Scheeler v. Office of the Governor

• Decision Date: 27 January 2017
• Citation: 448 N.J.Super. 333,153 A.3d 293
• Parties: Harry SCHEELER, Plaintiff–Respondent, v. OFFICE OF THE GOVERNOR; Andrew J. McNally, custodian; New Jersey Motor Vehicles Commission; Joseph F. Bruno, custodian; New Jersey Department of Law and Public Safety, Division of Alcoholic Beverage Control; Bruce J. Solomon, custodian; New Jersey Department of Military and Veterans Affairs; Mark A. Preston, custodian; New Jersey Department of the Treasury; Cynthia Jablonski, custodian; New Jersey Department of Law and Public Safety, Division of Consumer Affairs; Robert J. Campanelli, custodian; New Jersey Department of Education, Division of Chief of Staff; Custodian of Records for the New Jersey Department of Education, Division of Chief of Staff; New Jersey Department of Law and Public Safety, Division of State Police, Defendants–Appellants. Heather Greico, Plaintiff–Respondent, v. New Jersey Department of Education and The Records Custodian of the Department of Education, Defendants–Appellants. John Paff, Plaintiff–Respondent, v. New Jersey Motor Vehicle Commission and Joseph F. Bruno, Defendants–Appellants.
• Court: New Jersey Superior Court — Appellate Division

448 N.J.Super. 333
153 A.3d 293

Harry SCHEELER, Plaintiff–Respondent,
v.
OFFICE OF THE GOVERNOR; Andrew J. McNally, custodian; New Jersey Motor Vehicles Commission; Joseph F. Bruno, custodian; New Jersey Department of Law and Public Safety, Division of Alcoholic Beverage Control; Bruce J. Solomon, custodian; New Jersey Department of Military and Veterans Affairs; Mark A. Preston, custodian; New Jersey Department of the Treasury; Cynthia Jablonski, custodian; New Jersey Department of Law and Public Safety, Division of Consumer Affairs; Robert J. Campanelli, custodian; New Jersey Department of Education, Division of Chief of Staff; Custodian of Records for the New Jersey Department of Education, Division of Chief of Staff; New Jersey Department of Law and Public Safety, Division of State Police, Defendants–Appellants.

Heather Greico, Plaintiff–Respondent,
v.
New Jersey Department of Education and The Records Custodian of the Department of Education, Defendants–Appellants.

John Paff, Plaintiff–Respondent,
v.
New Jersey Motor Vehicle Commission and Joseph F. Bruno, Defendants–Appellants.

Superior Court of New Jersey, Appellate Division.

Argued December 20, 2016
Decided January 27, 2017

153 A.3d 296

Valentina M. DiPippo, Deputy Attorney General, argued the cause for appellants in A–1236–14 (Christopher S. Porrino, Attorney General, attorney; Raymond R. Chance, III, Assistant Attorney General, of counsel; Geoffrey Brounell, Deputy Attorney General, on the brief).

Bruce S. Rosen argued the cause for respondent in A–1236–14 (McCusker, Anselmi, Rosen & Carvelli, P.C.and American Civil Liberties Union of New Jersey Foundation, attorneys; Edward L. Barocas and Jeanne LoCicero, of counsel; Mr. Rosenand Sarah L. Fehm, on the brief).

Valentina M. DiPippo, Deputy Attorney General, argued the cause for appellants in A–3170–14 (Christopher S. Porrino, Attorney General, attorney; Raymond R. Chance, III, Assistant Attorney General, of counsel; Christopher Huber, Deputy Attorney General, on the brief).

Valentina M. DiPippo, Deputy Attorney General, argued the cause for appellants in A–3335–14 (Christopher S. Porrino, Attorney General, attorney; Raymond R. Chance, III, Assistant Attorney General, of counsel; Ms. DiPippo, on the brief).

Walter M. Luers argued the cause for respondents in A–3170–14 and in A–3335–14 (Law Office of Walter M. Luers, LLC, attorneys; Mr. Luers, of counsel and on the briefs).

Before Judges Yannotti, Fasciale and Gilson.

The opinion of the court was delivered by

YANNOTTI, P.J.A.D.

448 N.J.Super. 338

Defendants appeal from orders entered by the Law Division, which required that they provide plaintiffs with access to certain third-party requests for documents under the Open Public Records Act (OPRA), N.J.S.A. 47:1A–1 to –13, and awarded plaintiffs attorney's fees. We affirm.

I.

We briefly summarize the relevant facts and procedural history. In February 2014, Harry Scheeler sent a request to the Governor's Office seeking copies of all OPRA requests submitted to that office in January 2014. He also sought copies of all OPRA requests

448 N.J.Super. 339

presented to the Governor's Office concerning the closure of traffic lanes on the George Washington Bridge, from September 1, 2013, to February 10, 2014.

