Ferrer v. Pinsak - New Jersey Courts

NOT TO BE PUBLISHED WITHOUT
THE APPROVAL OF THE COMMITTEE ON OPINIONS
SUPERIOR COURT OF NEW JERSEY
HECTOR D. FERRER,
LAW DIVISION
Plaintiff,
BERGEN COUNTY
v.
BARBARA PINSAK, in her official
capacity and individually, ROBERT
FINGER, Custodian of Records, in his
official capacity and individually,
ARDIE WALSER, in his official
capacity and individually, ISABEL
MACHADO, ESQ., attorney for the
District in her official capacity and
individually, and the TEANECK
BOARD OF EDUCATION,
DOCKET NO. BER-L-19155-14
CIVIL ACTION
OPINION
Defendants.
Argued: February 13, 2015
Decided: February 17, 2015
Honorable Peter E. Doyne, A.J.S.C.
Hector D. Ferrer, appearing pro se.
Mariann Crincoli, Esq. and Isabel Machado, Esq., appearing on behalf of the defendants,
Barbara Pinsak, Robert Finger, Ardie Walser, Isabel Machado, Esq., and the Teaneck Board of
Education (Machado Law Group).
Introduction
Before the court is the latest in a recent history of OPRA and other related litigations
between the plaintiff, Hector D. Ferrer (“Ferrer” or the “plaintiff”) and the defendant, the Teaneck
Board of Education (the “Board”). Ferrer is a single father to a daughter and a disabled minor son
who is educated by the Teaneck School District. This action arose from certain alleged conduct of
1
the Board’s counsel in relation to the plaintiff and a July 23, 2013 administrative law hearing (the
“administrative law hearing”) before the Honorable Ellen S. Bass, A.L.J. (“Judge Bass”). In
connection with the administrative law hearing, the Board’s counsel, Isabel Machado, Esq.
(“Machado”), informed Judge Bass she had proof of delivery of certain documents, though she did
not have the documents in her possession. Plaintiff vehemently denies receiving said documents
and filed this Open Public Records Act (“OPRA” or the “Act”) action to gain access to the proof
of delivery of those certain documents. While OPRA requires a public agency to grant a citizen
access to its government records, access may only be granted to records that are in existence. A
custodian certifying there are no additional responsive records is sufficient competent evidence to
deny the plaintiff relief.
Facts and Procedural Posture
The Board had requested a “due process hearing” to compel plaintiff to permit the Board’s
Child Study Team to conduct formal triennial reevaluations on plaintiff’s handicapped son.
Machado certifies she sent plaintiff, via Federal Express and First-Class mail, a letter dated June
26, 2013. Said letter enclosed the due process petition seeking a court order to permit a reevaluation
of Ferrer’s son and the Board’s witness list at the hearing. Machado further certifies the First-Class
mail was not returned.
An administrative law due process hearing before Judge Bass was scheduled for July 9,
2013. In a letter dated July 8, 2013, plaintiff advised he would not attend the hearing. After the
Board’s counsel and special service personnel arrived at the Office of Administrative Law,
plaintiff’s letter requesting an adjournment arrived dated July 9, 2013. Attempts to reach plaintiff
via telephone were unsuccessful and the matter was rescheduled to July 23, 2013. Plaintiff sought
a second adjournment on the eve of the hearing, but this request was denied.
2
At the July 23, 2013, administrative law hearing, plaintiff renewed his request for an
adjournment of the matter. Plaintiff asserted his due process rights were violated because he never
received a copy of the due process petition or witness list from the Board or its counsel. The
Board’s counsel, Machado, advised Judge Bass all the documents were sent to plaintiff’s address
via First-Class mail, certified mail and Federal Express.1 Although plaintiff denied receiving the
documents, Judge Bass expressly accepted Machado’s representation the documents were mailed
via First-Class mail to plaintiff and they were not returned. In a written opinion dated July 25,
2013, Judge Bass ruled in favor of the Board and concluded the proposed evaluations were in the
child’s best interest. To date, plaintiff has not filed an appeal of the decision.
