Professional Documents
Culture Documents
Counsellors at Law
The Greens of Laurel Oak
1200 Laurel Oak Road, Suite 104
Voorhees Township, NJ 08034
856-545-4542
ANTHONY H. OGOZALEK, JR.
Email: aogozalek@beckmanlawgroup.com
New Jersey Foundation for Open Government, Inc. v. Long Beach Island Board
of Education, et al.
vs.
LONG BEACH ISLAND BOARD
OF EDUCATION and LONG BEACH
ISLAND CONSOLIDATED SCHOOL
DISTRICT RECORDS CUSTODIAN
Defendants
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DOCKET NO.
Civil Action
VERIFIED COMPLAINT
Plaintiff New Jersey Foundation for Open Government, Inc. ("the Foundation" or
"Plaintiff") by way of complaint against the Long Beach Island Board of Education ("the
Board") and the Long Beach Island Consolidated School District Records Custodian
("Custodian") for violating the Open Public Records Act (OPRA) and the Open Public
Meetings Act (OPMA) as well as a the common law right of access, states as follows:
Parties
1.
Plaintiff New Jersey Foundation for Open Government, Inc. ("the Foundation")
is a non-profit, New Jersey corporation which has as its mission to increase transparency in
New Jersey's state, county and local governments.
2.
The Foundation is "any person" within the meaning of N.J.S.A. 10:4-16 and a
("Custodian") is a custodian of a government record for the Board as that term is defined
by N.J.S.A. 47:1A-1.1.
COMMON ALLEGATIONS
5.
On December 18, 2015 and again on January 5, 2016, the Foundation submitted
a request under both the Open Public Records Act (OPRA) and the common law (Exhibit 1)
via e-mail to Custodian.
6.
consisted of, among other records that are not relevant to this lawsuit 1:
The records furnished by Custodian that are not included as exhibits to this Verified Complaint consist
of a) the minutes of the Board's January 6, 2015 reorganization meeting, b) two versions of the Board's "2015
Annual Meeting Notice," and c) 20 pages showing that various Board meetings were advertised in the Press of
Atlantic City. None of these documents are relevant to this case nor are they responsive Plaintiff's OPRA
request.
1
Page 2
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
k.
l.
m.
n.
o.
p.
q.
r.
s.
t.
u.
v.
w.
x.
y.
z.
aa.
bb.
cc.
FIRST COUNT
(Violation of OPRA for failing to response to 3 and 4 of Plaintiff's request)
7.
Plaintiff repeats and incorporates all preceding paragraphs as if fully set forth
herein.
Page 3
8.
The third and fourth paragraphs of Plaintiff's records request sought the
Board's resolutions that, in accordance with N.J.S.A. 10:4-13, authorized the Board's
nonpublic (i.e. closed or executive) sessions held between April 1, 2015 and December 1, 2015.
9.
Plaintiff's request.
10.
None of the documents Custodian sent along with his January 15, 2016 letter
Plaintiff's request.
WHEREFORE, Plaintiff demands judgment:
A.
C.
Declaring Plaintiff the prevailing party and awarding it costs and a reasonable
attorney fee.
D.
12.
Plaintiff repeats and incorporates all preceding paragraphs as if fully set forth
herein.
Page 4
13.
held on the following dates. These minutes were downloaded from the school district's
Internet site on February 22, 2016. In parentheses next to each date below is the exhibit
number for the corresponding set of minutes Custodian sent with his January 15, 2016
response to the Foundation's records request:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
k.
14.
Except for improper redactions contained in the minutes of May 27, 2015 and
August 31, 2015, (see the Fifth Count) the minutes that Plaintiff downloaded from the
Board's Internet site are identical to those sent to Plaintiff by Custodian on January 15, 2016.
15.
This raises three possibilities, each of which is set forth as a claim for relief in
the alternative (R.4:5-2) in this Count and in the Third and Fourth Counts.
16.
The April 27, April 30, May 11, May 18, May 27, June 9, August 18, August 31,
2015, September 1, and September 10, 2015 minutes that Custodian disclosed on January 15,
2016 are from the public meetings held on those dates and Custodian has violated OPRA by
Page 5
failing or refusing to disclose the minutes from the nonpublic meetings held on those dates.
(Alternative 1).
WHEREFORE, Plaintiff demands judgment:
E.
Declaring that that the Custodian violated OPRA by not disclosing the minutes
Declaring Plaintiff the prevailing party and awarding it costs and a reasonable
attorney fee.
H.
THIRD COUNT
(Violation of OPMA for failing to record certain nonpublic meeting minutes and OPRA by failing to
inform requestor that responsive minutes did not exist.)
17.
Plaintiff repeats and incorporates all preceding paragraphs as if fully set forth
herein.
18.
The Board failed to record minutes for its April 27, April 30, May 11, May 18,
May 27, June 9, August 18, August 31, 2015, September 1, and September 10, 2015 nonpublic
meetings. (Alternative 2).
WHEREFORE, Plaintiff demands judgment:
I.
Declaring that the Board violated the Open Public Meetings Act, N.J.S.A. 10:4-
14 by failing to record minutes of the nonpublic meetings set forth in 18 above and that the
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Board violated Plaintiff's OPRA rights by not informing Plaintiff, in the Board's January 15,
2016 response, that the nonpublic meeting minutes set forth in 18 above did not exist.
J.
Enjoining the Board, going forward, from failing to record minutes of all its
meetings;
K.
Awarding Plaintiff its costs and a reasonable attorney fee (for the OPRA
violation); and
L.
19.
Plaintiff repeats and incorporates all preceding paragraphs as if fully set forth
herein.
20.
The April 27, April 30, May 11, May 18, May 27, June 9, August 18, August 31,
2015, September 1, and September 10, 2015 minutes that Custodian disclosed on January 15,
2016 are from the nonpublic meetings held on those dates and the Board has violated OPMA
by recording minutes that are not reasonably comprehensible. For example, the June 9, 2015
minutes (Exhibit 16) sum up a nonpublic session of more than two and half hours in duration
with a statement that "Interview were conducted: School Business Administrator/Board
Secretary Interviews." (Alternative 3)
WHEREFORE, Plaintiff demands judgment:
Page 7
M.
Declaring that that the Board violated the Open Public Meetings Act, N.J.S.A.
10:4-14, by failing to record minutes of the nonpublic meetings set forth in 20 above that
were "reasonably comprehensible";
N.
Enjoining the Board, going forward, from recording minutes of any of its
meetings that do not meet a "reasonably comprehensible" standard fixed by the Court ;
O.
P.
21.
Plaintiff repeats and incorporates all preceding paragraphs as if fully set forth
herein.
22.
The version of the May 27, 2015 minutes (Exhibit 11) disclosed by Custodian on
January 15, 2016 are redacted while the version of the same minutes that Plaintiff
downloaded from the Board's Internet Site (Exhibit 31) show the redacted text as being
"Meeting with the Mayors."
23.
The Custodian's redaction log indicates that the redaction of "Meeting with the
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24.
The version of the August 31, 2015 minutes (Exhibit 22) disclosed by Custodian
on January 15, 2016 are redacted while the version of the same minutes that Plaintiff
downloaded from the Board's Internet Site (Exhibit 31) show the redacted text as being
"Meeting with Bidders."
25.
The Custodian's redaction log indicates that the redaction of "Meeting with
"Meeting with the Mayors" or "Meeting with Bidders" for the minutes provided to Plaintiff.
WHEREFORE, Plaintiff demands judgment:
Q.
Declaring that Custodian violated OPRA by redacting the versions of the May
27, 2015 and August 31, 2015 meeting minutes that he disclosed to Plaintiff;
R.
Declaring Plaintiff the prevailing party and awarding it costs and a reasonable
attorney fee;
S.
27.
Plaintiff repeats and incorporates all preceding paragraphs as if fully set forth
herein.
Page 9
28.
Many of the Board's nonpublic meeting minutes contain redactions and it is not
clear, even with the Privilege Log, that the redactions are justified. For example:
a.
If one compares the first page of the May 5, 2015 nonpublic meeting
minutes (Exhibit 8) to the fourth page of the on-line May 5, 2015 public meeting
minutes (Exhibit 32), one can see that short sentence that is redacted in 1.b of the
nonpublic minutes is probably nothing more than a statement regarding the Board's
decision, as reported in the public meeting minutes, to abolish "the current secretarial
salary guide effective July 1, 2015." The redacted matter does not appear to be long
enough to constitute "deliberations regarding secretarial salaries" as claimed in the
Privilege Log.
b.
If one compares the first page of the May 5, 2015 nonpublic meeting
minutes (Exhibit 8) to the fourth page of the on-line May 5, 2015 public meeting
minutes (Exhibit 32), one can see that about an eighth inch of text is redacted in 1.d of
the nonpublic minutes. This is likely the initials of Tracy Sherrier, the teacher who is
reported in public meeting minutes as having requested a leave of absence. Even if
the redaction is not Ms. Sherrier's initials, it does not appear to be anything for which
redaction would be justified.
c.
If one compares the first page of the July 14, 2015 nonpublic meeting
minutes (Exhibit 18) to the fourth page of the on-line July 14, 2015 public meeting
minutes (Exhibit 33), one can see that a short sentence that is redacted in 1.d of the
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nonpublic minutes is probably nothing more than a statement regarding the Board's
decision, as reported in the public meeting minutes, to provide stipends to Julie
Oldham and Shelly Smith. The redacted matter is not specifically mentioned in the
Privilege Log.
d.
