Assad v. Absecon Bd. of Educ., DOCKET NO. A-0252-19T1
| Decision Date | 21 August 2020 |
| Docket Number | DOCKET NO. A-0252-19T1 |
| Parties | MIKE ASSAD, Plaintiff-Appellant, v. ABSECON BOARD OF EDUCATION, THOMAS GRITES, CHRISTOPHER COTTRELL, RAQUEL LAW, MEGAN MARCZYK, ERIC NEAL, JOHN RYNKIEWICZ, LINDA WALLACE, DANIEL DOOLEY, TINA MARCURA, LINDSAY REED, officially as members, officers and employees of the ABSECON BOARD OF EDUCATION, Defendants-Respondents. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Before Judges Rothstadt and Moynihan.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-0897-19.
Mike Assad, appellant pro se.
Parker McCay, PA, attorneys for respondents (Brett Elliot John Gorman, of counsel and on the brief; Emily Elizabeth Strawbridge, on the brief).
Plaintiff Mike Assad appeals from the Law Division's July 31, 2019 order granting defendant Absecon Board of Education's1 Rule 4:6-2(e) motion to dismiss plaintiff's complaint alleging defendant failed to maintain or turn over to plaintiff copies of his grammar school records. In dismissing the complaint, the trial court found that all of the documents defendant possessed that it was obligated to maintain had been supplied to plaintiff, and therefore plaintiff could not assert claims under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, or under a common law right of access (CLRA), and that defendant was not in violation of any applicable regulation. On appeal, plaintiff contends that he was entitled to relief because defendant violated his CLRA to the requested documents and that he was entitled to an award of attorneys' fees under OPRA. We affirm as we conclude plaintiff's contentions are without merit, substantially for the reasons expressed by the trial court.
The facts derived from the plaintiff's complaint and the motion record are summarized as follows. Plaintiff was enrolled as a student in defendant's school system from 1992 until 2001. On March 4, 2019, plaintiff wrote to defendant asking it to certify details of his academic history to the National Conference of Bar Examiners as part of his request for learning disability accommodations on the Bar Exam's Multistate Professional Responsibility Exam. In a March 13, 2019 response, defendant notified plaintiff that all of his records had been sent to his parochial high school upon his completion of the eighth grade in defendant's district and that no records remained in defendant's possession. Plaintiff then emailed defendant's superintendent of schools on March 21, 2019, asking if he could locate plaintiff's records. The following day, the superintendent responded that the requested documents did not exist and he provided plaintiff with a copy of the district's "Records Retention and Disposition Schedule" (RRDS) detailing how long various records were to be kept and how they could be disposed of following the retention period.
On March 26, 2019, plaintiff requested his records from defendant citing to OPRA and his CLRA. The next day, defendant denied plaintiff's OPRA request stating student records were exempt. However, defendant agreed to provide plaintiff with his records if he executed a release.
Plaintiff sent another request on March 29, 2019, which included a release for disclosure of his student records, but this time asked for "a copy of whatever records the district [did] have concerning [his] enrollment there." Referring to the RRDS, the superintendent responded and advised plaintiff that "we do not keep any student documents for a greater length of time than is required by law." He also directed plaintiff to defendant's attorney should plaintiff have any questions.
On April 1, 2019, defendant's attorney sent plaintiff what the attorney described as a copy of all of plaintiff's student records possessed by defendant. The documents included: (1) a register entry stating name of parents, phone number, years attended, homeroom assignments, and emergency contact; (2) an individual education plan (IEP)2 dated May 12, 2003; and (3) another IEP dated January 12, 2004. According to plaintiff, despite having received the IEPs, the information provided still did not contain all the records plaintiff had been seeking that defendant was obligated by regulation to maintain. Plaintiff contended that the missing documents were his health history, standardized test scores, grades, attendance records, and classes attended. Defendant's attorney assured plaintiff that he would seek confirmation from defendant regarding its possession of the missing documents.
