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Paff v. Borough of Gibbsboro

Superior Court of New Jersey, Appellate Division

June 17, 2013

JOHN PAFF, Plaintiff-Appellant,
v.
BOROUGH OF GIBBSBORO, ANNE D. LEVY in her official capacity as Gibbsboro Borough Clerk and Records Custodian, TOWNSHIP OF VOORHEES, JEANETTE SCHELBERG in her official capacity as Voorhees Township Clerk and Records Custodian, RICHARD TAYLOR and A.B., [1] Defendants-Respondents, and CHERYL COHEN in her official capacity as a Camden County Assistant Prosecutor, and LAURIE CORSON in her official capacity as a Camden County Assistant Prosecutor, Defendants.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 4, 2012

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4044-11.

Richard Gutman argued the cause for appellant (Richard Gutman, P.C., and Law Offices of Walter M. Luers, LLC, attorneys; Mr. Gutman and Walter M. Luers, on the briefs).

John P. Jehl argued the cause for respondents Borough of Gibbsboro and Anne D. Levy (Jehl & Fabian, attorneys; Mr. Jehl, on the brief).

Audra A. Pondish argued the cause for respondents Township of Voorhees and Jeanette Schelberg (Wade, Long, Wood & Kennedy, LLC, attorneys; Ms. Pondish, on the brief).

Daniel E. Rybeck argued the cause for respondents Richard Taylor and A.B. (Weir & Partners LLP, attorneys; Mr. Rybeck, on the brief).

Before Judges Messano, Lihotz and Ostrer.

PER CURIAM

This appeal requires us to address the interplay between the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and the expungement statute, N.J.S.A. 2C:52-1 to -32. Pursuant to OPRA, plaintiff sought release of various documents that were the subject of a pending expungement petition. Record custodians in two municipalities denied the OPRA requests, albeit for reasons unrelated to the expungement request. Plaintiff filed suit. Before the Civil Part decided the OPRA complaint, the Criminal Part granted the expungement order. The Civil Part then concluded that the expungement order barred release of the requested documents.

Plaintiff argues that the custodians' denials of his document requests were wrongful when rendered, and the court should have granted him retroactive relief, notwithstanding the intervening expungement order. We disagree, and affirm the trial court's order.

I.

In December 2009, A.B. was arrested for the alleged simple assault, N.J.S.A. 2C:12-1(a), of Richard Taylor in Gibbsboro Borough. The complaint against A.B. was dismissed the following month. Over a year later, on May 12, 2011, A.B. filed a petition in the Criminal Part to expunge all records and information pertaining to the arrest, pursuant to N.J.S.A. 2C:52-6.

After the expungement petition was pending, unheard, for over six weeks, plaintiff requested various documents pertaining to the incident. Plaintiff already possessed a copy of the complaint-summons charging A.B. with assault. The record does not reflect how plaintiff obtained the complaint. Plaintiff's focus of attention was not the arrestee, but the alleged victim. Taylor was a Voorhees Township police officer. Plaintiff believed Taylor had violated police department rules. Plaintiff alleged that although Taylor was on duty in a Voorhees patrol car, he violated departmental rules because he was not performing official business while in Gibbsboro. Plaintiff also alleged that Taylor may have violated departmental rules by permitting A.B., a civilian, to be in his patrol car. Plaintiff believed the Voorhees Police Chief ignored Taylor's alleged rule violations because of a pattern of favoritism in the department.

On June 27, 2011, plaintiff asked the Gibbsboro record custodian to provide him with copies of arrest reports related to the complaint-summons; "Daily Activity/Tally Sheets/Vehicle Logs" of the Gibbsboro officer who signed the complaint-summons; the "Event Card/Complaint Card" issued in connection with the complaint-summons; incident reports; and use of force reports. Three days later, plaintiff asked the Voorhees record custodian to provide radio transmissions Taylor made from his patrol car through Voorhees Police communications relating to the incident with A.B., and any responses; mobile data transmissions regarding the incident; and Taylor's daily activities log.

Gibbsboro produced the daily activity sheet. But, the township clerk asserted that any other disclosures were prohibited because the case involved domestic violence.

Voorhees refused to disclose any requested documents. The township clerk asserted that all documents, to the extent they existed, were shielded because they were the subject of an ongoing investigation, citing N.J.S.A. 47:1A-3(a) and (b), and were also inter/intra agency material under N.J.S.A. 47:1A-1.1. The police chief later asserted that Taylor's duty shift logs — which were equivalent to the daily activity logs plaintiff sought — were not subject to release because they would "divulge[] the amount of time an officer spends on a call, surveillance techniques, and staffing levels."

Plaintiff filed his verified complaint on or about August 10, 2011, seeking a declaration that the two municipalities violated his rights under OPRA and the common law right of access. He named the municipalities' record custodians, and two assistant prosecutors who, he alleged, advised the Gibbsboro record custodian.[2] He also named Taylor and A.B. as defendants, to enable them to assert any privacy or other interest in the dispute. Plaintiff sought an order compelling the disclosure of the documents, as well as costs and fees. Plaintiff also filed an order to show cause, which the court signed on August 18, 2011, setting a return date of October 14, 2011.

"[I]n approximately August, " the expungement petition was heard in the Criminal Part. Reportedly, the court orally granted the petition. But, the judge did not enter the order before his transfer to another part. Instead, Judge Michele Fox entered the expungement order on September 9, 2011. The order compelled the New Jersey State Police Superintendent, the Attorney General, the Camden County Prosecutor, the Municipal Court, the Gibbsboro Police Chief, and "all other relevant parties" to "expunge, pursuant to N.J.S.A. 2C:52-5 et seq., the ...


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