NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued August 21, 2013
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-004089-12.
Walter M. Luers argued the cause for appellant.
Frank L. Corrado argued the cause for respondent (Barry, Corrado & Grassi, P.C., attorneys; Mr. Corrado, on the brief).
Before Judges Waugh and Haas.
Plaintiff John Paff appeals from a September 25, 2012 decision of the Law Division that dismissed his claim that defendant Atlantic City Alliance, Inc. (ACA) is a "public agency" subject to the provisions of the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13 and the common law right of access to public records. We affirm.
In 2011, the Legislature enacted, and the Governor signed, L. 2011, c. 18, now codified as N.J.S.A. 5:12-218 to -233. The purpose of the legislation was to revive and enhance Atlantic City's tourism and gaming industries through the creation of the Atlantic City Tourism District. N.J.S.A. 5:12-219a(1). The District would be managed by the Casino Reinvestment Development Authority (CRDA). N.J.S.A. 5:12-219b.
Of particular significance to the present appeal, N.J.S.A. 5:12-221a(1) states, in pertinent part, that "[a]fter the creation of the tourism district[, ]" CRDA "shall enter into an agreement establishing a public-private partnership with a not-for-profit corporation comprising a majority of the casino licensees of this State whose investors have invested a minimum of $1 billion in Atlantic City." The purpose of this partnership "shall be to undertake a full scale, broad-based, five-year, marketing program" to promote Atlantic City tourism and the gaming industry. Ibid.
Significantly, N.J.S.A. 5:12-221a(1) did not require the casinos to form such a corporation and provided for an alternative mechanism to achieve the legislative goal of promoting tourism and gaming if the casinos did not wish to participate. However, if a corporation was formed, it could enter into an agreement to work with CRDA to "develop a brand identity for Atlantic City and the tourism district that can be effectively and widely communicated." Ibid. The corporation would "submit its plans for the marking program" to CRDA "for recommendations." Ibid.
The partnership agreement between CRDA and the corporation would be for a term of five years, which could be extended for an additional term "as determined by" CRDA. Ibid. The agreement would require "the corporation, or the casino licensees which shall comprise its membership, [to] make a contribution of $5, 000, 000 prior to 2012 toward the formation of the corporation and the marketing plan, or for the support and furtherance of the tourism district . . . ." Ibid. Each casino member of the corporation would contribute to this fund in proportion to its prior year's gross revenue. Ibid. Beginning in 2012, all casino licensees, whether or not a non-profit corporation was formed, were required to contribute $30, 000, 000 each year "in proportion to the casino licensees gross revenues generated in the preceding fiscal year . . . ." N.J.S.A. 5:12-221(a)(4).
After the legislation was enacted, five casinos formed ACA as a private, not-for-profit corporation. On November 2, 2011, ACA and CRDA entered into a "Public-Private Agreement for Marketing Atlantic City" (the Agreement) as envisioned by N.J.S.A. 5:12-221a. Under the Agreement, ACA is "responsible for preparing a comprehensive marketing plan" for the tourism district. While it is required to "regularly consult and corroborate with the CRDA during the preparation of the Marketing Plan" the Agreement merely requires ACA to "give due consideration and respond to any and all recommendations of the CRDA to the Marketing Plan."
On April 11, 2012, plaintiff sent a letter to ACA's president requesting that ACA produce certain "government records in accordance with [OPRA] and the common law right of access." Among other things, he asked for copies of the contracts between ACA and certain of its employees, e-mails exchanged between these individuals, ACA's by-laws, and its certificate of incorporation. By letter dated April 24, 2011, ACA's president advised plaintiff that ACA was not a "public agency" ...