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Grieco v. Borough of Haddon Heights

Superior Court of New Jersey, Law Division, Camden

April 24, 2017

HEATHER GRIECO, Plaintiff,
v.
BOROUGH OF HADDON HEIGHTS; KELLY SANTOSUSSO, BOROUGH CLERK IN HER OFFICIAL CAPACITY AS CUSTODIAN OF THE RECORDS; and KAITLYN COMPTON, DEPUTY BOROUGH CLERK IN HER OFFICIAL CAPACITY AS CUSTODIAN OF THE RECORDS, Defendants.

          Decided: October 19, 2015

          Ted M. Rosenberg for plaintiff (Mr. Rosenberg, on the briefs).

          Albert J. Olizi, Jr. for defendants (Mattleman, Weinroth & Miller, P.C., attorneys (Mr. Olizi, on the briefs).

          OPINION

          DEBORAH SILVERMAN KATZ, A.J.S.C.

         INTRODUCTION

         This action comes before the court by way of an order to show cause and verified complaint filed by plaintiff, Heather Grieco, seeking documents and attorney's fees under the Open Public Records Act ("OPRA") from defendants Borough of Haddon Heights ("the Borough") and the Borough's custodians of records, Kelly Santosusso and Kaitlyn Compton (collectively "defendants"). Following the filing of the verified complaint, the document sought by plaintiff were provided, rendering that aspect of the action moot. As such, the court is concerned only with plaintiff's request for attorney's fees.

         PROCEDURAL HISTORY

         Plaintiff filed her verified complaint and order to show cause on July 27, 2015. The court entered the order to show cause on July 29, 2015, setting a return date of October 2, 2015. Through her complaint, plaintiff alleged that defendants violated OPRA and the common-law right of access by not providing copies of requested documents to her and sought judgment requiring defendants to provide the requested documents and awarding plaintiff attorney's fees and costs. Defendants timely filed an answer and opposition papers on August 26, 2015. Plaintiff timely filed a letter brief replying to defendants' opposition on September 11, 2015. Thereafter, the court granted leave for defendants to file a sur-reply pursuant to Rule 1:6-3, which was filed on September 15, 2015. The court heard arguments on October 2, 2015, and reserved decision.

         FINDINGS OF FACT

         On July 6, 2015, plaintiff submitted an OPRA request to defendants, seeking the notice sent to two newspapers of record for all council meetings held from November 1, 2014, to April 1, 2015. The request was referred to defendant Santosusso, Borough Clerk. Santosusso assembled some of the requested records before turning the task over to defendant Compton, Deputy Borough Clerk. On July 13, 2015, within the statutorily mandated time frame[1], defendant Compton forwarded the requested documents as to the council meetings held in 2015 under a cover letter making reference to the documents requested and noting in response, "Please see attached." The proof of publication for the 2014 meetings was not included. The council had met four times between November 1, 2014, and January 1, 2015. The cover letter stated, "If you feel a record has been denied or omitted, please see information below as to your options. ..." Thereafter, the letter[2] reprinted N.J.S.A. 47:1A-6, with emphasis added to two words as follows:

A person who is denied access to a government record by the custodian of the record, at the option of the requestor, may:
institute a proceeding to challenge the custodian's decision by filing an action in Superior Court which shall be heard in the vicinage where it is filed by a Superior Court Judge who has been designated to hear such cases because of that judge's knowledge and expertise in matters relating to access to government records; or
in lieu of filing an action in Superior Court, file a complaint with the Government Records Council established pursuant to section 8 of P.L. 2001, c. 404 (C. 47:1A-7).
The right to institute any proceeding under this section shall be solely that of the requestor. Any such proceeding shall proceed in a summary or expedited manner. The public agency shall have the burden of proving that the denial of access is authorized by law. If it is determined that access has been improperly denied, the court or agency head shall order that access be allowed. A ...

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