On May 12, 2014, plaintiff hand delivered to the Board five OPRA requests (the “original
OPRA requests”). The cover letter of the request stated: “Five (5) OPRA and the common law
requests addressed to, Robert S. Finger (“Finger”), Custodian of Records dated, May 12, 2014.”
Finger failed to respond by May 21, 2014. Thereafter, at the June 11, 2014 Board meeting, plaintiff
served the Board with a “Final Notice of Intent.” During this meeting, plaintiff requested the Board
acknowledge receipt of such documents, which the Board purportedly refused. Finger claimed he
had never received the original OPRA requests. Plaintiff showed the Board the cover letter of the
original OPRA requests, which was date stamped by the Board and confirmed hand delivery.
Ferrer was advised by Finger that he would respond to the original OPRA requests.
On June 16, 2014, Finger responded to Ferrer with a two part response, the first being:
“Your OPRA request was dropped off at the main office along with several other documents and
not identified specifically as an OPRA request at the time you dropped it off.” While Ferrer
1
Further, Machado certifies she sent the June 26, 2013 letter to plaintiff via First Class mail and the mail was not
returned. However, plaintiff provided the cover letter enclosing the due process petition, which only included a carbon
copy to “Mr. Hector Ferrer (via Federal Express).” At oral argument, plaintiff advised he received the June 26, 2013
letter and enclosures the day of the hearing before Judge Bass.
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contends Finger provided an abundance of documents to him, Finger omitted the May 12 cover
sheet. The second part of Finger’s response stated: “There are no such documents in the possession
of the Teaneck Board of Education and as such I cannot provide you with a copy.”
On June 18, 2014, plaintiff submitted a “Clarification Request Notice and List” to Finger
via hand delivery. On June 25, 2014, Finger responded to Ferrer’s clarification of the original
OPRA request by stating in relevant part: “[a]fter providing a copy of your OPRA request to all
named parties for review, there are no such documents in possession, dominion, or control of the
Teaneck Board of Education that meet the specifics listed in your May 12, 2014 OPRA request
and as such I cannot provide you with a copy.” Ferrer alleges Finger failed to provide him with
the requested public records, but provided him with certain documents.
On July 23, 2014, plaintiff commenced an OPRA action in an effort to gain access to certain
records of the Board (the “original OPRA matter”), stemming from the original OPRA request.
Plaintiff sought various reports concerning fraud, waste, abuse and deleted emails. Plaintiff also
requested records concerning the destruction of documents, records of bias crimes, harassment and
bullying relating to him and his son. On August 18, 2014, the various defendants filed an
opposition, which included a certification from the custodian certifying all the responsive records
were provided to plaintiff.
On or about August 25, 2014, plaintiff submitted a second records request to the Board,
under OPRA and the common law (the “new OPRA request”). Plaintiff’s new OPRA request
sought access to three items, only two of which are relevant to this litigation. In relevant part,
plaintiff sought:
1) A copy of any and all FEDERAL EXPRESS (i.e., bill, invoice,
signature proof of delivery, tracking number or the like) from
June 2013-August 2014 between the two (2) below-referenced
named parties:
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FROM
Isabel Machdo, Esq., attorney for the District
Machado Law Group, LLC
136 Central Avenue, 2nd FL
Clark, NJ 07066
TO
Hector D. Ferrer
492-c Cedar Lane, #238
Teaneck, NJ 0766
2) A copy of the COVER LETTER dated, May 12, 2014 and date
“stamped” by the District on, May 12, 2014 submitted via Hand
Deliever FROM: Hector D. Ferrer TO:
a.
b.
c.
d.
Robert Finger, Custodian of Records, [the Board]
Barbara Pinsak, Superintendent, [the Board]
Kubda Davidoff, District Case Manager, [the Board]
Isabel Machado, Attorney for the District
In a letter dated August 27, 2014, the Board’s custodian of records, Finger, responded to
the new OPRA request and advised:
1. A copy of any and all Federal Express bill, invoice, signature proof of delivery,
tracking number or the like form June 2013 –August 2014 between Isabel
Machado and Hector D. Ferrer.
