May 23, 2012
L.R. AND O/B/O J.R., PLAINTIFF-APPELLANT,
CAMDEN BOARD OF EDUCATION CUSTODIAN, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1170-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 30, 2012
Before Judges Parrillo and Alvarez.
Plaintiff L.R. appeals from an April 15, 2011 order of the Law Division denying her motion for summary judgment and dismissing with prejudice her complaint compelling defendant Camden Board of Education (Board) to provide access to requested records and pay attorney's fees under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. We affirm.
By way of background, plaintiff is the mother of J.R., a first-grade special needs child. She and the Board were involved in a contested Special Education matter before the Office of Administrative Law (OAL). In connection with that administrative proceeding, on December 24, 2010, plaintiff sought discovery by serving the Board with a notice in lieu of subpoena seeking "[a]ll documents (whether electronic or paper) and objects in your, your attorney's, agent's, employees' or students' possession which make reference to [L.R. or J.R.] and/or which you may rely upon at time of trial." After having received no response by the January 7, 2011 date fixed in the notice, on February 5, 2011, plaintiff sought sanctions from the administrative law judge (ALJ) and on February 10, 2011, sent another copy of the notice in lieu of subpoena to the Board.
In response to a March 7, 2011 order of the ALJ to turn over discovery by March 9, 2011, the Board disclosed forty-six pages of material, including an official report, Individual Education Plan (IEP) progress report and other school records, which, upon review, plaintiff advised via letter dated March 8 to the ALJ, that defendant's response was "severely deficient an[d] unacceptable." She maintained that the Board remained non-compliant with her discovery demand and in violation of the ALJ's March 7, 2011 order.
The administrative proceeding began on March 14, 2011, and at that time the A.L.J. ordered defendant to furnish all withheld discovery. On March 18, 2011, the Board disclosed additional documents. On that same day, the Board filed a certification of its Director of Special Services, representing that a diligent search had been conducted and discovery was complete, though there might be some additional documents referencing J.R. tangentially but it would be "unduly burdensome" to locate them.
The trial resumed on March 30, 2011 and one of J.R.'s teachers testified that there were some index cards that the teacher had used addressing her goals and objectives for J.R. The A.L.J. ordered these items to be produced and on April 3, 2011, the Board disclosed the index cards to plaintiff, though they were illegible. When the trial continued on April 5, 2011, the A.L.J. ordered that legible copies be produced along with additional documents that the teacher revealed on cross-examination were at her private home. On April 7, 2011, defendant produced these documents, consisting of J.R.'s reading logs, homework notebook, his books, skill cards, and individual instruction data.
While her discovery request was still pending before the ALJ, on February 14, 2011, plaintiff, on behalf of her child J.R., filed an OPRA request with the Board, requesting in almost the identical language of the notice in lieu of subpoena "[a]ll documents (whether electronic or paper) and objects in your, your attorney's, agent's, employees' or students' possession which make reference to L.R. and/or J.R." In correspondence dated four days later - February 18, 2011, the Board's School Business Administrator denied plaintiff's request because it was "overly broad and improper." The Administrator added that plaintiff was also not entitled to the records pursuant to the Family Education Rights and Privacy Act (FERPA), 20 U.S.C.A. 1231g, and New Jersey administrative regulation, N.J.A.C. 6A:32-7.5, without written consent of the parent, adult student or presentation of a court order.*fn1 He also noted that "some of the records are in the [B]oard's attorney's possession, and may be protected by attorney-client privilege and not subject to release under OPRA."
Consequently, on March 4, 2011, plaintiff filed a verified complaint and motion for summary judgment in the Law Division, seeking a declaration that the Board violated OPRA and an order requiring defendant to produce the documents requested and to pay attorney's fees and costs as authorized by N.J.S.A. 47:1A-6. On April 7, 2011, the Board filed its answer demanding judgment in its favor dismissing plaintiff's complaint with prejudice and awarding the Board costs of the suit and reasonable attorney's fees.
Following argument on April 15, 2011, Judge Orlando denied plaintiff's summary judgment motion and dismissed her complaint with prejudice, finding plaintiff's OPRA request impermissibly overbroad. The judge reasoned:
First of all it asks for all documents in your, your attorneys, agents, employees and student possession which make reference to either the student or the parent. Clearly the request for all documents in a student's possession is grossly overbroad.
Secondly, there is under OPRA a general recognition that the attorney/client privilege applies and . . . that's an exception and not a government record, [N.J.S.A.] 47:1A-1.1. It says "A government record shall not include -- and it says any record within the attorney[-]client privilege." Now it does not include invoices or bills. However, this was such a blanket request that it would presumably include not only attorney[-]client privilege information but in addition work product information since there's ongoing litigation.
Finally as the certification of the Camden City School Board official notes there may be a myriad of documents, for example, authorizations for class trips.
