June 5, 2012
ELIZABETH EDUCATION ASSOCIATION, PLAINTIFF-RESPONDENT,
ELIZABETH BOARD OF EDUCATION, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-3861-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: January 25, 2012
Before Judges Cuff and Waugh.
Plaintiff Elizabeth Education Association (EEA) served a request on defendant Elizabeth Board of Education (Board) pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -12, seeking the names of teachers reemployed for the 2010-11 school year, the certifications issued by the Department of Education for each reemployed teacher, and the employment history in the district for each teacher. Defendant appeals from an order providing plaintiff with access to certain information existing as of June 18, 2010. We affirm.
During Spring 2010, defendant Board announced a major reduction in force that included elimination of tenured teaching positions. On June 18, 2010, the President of plaintiff EEA made an OPRA request for the following:
Names of teachers who were reemployed for the 2010-2011 school year, their certifications issued by the New Jersey Board of Examiners and their employment histories in the district. The employment histories shall include their assignments and their dates of absences indicating whether paid or unpaid.
By letter dated June 28, 2010, the School Business Administrator denied the request. He explained that the Board "does not maintain an information report or retrievable records with the names of teachers who were reemployed for the 2010-11 school year, their certifications issued by the New Jersey Board of Examiners and their employment histories in the district . . . ." He also explained that the Board was not required to maintain these reports; therefore, he denied the request. On October 1, 2010, EEA filed a verified complaint and order to show cause seeking access to the requested public records.
In response to the order to show cause, the Board submitted a certification explaining that the Board does not maintain the requested information in a retrievable report. The Board asserted a response to this request would impose a substantial burden on the Board because staff would have to review individual records to assemble the information. Furthermore, the Board asserted that as the bargaining representative for the teachers, the EEA had the information regarding employed teachers and work histories in its database and could obtain certification information from the Department of Education or its members.
Before the return date, the Board provided a list of teachers reemployed as of September 2011 but did not provide any records of certifications or work histories. The EEA responded that the list was inaccurate and did not satisfy the initial request.
On March 30, 2011, Judge William Daniel entered an order requiring the Board to comply with the June 18, 2010 OPRA request by providing the EEA [w]ith access to the following information existing as of June 18, 2010:
Names of teachers reemployed for the 2010-2011 school year.
Their certifications issued by the New Jersey Board of Examiners.
Their employment information to the extent allowable by N.J.S.A. 47:1A-10.
Judge Daniel also held the EEA was entitled to a reasonable attorney fee.*fn1
In his oral opinion, Judge Daniel held that the employment history requested by the EEA exceeded the personnel information a public employer may provide pursuant to N.J.S.A. 47:1A-1. He permitted the EEA to obtain an employee's title, position, salary, payroll record and length of service.
Judge Daniel also held that the records sought by the EEA are identifiable and the request on its face did not require the Board "to comb through its files, analyze, compile and collate information." The judge also noted that he did not understand the EEA request to encompass the production of a list. If the Board did not keep such information in list form, then the Board was not required to prepare one. On the other hand, the identity of teachers reemployed for the 2010-11 school year was otherwise public information.
The judge rejected the argument raised by the Board that the EEA could obtain the information it sought from alternative sources. He held that OPRA does not contain an exception for information maintained by another. He also rejected the argument that compliance with the request was overly burdensome. He found that the Board provided no support for its contention that access to the records would disrupt Board operations. Furthermore, the record was barren as to whether the Board offered a reasonable accommodation to the EEA to minimize the Board's burden.
When asked how the Board was to provide access as ordered, Judge Daniel stated, "[I] [a]m not going to do that. You do it in accordance with the terms of the statute. I [a]m not going to now walk the parties through what they must do in order for compliance with the statute to occur."
On appeal, the Board argues that the OPRA request is not for an identifiable government record. It asserts that it is not required to compile, collate or analyze information under OPRA. Furthermore, it contends that it has no obligation to research and compile the employment history of its teachers. Finally, the documents requested by the EEA may be obtained from other sources and are the same documents requested in collateral litigation between the EEA and the Board.
The EEA responds that Judge Daniel correctly determined that the information sought is identifiable, and providing access to this information does not require the Board to research its records and assemble, analyze or collate information. It also contends that the existence of other litigation and discovery undertaken in that dispute has no bearing on the Board's obligation to produce or to provide access to government records under OPRA.
