AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY, A NONPROFIT ORGANIZATION LOCATED IN NEWARK, NEW JERSEY, PLAINTIFF--APPELLANT,
NEW JERSEY DIVISION OF CRIMINAL JUSTICE AND BRUCE SOLOMON, CUSTODIAN OF RECORDS FOR THE NEW JERSEY DIVISION OF CRIMINAL JUSTICE, DEFENDANTS--RESPONDENTS
Telephonically Argued: January 23, 2014.
Approved for Publication May 13, 2014.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2562-12.
Thomas W. MacLeod argued the cause for appellant (American Civil Liberties Union of New Jersey Foundation, attorneys; Mr. MacLeod, on the brief).
Mary Beth Wood, Senior Deputy Attorney General, argued the cause for respondents ( John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Wood, on the brief).
Before Judges FUENTES, SIMONELLI and HAAS. The opinion of the court was delivered by FUENTES, P.J.A.D.
[435 N.J.Super. 534] OPINION
We are asked to determine whether, in response to a request for government records brought under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to 47:1A-13, and our common law right of access, a government agency has the authority to redact an admittedly responsive document to withhold information the agency deems to be outside the scope of the request. In defending the right to adopt such a policy, the public agency concedes the information it withheld is not supported by any claim of privilege or other recognized exemption to disclosure in OPRA or under our State's common law right of access.
The legal question raised here derives from an OPRA request made by the American Civil Liberties Union of New Jersey [435 N.J.Super. 535] (ACLU) to the New Jersey Division of Criminal Justice (DCJ), seeking records " pertaining to all forms of Automatic License Plate Recognition (ALPR) technology." The DCJ responded by sending the ACLU seventy-nine pages of redacted documents, including certain pages of a grant application that were completely blacked-
out. In taking this action, the DCJ redacted from the grant application information that, in the DCJ's opinion, did not pertain to ALPR technology and thus was outside the scope of the request.
The ACLU filed an order to show cause and verified complaint in the Law Division against the DCJ seeking declaratory and injunctive relief with respect to this redaction policy, and an award of counsel fees under OPRA's fee-shifting provision. The matter came before the Law Division as a summary action under N.J.S.A. 47:1A-6. After considering the arguments of counsel, the Law Division dismissed the ACLU's complaint, finding the DCJ's actions were " an appropriate way to respond."
As framed by the trial court, the policy adopted by the DCJ presented two questions: (1) in responding to a request for a public document " under either OPRA or the common law" can a custodian determine to withhold information he or she believes falls outside the scope of the request, without first seeking consent or clarification from the requestor? And if so, (2) is it reasonable to impose the " onus" on the requestor to clarify the request or attempt to obtain the voluntary release of the redacted information before initiating legal action? The court ultimately decided to answer " yes" to both of these questions.
It is important to emphasize that the decision of the trial court to uphold the DCJ's redaction policy did not rest on how the court characterized the ACLU's request. The court viewed the documents requested by the ACLU as " public records," unambiguously available to the public under both OPRA and the common law right of access. Analytically, the court did not find, and the DCJ did not argue, that the redaction policy was in any way predicated on or supported by any claim of privilege or statutorily recognized [435 N.J.Super. 536] exemption to disclosure under either OPRA or the common law right of access.
In the trial judge's view, the action taken by the custodian constituted a reasonable, good faith determination by the agency that the redacted records fell outside the scope of the request. If the requestor is dissatisfied with the government agency's response, it is " not unreasonable to ask the requestor to make a follow[-]up request, which ...