February 10, 2011
GANNETT SATELLITE INFORMATION NETWORK, INC., D/B/A GANNETT NEW JERSEY NEWSPAPERS/COURIER NEWS, PLAINTIFF-APPELLANT,
BOROUGH OF RARITAN, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1798-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically January 31, 2011
Decided Before Judges Reisner and Sabatino.
This appeal concerns a newspaper's request that a municipality provide it with certain payroll records in a prescribed electronic format. The trial court preliminarily denied the newspaper's order to show cause seeking to compel the turnover of the records in the requested format. However, the trial court did not dismiss the newspaper's complaint in its entirety, leaving open the possibility that the newspaper could obtain a more favorable ultimate outcome in the litigation following additional discovery. Because the newspaper's appeal of the denial of the order to show cause is clearly interlocutory and because there are significant open issues that are best resolved definitively in the trial court after a plenary hearing, we dismiss the appeal without prejudice and remand for further proceedings.
The limited record before us describes the following pertinent chronology of events. Plaintiff, Gannett Satellite Information Network, Inc., is the publisher of the Courier News newspaper. In October 2009, counsel for the newspaper transmitted to defendant, the Borough of Raritan, a written request under the Open Public Records Act ("OPRA"), N.J.S.A. 47:1A-1 to -13, seeking the following materials:
Digital (non-PDF) computerized copy of the following:
1) Master payroll list of all employees paid in 2008 showing: Last name, first name, MI, department, section, hire date, job title date, job title, base pay at the end of 2008, total overtime pay for 2008, and total pay for 2008. The list should include all employees, even those who left in 2008 - anyone who received a W-2 statement.
2) All the above information but for the following time frame: Jan. 1, 2008 through June 1, 2008. This will show all the above fields but overtime and total pay would be restricted to the first six months of 2008.
3) Same as request #2, but for the time frame of Jan. 1, 2009 through June 1, 2009.
4) Please include any code sheets and field maps, if necessary.
The newspaper or its counsel apparently served similar OPRA requests for payroll records upon other municipalities around this same time frame.
Upon receiving the newspaper's request, the Borough's counsel responded that same day in a letter stating: "Your client was advised that the Borough did not maintain the records in the requested format, digital (non-PDF) computerized, and that the project would take a minimum of four hours at a cost of $275.00 per hour for a total of $1,100.00." The letter further indicated: "If you wish immediate access, you may visit Borough Hall to review the information in the format in which it is kept. If you wish the information to be in the format as requested, payment must be made."
The newspaper declined the Borough's invitation to review the payroll records in hard copy form at the municipal offices. It also declined to pay the Borough the quoted charge of $1,100 to convert the records from "PDF"*fn1 electronic form into a non-PDF form. The newspaper apparently preferred to have the records in non-PDF electronic form so that it could more readily analyze and reorganize the data contained within them.*fn2
Dissatisfied with the Borough's response, the newspaper filed a verified complaint and an accompanying order to show cause in the Law Division. The complaint contains three counts. In the first count, the newspaper asserts that the Borough's failure to provide the payroll records in non-PDF electronic format, and its related attempt to charge a $1,100 fee for converting the data to that format, constituted a violation of the newspaper's common-law right of access to government records. The second count of the complaint alleges, as an independent cause of action, that the Borough violated OPRA in withholding the records in the requested format, and that the $1,100 conversion fee is an excessive "special service charge." The third count of the complaint seeks declaratory and injunctive relief. The accompanying order to show cause sought immediate relief, including an order "[d]irecting [the Borough] to release immediately to [the newspaper] in digital non-PDF format the records requested in Paragraph 4 of the First Count of the Complaint without the payment of the special service charge sought by [the Borough]."
The return date of the order to show cause was adjourned to allow for some preliminary discovery. In particular, the parties took the deposition of Robert Barker, the chief operating officer of Action Data Services ("ADS"). ADS is a private vendor that the Borough has retained to maintain its payroll records. During the course of Barker's deposition, he asserted several times that the payroll records requested are only accessible electronically in PDF format, and that an ADS programmer would need to convert the data from a so-called "master file" into non-PDF format. He further explained that ADS was entitled to be paid on an hourly basis for the programmer's time in performing such a conversion. Following that deposition, a telephone conversation took place involving Barker and one of the attorneys representing the newspaper, in which, according to that attorney's certification, Barker allegedly stated that the "raw payroll data" for the Borough is, in fact, "maintained on the ADS Master File in non-PDF format." Barker thereafter transmitted a letter to the newspaper's counsel, stating that each of the earnings reports in question "is a PDF file only."
After Barker's deposition, the trial court heard oral argument on the newspaper's order to show cause. The court was supplied with briefs, Barker's deposition transcript, and documents relating to Barker's post-deposition communications. The court heard no testimony, and made no credibility findings.
Based on the record before it, the trial court denied the preliminary injunctive relief sought by the newspaper. In its analysis, the court found that the newspaper had failed to demonstrate that it was entitled to a free version of the Borough's payroll records in non-PDF format, or that the special charge quoted by the Borough for converting those records to non-PDF format was unjustified. The court confined its analysis to the OPRA issues, and did not reach the newspaper's independent claims under the common law. The court recognized the alleged discrepancies in Barker's assertions about the present availability or non-availability of the records in nonPDF format, but declined to resolve those discrepancies on the paper record.