In addition, Scheeler sent requests to the New Jersey Motor Vehicle Commission (MVC), the Alcoholic Beverage Control Commission (ABC), the New Jersey Department of Military and Veterans Affairs (DMVA), the New Jersey Department of Treasury (DT), the Division of Consumer Affairs (DCA), the New Jersey Department of Education (DOE), and the Division of State Police for copies of all OPRA requests submitted to these departments and agencies in specified periods of time. Scheeler submitted his requests to the MVC, ABC, DMVA, DT, and DCA anonymously.

Scheeler's requests were denied on the ground that he was not entitled to disclosure of third-party OPRA requests. As support for denying Scheeler's requests, the Governor's Office and other agencies cited our decision in Gannett N.J. Partners, LP v. County of Middlesex , 379 N.J.Super. 205, 877 A .2d 330 (App. Div. 2005). The MVC, ABC, DMVA, DOT, and DCA also denied Scheeler's requests on the ground that OPRA permits custodians of government records to deny anonymous requests.¹ In May 2014, Scheeler filed a complaint in the trial court challenging the denials of his requests.

On June 2, 2014, John Paff sent a request to the MVC seeking copies of all OPRA requests presented to that agency in a one-week period in May 2014. On June 6, 2014, Heather Greico submitted an OPRA request to the DOE for copies of all e-mails

448 N.J.Super. 340

between a certain individual and

153 A.3d 297

an employee in the Camden County Office of Education during a ten-day period in March 2014.

On June 11, 2014, the MVC denied Paff's request, and on June 13, 2014, the DOE provided Greico with copies of the emails requested, but redacted OPRA requests from the records. The MVC and the DOE cited Gannett as the basis for denying access to the third-party OPRA requests. In July 2013, Paff and Greico filed complaints in the Law Division challenging the MVC and DOE's refusals to provide access to the third-party OPRA requests.

On July 21, 2014, the motion judge heard oral argument in the Scheeler case and placed an oral decision on the record. The judge determined that third-party OPRA requests are "government records" under OPRA, and there is no specific exemption in OPRA that precludes disclosure of those records.

The judge found that Gannett did not authorize the government agencies to deny access to all third-party OPRA requests. The judge stated that although there is some discussion in Gannett suggesting that requests for access to third-party OPRA requests are improper, that discussion is dicta and not binding precedent.

The judge therefore determined that Scheeler was entitled to access the third-party OPRA requests he had requested in his own name, but he was not entitled to access the records he sought anonymously. The judge found that N.J.S.A. 47:1A–2.2(c) authorized the denial of the requests for records that Scheeler submitted anonymously.

The judge therefore found that Scheeler was the prevailing party, and he was entitled to an award of attorney's fees pursuant to N.J.S.A. 47:1A–6. The judge did not address Scheeler's alternative claim that he was entitled to access to the third-party OPRA requests under the common law. The judge memorialized her decision in an order filed July 22, 2014.

Scheeler thereafter filed a motion for reconsideration of the part of the court's order which denied his anonymous OPRA requests.

448 N.J.Super. 341

Defendants in Scheeler opposed the motion and filed a cross-motion seeking a stay of the court's order pending appeal. The judge considered the motions on September 10, 2014, and placed an oral decision on the record.

The judge reconsidered the earlier decision. The judge determined that N.J.S.A. 47:1A–2.2(c) did not authorize defendants to deny access to all anonymous OPRA requests because "of the remote possibility that the anonymous requestor" had been convicted of an indictable offense, or that the information sought would be personal information about the requestor's victim or family.

The judge stated that the defendants who denied Scheeler's anonymous requests should provide the records sought, but allowed those defendants to redact personal information from the records, other than the name of the requestor. The judge found that this "middle ground" would address OPRA's aim of providing the public with access to government records, while authorizing the records custodians to redact personal information when responding to anonymous OPRA requests.

On September 25, 2014, the judge entered a stipulation and final order memorializing her decision. The order also awarded Scheeler attorney's fees, and stayed the order pending disposition of any appeal taken from the order. Defendants in the Scheeler matter thereafter appealed. They do not, however, challenge the provision of the trial court's order which required that they respond to the requests that Scheeler submitted anonymously.

153 A.3d 298

In October 2014, the judge heard oral argument in the Paff and Greico matters. The judge ruled, as she had earlier ruled in Scheeler , that OPRA does not exempt third-party OPRA requests from disclosure, and Gannett does not authorize the blanket denial of access to all such requests. The judge memorialized her decision in an order dated October 28, 2014, and required the defendants in these cases to produce the third-party OPRA requests that Paff and Greico sought.

448 N.J.Super. 342

The judge entered final orders in the Greico matter on January 30, 2015, and in the Paff matter on February 4, 2015. The judge awarded Paff and Greico...