If one compares the first page of the July 14, 2015 nonpublic meeting
minutes (Exhibit 18) to the fourth page of the on-line July 14, 2015 public meeting
minutes (Exhibit 33), one can see that about an eighth inch of text is redacted in 1.e of
the nonpublic minutes. This is likely the initials of Francis Lawler, the teacher who is
reported in public meeting minutes as having requested a leave of absence. Even if
the redaction is not Ms. Lawler's initials, it does not appear to be anything for which
redaction would be justified.
e.
If one compares the first page of the August 4, 2015 nonpublic meeting
minutes (Exhibit 19) to the second page of the on-line August 4, 2015 public meeting
minutes (Exhibit 34), one can see that the one inch redaction in 1.e of the nonpublic
minutes is probably nothing more than the name of Elizabeth Messec, who was
reported in the public meeting minutes as a replacement teacher. The redacted matter
does not appear to be long enough to constitute "deliberations regarding . . .
replacement teacher" as claimed in the Privilege Log.
f.
If one compares the first page of the October 20, 2015 nonpublic meeting
minutes (Exhibit 27) to the fourth page of the on-line October 20, 2015 public meeting
Page 11
minutes (Exhibit 35), one can see that about an inch of text is redacted in 1.b of the
nonpublic minutes. This is likely the name of Patricia Gerety, the teacher who is
reported in public meeting minutes as having requested a leave of absence. Even if
the redaction is not Ms. Gerety's name, it does not appear to be anything for which
redaction would be justified.
29.
The matters listed in 28 above are only a few examples of redactions that
appear excessive or otherwise unjustified and where the Privilege Log describes the
redactions in only the most general of terms. On information and belief (supported by the
clearly wrongful redactions complained about in the Fifth Count above), much if not most of
the redacted material in Exhibits 4 - 30 could at least be partially disclosed.
WHEREFORE, Plaintiff demands judgment:
T.
Ordering Custodian to provide both the Court and Plaintiff with a better, more
descriptive Privilege Log for Exhibits 4 - 30 that gives as much information as possible about
each redacted item provided;
U.
Declaring Plaintiff the prevailing party and awarding it costs and a reasonable
attorney fee;
Page 12
X.
30.
Plaintiff repeats and incorporates all preceding paragraphs as if fully set forth
herein.
31.
Exhibits 4 - 30 are replete with examples of minutes that are so terse that they
are more akin to an agenda than they are to minutes which are required by N.J.S.A. 10:4-14 to
be "reasonably comprehensible."
a.
By way of example, the third page of the April 21, 2015 nonpublic
meeting minutes state under "Personnel" only short topic descriptions such as
"Summer Work" and "Secretarial Guide."
b.
By way of another example, the third page of the April 30, 2015 minutes
state under "Student issues" only short topic descriptions and then say that those
topics were "discussed."
c.
By way of another example, the first page of the November 17, 2015
minutes state under "Additional items discussed" that "Ethics charge resolved"
without any context such as the name of the person against whom the charge was
filed, the manner of the charge's disposition, etc.
WHEREFORE, Plaintiff demands judgment:
Page 13
Y.
Declaring that the Board violated N.J.S.A. 10:4-14 by failing to keep "reasonably
comprehensible" minutes of its nonpublic meetings held on April 21, 2015; April 30, 2015,
November 17, 2015 as well as other minutes within Exhibits 4 - 30;
Z.
Enjoining the Board, going forward, from recording meeting minutes unless
BB.
32.
Plaintiff repeats and incorporates all preceding paragraphs as if fully set forth
herein.
33.
Exhibits 4 - 30 are replete with examples where matters that do not fit within
b.
c.
d.
e.
Charging for OPRA requests and water testing costs on June 2, 2015;
2015;
Page 14
f.
g.
h.
j.
k.
Change of meeting location and bills list, Secretary and Treasurer report
m.
n.
Declaring that the Board violated the Open Public Meetings Act by discussing
matters in nonpublic session that did not fit within the N.J.S.A. 10:4-12(b) exceptions;
DD.
Enjoining the Board, going forward, from discussing any matter in nonpublic
session unless it fits within at least one N.J.S.A. 10:4-12(b) exception with those exceptions
being construed in favor of openness and against closure;
EE.
FF.
Page 15
Plaintiff repeats and incorporates all preceding paragraphs as if fully set forth
herein.
36.
The minutes of the April 27, April 30, May 11, May 18, May 27, June 9, August
18, August 31, 2015, September 1, and September 10, 2015 public meetings (Exhibits 30), if
they are indeed public meeting minutes (see the alternative forms of relief sought in the
Second, Third and Fourth Counts), do not reflect that an opportunity was afforded to the
public to address the Board on matters that the public felt would be of interest to residents of
the school district.
WHEREFORE, Plaintiff demands judgment:
GG.
Declaring that the Board violated the Open Public Meetings Act by not
providing a public comment period at its April 27, April 30, May 11, May 18, May 27, June 9,
August 18, August 31, 2015, September 1, and September 10, 2015 public meetings as
required by N.J.S.A. 10:4-12;
HH.
Enjoining the Board, going forward, from failing to provide a public comment
JJ.
Page 16
37.
Plaintiff repeats and incorporates all preceding paragraphs as if fully set forth
herein.
38.
All the minutes in Exhibits 4 - 30 recite that that a) the Board members were
notified of the meeting date and that b) notice of "the date, time and place [of the meeting
was] posted in the Press of Atlantic City."
39.
Nothing in any of the minutes in Exhibits 4 - 30 recite that notice of the meeting
had been, in accordance with N.J.S.A. 10:4-8(d) and N.J.S.A. 10:4-18, been a) "prominently
posted in at least one public place reserved for such or similar announcements," b)
transmitted to "at least two newspapers," and c) filed with the offices of " each municipality
or county encompassed within the jurisdiction of" the District (e.g. Surf City, Ship Bottom,
etc.).
40.
Either the Board a) failed to give proper notice of these meetings or b) the
minutes of those meetings, despite the mandate of N.J.S.A. 10:4-10(a), do not accurately
convey the manner in which notice was given.
WHEREFORE, Plaintiff demands judgment:
KK.
Declaring that the Board violated the Open Public Meetings Act by either not
providing "adequate notice' of the meetings which were recorded by the minutes contained
within Exhibits 4 - 30 or that those minutes did not accurately portray the information
required by N.J.S.A. 10:4-10(a);
Page 17
LL.
Enjoining the Board, going forward, from holding a meeting unless "adequate
notice" has been given and accurately described in the meeting's minutes in the manner
required by N.J.S.A. 10:4-10(a);
MM. Awarding Plaintiff its costs.
NN.
41.
Plaintiff repeats and incorporates all preceding paragraphs as if fully set forth
herein.
42.
All the minutes in Exhibits 4 - 30 show, at most, that the Board passed a simple
motion to go into nonpublic session that, despite the mandate of N.J.S.A. 10:4-13, set forth no
information about the topics to be discussed or the time within which the minutes would be
disclosed.
43.
For example, the August 18, 2015 minutes recite that "a motion was made . . .
Declaring that the Board violated the Open Public Meetings Act by not passing
a resolution that is compliant with N.J.S.A. 10:4-13 before excluding the public from its
meetings;
Page 18
PP.
Enjoining the Board, going forward, from failing to pass an N.J.S.A. 10:4-13
RR.
44.
Plaintiff repeats and incorporates all preceding paragraphs as if fully set forth
herein.
45.
4 of its request (First Count), b) the minutes from the Board's April 27, April 30, May 11, May
18, May 27, June 9, August 18, August 31, 2015, September 1, and September 10, 2015
nonpublic meetings (Second Count) and c) the text redacted from Exhibits 4 - 30 (Sixth
Count) exceeds the Board's interest in confidentiality.
WHEREFORE, Plaintiff demands judgment:
SS.
Declaring that the Board violated Plaintiff's common law right to disclosure of
Ordering the Board to disclose to Plaintiff the records and redacted matter
identified by 45 above;
UU.
VV.
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Page 20
EXHIBIT 1
Exhibit 1
EXHIBIT 2
Exhibit 2
EXHIBIT 3
Exhibit 3
EXHIBIT 4
Exhibit 4
EXHIBIT 5
Exhibit 5
EXHIBIT 6
Exhibit 6
EXHIBIT 7
Exhibit 7
EXHIBIT 8
Exhibit 8
EXHIBIT 9
Exhibit 9
EXHIBIT 10
Exhibit 10
EXHIBIT 11
Exhibit 11
EXHIBIT 12
Exhibit 12
EXHIBIT 13
Exhibit 13
EXHIBIT 14
Exhibit 14
EXHIBIT 15
Exhibit 15
EXHIBIT 16
Exhibit 16
EXHIBIT 17
Exhibit 17
EXHIBIT 18
Exhibit 18
EXHIBIT 19
Exhibit 19
EXHIBIT 20
Exhibit 20
EXHIBIT 21
Exhibit 21
EXHIBIT 22
Exhibit 22
EXHIBIT 23
Exhibit 23
EXHIBIT 24
Exhibit 24
EXHIBIT 25
Exhibit 25
EXHIBIT 26
Exhibit 26
EXHIBIT 27
Exhibit 27
EXHIBIT 28
Exhibit 28
EXHIBIT 29
Exhibit 29
EXHIBIT 30
Exhibit 30
EXHIBIT 31
Exhibit 31
EXHIBIT 32
Exhibit 32
Minutes 5/5/15
Working Meeting/Public Budget Hearing
Page 4
Bonds for funding of an addition
Thomas Beaty, Holgate, asked questions/commented on the following:
Donate Rocket Composter to a local school
LBI School sale compared to sale of EJ School
Ship Bottom Resolution on Sale of LBI School
Dawn Kennedy-Little, Long Beach Township, asked questions/commented on the following:
Rocket Composter, working with Shore Community Garden and surrounding school districts to
keep the composter locally
Comparison of additions at EJ and LBI
James Loudon, Harvey Cedars, asked questions/commented on the following
Encouraged the Board of Education to continue to move toward one school as per the feasibility
study.