Those documents are not maintained or in the possession of the Teaneck Board
of Education. You will need to contact Ms. Machado directly for a copy of those
document(s).
2. A copy of the cover letter dated May 12, 2014 and date stamped by the district
on May 12, 2014 submitted via hand delivery from Hector D. Ferrer.
A copy of the document is attached.
In a hand delivered letter dated September 18, 2014, plaintiff requested a clarification of
Finger’s response to the new OPRA request. Plaintiff’s letter advised Finger it was “a violation of
OPRA law and spirit to request that a Requester seek documents from a ‘separate’ source, while
the documents requested are within your jurisdiction as Custodian of Records.” Plaintiff also
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informed Finger if the request was denied again, plaintiff wanted to be provided with specific legal
authority that supported the denial.
On September 22, 2014, Finger clarified the Board’s position with regard to the new OPRA
request and set forth the requested records were not government records and advised:
Those [the Federal Express records] are not maintained or in the
possession of the Teaneck Board of Education. You will need to
contact Ms. Machado directly for a copy of those document(s).
Under OPRA regulations I can only provide you with documents
that are in the possession of the district. Furthermore, Ms. Machado
is not an employee of the district and therefore any documents in her
possession are not under the dominion, jurisdiction or control of the
district and therefore cannot be produced by the district.
In a letter dated September 24, 2014, plaintiff objected to Finger’s position. First, the letter
advised Finger that Machado, while acting as attorney for the Board, informed an administrative
law judge that she had mailed the Federal Express package at issue to plaintiff. As Finger had
failed to cite any authority to support the denial that the custodian was not in control of the Board’s
outside counsel’s records pertaining to representation of the Board, plaintiff again demanded
access to the specific proof mailing.2 On September 24, 2014, plaintiff transmitted a
correspondence entitled “FINAL NOTICE OF INTENT” to the Board’s superintendent, Barbara
Pinsak (“Pinsak”).
Plaintiff submitted a final correspondence entitled “THIRD FINAL NOTICE OF
INTENT” on October 3, 2014. This notice sought the same documents as the new OPRA request
and also accused the defendants of fraud, waste and abuse.
On October 8, 2014, Machado forwarded correspondence to plaintiff in an attempt to
satisfy his new OPRA requests for documents. Machado provided all proofs of mailing from her
office to plaintiff for the period from June 20, 2013 through August 31, 2014. Machado certified
2
Plaintiff filed a third records request on November 20, 2014. However, that request is not the subject of this action.
6
her letter enclosing the correspondence inadvertently references Federal Express receipts, as she
was unable to locate any Federal Express receipts confirming delivery to plaintiff at his address
during the period requested. The only proofs of mailing provided by Machado were certified mail.
Machado further certified she had originally sent the June 26, 2013 correspondence and enclosed
documents via First-Class mail.
The original OPRA matter was dismissed without prejudice for reasons this court set forth
orally on the record on October 24, 2014. At oral argument, plaintiff asserted he had previously
submitted a clarification to his first OPRA request, which advised he also sought the documents
custodian Finger submitted to the board members requesting the documents and the various
responses the members of the board provided to the custodian. This request, however, was not
properly before the court. Counsel agreed on the record plaintiff was permitted to file another
OPRA request, presumably for the communication sent from the custodian to request the
documents from the various individuals and what they provided to him in response. Defendants
agreed for purposes of the statute of limitations, and the forty-five day rule, the original OPRA
request will relate back.
On November 6, 2014, plaintiff initiated this matter (the “new OPRA matter”) by filing an
order to show cause and a verified complaint against Ardie Walser (“Walser” when referenced
individually and the “defendants” when referenced collectively with the Board, Pinsak, Finger and
Machado) and the defendants. The order to show cause was originally returnable on December 5,
2014.