The trial court issued a letter opinion explaining its reasons for denying preliminary relief to the newspaper. We quote from key portions of that opinion, underscoring several passages that show the non-final nature of the court's disposition and the court's comments about the alleged inconsistencies in Barker's statements.
With regards to the November 11, 2009, telephone conversation that took place between [the newspaper]'s counsel and Mr. Barker, referenced in both [the newspaper]'s reply brief and the certification of [the newspaper]'s counsel, . . . we cannot presently base a ruling on such contradictory and unclear testimony, to say nothing of the fact that the conversation is hearsay and has not been presented in any sworn format for which this court could credibly consider. We have no further comment on this conversation except to note that it represents merely one snapshot in a lengthy interaction between [the newspaper] and the Borough of Raritan that reaches back to July. We likewise reiterate this position with regards to the alleged "free reports" referenced several times by [the newspaper], Mr. Barker['s] somewhat unclear deposition testimony (for which the November 11, 2009, letter was meant to clarify) and other factual disputes, which would clearly benefit from further discovery. Based on these considerations, however, the legal rights underlying [the newspaper]'s claim are neither well-settled nor is there a reasonable likelihood of ultimate success on the merits, and the New Jersey Supreme Court's directive under Crowe remains unsatisfied for the purposes of this order to show cause.
Though this court is skeptical based on its review of the deposition, the accompanying certification, and the argument the court took on November 30, 2009, there is a possibility that [the newspaper] may be able to prove their position that the requested records do exist in the format that they desire somewhere in ADS's computer systems. However, without the benefit of further discovery, and in light of testimony on the record that at best can be considered contradictory and at worst adverse to [the newspaper]'s position, we are not prepared to order the Borough of Raritan to provide public records in whatever format the requestor desires, when an adequate format exists and has been freely offered. If [the newspaper] had proved in this action, or proves in a future action, that ADS maintains the file they requested in the format they desire, the holding of this court might well have been different. As it stands now, such proof has not been made.
It should be noted that the legislature was unequivocal in its demand that "any limitation on the right of access . . . shall be construed in favor of the public's right," the legislature is silent as to format, except as addressed in N.J.S.A. 47:1A-5(d). As a matter of public policy and in balancing the equities, we find the burden of charging the taxpayer[s] of New Jersey to produce records that already exist in a common and usable format, merely for the convenience of the requestor, to be an unreasonable one and one that is wholly unsupported by any statutory construction that has been examined by this court, or any factual scenario on record. If the Borough of Raritan refused to provide the requested records, the court might decide this matter differently. If [the newspaper] could establish to a certainty that the records were maintained in both PDF and non-PDF format, this court may likewise have decided differently. Based on the information presently before us, however, we can reach only one conclusion, and that is to DENY this order to show cause. [The newspaper] will be required to pay the amount required by ADS to convert the records into the desired format. [(Emphasis added).]
The newspaper then filed the instant appeal. It argues that the denial of its order to show cause was contrary to OPRA, and that the special charge quoted by the Borough was unjustified. See N.J.S.A. 47:1A-5(c), -5(d); Burnett v. Cnty. of Bergen, 198 N.J. 408, 438 (2009). The newspaper further maintained at oral argument before us its position that the denial of relief violated its rights under the common law, even though the trial court did not pass either way on its common-law claims.
The Borough opposes the newspaper's appeal, contending that it has acted lawfully and reasonably in its response to the newspaper's records request. The Borough reiterated its position that it cannot extract the records in non-PDF format without incurring a conversion charge from ADS. During the course of oral argument before this panel, the Borough further argued that even if the records could be accessed in a non-PDF format by ADS without additional programming costs, the Borough would still need to have its staff redact employee Social Security numbers and other private information before the records could be electronically transmitted to the newspaper. The Borough is joined in opposing the appeal by the League of Municipalities as amicus curiae.
Upon considering the posture of this case and the arguments of counsel, it is manifest that the newspaper's appeal is interlocutory, and that the trial court's decision is not a final order that disposes of all issues.*fn3 Indeed, there are many open factual and legal issues. Those issues include, among other things, whether or not the records are available to ADS in non-PDF format, whether or not electronic scanning is feasible as an alternative method of access, whether or not the conversion charge is necessary, and whether other practical impediments such as redaction are present. To the extent that these issues hinge upon the murkiness of Barker's statements, we suggest that a plenary hearing be conducted to explore those uncertainties in open court. Moreover, the newspaper's common-law claims have not been adjudicated. See Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973) (disfavoring appellate review of issues not decided in the trial court). Given the public interest involved in this case, the involvement of the amicus, and the potential statewide ramifications of an appellate opinion in this matter, we decline to exercise our jurisdiction at this time. See Grow Co. v. Chokshi, 403 N.J. Super. 443, 461 (App. Div. 2008); see also R. 2:5-6. Although we appreciate the parties' desire to attain an ultimate disposition of this matter and the preference to resolve OPRA issues expeditiously, the present record is too incomplete and indefinite to warrant our substantive consideration of the issues at this juncture.
The appeal is dismissed without prejudice and the matter is remanded for further proceedings in the Law Division.