Suggested looking into bonds
Stacey Fuessinger, Ship Bottom, asked questions regarding the following:
Mr. Deakynes letter and obtaining the minutes
Sale of the LBI School or sale of EJ School
Jennifer Begonia, Barnegat Light, asked about the security project benefits. Mrs. Bott explained upgrades
to the system.
Public comment on agenda items ended.
Ms. McKeon, Superintendent spoke about the Literacy Action Plan and thanked Mr. Siano, teachers, staff
and Board members.
Ms. McKeon recognized the following:
(a)
Ocean County Poster Contest Winner: The following students poster was selected as a 2nd
place winner in the 2015 My County poster contest sponsored by the Ocean County Clerks
Office:
2nd Place Winner: Andy Falletta
PERSONNEL:
A motion was made by Colette Southwick, seconded by Kristy Raber to approve the following personnel
items:
(a)
Leave of Absence Request: To approve a leave of absence request from Tracy Sherrier, Second
Grade Teacher, beginning approximately September 21, 2015 to January 4, 2016.
(b)
Secretarial Guide: To approve abolishing the current secretarial salary guide effective July 1,
2015.
EXHIBIT 33
Exhibit 33
EXHIBIT 34
Exhibit 34
EXHIBIT 35
Exhibit 35
vs.
LONG BEACH ISLAND BOARD
OF EDUCATION and LONG BEACH
ISLAND CONSOLIDATED SCHOOL
DISTRICT RECORDS CUSTODIAN
Defendants
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DOCKET NO.
Civil Action
THIS MATTER being brought before the Court by Anthony H. Ogozalek, Jr. of
Beckman Ogozalek Londar, Attorney for Plaintiff, seeking relief by way of summary action
pursuant to R.4:67-1(a), based on the facts set forth in the Verified Complaint and supporting
papers filed herewith; and the Court having determined that this matter may be commenced
by order to show cause as a summary proceeding pursuant to N.J.S.A. 47:1A-6 and for good
cause shown,
request;
c.
to Plaintiff's request, the minutes from the nonpublic meetings held on April 27, April
30, May 11, May 18, May 27, June 9, August 18, August 31, 2015, September 1, and
September 10, 2015;
d.
nonpublic meetings held on April 27, April 30, May 11, May 18, May 27, June 9,
August 18, August 31, September 1, and September 10, 2015;
e.
May 27, 2015 and August 31, 2015 meeting minutes that he disclosed to Plaintiff;
Page 2
f.
Ordering Custodian to provide both the Court and Plaintiff with a better,
more descriptive privilege log for Exhibits 4 - 30 that gives as much information as
possible about each redacted item provided;
g.
pay Plaintiff its costs and reasonable attorney fees in accordance with N.J.S.A. 47:1A-6.
And it is further ORDERED that:
1.
A copy of this order to show cause, verified complaint and all supporting
Plaintiffs must file with the Court their proofs of service of the pleadings on the
Defendant no later than three (3) days before the return date.
3.
Defendants shall file and serve a written answer and opposition papers to this
order to show cause and the relief requested in the verified complaint and proof of service of
the same by ___________________________, 2016. The answer and opposition papers must be
Page 3
filed with the Clerk of the Superior Court in the county listed above and a copy of the papers
must be sent directly to the chambers of the Honorable Judge listed above.
4.
Plaintiffs must file and serve any written reply to the Defendants order to show
cause opposition by _________________________, 2016. The reply papers must be filed with
the Clerk of the Superior Court in the county listed above and a copy of the reply papers
must be sent directly to the chambers of the Honorable Judge listed above.
5.
If the Defendant does not file and serve opposition to this order to show cause,
the application will be decided on the papers on the return date and relief may be granted by
default, provided that the Plaintiff files a proof of service and a proposed form of order at
least three days prior to the return date.
6.
If the Plaintiff has not already done so, a proposed form of order addressing the
relief sought on the return date (along with a self-addressed return envelope with return
address and postage) must be submitted to the Court no later than three (3) days before the
return date.
7.
Defendant take notice that the Plaintiff has filed a lawsuit against you in the
Superior Court of New Jersey. The verified complaint attached to this order to show cause
states the basis of the lawsuit. If you dispute this complaint, you, or you attorney, must file a
written answer and opposition papers and proof of service before the return date of the order
to show cause. These documents must be filed with the Clerk of the Superior Court in the
county listed above. A list of these offices is provided. Include a $175 filing fee payable to the
Treasurer State of New Jersey. You must also send a copy of your answer and opposition
Page 4
papers to the Plaintiffs attorney whose name and address appear above, or to the Plaintiff, if
no attorney is named above. A telephone call will not protect your rights; you must file and
serve your answer and opposition papers (with the fee) or judgment may be entered against
you by default.
8.
If you cannot afford an attorney, you may call the Legal Services office in the
county in which you live. If you do not have an attorney and are not eligible for free legal
assistance you may obtain a referral to an attorney by calling one of the Lawyer Referral
Services. Legal Services and Lawyer Referral Services may be reached, respectively, at 732240-3666 and 732-341-2727.
9.
The Court will entertain argument, but not testimony, on the return date of the
order to show cause, unless the Court and parties are advised to the contrary no later than
_______ days before the return date.
________________________________
Marlene Lynch Ford, A.J.S.C.
Page 5
vs.
LONG BEACH ISLAND BOARD
OF EDUCATION and LONG BEACH
ISLAND CONSOLIDATED SCHOOL
DISTRICT RECORDS CUSTODIAN
Defendants
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DOCKET NO.
Civil Action
CERTIFICATION OF COUNSEL
3.
Attached as Exhibit 2 is a true copy of the trial court's April 11, 2014 Order and
unpublished opinion in Tucker Kelly v. Borough of Riverdale, et al, Docket No. MRS-L-52414.
4.
Attached as Exhibit 3 is a true copy of the trial court's July 24, 2015 Order and
unpublished opinion in John Paff v. Township of Stafford, et al, Docket No. OCN-L-85215.
5.
I certify that the foregoing statements made by me are true. I am aware that if any of the
foregoing statements made by me are willfully false, I am subject to punishment.
Page 2
EXHIBIT 1
Exhibit 1
FINAL DECISION
May 28, 2008 Government Records Council Meeting
John Paff
Complainant
v.
Willingboro Board of Education (Burlington)
Custodian of Record
At the May 28, 2008 public meeting, the Government Records Council
(Council) considered the May 21, 2008 Findings and Recommendations of the
Executive Director and all related documentation submitted by the parties. By majority
vote, the Council adopted the entirety of said findings and recommendations. The
Council, therefore, finds that:
1.
2.
Although the Complainant asserts that he tendered payment for the requested
records on September 7, 2007, the Custodian submitted a receipt for payment
of $5.25 dated October 11, 2007. The parties agree that certain requested
records were disclosed on October 11, 2007. Therefore, there was no delay in
the release of records to the Complainant because the requested records were
sent upon receipt of payment from the Complainant.
3.
The GRC has no authority over the legibility of records produced pursuant to
Toscano v. NJ Dept of Labor, GRC Complaint No. 2005-59 (September
2005).
4.
Because the special meeting Executive Session minutes were not yet approved
by the Board at the time of the Complainants OPRA request, these minutes
are exempt from disclosure under OPRA as ACD material pursuant to ParaveFogg v. Lower Alloways Creek Township, GRC Complaint No. 2006-51
(August 2006) and N.J.S.A. 47:1A-1.1. The Custodian has borne his burden
Page 2
of proof that the denial of access to the Special meeting Executive Session
minutes was lawful under N.J.S.A. 47:1A-6.
5.
Additionally, OShea v. Kearny Board of Education, Docket No. HUD-L-85607 is a disclosure order from the Law Division of the Superior Court of New
Jersey. A disclosure order at the trial level is only binding on the parties in
that particular case and is not a general ruling on the disclosure of meeting
minutes. Therefore, the order of disclosure in OShea v. Kearny Board of
Education, Docket No. HUD-L-856-07 is not binding in the matter now
before the Council.
6.
7.
This is the final administrative determination in this matter. Any further review
should be pursued in the Appellate Division of the Superior Court of New Jersey within
forty-five (45) days. Information about the appeals process can be obtained from the
Appellate Division Clerks Office, Hughes Justice Complex, 25 W. Market St., PO Box
006, Trenton, NJ 08625-0006. Proper service of submissions pursuant to any appeal is to
be made to the Council in care of the Executive Director at the State of New Jersey
Government Records Council, 101 South Broad Street, PO Box 819, Trenton, NJ 086250819.
Page 3
v.
Willingboro Board of Education (Burlington)2
Custodian of Records
Records Relevant to Complaint:
1. The public notice that announced the private meeting (special meeting) referred
to in this letter where four members of the Board met with the Mayor and
Manager on August 7, 2007 at 6 p.m.
2. Any other private notices that invited members of the Board, the Mayor, Manager
or any others to the special meeting.
3. The agenda of the special meeting.
4. Any minutes or notes taken at the special meeting.
5. Any list of attendees at the special meeting.
6. Any audio or video recording of the special meeting.
7. Any record evidencing or memorializing that President Owens created the
committee Monday night to facilitate the meeting with the Mayor, as mentioned
in the attached Burlington County Times article.