A later search of defendant's computer hard drives by its business administrator did not yield any additional information. Defendant's attorney notified plaintiff that "due to software/computer system updates and compatibility issues, the District's electronic records, including those 'that may be from the years in which [plaintiff was] a student'" were "inaccessible" at that point in time. He assured plaintiff that defendant had "undertaken good-faith efforts" to "access the records" and that he would "continue to provide updates as additional information [became] available."
On April 26, 2019, plaintiff filed his complaint alleging violations of OPRA, CLRA, and education regulations. Defendant filed a motion to dismiss on July 15, 2019, which was supported by a certification from defendant's business administrator confirming that she searched defendant's "online system" and "old boxes in storage," and provided plaintiff with all of the documents she could find. She then "located hard drives" that defendant used when plaintiff "was a student," and hired a "computer specialist" to review the "antiquated" hard drives, but did not find any "additional documents regarding [plaintiff]." The business administrator certified that "all documents in [defendant's] possession have been provided to [plaintiff] and [she was] not aware of any other documents that may exist."
After considering the parties' oral arguments and placing its decision on the record that day, the trial court granted defendant's motion, and dismissed the complaint with prejudice on July 31, 2019. In its decision, the trial court found plaintiff "concede[d] to receiving the requested information." Applying the standard of review for Rule 4:6-2 motions under Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 772 (1989), to the allegations of the complaint, and noting that there was not a dispute that defendant supplied all documents it had in its possession, the court concluded plaintiff could not state a viable claim under OPRA or the CLRA. As to OPRA, the court found plaintiff's request "was not a valid OPRA request." As to the regulation, defendant supplied the requested information, including those that plaintiff requested about his learning disability. Turning to plaintiff's claim for counsel fees under OPRA, the court concluded there was no basis for an award of fees under that act. This appeal followed.
On appeal, plaintiff argues that he asserted a viable cause of action under a CLRA as the records he requested were subject to that right and defendant's failure to provide him with the missing documents violated the CLRA. Moreover, he contends that we should "decide that OPRA's statutory fulfillment processes apply to [his] CLRA," that defendant violated those processes, and that as a prevailing party he was "entitled to an award of costs" under OPRA. We find no merit to any of these contentions.
We Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl, P.C., 237 N.J. 91, 108 (2019) (citation omitted). In our review, we "apply[] the same standard under Rule 4:6-2(e) that governed the motion [judge,]" Wreden v. Township of Lafayette, 436 N.J. Super. 117, 124 (App. Div. 2014), that is, whether the pleadings even "suggest[]" a basis for the requested relief, Printing Mart-Morristown, 116 N.J. at 746 (quoting Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988)). Where a complaint raises statutory and regulatory legal issues, we afford no special deference to the trial court's interpretation of the law and the legal consequences that flow from established facts. L.R. v. Camden City Pub. Sch. Dist., 452 N.J. Super. 56, 82 (App. Div. 2017), aff'd, 238 N.J. 547 (2019).
As a reviewing court, we assess only the legal sufficiency of the claim. Sickles v. Cabot Corp., 379 N.J. Super. 100, 106 (App. Div. 2005). Consequently, "[a]t this preliminary stage of the litigation [we are] not concerned with the ability of plaintiffs to prove the allegation contained in the complaint." Printing Mart-Morristown, 116 N.J. at 746. Rather, we accept the factual allegations as true, Sickles, 379 N.J. Super. at 106, and "search[] the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim." Printing Mart-Morristown, 116 N.J. at 746 (quoting Di Cristofaro v. Laurel Grove Mem'l Park, 43 N.J. Super. 244, 252 (App. Div. 1957)). "However, we have also cautioned that legal sufficiency requires allegation of all the facts that the cause of action requires." Cornett v. Johnson & Johnson, 414 N.J. Super. 365, 385 (App. Div. 2010), aff'd as modified, 211 N.J. 362 (2012). In the absence of such allegations, the claim must be dismissed. Ibid.
A motion to dismiss for failure to state a claim must be denied if, giving plaintiff the benefit of all his allegations and all favorable inferences, a claim has been established. R. 4:6-2(e); see also Banco...
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