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Karen Banda v. Bloomfield Township and Louise M. Palagano


August 7, 2012


On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6099-09.

Per curiam.


Argued February 8, 2012

Before Judges Sapp-Peterson and Ostrer.

Plaintiff, Karen Banda, appeals from the trial court order granting summary judgment to defendants, Bloomfield Township (Township) and Louise M. Palagano, Municipal Clerk, dismissing count one of plaintiff's complaint in which she alleged defendants violated the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13.*fn1 The motion judge found that defendants complied with OPRA, after plaintiff reported the tape defendants provided was inaudible, by granting plaintiff access to "listen to the tapes and an opportunity to record the tapes at a speed and in a manner suitable for Plaintiff's recorder." We reverse and remand.

On appeal, plaintiff contends that "practices that impede access without a significant commensurate benefit to the government cannot be upheld." More specifically, plaintiff contends "the court should interpret OPRA to facilitate access[,] not discourage and limit access" and that "access to public records is a fundamental right and Bloomfield cannot demonstrate a compelling interest for its barrier to access."

The facts are not disputed. Plaintiff filed an OPRA request for a copy of the tape of the Township Board of Health meeting. She was charged $25 for the tape. When plaintiff attempted to play the tape it was inaudible. According to the certification of Palagano, submitted in support of defendants' summary judgment motion, "[t]he tapes are copied at the speed they are recorded in. The speed is usually the slowest speed available so that the Township can save taxpayers' money by fitting as much on a tape as possible." In addition, she explained the tape may be heard "on any tape recorder that has the [same] playback speed capabilities[.]"

Plaintiff did not have a recorder on which she could listen to the tape at the speed at which it was recorded. She contacted the Township to report she could not understand the tapes and was advised she needed to listen to the tape at a slower speed. She was invited to listen to the tapes in defendants' offices. Plaintiff had no further contact with defendants before filing the present complaint.

Our review of a trial court's grant or denial of a motion for summary judgment is de novo. Agurto v. Guhr, 381 N.J. Super. 519, 525 (App. Div. 2005). Under our de novo standard of review, we employ the same standard as that of the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Our analysis requires that we first determine whether the moving party has demonstrated that there are no genuine disputes as to material facts, and then we decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230--31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In so doing, we view the evidence in the "light most favorable to the non-moving party[.]" Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). Because our review of issues of law is de novo, we accord no special deference to the motion judge's legal conclusions. Zabilowicz v. Kelsey, 200 N.J. 507, 512 (2009).

N.J.S.A. 47:1A-5(d) provides:

d. A custodian shall permit access to a government record and provide a copy thereof in the medium requested if the public agency maintains the record in that medium. If the public agency does not maintain the record in the medium requested, the custodian shall either convert the record to the medium requested or provide a copy in some other meaningful medium. If a request is for a record: (1) in a medium not routinely used by the agency; (2) not routinely developed or maintained by an agency; or (3) requiring a substantial amount of manipulation or programming of information technology, the agency may charge, in addition to the actual cost of duplication, a special charge that shall be reasonable and shall be based on the cost for any extensive use of information technology, or for the labor cost of personnel providing the service, that is actually incurred by the agency or attributable to the agency for the programming, clerical, and supervisory assistance required, or both.

Here, this is not a situation where the custodian does not maintain the record in the medium requested. Plaintiff requested a tape and was provided the tape but was unable to understand the tape because her particular equipment did not have the playback speed capabilities for the tape. In order to be supplied a tape that she could understand, she would have been required to pay a conversion fee of $75 and an additional tape fee of $10. Plaintiff declined to purchase audio equipment that would enable her to listen to the tape and also declined to pay the $85 conversion fees and then have to wait approximately two weeks to receive the converted tape.

Plaintiff attempted to conduct discovery by scheduling Palagano's deposition and also propounding a document request upon defendants. The deposition was adjourned purportedly because defense counsel did not have it calendared. It was not rescheduled until after the return date of defendants' summary judgment motion, which the court granted.

The reasonableness of defendants' method of recording public proceedings cannot be determined without permitting plaintiff to conduct further discovery. In her certification, Palagano states that in the years she has been the Township Clerk, which is not set forth in the record, "no copy has been rejected as being inaudible." If true, this fact would tend to support the reasonableness of defendants' actions insofar as the manner in which defendants record public proceedings and subsequently copy them for public access upon request. On the other hand, plaintiff alleges defendants are "creating and maintaining records in [a] format inaccessible to the routine requesters of such records. It is artificially maintaining an inflated basis for records access." If true, the manner in which public meetings are recorded in the Township may be the functional equivalent of denial of access to public records. Because the court considered the summary judgment motion prior to permitting plaintiff complete discovery, plaintiff was denied the opportunity to test the validity of defendants' claim that its copies, at least in the years Palagano has been the Township Clerk, were never rejected as "being inaudible."

Proceedings challenging the denial of access to public records are conducted summarily. N.J.S.A. 47:1A-6. Rule 4:67-2 expressly permits supplementation of the record by "interrogatories, depositions and demand for admissions" in summary proceedings. Plaintiff should be afforded a brief period during which to conduct discovery on this limited issue.

Plaintiff additionally claims the $10 tape fee and $75 conversion fee to convert the tape to a medium audible to plaintiff was an extraordinary expense. N.J.S.A. 47:1A-5b provides in pertinent part that "[a]ccess to electronic records and non-printed materials shall be provided free of charge, but the public agency may charge for the actual costs of any needed supplies such as computer discs." Palagano certified that the actual cost of copying the tape was $75. Plaintiff presented no competent evidence disputing the actual costs of conversion claimed by defendants. Hence, no genuinely disputed issue of fact exists in this regard. As such, our remand to conduct further discovery does not include affording plaintiff the opportunity to conduct discovery on this issue.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

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