8. Any motion or resolution passed at the July 23, 2007 meeting at which the Board
voted to meet in full with the Mayor.
9. Any resolution passed, in accordance with N.J.S.A. 10:4-13, that authorized any
closed or executive (i.e. nonpublic) meeting of the Board held on August 7, 2007.
10. Any minutes or notes of any closed or executive (i.e. nonpublic) meeting of the
Board held on August 7, 2007.
11. Any Board policy, bylaw or other authority which, similar to Section 9325.1 of
the West Milford Township Boards policies, defines a quorum of the
Willingboro Board of Education.
Request Made: August 28, 2007
Response Made: September 7, 2007
Custodian: Kelvin Smith3
GRC Complaint Filed: November 2, 2007
Background
Represented by Walter M. Luers, Esq., of Law Office of Walter M. Luers, LLC (Oxford, NJ).
No representation listed on file.
3
The Complainant names D. Stokes in the Denial of Access complaint.
2
John Paff v. Willingboro Board of Education (Burlington), 2007-272 Findings and Recommendations of the Executive
Director
The Custodian further states that the special meeting minutes of August 7, 2007
have not been approved by the Board and are not available. The Custodian requests that
the Complainant remit a payment of $5.25 for seven (7) pages of copies.
September 8, 2007
Letter from the Complainant to the Custodian. The Complainant states that he is
in receipt of the Custodians letter dated September 8, 2007. The Complainant states that
a payment of $5.25 is enclosed.
The Complainant advises that he has two (2) concerns. The Complainant first
asks if it is a policy of the WBOE not to make meeting minutes publicly available until
after they are approved. The Complainant states that in Parave-Fogg v. Lower Alloways
Creek Township, GRC Complaint No. 2006-51, the GRC held that unapproved meeting
minutes constitute inter-agency, intra-agency advisory, consultative, or deliberative
material and are presumed to be exempt from the disclosure unless the requestor
demonstrates an overriding need for the record.
The Complainant contends that while WBOEs denial of access is authorized
under OPRA, N.J.S.A. 10:4-14 of the Open Public Meetings Act (OPMA) requires
meeting minutes to be made promptly available. The Complainant states that the
enclosed court order in the case of OShea and Paff v. Kearny Board of Education,
Docket No. HUD-L-856-07 requires the Kearny Board of Education to grant access to
the minutes of public meetings no later than three (3) business days prior to the next
meeting. The Complainant asserts that unapproved meeting minutes fall into a category
of records that are exempt from disclosure under OPRA but obtainable under another
statute, in this case OPMA. The Complainant asserts that he therefore challenges the
Custodians denial of access to the August 7, 2007 meeting minutes simply because they
have not yet been approved.
The Complainant also contends that his August 28, 2007 OPRA request asked for
eleven (11) records, but the Custodian only granted access to five (5) of the requested
John Paff v. Willingboro Board of Education (Burlington), 2007-272 Findings and Recommendations of the Executive
Director
items. The Complainant requests that the Custodian advise in writing the specific basis
for each denial of access to the remaining six (6) requested items.
October 11, 2007
Mailing from the Custodian to the Complainant. The Custodian provides the
following records:
November 2, 2007
Denial of Access Complaint filed with the Government Records Council (GRC)
with the following attachments:
The Complainant also attaches two (2) ethical misconduct and OPMA violations complaints filed with the
New Jersey Department of Education, Office of Compliance Investigation Unit against the custodial
agency.
John Paff v. Willingboro Board of Education (Burlington), 2007-272 Findings and Recommendations of the Executive
Director
the Mayor of Willingboro. The Complainants Counsel states that the Custodian
responded on September 7, 2007 in writing via facsimile requesting a payment of $5.25
for copies and stating that the minutes of the August 7, 2007 meeting had not been
approved yet and are not available. The Complainants Counsel states that the
Complainant responded to the Custodian on September 8, 2007 attaching a payment of
$5.25 and arguing that pursuant to OShea v. Kearny Board of Education, Docket No.
HUD-L-856-07, meeting minutes must be made available no later than three (3) business
days before the next meeting. The Complainants Counsel further states that the
Complainant noted that the Custodian only responded to five (5) of the eleven (11)
request items and requests that the Custodian advise in writing the status of each request
item.
The Complainants Counsel states that the Complainant received the following on
October 11, 2007:
ways.
First, the Complainants Counsel contends that the Custodian received the
Complainants payment on September 8, 2007 but failed to disclose the records
responsive until October 11, 2007. The Complainants Counsel asserts that the
Custodians failure to provide these records for more than a month violates OPRA
pursuant to N.J.S.A. 47:1A-5.g.
Next, the Complainants Counsel asserts that the Custodians failure to respond to
request Items No. 2, No. 6, No. 7, No. 8 and No. 10 results in a deemed denial and
violates OPRA pursuant to N.J.S.A. 47:1A-5.i. The Complainants Counsel states that in
DeLuca v. Town of Guttenberg, GRC Complaint No. 2006-25, the GRC held that a
custodians failure to respond within seven (7) business days after receipt of the request
results in a deemed denial.
Finally, the Complainants Counsel contends that the Custodians actions evince
a purposeful and willful refusal to comply with the Complainants OPRA request. The
John Paff v. Willingboro Board of Education (Burlington), 2007-272 Findings and Recommendations of the Executive
Director
Complainants Counsel asserts that one of the disclosed records is completely illegible,
which does not comply with OPRA.5
The Complainants Counsel requests the following relief:
1. A finding that the WBOE denied access and violated OPRA by not responding to
the Complainants records request within seven (7) business days.
2. A finding that the WBOE denied access and violated OPRA by not providing
specific, legal bases for withholding records from disclosure.
3. An Order requiring the Custodian to provide immediate access to all of the
records requested by the Complainant.
4. A finding that the Complainant is a prevailing party and awarding a reasonable
attorneys fee as provided by N.J.S.A. 47:1A-6.
5. If, after investigation, it is found that the Custodian knowingly and willfully
violated OPRA, fining the Custodian in accordance with N.J.S.A. 47:1A-11.
The Complainant declines mediation.
November 26, 2007
Request for the Statement of Information sent to the Custodian.
December 4, 2007
Custodians Statement of Information (SOI) with the following attachments:
The Complainants Counsel also states that the Department of Education Office of Compliance
Investigation performed two (2) investigations based on allegations of ethical misconduct and OPMA
violations against WBOE and issued a report. The Complainants Counsel states that both reports
concluded that the WBOE had violated OPMA by not making minutes available to the public as required.
The Complainants Counsel attaches a copy of both reports to the Denial of Access complaint.
John Paff v. Willingboro Board of Education (Burlington), 2007-272 Findings and Recommendations of the Executive
Director
The Custodian certifies that his search for the requested records included locating
all records responsive held on the premises of the WBOEs office.
The Custodian states that he received the Complainants OPRA request on August
28, 2007. The Custodian states that he replied in writing on September 7, 2007
requesting a payment of $5.25 for copies of the requested records and that the Executive
Session minutes have not been approved yet and are therefore not available. The
Custodian further states that the requested records were mailed on October 11, 2007 after
the Complainants payment was received.6
The Custodian certifies that a majority of requested records were disclosed to the
Complainant in a timely manner. The Custodian certifies that the only record not
disclosed were the minutes of the August 7, 2007 Executive Board meeting, which were
not approved by the Board yet. The Custodian provides in his document index that:
Requested Records
Provided?
Item No. 1 Special meeting Public Special meeting Notice Not applicable.
Notice for August 7, 2007.
for August 7, 2007 (1
page). Sent September
7, 2007.
Item No. 2 Any other private No.
notices that invited members of the
Board, Mayor, Manager or any others
to the Special meeting.
Item No. 3 Special meeting agenda.
No records responsive
exist.
The Custodian attaches a receipt for $5.25 dated October 11, 2007.
John Paff v. Willingboro Board of Education (Burlington), 2007-272 Findings and Recommendations of the Executive
Director
No records responsive
exist.
No.
No records responsive
exist.
Resolution
of
the Not applicable.
WBOE
to
into
Executive Session (2
pages). Sent September
7, 2007.
Executive
Session
minutes will be provided
on December 4, 2007 if
the Board approves the
minutes.
Analysis
Whether the Custodian unlawfully denied access to the Complainants August 28,
2007 OPRA request?
OPRA provides that:
government records shall be readily accessible for inspection, copying,
or examination by the citizens of this State, with certain exceptions
(Emphasis added.) N.J.S.A. 47:1A-1.
Additionally, OPRA defines a government record as:
any 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 or that has been received in the course of his or its official
business (Emphasis added.) N.J.S.A. 47:1A-1.1.
OPRA also provides that:
[i]f the custodian is unable to comply with a request for access, the
custodian shall indicate the specific basis therefor on the request form and
promptly return it to the requestor. The custodian shall sign and date the
form and provide the requestor with a copy thereof N.J.S.A. 47:1A5.g.
OPRA further provides that:
[u]nless a shorter time period is otherwise provided by statute, regulation,
or executive order, a custodian of a government record shall grant access
or deny a request for access as soon as possible, but not later than
seven business days after receiving the request In the event a custodian
fails to respond within seven business days after receiving a request, the
failure to respond shall be deemed a denial of the request (Emphasis
added.) N.J.S.A. 47:1A-5.i.
OPRA places the onus on the Custodian to prove that a denial of access is lawful.