By way of letter dated November 24, 2014, the defendants’ counsel, Mariann Crincoli,
Esq. (“Crincoli”), requested an extension to file the defendants’ opposition with consent of
plaintiff. Accordingly, the matter was adjourned until January 9, 2015. Thereafter, plaintiff served
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the defendants with Subpoenas Duces Tecum, compelling their attendance in court on the return
date of the order to show cause, which was then January 9, 2015.
On December 5, 2014, Crincoli filed a notice of motion to dismiss in lieu of an answer and
a motion to quash subpoenas. By way of letter dated December 9, 2014, plaintiff requested an
additional month to respond to the defendants’ opposition with consent of Crincoli. The matter
was adjourned until February 13, 2015, and the parties were advised by the court that the subpoenas
need not be complied with until the court has ruled on the underling OPRA matter. Subsequently,
plaintiff personally served the defendants with amended subpoenas, which included the new return
date of February 13, 2015. The parties were again advised that no subpoenas related to this matter
need be complied with until the new OPRA matter was resolved. By way of letter dated January
6, 2015, Crincoli advised plaintiff continued to issue subpoenas regarding this matter, on the
Director of Region V – Maureen Kerne, the Transportation Coordinator – Edward MacDonald and
the Division of Youth and Family Services. On January 13, 2015, plaintiff requested another
extension of his time to reply to the defendants’ opposition. The extension was granted, though
the return date remained February 13, 2015.
On January 30, 2015, plaintiff filed a reply. The plaintiff’s reply urged the court to impose
sanctions on Machado for negligent spoliation of evidence and, pursuant to the code of judicial
conduct, inform the appropriate authority of Machado’s conduct. Plaintiff asserted Machado either
prematurely destroyed public records under the Destruction of Public Records Act, i.e., the proof
of Federal Express delivery, or Machado should be reported for a breach of candor by advising
Judge Bass the June 23, 2013 notice was sent to plaintiff by First-Class mail and by Federal
Express. By way of letter dated February 3, 2015, plaintiff advised he inadvertently failed to
include certain exhibits with his reply and urged the court to consider the exhibits now enclosed.
8
Law
A. OPRA
a. Generally
The purpose of OPRA, N.J.S.A. 47:1A-1 to -13, is plainly set forth in the statute: “to insure
that government records, unless exempted, are readily accessible to citizens of New Jersey for the
protection of the public interest.” Mason v. City of Hoboken, 196 N.J. 51, 57 (2008) (citing
N.J.S.A. 47:1A-1). The Act replaced the former Right to Know Law, N.J.S.A. 47:1A-1 to -4
(repealed 2002), and perpetuates “the State’s long-standing public policy favoring ready access to
most public records.” Bent v. Twp. of Stafford Police Dep’t, 381 N.J. Super. 30, 36 (App. Div.
2005) (quoting Serrano v. S. Brunswick Twp., 358 N.J. Super. 352, 363 (App. Div. 2003)). To
effectuate that purpose, OPRA establishes a comprehensive framework for access to public
records. Mason, supra, 196 N.J. at 57. Specifically, the Act requires, among other things, prompt
disclosure of records and provides different procedures to challenge a custodian’s decision denying
access. Ibid.
Above all, OPRA mandates “all government records shall be subject to public access unless
exempt.” N.J.S.A. 47:1A-1. Therefore, records must be covered by a specific exclusion to prevent
disclosure. Ibid. The Act defines “government record” as follows:
[A]ny paper, written or printed book, document, drawing, map, plan,
photograph, microfilm, data processed or image processed
document, information stored or maintained electronically or by
sound-recording or in a similar device, or any copy thereof, that has
been made, maintained or kept on file in the course of his or its
official business by any officer, commission, agency or authority of
the State or of any political subdivision thereof, including
subordinate boards thereof, or that has been received in the course
of his or its official business by any such officer, commission,
agency, or authority of the State or of any political subdivision
thereof, including subordinate boards thereof. The terms shall not
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include inter-agency or intra-agency advisory, consultative, or
deliberative material.
