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Stephen E. Burke v. Raymond Brandes

December 7, 2012

STEPHEN E. BURKE, PLAINTIFF-APPELLANT,
v.
RAYMOND BRANDES, ASSISTANT COUNSEL TO THE GOVERNOR OF THE STATE OF NEW JERSEY; CUSTODIAN OF RECORDS OF THE OFFICE OF THE GOVERNOR OF THE STATE OF NEW JERSEY; AND THE OFFICE OF THE GOVERNOR OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2853-11.

The opinion of the court was delivered by: Parrillo, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued November 13, 2012

Before Judges Parrillo, Sabatino and Maven.

The opinion of the court was delivered by PARRILLO, P.J.A.D.

Plaintiff Stephen Burke submitted a request under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, to the Office of the Governor for government records in its possession or control regarding "EZ Pass benefits afforded to retirees of the Port Authority, including all . . . correspondence between the Office of the Governor . . . and the Port Authority . . ."*fn1

The custodian of records for the Governor's Office timely denied plaintiff's request on the basis that it was overbroad, citing MAG Entm't, LLC v. Div. of Alcoholic Beverage Control, 375 N.J. Super. 534, 549 (App. Div. 2005), for the proposition that "OPRA does not countenance open-ended searches of an agency's files." Nevertheless, the Governor's Office did conduct a review of its files and provided plaintiff with one document,*fn2 but withheld all other records identified as responsive, claiming privilege and other recognized exceptions to OPRA.

As a result, plaintiff filed a verified complaint in the Law Division pursuant to N.J.S.A. 47:1A-6, alleging defendants violated OPRA by refusing to disclose the requested records. Having determined that the action would proceed summarily, Rule 4:67-1(a) and N.J.S.A. 47:1A-6, the trial court issued an order to show cause, and thereafter defendants moved to dismiss the complaint.*fn3 On the return date, following argument, the court dismissed plaintiff's complaint, finding his OPRA request overbroad, reasoning:

So although plaintiff's request here was limited to a single subject matter area, and that is E-ZPass benefits for retirees, the [c]court finds that it's lacking in the specificity that's required under OPRA as OPRA has been interpreted by the case law . . . . Also, plaintiff did not limit the request to any one type of record, but sought all government records, including but not limited to . . . written or electronic correspondence. It was that plus everything else. There wasn't a request for documents authorized by specific individuals. . . .

[A]gain, I think there would have to be some discretion . . . applied as to whether or not a particular document would be responsive or not.

This appeal by plaintiff follows.

"We review 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). We therefore begin with an analysis of OPRA's purpose, which 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.'" Mason v. City of Hoboken, 196 N.J. 51, 64 (2008) (quoting Asbury Park Press v. Ocean Cnty. Prosecutor's Office, 374 N.J. Super. 312, 329 (Law Div. 2004)). OPRA advances that public policy goal by making government records "readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions, for the protection of the public interest." N.J.S.A. 47:1A-1. To that end, the statute defines a "government record" broadly, Times of Trenton Publ'g Corp. v. Lafayette Yard Cmty. Dev. Corp., 183 N.J. 519, 535 (2005), to include: 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 . . . official business . . . or that has been received in the course of . . . official business . . . . [N.J.S.A. 47:1A-1.1.]

Although this definition excludes various types of information deemed confidential, ibid., thereby "'reduc[ing] the universe of publicly-accessible information[,]" MAG Entm't, supra, 375 N.J. Super. at 546 (quoting Bergen Cnty. Improvement Auth. v. North Jersey Media Group, Inc., 370 N.J. Super. 504, 516-17 (App. Div.), cert. denied, 182 N.J. 143 (2004)), given the strong public policy underlying OPRA, "any limitations on ...


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