There may be documents in the lunch cafeteria in which it has on file what a student's lunch request was for a particular day. There may be notes from what the student's activities were on a playground.
In short, this is an overbroad request and I am denying it for that reason. I'm denying it for a second reason. Its essentially moot. There has been no demonstration that the documents that are being sought here have not been produced in the underlying action which I note this was a parallel request for documents and MAG [Entm't, LLC v. Div. of Alcoholic Beverage Control, 375 N.J. Super. 534 (App. Div. 2005)] notes . . . . the fact that one's in litigation does not exempt the public agency, but in essence they've been produced in the context of that agency and to the extent that the plaintiff is seeking a counsel fee, you get a counsel fee if you're a catalyst and you produce records.
And I find that this OPRA request wasn't the catalyst that produced the records. Rather it was the underlying decisions by the Administrative Law Judge that directed the production of whatever documents that were ordered produced.
We agree and affirm substantially for the reasons stated by Judge Orlando in his oral decision of April 15, 2011. We add the following comments.
"OPRA represents the articulation of New Jersey's public policy that 'government records shall be readily accessible for inspection, copying, or examination by the citizens of this State . . . .'" Bart v. City of Paterson Hous. Auth., 403 N.J. Super. 609, 616 (App. Div. 2008) (quoting N.J.S.A. 47:1A-1), certif. denied, 198 N.J. 316 (2009). "The purpose of OPRA 'is to maximize public knowledge about public affairs in order to ensure an informed citizenry and to minimize the evils inherent in a secluded process.'" Times of Trenton Publ'g Corp. v. Lafayette Yard Cmty. Dev. Corp., 183 N.J. 519, 535 (2005) (quoting Asbury Park Press v. Ocean County Prosecutor's Office, 374 N.J. Super. 312, 329 (Law Div. 2004)). "Under OPRA . . . the Legislature continued 'the State's longstanding public policy favoring ready access to most public records.'" MAG Entm't, LLC v. Div. of Alcoholic Beverage Control, 375 N.J. Super. 534, 544 (App. Div. 2005) (quoting Serrano v. S. Brunswick Twp., 358 N.J. Super. 352, 363 (App. Div. 2003)).
Under OPRA, the custodian of a government record shall permit the record to be "inspected, examined, and copied by any person during regular business hours . . . ." N.J.S.A. 47:1A-5a. Moreover, the custodian of a government record must respond to a request for access within seven business days after receiving the request. N.J.S.A. 47:1A-5i.
There are, however, certain exceptions to the public's broad right of access to public records. N.J.S.A. 47:1A-1. Moreover, [w]hile OPRA provides an alternative means of access to government documents not otherwise exempted from its reach, it is not intended as a research tool litigants may use to force government officials to identify and siphon useful information. Rather, OPRA simply operates to make identifiable government records "readily accessible for inspection, copying, or examination." N.J.S.A. 47:1A-1. Even then, inspection is subject to reasonable controls, and courts have inherent power to prevent abuse and protect the public officials involved. See De Lia v. Kiernan, 119 N.J. Super. 581, 585 (App. Div.), certif. denied, 62 N.J. 74 (1972). In fact, if a request would substantially disrupt agency operations, the custodian may deny it and attempt to reach a reasonable solution that accommodates the interests of the requestor and the agency. N.J.S.A. 47:1A-5(g). [MAG, supra, 375 N.J. Super. at 546.]
[u]nder OPRA, agencies are required to disclose only "identifiable" governmental records not otherwise exempt. Wholesale requests for general information to be analyzed, collated and compiled by the responding government entity are not encompassed therein. In short, OPRA does not countenance open-ended searches of an agency's files. [Id. at 549.]
OPRA requires a party requesting access to a public record to specifically describe the document sought, so that the records may be readily and reasonably identified within the short time frame within which government custodians must respond. As such, a proper request under OPRA must identify with reasonable clarity those documents that are desired, and a party cannot satisfy this requirement by simply requesting all of an agency's documents. [Spectraserv, Inc. v. Middlesex County Util. Auth., 416 N.J. Super. 565, 576 (App. Div. 2010) (internal citations omitted) (emphasis added).]
In MAG, supra, the request was for all documents or records evidencing that the ABC sought, obtained or ordered revocation of a liquor license for the charge of selling alcoholic beverages to an intoxicated person in which such person, after leaving the licensed premises, was involved in a fatal auto accident, and all documents or records evidencing that the ABC sought, obtained or ordered suspension of a liquor license exceeding 45 days for charges of lewd or immoral activity. [375 N.J. Super. at 539-40.]
The court held that this request was overbroad because it "failed to identify with any specificity or particularity the governmental records sought." Id. at 549.