[N.J.S.A. 47:1A-1.1.]
The OPRA framework contemplates a swift timeline for disclosure of government records.
Mason, supra, 196 N.J. at 57. Unless a shorter time period is prescribed by statute, regulation or
executive order, a records custodian must grant or deny access to a government record “as soon as
possible, but not later than seven business days after receiving the request.” N.J.S.A. 47:1A-5(i).
A public agency’s failure to respond within seven business days “shall be deemed a denial of the
request.” Ibid. If the record is in storage or archived, and a response cannot be made timely, the
custodian must report that information within seven business days and advise when the record will
be made available. Ibid. Courts have repeatedly found providing redacted documents is also a
denial and to redact information, it must fall under an exemption to OPRA. See e.g., Newark
Morning Ledger Co. v. N.J. Sports & Exposition Auth., 423 N.J. Super. 140, 148 (App. Div. 2011)
(holding the redacted portions of the records must be disclosed as they did not meet the trade secret
exemption).
If access to a government record is denied by the custodian, the requestor may challenge
that decision by filing an action in Superior Court or a complaint with the Government Records
Council (“GRC”). N.J.S.A. 47:1A-6. The right to institute any proceeding under this section,
however, belongs solely to the requestor. Ibid. If the requestor elects to file an action in Superior
Court, the application must be brought within forty-five days of the denial or be dismissed with
prejudice as untimely. See Mason, supra, 196 N.J. at 70 (holding, explicitly, a 45-day statute of
limitations applies to OPRA actions). The Act, however, specifically provides “a decision of the
[GRC] shall not have value as precedent for any case initiated in Superior Court,” N.J.S.A. 47:1A7, though such decisions are normally considered unless “arbitrary, capricious or unreasonable, or
10
[violative of] legislative policies expressed or implied in the act governing the agency.” Serrano,
supra, 358 N.J. Super. at 362 (citing Campbell v. Dep’t of Civil Service, 39 N.J. 556, 562 (1963)).
OPRA proceedings “are to be conducted in a ‘summary or expedited manner.’ This means
that a trial court is to proceed under the procedures prescribed in Rule 4:67. R. 4:67-1(a). The
action is commenced by an order to show cause supported by a verified complaint.” MAG Entm’t,
LLC v. Div. of Alcoholic Beverage Control, 375 N.J. Super. 534, 550 (App. Div. 2005) (citations
omitted). If the court finds the application is sufficient, “[it] shall order the defendant to show
cause . . . [and] try the case on the return date.” Id. at 550-51 (citing R. 4:67-2(a); R. 4:67-5).
“Unlike Rule 4:67-2(b), which allows for conversion of a plenary action into a summary action,
and, therefore, may require an elaborated record, Rule 4:67-2(a), which governs OPRA actions,
does not permit the record to be supplemented by depositions or other forms of discovery.” Id. at
551-52. In short, actions brought under R. 4:67-2(a), as are OPRA proceedings, may not be
supplemented by discovery absent some legitimate need. Id. at 552.
If a public agency denies a requestor access, ORPA places the burden on the agency to
prove the denial was authorized by law. N.J.S.A. 47:1A-6. As such, an agency “seeking to restrict
the public’s right of access to government records must produce specific reliable evidence
sufficient to meet a statutorily recognized basis for confidentiality.” Courier News v. Hunterdon
Cnty. Prosecutor’s Office, 358 N.J. Super. 373, 382–83 (App. Div. 2003). Absent the necessary
proofs, “a citizen’s right of access is unfettered.” Id. at 383. In assessing the sufficiency of the
agency’s proofs submitted in support of its claim for nondisclosure, “a court must be guided by
the overarching public policy in favor of a citizen’s right of access.” Ibid. If it is determined access
has been improperly denied, the access sought shall be granted, and a prevailing party shall be
entitled to a reasonable attorney’s fee. N.J.S.A. 47:1A-6.
