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Burke v. Ocean County

Superior Court of New Jersey, Appellate Division

November 26, 2013

DONALD F. BURKE, Plaintiff-Appellant/ Cross-Respondent,


Argued October 16, 2013

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-0971-11.

Donald F. Burke, appellant/cross respondent, argued the cause pro se.

Mary Jane Lidaka argued the cause for respondents/cross-appellants (Berry, Sahradnik, Kotzas & Benson, attorneys; Ms. Lidaka, on the brief).

Before Judges Reisner, Alvarez and Ostrer.


Plaintiff Donald F. Burke appeals from a July 26, 2012 order, denying his motion to obtain certain records from defendant Ocean County pursuant to the common law right of access.[1] He also appeals from the fee award granted under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-6, which he contends was inadequate. Defendant cross-appeals from the OPRA fee award, contending that Burke was not entitled to recover fees because he was representing himself in the litigation. Having reviewed the record, [2] we affirm on the appeal and the cross-appeal, for the reasons stated in Assignment Judge Vincent J. Grasso's comprehensive written opinions dated November 22, 2011, and July 26, 2012.


Plaintiff, an attorney, represented a woman whose husband committed suicide while incarcerated in the Ocean County Jail. In preparation for filing a lawsuit against the County, plaintiff sent the County a lengthy information request under OPRA. Many of the requests sought broad categories of information, rather than specific documents. They more closely resembled lawsuit discovery demands rather than OPRA requests.

The County Clerk received the OPRA request on January 21, 2011. Due to a clerical error, the Clerk's office only forwarded the first page of the OPRA request to the county counsel's office. On January 26, 2011, an assistant county counsel sent plaintiff a letter responding to the first page of the two-page request. In the letter, she declined to provide the requested documents because they were either psychiatric or psychological records that were not subject to disclosure under OPRA and Executive Order 26, or they concerned "security measures and surveillance techniques" also excepted from OPRA, N.J.S.A. 47:1A-1.1. Plaintiff did not contact the assistant county counsel to discuss her analysis, offer a signed medical release form, or point out that his request included a second page that she had not addressed.

Instead, on March 14, 2011, plaintiff filed this lawsuit. Before the County was formally served with a copy of the filed complaint, the County Counsel sent plaintiff a March 31, 2011 letter acknowledging that, through a clerical error, his office had not received the second page of the request. The letter pointed out that most of the requests were overbroad and insufficiently specific, but nonetheless offered to provide plaintiff with some of the requested materials. Subsequent conferences with the judge and negotiations between the parties resolved some but not all of the parties' disagreements over the requested materials. Plaintiff eventually obtained some but far from all of the materials he sought. At the conclusion of the lawsuit, he sought $57, 275 in counsel fees and costs.

In a forty-page opinion dated July 26, 2012, Judge Grasso applied the principles set forth in Mason v. City of Hoboken, 196 N.J. 51 (2008), to determine whether and to what extent plaintiff was a prevailing party entitled to counsel fees under OPRA. The judge found that the County inadvertently failed to respond to page two of plaintiff's initial request due to a clerical error, but reasoned that plaintiff could have resolved that error had he read the attorney's letter and given her a phone call.

The judge also determined that many of plaintiff's information requests were too broad and too lacking in specificity to be proper OPRA requests. He stated: "Much of the delay in fulfilling [plaintiff's] requests -- as well as the financial cost involved -- is attributable to plaintiff's failure to craft valid OPRA requests. Many of the requests were deficient in both form and substance." He found that other requests sought materials that fell within OPRA exceptions for medical and psychiatric records, N.J.A.C. 10A:22-2.3(a)(4), or records that would reveal security measures and surveillance techniques. See N.J.S.A. ...

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