A person who has been denied access to a government record may commence a proceeding before either the Superior Court or the Government Records Council. N.J.S.A. 47:1A-6. "In any such proceeding, the public entity has the burden of proving that access was properly denied." Bart, supra, 403 N.J. Super. at 617; see also N.J.S.A. 47:1A-6.
Here, plaintiff's blanket request for "all documents" referencing either herself or her child was without specification or description. Instead, her "open-ended" demand required the Board to identify every single document mentioning herself or her child without any limitation. Indeed, there was no attempt to restrict the Board's search to a specific genre of record such as academic or health, or type, such as evaluations or testing.*fn2 Nor was there any effort to limit the search to an identifiable timeframe. And aside from failing to particularize her request, plaintiff also sought documents outside defendant's control, such as those in possession of any of its students. Thus, given the vast number of persons and places where the requested documents could be located, as well as the requestor's lack of specificity as to types of records sought and their timeframes, we conclude, as did the motion judge and the defendant's Administrator, that plaintiff's request was overbroad and therefore rightfully rejected.
Having been properly denied access to the documents sought under OPRA, plaintiff was not entitled to attorney's fees as the "prevailing party." "New Jersey generally follows the 'American Rule,' under which a prevailing party cannot recover attorney's fees from the loser." Mason v. City of Hoboken, 196 N.J. 51, 70 (2008); see also Rendine v. Pantzer, 141 N.J. 292, 322 (1995). "Fees may be awarded, however, when a statute, court rule, or contractual agreement provides for them." Mason, supra, 196 N.J. at 70. Under OPRA "[i]f it is determined that access has been improperly denied, the court or agency head shall order that access be allowed. A requestor who prevails in any proceeding shall be entitled to a reasonable attorney's fee."
In order to be a prevailing party one must be the "catalyst." See Mason, supra, 196 N.J. at 73. "[R]equestors are entitled to attorney's fees under OPRA, absent a judgment or an enforceable consent decree, when they can demonstrate: (1) 'a factual causal nexus between plaintiff's litigation and the relief ultimately achieved'; and (2) 'that the relief ultimately secured by plaintiffs had a basis in law.'" Id. at 76 (internal citations omitted). Further, a litigant seeking fees has the burden of proof. Ibid. In N.J. Builders Ass'n v. N.J. Council on Affordable Hous., 390 N.J. Super. 166, 171 (App. Div.), certif. denied, 190 N.J. 394 (2007), we found that because the "request did not specifically identify the documents it sought, as required by N.J.S.A. 47:1A-5(f), OPRA did not require [the public entity] to produce the records within seven business days, N.J.S.A. 47:1A-5(i)" and thus since the defendant's denial was "authorized by law," the requestor "was not entitled to an attorney's fee pursuant to N.J.S.A. 47:1A-6."
The fact that a requestor may have obtained the OPRA-requested documents through collateral litigation does not render her a prevailing party for OPRA-attorney fee purposes. While government records under OPRA are "no less subject to public access because the requester filed a lawsuit against the governmental entity[,]" Mid-Atlantic Recycling Techs., Inc. v. City of Vineland, 222 F.R.D. 81, 85 (D.N.J. 2004); see also MAG, supra, 375 N.J. Super. at 543-44, it does not necessarily follow that gaining access thereunder entitles the plaintiff to attorney's fees pursuant to OPRA.
As Judge Orlando determined in this instance, plaintiff's "OPRA request wasn't the catalyst that produced the records. Rather[,] it was the underlying decisions by the [ALJ] that directed the production of whatever documents that were ordered produced." Indeed, under the first prong of the Mason test, plaintiff has clearly failed to demonstrate any causal nexus between, on the one hand, the Board's production of documents pursuant to the ALJ's discovery orders in the administrative proceeding and, on the other hand, the instant OPRA litigation. In fact, the administrative matter and plaintiff's discovery demand therein were commenced well before her OPRA request. While both notices were nearly identically worded, the sought-after documents were produced pursuant to the ALJ's orders in the administrative litigation in anticipation of the upcoming hearing date, as the Board's correspondence of March 18, 2011 and March 21, 2011, accompanying its document production makes abundantly clear.
Plaintiff has also failed to satisfy Mason's second prong to show that "the relief granted [must of] had some basis in law." Mason, supra, 196 N.J. at 57. Moreover, there "'must be a resolution of some dispute that affected the defendant's behavior towards the prevailing plaintiff.'" Teeters v. Div. of Youth & Family Serv., 387 N.J. Super. 423, 431 (App. Div. 2006) (quoting Packard-Bamberger & Co. v. Collier, 167 N.J. 427 (2001)), certif. denied, 189 N.J. 426 (2007). Here, no relief was granted in the OPRA action. Rather, the court denied plaintiff's application for enforcement of the OPRA request and did not order defendant to turn over any documents. Thus, lacking "prevailing party" status, plaintiff was not entitled to an award of attorney's fees under OPRA.