Specifically, OPRA states:
[t]he public agency shall have the burden of proving that the denial of
access is authorized by law N.J.S.A. 47:1A-6.
OPRA provides that government records made, maintained, kept on file, or
received by a public agency in the course of its official business are subject to public
access unless otherwise exempt. N.J.S.A. 47:1A-1.1. A custodian must release all
records responsive to an OPRA request with certain exceptions. N.J.S.A. 47:1A-1.
John Paff v. Willingboro Board of Education (Burlington), 2007-272 Findings and Recommendations of the Executive
8
Director
Additionally, OPRA places the burden on a custodian to prove that a denial of access to
records is lawful pursuant to N.J.S.A. 47:1A-6.
The Complainants Counsel asserts that the Custodian violated OPRA by failing
to respond to each of the Complainants request items individually within seven (7)
business days. OPRA specific states that a custodian shall promptly comply with a
request [for] a government record. (Emphasis added.) N.J.S.A. 47:1A-5.g.
Additionally, in OShea v. Township of West Milford, GRC Complaint No. 2004-17
(April 2005), the GRC held that the Custodians initial response that the Complainants
request was a duplicate of a previous request to the Complainants June 22, 2007 request
was legally insufficient because the Custodian has a duty to answer each request
individually. Based on OPRA and the GRCs holding in OShea, a custodian is vested
with the responsibility to respond to each individual request item within seven (7)
business days after receipt of such request.
Although the Custodian responded in writing to the Complainants August 28,
2007 OPRA request within the statutorily mandated time frame pursuant to N.J.S.A.
47:1A-5.i., the Custodians response was legally insufficient because he failed to respond
to each request item individually. Therefore, the Custodian has violated N.J.S.A. 47:1A5.g.
The Complainants Counsel further asserts that the Custodian violated OPRA by
failing to disclose the records responsive to the Complainants August 28, 2007 OPRA
request until October 11, 2007, even after the Complainant sent payment to the Custodian
on September 8, 2007. The Custodian contends that all records were provided in a timely
manner with the exception of the special meeting Executive Session minutes, which
would be disclosed after the December 4, 2007 Council meeting if the minutes are
approved.
Although the Complainant asserts that he tendered payment for the requested
records on September 7, 2007, the Custodian submitted a receipt for payment of $5.25
dated October 11, 2007. The parties agree that certain requested records were disclosed
on October 11, 2007. Therefore, there was no delay in the release of records to the
Complainant because the requested records were sent upon receipt of payment from the
Complainant.
The Complainants Counsel also contends that the Custodian provided an illegible
copy of one of the requested records. However, pursuant to N.J.S.A. 47:1A-7.b., which
delineates the Councils powers and duties, the GRC does not have the authority over the
condition of records provided by a Custodian. Toscano v. NJ Dept of Labor, GRC
Complaint No. 2005-59 (September 2005). Therefore, the GRC has no authority over the
legibility of records produced to the Complainant in this matter pursuant to the GRCs
decision in Toscano.
Whether the Custodians denial of access to the requested Executive Session
minutes was authorized by law?
OPRA also provides that:
John Paff v. Willingboro Board of Education (Burlington), 2007-272 Findings and Recommendations of the Executive
Director
Whether the Custodians actions rise to the level of a knowing and willful violation
of OPRA and unreasonable denial of access under the totality of the circumstances?
OPRA states that [a] public official, officer, employee or custodian who
knowingly or willfully violates [OPRA], and is found to have unreasonably denied access
under the totality of the circumstances, shall be subject to a civil penalty N.J.S.A.
47:1A-11.a.
OPRA allows the Council to determine a knowing and willful violation of the law
and unreasonable denial of access under the totality of the circumstances. Specifically,
OPRA states:
If the council determines, by a majority vote of its members, that a
custodian has knowingly and willfully violated [OPRA], and is found to
have unreasonably denied access under the totality of the circumstances,
the council may impose the penalties provided for in [OPRA] N.J.S.A.
47:1A-7.e.
Certain legal standards must be considered when making the determination of
whether the Custodians actions rise to the level of a knowing and willful violation of
OPRA. The following statements must be true for a determination that the Custodian
knowingly and willfully violated OPRA: the Custodians actions must have been much
more than negligent conduct (Alston v. City of Camden, 168 N.J. 170 at 185 (2001); the
Custodian must have had some knowledge that his actions were wrongful (Fielder v.
Stonack, 141 N.J. 101, 124 (1995)); the Custodians actions must have had a positive
element of conscious wrongdoing (Berg v. Reaction Motors Div., 37 N.J. 396, 414
(1962)); the Custodians actions must have been forbidden with actual, not imputed,
knowledge that the actions were forbidden (Berg); the Custodians actions must have
been intentional and deliberate, with knowledge of their wrongfulness, and not merely
negligent, heedless or unintentional (ECES v. Salmon, 295 N.J.Super. 86 (App. Div.
1996) at 107).
Although the Custodian failed to respond to each request item individually within
the statutorily mandated seven (7) business days, resulting in a deemed denial regarding
those items of the OPRA request, the Custodian bore the burden of proving that the
unapproved special meeting Executive Session minutes are exempt from disclosure under
OPRA and did provide all other records responsive to the Complainant on October 11,
2007. Therefore, it is concluded that the Custodians actions do not rise to the level of a
knowing and willful violation of OPRA and unreasonable denial of access under the
totality of the circumstances. However, the Custodians unlawful denial of access
appears negligent and heedless since he is vested with the legal responsibility of granting
and denying access in accordance with the law.
Whether the Complainant is a prevailing party entitled to attorneys fees
pursuant to N.J.S.A. 47:1A-6?
OPRA provides that:
John Paff v. Willingboro Board of Education (Burlington), 2007-272 Findings and Recommendations of the Executive
Director
11
[i]f it is determined that access has been improperly denied, the court
or agency [GRC] head shall order that access be allowed. A requestor who
prevails in any proceeding shall be entitled to a reasonable attorney's fee.
N.J.S.A. 47:1A-6.
Attorneys fees may be awarded when the requestor is successful (or partially
successful) via a judicial decree, a quasi-judicial determination, or a settlement of the
parties that indicates access was improperly denied and the requested records are
disclosed. Teeters v. DYFS, 387 N.J. Super. 423 (App. Div. 2006). A complainant is a
prevailing party if he/she achieves the desired result because the complaint brought
about a change (voluntary or otherwise) in the custodians conduct. Id.
In the matter before the Council, the Complainant failed to achieve the desired
result of disclosure of a requested record because the Custodian provided all records upon
receipt of payment from the Complainant with the exception of the special meeting
Executive Session meeting minutes which had not been approved by the Board at the
time of the Complainants OPRA request and are therefore exempt from disclosure under
OPRA as ACD. The Complainant, therefore, is not entitled to prevailing party attorneys
fees. See Teeters v. DYFS, 387 N.J. Super. 423 (App. Div. 2006) and NJ Builders
Association v. NJ Council on Affordable Housing, 390 N.J. Super. 166, 175 (App. Div.
2007).
Conclusions and Recommendations
The Executive Director respectfully recommends the Council find that:
1.
2.
Although the Complainant asserts that he tendered payment for the requested
records on September 7, 2007, the Custodian submitted a receipt for payment
of $5.25 dated October 11, 2007. The parties agree that certain requested
records were disclosed on October 11, 2007. Therefore, there was no delay in
the release of records to the Complainant because the requested records were
sent upon receipt of payment from the Complainant.
3.
The GRC has no authority over the legibility of records produced pursuant to
Toscano v. NJ Dept of Labor, GRC Complaint No. 2005-59 (September
2005).
4.
Because the special meeting Executive Session minutes were not yet approved
by the Board at the time of the Complainants OPRA request, these minutes
are exempt from disclosure under OPRA as ACD material pursuant to ParaveFogg v. Lower Alloways Creek Township, GRC Complaint No. 2006-51
John Paff v. Willingboro Board of Education (Burlington), 2007-272 Findings and Recommendations of the Executive
12
Director
(August 2006) and N.J.S.A. 47:1A-1.1. The Custodian has borne his burden
of proof that the denial of access to the Special meeting Executive Session
minutes was lawful under N.J.S.A. 47:1A-6.
5.
Additionally, OShea v. Kearny Board of Education, Docket No. HUD-L-85607 is a disclosure order from the Law Division of the Superior Court of New
Jersey. A disclosure order at the trial level is only binding on the parties in
that particular case and is not a general ruling on the disclosure of meeting
minutes. Therefore, the order of disclosure in OShea v. Kearny Board of
Education, Docket No. HUD-L-856-07 is not binding in the matter now
before the Council.
6.
7.
Prepared By:
Frank F. Caruso
Case Manager
Approved By:
Catherine Starghill, Esq.
Executive Director
May 21, 2008
John Paff v. Willingboro Board of Education (Burlington), 2007-272 Findings and Recommendations of the Executive
Director
13
EXHIBIT 2
Exhibit 2
Tucker Kelley,
Plaintiff,
v.
FILED
CIVIL ACTION
APR 1 1 2014
THOMAS L. INEISVIRCA 461.8.C.
Men CtiAiS
liORRISCOIMITYCOURMONE
Defendants. :
ORDER
THIS MATTER having been opened to. the Court by way of Verified Complaint and
Order to Show Cause filed by Walter M. Luers, Esq., counsel for plaintiff Tucker Kelley, with
opposition filed by Robert H. Oostdyk, Tr., Esq., counsel for defendants Borough of Riverdale
and Carol Talerico, and the Court having read and considered the pleadings filed and conducted
oral argument, and for the reasons set forth in the attached Statement of Reasons and for good
cause shown;
IT IS ON THIS /1 DAY OF APRIL 2014, ORDERED as follows:
1. Plaintiffs request for legal fees due to defendant's failure to accurately respond to
his OPRA request is granted in part; and
2. Plaintiff's counsel shall submit his certification of services within thirty (30) days
hereof, together with an appropriate form of Order.
and Ms. Forbes serve as the conduits through which all future communication between Mr.