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b. OPRA Exemptions
Although OPRA defines “government record” broadly, the public’s right of access is not
absolute. Educ. Law Ctr. v. N.J. Dep’t of Educ., 198 N.J. 274, 284 (2009) (citing Mason, supra,
196 N.J. at 65). The statute specifically exempts twenty-one categories of information from
disclosure. Mason, supra, 196 N.J. at 65. In addition, N.J.S.A. 47:1A-1 provides:
[A]ll government records shall be subject to public access unless
exempt from such access by: [other provisions of OPRA]; any other
statute; resolution of either or both houses of the Legislature;
regulation promulgated under the authority of any statute or
Executive Order of the Governor; Executive Order of the Governor;
Rules of Court; any federal law, federal regulation, or federal order.
Our Supreme Court also noted “records within the attorney-client privilege or any executive or
legislative privilege, as well as items exempted from disclosure by any statute, legislative
resolution, executive order, or court rule” are excluded. O’Boyle v. Borough of Longport, 218 N.J.
168, 176 (2014); see N.J.S.A. 47:1A-9a (mandating OPRA “shall not abrogate any exemption of
a public record or government record from public access . . . [by] any other statute . . . [or]
Executive Order of the Governor).
As such, a records custodian may rightfully deny a request if the record belongs to one of
enumerated categories of exemptions, or was created by another statute or Executive Order, which
“significantly reduces the universe of publicly-accessible information. As the Legislature
acknowledged in N.J.S.A. 47:1A-1 and N.J.S.A. 47:1A-8, the only countervailing relief
mechanism for those seeking access to a statutorily excluded document is the common law right
of access.” Bergen Cnty. Imp. Auth. v. N. Jersey Media Grp., Inc., 370 N.J. Super. 504, 516–17
(App. Div. 2004), certif. denied, 182 N.J. 143 (2004).
B. New Jersey Common Law
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In addition to OPRA, disclosure can be sought under the common law. The Act provides
“[n]othing contained in [OPRA] shall be construed as limiting the common law right of access to
a government record.” N.J.S.A. 47:1A-8. Thus, even if the information requested falls within one
of the exceptions to access under the statutory construct of OPRA, requestors may still prevail by
resorting to the common law right to access public records. To constitute a government record
under the common law, the item must be:
[O]ne required by law to be kept, or necessary to be kept in the
discharge of a duty imposed by law, or directed by law to serve as a
memorial and evidence of something written, said, or done, or a
written memorial made by a public officer authorized to perform
that function, or a writing filed in a public office. The elements
essential to constitute a public record are * * * that it be a written
memorial, that it be made by a public officer, and that the officer be
authorized by law to make it.
[S. Jersey Pub. Co. v. N.J. Expressway Auth., 124 N.J. 478, 487–88
(1991) (quoting Nero v. Hyland, 76 N.J. 213, 222 (1978)).]
To reach this broader class of documents, requestors must satisfy a higher burden than
required under OPRA: “(1) the person seeking access must establish an interest in the subject
matter of the material; and (2) the citizen’s right to access must be balanced against the State’s
interest in preventing disclosure.” Mason, supra, 196 N.J. at 67–68 (quoting Keddie v. Rutgers,
148 N.J. 36, 50 (1997)) (internal quotations and citations omitted). The Supreme Court has
articulated several factors for a court to consider in performing its balancing:
(1) the extent to which disclosure will impede agency functions by
discouraging citizens from providing information to the
government; (2) the effect disclosure may have upon persons who
have given such information, and whether they did so in reliance
that their identities would not be disclosed; (3) the extent to which
agency self-evaluation, program improvement, or other decision
making will be chilled by disclosure; (4) the degree to which the
information sought includes factual data as opposed to evaluative
reports of policymakers; (5) whether any findings of public
misconduct have been insufficiently corrected by remedial measures
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instituted by the investigative agency; and (6) whether any agency
disciplinary or investigatory proceedings have arisen that may
circumscribe the individual’s asserted need for the materials.
[S. Jersey Pub., supra, 124 N.J. at 488 (quoting Loigman v.
