification. You have asked for "any and all settlements, releases or similar documents." For purposes of clarification would you please indicate if your request is meant to include:
1. Closing documents for the payment of small claims matters (ex. A claim for damage to a mailbox by a county road vehicle)
2. Workers compensation claims
3. Closing documents where the case was dismissed or otherwise decided in favor of the county as opposed to the county being ...