Kelley and Ms. Latta travel. Ibid.
Ms. Talerico certified that
I was concerned about how to respond to his second request
because the response, together with the e-mail he sent to Ms. Latta
the same day which he copied to me, seemed to evidence some
hostility involving the Court. I requested the advice of the Borough
Attorney who drafted a written response to me and gave me
permission to forward his response to the requester in the hope that
it would help him understand why I could not assist him.
Id. at 12. On January 13, 2014, Ms. Talerico forwarded to Mr. Kelley the Borough Attorney's
email explaining that Ms. Talerico is not the records custodian for records maintained by the
municipal court and that those records are not subject to OPRA. Id. at Exh. D.
On January 14, 2014, Kelley emailed three (3) OPRA requests in which he asked for
copies of (1) emails between Talerico and Riverdale Court Administrator Kathy Latta
referencing Philip Tobaygo and Kelley from January 9, 2014 to January 14, 2014; (2) emails
exchanged by Riverdale Deputy Clerk Forbes and Kathy Latta referencing Mr. Tobaygo and
Kelley from January 9, 2014 to January 14, 2014; and (3) emails between Talerico and Ms.
Forbes referencing Mr. Tobaygo and Kelley from January 9, 2014 to January 14, 2014. Id. at 8. 1
By email dated January 15, 2014, Ms. Talerico informed Mr. Kelley that he requested
"court records that I cannot and do not have authorization to send to you." Certification of Carol
J. Talerico, at Exh. E.
Kelley claims he requested reconsideration of that determination on January 28, 2014,
which defendants deny receiving. Verified Complaint 10.
On March 4, 2014, plaintiff filed a Verified Complaint and Order to Show Cause
alleging violations of the Open Public Records Act, N.J.S.A. 47:1A1, et seq. ("OPRA") seeking
an Order (1) requiring defendants to provide copies of emails between: (a) Talerico and Ms.
Latta referencing Mr. Toabygo and Kelley from January 9, 2014 to January 14, 2014; (b) emails
between Riverdale Deputy Clerk Forbes and Kathy Latta referencing Mr. Tobaygo and Kelley
from January 9, 2014 to January 14, 2014; and, (c) emails between Talerico and Ms. Forbes
referencing Mr. Tobaygo and Kelley from January 9, 2014 to January 14, 2014 (2) awarding
In their Answer dated March 14, 2014, defendants deny the allegations in plaintfrs Complaint at 8, arguing
instead that there were four total emails and that they were sent on January 15, 2014.
plaintiff cost and reasonable attorneys' fees; and (3) such other relief as the Court deems
appropriate and just.
On March 18, 2014, defendants filed opposition. Defendants reply by arguing that the
records requested do not, in fact, exist. Defendants' Brief at pg. 1. Defendants assert that, "as
there are no documents to be 'disclosed,' this matter should be dismissed." Id. Moreover,
defendants submit that the Court's review of defendants' denial of plaintiff's OPRA request
requires context, to wit, that the emails exchanged between Ms. Talerico and Mr. Kelley on
January 9, 2014 and January 13, 2014 made Ms. Talerico wary to involve herself in. Mr. Kelley's
alleged dispute with Ms. Latta. Defendants explain that Talerico . viewed Kelley's emails as "yet
another attempt by Mr. Kelley to have her [Talerico] get involved in the Municipal Court matter.
She was very focused on avoiding involvement in something in which she clearly now
understood was not within her jurisdiction. " Df. Br. at pg. 2. Defendants submit that Talerico
was so focused on not over-stepping her bounds that she neglected to even search for the
requested emails, which do not exist. Id.; Talerico Cert. 3, 5, 6, 14. Defendants claim that
"[Il]ad she focused on this aspect of the requests, she would have told him that no such e-mails
exist." Df. Br. 2. Ultimately, defendants submit that "[t]here are no emails concerning his
[Kelley's] matter between the Clerk, her deputy, and the Court Administrator between January 9
and January 14, 2014, [and thus] the Order to Show Cause in this matter should be denied and
the accompanying complaint dismissed." Id. at pg. 2.
By letter dated March 21, 2013, plaintiff filed a reply brief.
The Court heard oral argument on April 2, 2014.
II.
STANDARD OF REVIEW
N. J. S A. 47:1A-1, "Legislative findings, declarations," reads:
The Legislature finds and declares it to be the public policy of this
State that:
government records shall be readily accessible for inspection,
copying, or examination by the citizens of this State, with certain
exceptions, for the protection of the public interest, and any
limitations on the right of access accorded by P.L.1963, c.73
(C.47:1A-1 et seq.) as amended and supplemented, shall be
construed in favor of the public's . right of access;
all government records shall be subject to public access unless
exempt from such access by: P.L.1963, c.73 (C.47:1A-1 et seq.) as
3
to be inspected examined, and copied by any person during regular business hours." N.J.S.A.
47:1A-5(a). Subsection (b) addresses the fees prescribed for copying government records.
Subsection (f) states
Mlle custodian of a public agency shall adopt a form for the use of
any person who requests access to a government record held or
controlled by the public agency. The form shall provide space for
the name, address, and phone number of the requestor and a brief
description of the government record sought. The form shall
include space for the custodian to indicate which record will be
made available, when the record will be available, and the fees to
be charged.
In pertinent part, subsection (g) reads: "UN the custodian is unable to comply with a request for
access, the custodian shall indicate the specific basis therefor on the request form and promptly
return it to the requestor. The custodian shall sign and date the form and provide the requestor
with a copy thereof."
OPRA directs that "government records shall be readily accessible for inspection,
copying, or examination by the citizens of this State, with certain exceptions, for the, protection
of the public interest, and any limitations on the right of access accorded by [OPRA] as amended
and supplemented, shall be construed in favor of the public's right of access." N.J.S.A. 47:1 A-1.
"The purpose behind the Legislature's enactment of OPRA was to maximize public knowledge
about public affairs in order to ensure an informed citizenry and to minimize the evils inherent in
a secluded process.'" Kovalcik v. Somerset County Prosecutor's Office, 206 N.J. 581, 588
(2011)(quoting Mason v. City of Hoboken, 196 N.J. 51, 64 (2008)).
In a proceeding to challenge the denial of an OPRA request, the applicant may appeal
the decision by filing an action with the Superior Court or filing a complaint with the
Government Records Council ("GRC"). N.J.S.A. 47:1A-6. The custodian of the records has the
burden of proof to show that denial was "authorized by law." Id. A decision of the [GRC] shall
not have value as a precedent for any case initiated in Superior Court pursuant to [N.J.S.A.
47:1A-6]. N.J.S.A. 47:1A-7. Should the applicant prevail in the Superior Court proceeding they
shall be entitled to a reasonable attorney's fee. Id.
OPRA defines a "government record" as
any 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 include inter-agency or intra-agency advisory, consultative, or
deliberative material.
,
[N.J.S.A. 47:1A-1.1.]
In other words, in order for a document to qualify as a government record, the applicant
must demonstrate, on a threshold basis, that the public employee or entity made, maintained,
kept, or received the requested document in the course of his or its official business. If not, the
Court will affirm the denial of the request.
Furthermore, while "government records" under OPRA are broadly defined and made
publicly accessible, Kovalcik, supra, 206 N.J. at 588, 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). To that. extent,
OPRA exempts from disclosure several categories of documents and information. See, e.g.,
N.J.S.A. 47:1A-1.1 (excluding certain categories of documents and information from disclosure;
N.J.S.A. 47:IA-1.2 (limiting access to biotechnology trade secrets); N.J.S.A. 47:1A-3(a)
(limiting access to records of ongoing investigations); N.J.S.A. 47:IA-10 (limiting access to
personnel records).
III.
DISCUSSION
Plaintiff claims that the emails he requested are subject to OPRA because "emails sent or
received by municipal officials regarding public business are public records." Plaintiff's Brief at
pgs. 3-4. Plaintiff argues that his OPRA requests were valid because he mentioned a sender,
recipient, date range, and subject matter. Id.
When arguing that the documents should be disclosed pursuant to the common law right
of access, plaintiff argues that defendants failed to articulate any interest in non-disclosure,
whereas plaintiff's "interest in disclosure is better understanding what happened to his municipal
court complaint when it was dismissed on what was supposed to be a first appearance in
Riverdale Municipal Court." P1. Br. 6.
Finally, plaintiff argues that, should the Court order defendants' production of the
documents, plaintiff is entitled to reasonable attorneys' fees and costs pursuant to N.J.S.A.
47:1A-6 and Mason v. Hoboken, 196 N.J. 51, 79 (2008). Pl. Br. at 6.
In reply, plaintiff reargues that emails between government employees are government
records, as contemplated by OPRA. Plaintiff's Reply Brief at pgs. 1-2. While plaintiff does not
dispute that the emails do not exist, he submits that defendants negligently failed to read
plaintiff's OPRA requests carefully, and, "when given an opportunity to reconsider their
decision, they ignored Plaintiff." Id. at pg. 2. Plaintiff asserts that defendants' response to
plaintiff's OPRA request was not authorized by OPRA and that, had Talerico responded properly
by stating that no such records exist, this "matter would not be before the Court." Ibid.