This court "review[s] 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 Alcoholic Beverage Control, 375 N.J. Super. 534, 543 (App. Div. 2005). This court "appl[ies] the same standard of review to the court's legal conclusions with respect to whether access to public records is appropriate under the common-law right of access." Drinker Biddle & Reath LLP v. N.J. Dep't of Law & Pub. Safety, 421 N.J. Super. 489, 497 (App. Div. 2011).
In New Jersey, citizens may obtain access to public records through (1) OPRA (2) civil litigation discovery procedures, and
(3) common law right of access. MAG Entm't, LLC, supra, 375 N.J. Super. at 543. OPRA allows the public access to all government records that are not exempt from public disclosure. N.J.S.A. 47:1A-1. OPRA's definition of "government record" is expansive. N.J.S.A. 47:1A-1.1. It includes: any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards thereof, or that has been received in the course of his or its official business by any such officer, commission, agency, or authority of the State or of any political subdivision thereof, including subordinate boards thereof. The terms shall not include inter-agency or intra-agency advisory, consultative, or deliberative material. [Ibid.]
OPRA's function is "to make identifiable government records 'readily accessible for inspection, copying, or examination.'" MAG Entm't, supra, 375 N.J. Super. at 546 (quoting N.J.S.A. 47:1A-1). "[A]ny limitations on the right of access . . . shall be construed in favor of the public's right of access[.]" N.J.S.A. 47:1A-1.
An OPRA applicant "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. OPRA does not authorize unbridled searches of an agency's property." Bent v. Twp. of Stafford Police Dept., Custodian of Records, 381 N.J. Super. 30, 37 (App. Div. 2005); see also Renna v. Cnty. of Union, 407 N.J. Super. 230, 245 (App. Div. 2009) ("The custodian must have before it sufficient information to make the threshold determination as to the nature of the request and whether it falls within the scope of OPRA."); Gannett N.J. Partners, LP v. Cnty. of Middlesex, 379 N.J. Super. 205, 212 (App. Div. 2005) ("OPRA requires a party requesting access to a public record to specifically describe the document sought."). OPRA "is not intended as a research tool litigants may use to force government officials to identify and siphon useful information." MAG Entm't, supra, 375 N.J. Super. at 546-47.
The record custodian may deny "[w]holesale requests for general information to be analyzed, collated and compiled by [the custodian]" because such requests "are not encompassed" by OPRA. Id. at 549; see also Gannett, supra, 379 N.J. Super. at 212 ("OPRA does not authorize a party to make a blanket request for every document . . . ."). Likewise, if the request "would substantially disrupt agency operations, the custodian may deny access to the record after attempting to reach a reasonable solution with the requestor that accommodates the interests of the requestor and the agency." N.J.S.A. 47:1A-5g. The court can infer compliance would disrupt agency operations where the request "does not comply with OPRA and demands assessment and preliminary inquiry . . . ." N.J. Builders Ass'n v. N.J. Council on Affordable Hous., 390 N.J. Super. 166, 181 (App. Div.), certif. denied, 190 N.J. 394 (2007). For example, in New Jersey Builders Association, supra, this court found "the agency's need to survey employees, identify information and generate new records and the requestor's need for more than ten business days to review what the agency provided" sufficient proof of agency disruption. Id. at 181-82.
Here, the request submitted by EEA seeks identifiable information regarding Board employees maintained in Board records. The request is dissimilar to the five-page, thirty-nine paragraph request by the New Jersey Builders Association to the Council on Affordable Housing for a reconstruction of its decision-making for several matters before the agency. N.J. Builders Ass'n, supra, 390 N.J. Super. at 172. The EEA request does not require the Board to analyze disciplinary events to identify the cause of the discipline and any injury to third parties, MAG Entertainment, supra, 375 N.J. Super. at 539-40, or research the reason for erection of signs, Bart v. Passaic County Public Housing Agency, 406 N.J. Super. 445, 448, 452 (App. Div. 2009). Rather, records which document teachers reemployed by the 2010-11 school year, the certifications held by each reemployed teacher, and limited details of their employment history are the base material of public information and are available in Board files. The request does not require collation, research or analysis. The Board must simply produce the documents containing the information, redact information not permitted to be disseminated to third parties, and provide access to these records by the EEA.
As to the other issues raised by the Board, including burden to staff, interference with Board operations, and availability through other sources, we subscribe to the March 30, 2011 opinion by Judge Daniel. The record is devoid of any evidence that providing access to Board records as provided in the March 30 order will create an undue burden to the Board, and there is no provision in OPRA sheltering access to a government record accessible through other sources.