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Howard Branin v. Collingswood Borough Custodian

August 9, 2012

HOWARD BRANIN, PLAINTIFF-APPELLANT,
v.
COLLINGSWOOD BOROUGH CUSTODIAN, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1047-11.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 27, 2012

Before Judges Baxter and Nugent.

Plaintiff Howard Branin appeals from the April 15, 2011 Law Division order that denied his motion to have the court: declare that defendant Collingswood Borough Records Custodian violated the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, by denying plaintiff access to a settlement agreement that resolved a federal lawsuit filed against Collingswood; compel defendant to provide plaintiff with the settlement agreement;

and award plaintiff attorney's fees. The trial court determined that plaintiff's OPRA request for "the settlement" of a lawsuit was too vague to be interpreted as requesting any document other than a settlement agreement, which did not exist. We conclude that absent a request for clarification, the records custodian was required to conduct a search for a settlement agreement or a document containing the terms of the settlement. Because the trial court did not consider what documents were contained in the Borough's files, evaluate the custodian's search for "the settlement," or consider the timeliness of the custodian's response to plaintiff rather than the post-complaint communications between the parties' attorneys, we reverse and remand for further proceedings.

I.

The facts are undisputed. On February 2, 2011, plaintiff submitted an OPRA request to the Borough of Collingswood on the Borough's OPRA request form. The form included the following pre-printed language: "Please be as specific as possible in describing the records being requested." Plaintiff made the following request: "I am requesting a copy of the [s]ettlement from the [c]ase of Reedy vs Collingswood: Docket #04-CV-4079." There was no settlement agreement, and the terms of the settlement were not contained in any single document. Those undisputed facts are central to the record custodian's response and to the current dispute. A brief review of the "Reedy" case will provide additional context.

The "Reedy" case was a federal lawsuit that had been filed against the Borough and dismissed with prejudice in November 2007. Reedy and other plaintiffs had filed an eight-count complaint challenging the Borough's inspection procedures for rental properties. After being served with the complaint, the Borough moved to dismiss the complaint in lieu of filing an answer, and the federal court judge dismissed seven of the complaint's eight counts. That decision was affirmed on appeal.*fn1

Thereafter, at the direction of a federal magistrate, the parties conferred about the remaining count of the complaint. As a result of those discussions, the Borough agreed to amend the form it used to notify property owners of violations of the Borough's Property Maintenance Code (the violation notice).

After the Borough agreed to revise its violation notice, the parties' attorneys conferred with the presiding federal magistrate and Reedy's attorney "advised the Court that they considered the matter to be resolved." The magistrate dismissed the matter without prejudice, with the understanding that it would be dismissed with prejudice after all plaintiffs in the case had reviewed the proposed revisions to the violation notice. Counsel for the Borough, who was not its solicitor, sent a stipulation of dismissal to Reedy's attorney, but the stipulation was never signed or returned. On November 19, 2007, the federal judge entered an order dismissing the case with prejudice.

The parties did not prepare or sign a settlement agreement. During the conferences that resulted in the resolution of the case, the Borough's attorney, Joseph M. Nardi III, prepared two letters and a "blacklined" draft of proposed revisions to the violations notice. In the first letter, dated August 27, 2007, Nardi wrote:

As a result of our earlier meeting in my office which was also attended by Gayle Reedy, I have again revised the Borough of Collingswood Hous[ing] Code Violations. I believe that it addresses your and Ms. Reedy's concerns and explains in greater detail the procedures under the applicable ordinance and state statute. I have also attempted to incorporate the points that you raised in your earlier proposed Notice of Violations.

I also enclose a copy of [the] Housing Code Inspection Guideline that Ms. Reedy requested during our meeting. She requested a "checklist" of the more common ...


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