Finally, plaintiff argues that "with respect to fee-shifting, the Court should find that the
Plaintiff has prevailed because we have achieved a change in defendants' position." Id, at pg. 4.
Furthermore, plaintiff submits that "the burden of paying for fees should be on the Defendants,
because their initial response was not proper .., and a proper initial response would have
obviated the need for this lawsuit." Ibid.
IV.
ANALYSIS
The parties agree that the records requested do not exist. Accordingly, the Court need not
determine whether their disclosure must be compelled.
While plaintiff fails to cite any authority to support its argument that OPRA requires an
award of fees and costs in favor of a plaintiff where it is discovered that, after a negligently
misstated response that the custodian lacked access to such records, the requested documents
were determined never to exist, the Court concludes that plaintiff is entitled to some recovery,
because he is a prevailing party given that his litigation was "the catalyst" for the relief
ultimately achieved, to wit, an accurate response from the records custodian. See Mason v. City
of Hoboken, 196 N.J. 51, 76 (2008).
Here, plaintiff achieved prevailing party status when the Borough ultimately responded in
a substantive manner that the municipal records did not exist. First, plaintiff filed an OPRA
request for records not exempt from disclosure. Second, defendants technically violated OPRA
by providing, albeit negligently, an incorrect response, thereby requiring plaintiff to file his
complaint. Had defendants initially advised Mr. Kelley that no such responsive emails exist, then
presumably Mr. Kelley would not have initiated suit. Instead, defendants negligently stated that
the requested records were not in the custodian's possession or control. In determining the
amount of reasonable attorney's fees to which plaintiff is entitled, the Court is required to
conduct a "qualitative analysis that weighs such factors as the number of documents received
versus the number of documents requested, and whether the purpose of the OPRA was
vindicated by the litigation." NJDPM, supra, 185 N.J. at 155. Plaintiff ultimately received an
accurate response to the OPRA request that was the subject matter of the litigation. While
defendants were negligent in their pre-litigation OPRA response, it is noteworthy that the
Township's Answer and responding certifications immediately apprised plaintiff of the mar and
disclosed that no such records exist. At oral argument, plaintiffs counsel conceded that he did
not engage in any fee settlement negotiations prior to filing his reply papers or otherwise pursue
his claim for fees.
Accordingly, the Court declines to award attorney's fees associated with plaintiff's
efforts after receipt of defendant's pleadings, as it concludes that the purpose of OPRAto
provide New Jersey citizens with ready access to government recordsis not vindicated by that
aspect of the litigation. 2 Furthermore, the Court is satisfied that its partial award of fees and
costs does not defeat the underlying purpose for fee-shifting statutes such as OPRA, which is "to
ensure 'that plaintiffs with bona fide claims are able to find lawyers to represent them[,] . . . to
attract competent counsel in cases involving statutory rights . . . and to ensure justice for all
citizens.'" NJDPM, supra, 185 N.J. at 153 (citing Coleman v. Fiore Bros., 113 N.J. 594, 598
(1989)). To this extent, the Court finds that it would be inequitable to grant fees beyond those
2
See, e.g., Burnett v. County of Bergen, 198 N.J. 408, 421-30 (2009).
awarded, as such fees would effectively penalize the Borough for its forthrightness in
immediately revealing its error. Accordingly, plaintiff is entitled to attorney's fees and costs up
through his counsel's review of defendants' answering pleadings, as well as attorney's fees and
costs associated with the preparation of plaintiff's fee certification. Plaintiff's counsel shall
submit his certification of services within thirty (30) days hereof, together with an appropriate
form of Order.
V.
CONCLUSION
For the aforementioned reasons, the Court grants in part plaintiff's request for an award
of fees and costs.
EXHIBIT 3
Exhibit 3
PASHMAN STEIN
A Professional Corporation
Court Plaza South
21 Main Street, Suite 200
Hackensack, NJ 07601
(201) 488-8200
CJ GRIFFIN, ESQ. (#031422009)
Attorneys for Plaintiff,
John Paff
: SUPERIOR COURT OF NEW JERSEY
: LAW DIVISION: OCEAN COUNTY
JOHN PAFF
Plaintiff,
Civil Action
Defendants.
THIS MATTER having been opened to the Court by Pashman Stein, A Professional
Corporation, attorneys for the Plaintiff, John Paff, for an Order granting Plaintiff's application
for attorney's fees pursuant to N.J.S.A. 47:1A-6, and the Court having considered the arguments
set forth in the briefs, and for good cause shown;
d -tt
IT IS on this d -I day of ITA.t
, 2015,
ORDERED that Defendants Township of Stafford and Bernadettte Park, in her capacity as
City Clerk and Records Custodian for the Township of Stafford, shall pay Pashman Stein a sum of
$
/11
days from
ORDERED that a copy of this Order shall be served upon all parties within 7
ur
days of
Motion #87
Relief Sought:
Yes
Opponent:
Defendants
Opposition Counsel:
Oral Argument:
Yes
BACKGROUND
This motion arises out of a claim for attorney's fees and costs regarding this
litigation as Plaintiff, John Paff (hereinafter "Plaintiff'), states this litigation was
filed solely because the Township of Stafford and Bernadette Park (hereinafter
collectively referred to as "Defendants") refused to respond to Plaintiff's requests
that Defendants clarify whether or not records existed in which Officer Neil
McKenna (hereinafter "Officer McKenna") admitted to committing unlawful acts.
This matter originally came before the Court as an order to show cause filed by
Plaintiff seeking the Court to find Defendants violated the Open Public Records
Act (hereinafter "OPRA"), N.JS.A. 47:1A-1 to 13 by unlawfully denying
Plaintiff access to requested documents. Plaintiff ultimately requested the Court to
compel the Defendant Township to produce a privilege log in which each
responsive record is identified as well as the lawful basis for denying access to
each record. It was Plaintiff's position that the Defendant's refusal to take such
1
ANALYSIS
POINT ONE
PLAINTIFF'S MOTION FOR ATTORNEY'S
FEES AND COSTS IS GRANTED.
Pursuant to N.J.S.A. 47:1A-6, OPRA provides that "a requester who prevails
in any proceeding shall be entitled to a reasonable attorney's fee." Plaintiff argues
the prevailing plaintiff is entitled to a fee award whether or not a defendant was at
fault as "the ordinary citizen would be waging a quixotic battle against a public
entity vested with almost inexhaustible resources." New Jerseyans for a Death
Penalty Moratorium v. New Jersey Dep't of Corrections,185 N.J. 137, 153 (2005).
Plaintiff relies on Mason v. Hoboken, 196 N.J. 51, 76 (2008) in arguing he is
entitled to attorney's fees where the court held:
[R]equestors are entitled to attorney's fees under
OPRA ... when they can demonstrate: 1) a factual
causal nexus between plaintiffs litigation and the
relief ultimately achieved; and 2) that the relief
ultimately secured by plaintiffs had a basis in law.
(citing Singer v. State, 95 N.J. 487, 494 (1984)).
Plaintiff also cites to Teeters v. Div. of Youth & Family Sews., 387 N.J.
Super. 423, 432 (App. Div. 2006) where the court stated that "[a] plaintiff is a
`prevailing party' if he or she achieves the desired result because the complaint
brought about change (voluntary or otherwise) in the custodian's conduct."
Plaintiff initiated this matter by way of the filing of a Complaint as
Defendants had refused to respond to Plaintiffs requests to identify whether
records exist pertaining to Officer McKenna admitting to committing unlawful
acts. Plaintiff argues Defendants' continued blanket denials to Plaintiffs request
3
CONCLUSION
For the foregoing reasons, Plaintiff's motion for attorney's fees and costs is
GRANTED.
bcN.-L-_-85P--15-
New Jersey Foundation for Open Government, Inc. v. Long Beach Island
Board of Education, et al.
For each nonpublic meeting for which minutes are responsive to #2 above,
the resolution, passed in accordance with N.J.S.A. 10:4-13, that authorized
the nonpublic meeting.
To the extent that they are not duplicative of the records responsive to #3
above, all resolutions that, in accordance with N.J.S.A. 10:4-13, authorized
all Board of Education nonpublic meetings held on or after April 1, 2015.
Custodian's January 15, 2016 letter (Exhibit 2), however, does not reference or
address either of these paragraphs and it is unclear whether the any of the documents
that the Board did disclose are intended to be responsive to these paragraphs of
Plaintiff's request.
Records custodians are required to respond to each paragraph of a multiparagraph request. In Paff v. Willingboro Board of Education (Burlington), GRC
Complaint No. 2007-272 (May 2008)1, the Government Records Council held:
The Complainants Counsel asserts that the Custodian violated OPRA by
failing to respond to each of the Complainants request items individually
within seven (7) business days. OPRA specific states that a custodian
shall promptly comply with a request [for] a government record.
(Emphasis added.) N.J.S.A. 47:1A-5.g. Additionally, in OShea v.
Township of West Milford, GRC Complaint No. 2004-17 (April 2005), the
GRC held that the Custodians initial response that the Complainants
request was a duplicate of a previous request to the Complainants June
22, 2007 request was legally insufficient because the Custodian has a duty
to answer each request individually. Based on OPRA and the GRCs
holding in OShea, a custodian is vested with the responsibility to respond
to each individual request item within seven (7) business days after
receipt of such request.
Although the Custodian responded in writing to the Complainants
August 28, 2007 OPRA request within the statutorily mandated time
See Exhibit 1 to Plaintiff's counsel's certification. This holding in Willingboro has been relied
upon as recently as in the September 29, 2015 Findings and Recommendations of the Executive Director
in Robert C. Scutro v. City of Linden, GRC Complaint No. 2014-254.