Kimmelman, 102 N.J. 98, 113 (1986)).
Analysis
This matter presents several issues for consideration: (1) the proper procedure for a public
agency to respond to an OPRA action; (2) whether documents created by a public agency’s outside
counsel are government records subject to OPRA; and (3) whether a certification as to the nonexistence of a record is sufficient to end an action brought to compel production of those
documents. As the third question is answered in the affirmative, for reasons set forth below, the
defendants’ motion is granted and the complaint is dismissed.
A. OPRA
1. Procedure
Initially, the court notes the defendants’ opposition was not filed in the statutorily required
form. N.J.S.A. 47:1A-6 requires OPRA actions to “proceed in a summary or expedited manner.”
The appellate division has held “[t]his statutory language requires a trial court to proceed under
the procedures prescribed in Rule 4:67.” Courier News v. Hunterdon Cty. Prosecutor’s Office, 358
N.J. Super. 373, 378 (App. Div. 2003). The rule applies “to all actions in which the court is
permitted by rule or by statute to proceed in a summary manner.” R. 4:67-1(a); see also Pressler,
Current N.J. Court Rules, comment 2 on R. 4:67-1 (2014) (“OPRA provides that a summary
proceeding is available for actions challenging a decision withholding access to government
records.”).
Here, counsel for the defendants responded to plaintiff’s order to show cause and verified
complaint by filing notice of motion to dismiss in lieu of answer pursuant to R. 4:6-2. It appears
14
some confusion was caused by plaintiff including an unfiled motion for summary judgment in the
pleadings he served upon the defendants.3 The defendants should not have filed 4:6-2(e) motion,
but in the interests of justice, it will be converted to a R. 4:46-2 motion for summary judgment.
2. Government Records
To trigger OPRA’s disclosure requirements, the records requested must be “government
records.” N.J.S.A. 47:1A-1.1 defines a government record as any document or recording made or
received by any government entity, or any officer, authority or political subdivision thereof, in the
course of his or its official business. The defendants’ assert the proofs of mailing prepared by
Machado’s law office in connection with Machado’s official duties as counsel for the Board are
not government records. Plaintiff asserts they are government records and subject to OPRA. The
issue whether records created by a public agency’s agent in furtherance of the agency relationship
are government records as defined by OPRA need not be decided, as Machado voluntarily turned
over all the documents responsive to plaintiff’s request.4
Where an action is brought under OPRA, a court may only compel production of
documents that are in existence. If the records are proven by competent evidence not to exist, a
court cannot compel their production.5
That said, all the responsive records were transmitted to plaintiff, which was completed on
or about October 8, 2014 when Machado forwarded correspondence to plaintiff and provided all
No motion for summary judgment was filed with the court or clerk’s office. The defendants’ counsel provided the
court with a copy of the purported motion. The paper was not stamped filed and had empty spaces where the docket
number and return date would be filled in.
4
Without ruling on the same, the appellate division has held that records "‘made’ by or on behalf of [a public agency]
in the course of its official business” were government records subject to OPRA. Burnett v. Cnty. of Gloucester, 415
N.J. Super. 506, 517 (App. Div. 2010). A public agency may have agents, such as “outside attorneys or insurance
adjusters,” and by delegating its functions to an agent, any records that agent makes or maintains while performing
those delegated functions may be government records subject to OPRA. See id. at 513–17. Machado or her associates
authored or received these communications as part of Machado’s official business duties as counsel for the Teaneck
Board of Education. See Burnett, supra, 415 N.J. Super. at 517.
5
This is exclusive of any fee issues.
