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Kelley v. Rockaway Township

Superior Court of New Jersey, Appellate Division

August 1, 2013

TUCKER KELLEY, Plaintiff-Appellant,
v.
ROCKAWAY TOWNSHIP and BEVERLY C. KOVAL, in her official capacity as the Township Clerk and Records Custodian of Rockaway Township, Defendants-Respondents.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 15, 2013

On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-002172-11.

Walter M. Lures argued the cause for appellant.

Tiena M. Cofoni argued the cause for respondents (The Buzak Law Group, LLC, attorneys; Edward J. Buzak, Ms. Cofoni, and Susan L. Crawford, on the Brief).

Before Judges Graves and Guadagno.

PER CURIAM

Plaintiff Tucker Kelley appeals from a June 18, 2012 order denying his application for attorney's fees and costs under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. For the reasons that follow, we affirm.

On May 2, 2011, plaintiff submitted a request under OPRA, the Open Public Meetings Act (OPMA), N.J.S.A. 10:4-6 to -21, and the common law right of access to the Rockaway Township Clerk (Township Clerk) for "all recorded and transcribed executive meeting minutes that lead up to and reference the most recent signed agreement (1/1/2010 through 12/31/2014) between the Township of Rockaway and the Rockaway Township Fraternal Order of Police." In addition, plaintiff requested "all recorded and transcribed executive meeting minutes that lead up to and reference the March 14, 2011 proposed layoff/demotion plan approved on April 1, 2011, Log #03410217, by Kenneth Connolly, Director of Local Human Resources Management, State of New Jersey Civil Service Commission." The Township Clerk denied the request in an email the following day, stating the request "is not valid under OPRA as it does not provide a time frame or specific meeting dates of the minutes" and is "too broad."

On May 17, 2011, plaintiff submitted an amended request for "all closed session minutes recorded and transcribed from January 1, 2009, to the present day of this clarification." The Township Clerk again denied plaintiff's request on May 19, 2011, stating, "The documents you requested are draft, unapproved closed session meeting minutes as they have not been approved by the Township Council. Therefore the documents you requested are advisory, consultative and deliberative and are exempt from disclosure." In an additional response dated May 27, 2011, the Township Clerk stated the recordings of the closed session meetings "have to be reviewed for confidentiality reasons" and were therefore "not discloseable."

After additional correspondence between the parties, the Township Clerk sent the following email to plaintiff on July 7, 2011:

By way of further response to your OPRA request of May 2, 2011, please be advised that any actual recordings of Executive Session proceedings cannot be made available to you. As the minutes of the Executive Sessions pertinent to your OPRA request have not been approved, it follows that it would be inappropriate for you to have access to any actual recordings from those sessions.

Plaintiff filed a verified complaint on August 2, 2011, alleging that Rockaway Township and the Township Clerk (collectively defendants) denied him access to documents requested pursuant to OPRA and the common law right of access. Plaintiff also claimed that the Township Council had "not approved executive session meeting minutes for any of its executive session meetings that were held from January 1, 2009 to May 17, 2011, in violation of the Open Meetings Act." Additionally, plaintiff requested costs and attorney's fees.

The court determined the matter would proceed summarily pursuant to Rule 4:67-1(a) and N.J.S.A. 47:1A-6, and issued an order to show cause returnable on September 23, 2011. Defendants filed an answer requesting dismissal of the complaint and certifications in opposition to plaintiff's order to show cause. The Township Business Administrator certified he "hired a temporary employee starting September 19, 2011, to prepare all closed session meeting minutes from January 1, 2009 through May 17, 2011, that have not yet been prepared." The ...


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