1
provide neither the Court nor Plaintiff with the ability to determine whether the many
redactions that Custodian applied to Exhibits 4 - 30 are justified.
Further, in 28 of the Verified Complaint, Plaintiff identifies six of the many
instances where suspicion of improper redaction is justified:
a.
If one compares the first page of the May 5, 2015 nonpublic meeting
minutes (Exhibit 8) to the fourth page of the on-line May 5, 2015
public meeting minutes (Exhibit 32), one can see that short sentence
that is redacted in 1.b of the nonpublic minutes is probably
nothing more than a statement regarding the Board's decision, as
reported in the public meeting minutes, to abolish "the current
secretarial salary guide effective July 1, 2015." The redacted matter
If one compares the first page of the May 5, 2015 nonpublic meeting
minutes (Exhibit 8) to the fourth page of the on-line May 5, 2015
public meeting minutes (Exhibit 32), one can see that about an
eighth inch of text is redacted in 1.d of the nonpublic minutes.
This is likely the initials of Tracy Sherrier, the teacher who is
reported in public meeting minutes as having requested a leave of
absence. Even if the redaction is not Ms. Sherrier's initials, it does
not appear to be anything for which redaction would be justified.
c.
If one compares the first page of the July 14, 2015 nonpublic
meeting minutes (Exhibit 18) to the fourth page of the on-line July
14, 2015 public meeting minutes (Exhibit 33), one can see that a
short sentence that is redacted in 1.d of the nonpublic minutes is
probably nothing more than a statement regarding the Board's
decision, as reported in the public meeting minutes, to provide
stipends to Julie Oldham and Shelly Smith. The redacted matter is
not specifically mentioned in the Privilege Log.
d.
If one compares the first page of the July 14, 2015 nonpublic
meeting minutes (Exhibit 18) to the fourth page of the on-line July
14, 2015 public meeting minutes (Exhibit 33), one can see that about
an eighth inch of text is redacted in 1.e of the nonpublic minutes.
This is likely the initials of Francis Lawler, the teacher who is
reported in public meeting minutes as having requested a leave of
absence. Even if the redaction is not Ms. Lawler's initials, it does
not appear to be anything for which redaction would be justified.
e.
If one compares the first page of the October 20, 2015 nonpublic
meeting minutes (Exhibit 27) to the fourth page of the on-line
October 20, 2015 public meeting minutes (Exhibit 35), one can see
that about an inch of text is redacted in 1.b of the nonpublic
minutes. This is likely the name of Patricia Gerety, the teacher who
is reported in public meeting minutes as having requested a leave
of absence. Even if the redaction is not Ms. Gerety's name, it does
not appear to be anything for which redaction would be justified.
The best way to ensure that Custodian's redactions are truly justified is to initiate
the "two-step process" recommended by the New Jersey Supreme Court in Loigman v.
Kimmelman, 102 N.J. 98, 109 (1986).
That process is to first require Custodian to prepare a better and more useful
privilege log, or Vaughn Index2, and both file it with the Court and serve it upon the
Plaintiff. Then, if necessary, the Court should conduct an in camera review of the
contested minutes but only if the first step of the process, i.e. production of a detailed
privilege log, has failed to resolved the matter.
An "in camera examination is not a substitute for the government's obligation to
provide detailed public indexes and justifications whenever possible." Lykins v. United
States Dep't of Justice, 725 F.2d 1455, 1463 (D.C.Cir.1984). Requiring the privilege log to
precede an in camera inspection will not only save the Court time and resources, but it
vs.
LONG BEACH ISLAND BOARD
OF EDUCATION and LONG BEACH
ISLAND CONSOLIDATED SCHOOL
DISTRICT RECORDS CUSTODIAN
Defendants
:
:
:
:
:
:
:
:
:
:
:
:
:
:
DOCKET NO.
Civil Action
THIS MATTER being brought before the Court by Anthony H. Ogozalek, Jr. of
Beckman Ogozalek Londar, Attorney for Plaintiff, seeking relief by way of summary action
pursuant to R.4:67-1(a), based on the facts set forth in the Verified Complaint and supporting
papers filed herewith; and the Court having determined that this matter may be commenced
by order to show cause as a summary proceeding pursuant to N.J.S.A. 47:1A-6 and for good
cause shown,
request;
c.
to Plaintiff's request, the minutes from the nonpublic meetings held on April 27, April
30, May 11, May 18, May 27, June 9, August 18, August 31, 2015, September 1, and
September 10, 2015;
d.
nonpublic meetings held on April 27, April 30, May 11, May 18, May 27, June 9,
August 18, August 31, September 1, and September 10, 2015;
e.
May 27, 2015 and August 31, 2015 meeting minutes that he disclosed to Plaintiff;
Page 2
f.
Ordering Custodian to provide both the Court and Plaintiff with a better,
more descriptive privilege log for Exhibits 4 - 30 that gives as much information as
possible about each redacted item provided;
g.
pay Plaintiff its costs and reasonable attorney fees in accordance with N.J.S.A. 47:1A-6.
And it is further ORDERED that:
1.
A copy of this order to show cause, verified complaint and all supporting
Plaintiffs must file with the Court their proofs of service of the pleadings on the
Defendant no later than three (3) days before the return date.
3.
Defendants shall file and serve a written answer and opposition papers to this
order to show cause and the relief requested in the verified complaint and proof of service of
the same by ___________________________, 2016. The answer and opposition papers must be
Page 3
filed with the Clerk of the Superior Court in the county listed above and a copy of the papers
must be sent directly to the chambers of the Honorable Judge listed above.
4.
Plaintiffs must file and serve any written reply to the Defendants order to show
cause opposition by _________________________, 2016. The reply papers must be filed with
the Clerk of the Superior Court in the county listed above and a copy of the reply papers
must be sent directly to the chambers of the Honorable Judge listed above.
5.
If the Defendant does not file and serve opposition to this order to show cause,
the application will be decided on the papers on the return date and relief may be granted by
default, provided that the Plaintiff files a proof of service and a proposed form of order at
least three days prior to the return date.
6.
If the Plaintiff has not already done so, a proposed form of order addressing the
relief sought on the return date (along with a self-addressed return envelope with return
address and postage) must be submitted to the Court no later than three (3) days before the
return date.
7.
Defendant take notice that the Plaintiff has filed a lawsuit against you in the
Superior Court of New Jersey. The verified complaint attached to this order to show cause
states the basis of the lawsuit. If you dispute this complaint, you, or you attorney, must file a
written answer and opposition papers and proof of service before the return date of the order
to show cause. These documents must be filed with the Clerk of the Superior Court in the
county listed above. A list of these offices is provided. Include a $175 filing fee payable to the
Treasurer State of New Jersey. You must also send a copy of your answer and opposition
Page 4
papers to the Plaintiffs attorney whose name and address appear above, or to the Plaintiff, if
no attorney is named above. A telephone call will not protect your rights; you must file and
serve your answer and opposition papers (with the fee) or judgment may be entered against
you by default.
8.
If you cannot afford an attorney, you may call the Legal Services office in the
county in which you live. If you do not have an attorney and are not eligible for free legal
assistance you may obtain a referral to an attorney by calling one of the Lawyer Referral
Services. Legal Services and Lawyer Referral Services may be reached, respectively, at 732240-3666 and 732-341-2727.
9.
The Court will entertain argument, but not testimony, on the return date of the
order to show cause, unless the Court and parties are advised to the contrary no later than
_______ days before the return date.
________________________________
Marlene Lynch Ford, A.J.S.C.
Page 5
vs.
LONG BEACH ISLAND BOARD
OF EDUCATION and LONG BEACH
ISLAND CONSOLIDATED SCHOOL
DISTRICT RECORDS CUSTODIAN
Defendants
:
:
:
:
:
:
:
:
:
:
:
:
:
:
DOCKET NO.
Civil Action
ORDER
THIS MATTER being brought before the Court pursuant to R.4:67-1(a) by Anthony H.
Ogozalek, Jr. of Beckman Ogozalek Londar by Verified Complaint and Order to Show Cause for
certain relief under the Open Public Records Act and the Court having considered the papers
submitted by the parties and having heard oral argument on ____________________, 2016 and for
good cause shown,
IT IS on this __________ day of ________________, 2016
1.
DECLARED that the Long Beach Island Consolidated School District Records
2.
Plaintiff's request;
3.
request, the minutes from the nonpublic meetings held on April 27, April 30, May 11, May 18, May
27, June 9, August 18, August 31, September 1, and September 10, 2015;
4.
ORDERED that Custodian shall, within 10 days, provide Plaintiff with the minutes from
the nonpublic meetings held on April 27, April 30, May 11, May 18, May 27, June 9, August 18,
August 31, September 1, and September 10, 2015;
5.
DECLARED that Custodian violated OPRA by redacting the versions of the May 27,
2015 and August 31, 2015 meeting minutes that he disclosed to Plaintiff;
6.
ORDERED that Custodian shall, within ____ days, provide both the Court and Plaintiff
with a better, more descriptive privilege log for Exhibits 4 - 30 that gives as much information as
possible about each redacted item provided;
7.
ORDERED that Custodian shall, within ____ days, file solely with the Court unredacted
DECLARED Plaintiff is be the prevailing party who is entitled to costs and a reasonable
________________________________
Marlene Lynch Ford, A.J.S.C.
Opposed
_____
Unopposed _____
Page 2