3
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proofs of mailing from her office to plaintiff from the period June 20, 2013 through August 31,
2014. Machado has certified she mistakenly referenced the Federal Express proofs and has not
located any further records.6 Accordingly, this court is satisfied the specific Federal Express
records requested do not exist anymore, if they ever did. As plaintiff is in possession of all of the
responsive records, this matter must be dismissed.7
B. New Jersey Common Law
Plaintiff also seeks relief under the common law right of public access for the records at
issue. The common law right of access depends on three requirements: “(1) the records must be
common-law public documents; (2) the person seeking access must ‘establish an interest in the
subject matter of the material’; and (3) the citizen’s right to access ‘must be balanced against the
State’s interest in preventing disclosure.”’ Keddie v. Rutgers, supra, 148 N.J. at 50 (internal
citations omitted). The common law definition of “public record” is broader than the definition
contained in OPRA. Mason, supra, 196 N.J. at 67. However, requestors under the common law
right of access “must make a greater showing than required under OPRA.” Ibid.
1. Common Law Public Document
6
At oral argument, Machado and Crincoli advised the court that documents were sent via Federal Express and it was
their law firm’s practice to also send the documents via First-Class mail. Both methods of service would be marked
on the letter enclosing the documents. The June 26, 2013, letter only lists Federal Express as the means of
transmittal. Curiously, Machado certified the only proof of mailings her office found responsive to plaintiff’s request
were certified mail receipts. Without ruling on the same, it appears if firm practice was to send documents via
Federal Express and First-Class mail, plaintiff was not sent any documents during the period in question. No Federal
Express receipts were found, nor were any invoices for Federal Express payments provided.
7
Parenthetically, OPRA does not provide for granting declaratory relief. OPRA may only compel the production of
documents. It appears, although this court is mindful it is to not give legal advice, Ferrer is attempting to use this
OPRA matter to prove his due process rights were violated in connection with the hearing before Judge Bass as he
was not served proper notice. Whether this action, or evidence thereof, would be admissible in an appeal of the
administrative law hearing is not decided herein, though, Ferrer’s proper avenue for relief has always been an appeal
the that decision. The only issue before this court is whether the Board produced the responsive records, which it did.
Whether Machado served the papers on Ferrer is not a question before this court. Similarly, the issue presented is not
whether the Federal Express receipt ever existed, it is whether Machado or the Board possess the Federal Express
receipt.
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When applying the common law, it must be determined if the record is a “common law
public document.” The common law definition of a public document is broader than under OPRA.
The Supreme Court has held “[c]ommon law records are any records made by public officers in
the exercise of public functions. These materials include almost every document recorded,
generated or produced by public officials whether or not required by law to be made, maintained
or kept on file.” Higg-A-Rella, Inc. v. County of Essex, 141 N.J. 35, 46 (1995) (internal quotations
and citations omitted).
Machado’s voluntary disclosure of the responsive records precludes the necessity of
analysis of whether the records sought were public records. However, to compel the production of
public records, they must actually be in existence. Just as Machado’s certification as to the
nonexistence of other responsive records dispelled the OPRA claim, here, the same is sufficient to
end plaintiff’s common law claim.
C. Motion to Quash Subpoena
“Unlike Rule 4:67-2(b), which allows for conversion of a plenary action into a summary
action, and, therefore, may require an elaborated record, Rule 4:67-2(a), which governs OPRA
actions, does not permit the record to be supplemented by depositions or other forms of discovery.”
MAG, supra, 375 N.J. Super. at 551-52. In short, actions brought under R. 4:67-2(a), as with
OPRA proceedings, may not be supplemented by discovery absent some legitimate need. Id. at
552. Therefore, as no showing was made, plaintiff was without the authority to issue subpoenas in
this OPRA action and the defendant’s motion to quash is granted.8 In addition, it is clear the
defendants’ counsel’s reliance on R. 4:23-1(c) to seek expenses is misplaced. R. 4:23-1 governs
motions to compel discovery, not quashing it. Furthermore, the defendants’ counsel’s submissions
8
As the underlying OPRA action has been dismissed, this motion is also moot.
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failed to assert the impropriety of the subpoenas under R. 4:67-2 and this court declines to award
fees for violations of court rules counsel failed to brief. Lastly, sanctions would be inappropriate.
Conclusion
If a government record does not exist, a court cannot compel its production under OPRA
or the common law. As such, the matter must be dismissed and the appropriate order shall be
executed.
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