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BECKMAN OGOZALEK LONDAR

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

February 27, 2016


Deputy Clerk of the Superior Court
Superior Court of New Jersey - Law Division
118 Washington Street, Room 121
PO Box 2191
Toms River, NJ 08754
RE:

New Jersey Foundation for Open Government, Inc. v. Long Beach Island Board
of Education, et al.

Dear Sir or Madam:


On behalf of the Plaintiff, I enclose the original and one copy of our Verified
Complaint and Case Information Statement, Letter Brief, two copies of our proposed
Order, two copies of our proposed Order to Show Cause. Please charge our Superior
Court Account No. 142812 with any fee associated with this filing.
Kindly file these documents and return to us one copy of the Verified Complaint,
Track Assignment Notice and CIS in the enclosed self-addressed, stamped envelope.
Two additional self-addressed envelopes are enclosed. One is for the return of the
Order to Show Cause, and the other is for the return of the Order.
We request that this matter be assigned to the Honorable Marlene Lynch Ford,
A.J.S.C., who is the Vicinage's designated OPRA judge, as this matter arises under the
Open Public Records Act.
Please contact us if we may be of any assistance. Thank you.
Respectfully,
Anthony H. Ogozalek, Jr.

Anthony H. Ogozalek, Jr.


Beckman Ogozalek Londar
1200 Laurel Oak Road, Suite 104
Voorhees Township, NJ 08034
Phone: (856) 545-4542
Fax: (856) 545-7230
E-mail: aogozalek@beckmanlawgroup.com
New Jersey Attorney ID No. 037022006
Attorney for Plaintiff

NEW JERSEY FOUNDATION FOR


OPEN GOVERNMENT, INC.
Plaintiff,

vs.
LONG BEACH ISLAND BOARD
OF EDUCATION and LONG BEACH
ISLAND CONSOLIDATED SCHOOL
DISTRICT RECORDS CUSTODIAN
Defendants

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SUPERIOR COURT OF NEW JERSEY


LAW DIVISION, CIVIL PART
OCEAN COUNTY

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

"requestor" within the meaning of N.J.S.A. 47:1A-6.


3.

Defendant Long Beach Island Board of Education (the Board) is a public

body as that term is defined by N.J.S.A. 10:4-8(a).


4.

Defendant Long Beach Island Consolidated School District Records Custodian

("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.

The Custodian's January 15, 2016 response to the Foundation's request

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

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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.

January 15, 2015 cover letter (Exhibit 2)


Privilege Log (Exhibit 3)
April 14, 2015 closed meeting minutes (Exhibit 4)
April 21, 2015 closed meeting minutes (Exhibit 5)
April 27, 2015 closed meeting minutes (Exhibit 6)
April 30, 2015 closed meeting minutes (Exhibit 7)
May 5, 2015 closed meeting minutes (Exhibit 8)
May 11, 2015 closed meeting minutes (Exhibit 9)
May 18, 2015 closed meeting minutes (Exhibit 10)
May 19, 2015 closed meeting minutes (Exhibit 11)
May 26, 2015 closed meeting minutes (Exhibit 12)
May 27, 2015 closed meeting minutes (Exhibit 13)
June 2, 2015, 4:37 p.m. closed meeting minutes (Exhibit 14)
June 2, 2015, 5:30 p.m. closed meeting minutes (Exhibit 15)
June 9, 2015 closed meeting minutes (Exhibit 16)
June 16, 2015 closed meeting minutes (Exhibit 17)
July 14, 2015 closed meeting minutes (Exhibit 18)
August 4, 2015 closed meeting minutes (Exhibit 19)
August 18, 2015, 4:48 p.m. closed meeting minutes (Exhibit 20)
August 18, 2015, 6:00 p.m. closed meeting minutes (Exhibit 21)
August 31, 2015 closed meeting minutes (Exhibit 22)
September 1, 2015, 5:07 p.m. closed meeting minutes (Exhibit 23)
September 1, 2015, 6:57 p.m. closed meeting minutes (Exhibit 24)
September 10, 2015 closed meeting minutes (Exhibit 25)
September 22, 2015 closed meeting minutes (Exhibit 26)
October 20, 2015 closed meeting minutes (Exhibit 27)
Two different versions of November 10, 2015 closed meeting minutes
(Exhibit 28)
November 17, 2015 closed meeting minutes (Exhibit 29)
December 2, 2015 closed meeting minutes (Exhibit 30)

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.

Nothing in Custodian's January 15, 2016 letter references either 3 or 4 of

Plaintiff's request.
10.

None of the documents Custodian sent along with his January 15, 2016 letter

are responsive to either 3 or 4 of Plaintiff's request.


11.

Custodian violated OPRA by failing or refusing to respond to 3 and 4 of

Plaintiff's request.
WHEREFORE, Plaintiff demands judgment:
A.

Declaring that Custodian, by failing or refusing to respond to 3 and 4 of

Plaintiff's request, violated OPRA.


B.

Ordering Custodian to properly respond to 3 and 4 of Plaintiff's request.

C.

Declaring Plaintiff the prevailing party and awarding it costs and a reasonable

attorney fee.
D.

Such other relief as the Court deems equitable and just.


SECOND COUNT
(Violation of OPRA for failing to provide certain responsive meeting minutes)

12.

Plaintiff repeats and incorporates all preceding paragraphs as if fully set forth

herein.

Page 4

13.

Attached as Exhibit 31 are the versions of the minutes of "Special Meetings"

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.

April 27, 2015 (6)


April 30, 2015 (7)
May 11, 2015 (9)
May 18, 2015 (10)
May 27, 2015 (13)
June 9, 2015 (16)
August 18, 2015 (21)
August 31, 2015 (22)
September 1, 2015 (23)
September 10, 2015 (25)
November 10, 2015 (28)

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

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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

from the nonpublic meetings set forth in 16 above.


F.

Ordering the Custodian to disclose to Plaintiff the nonpublic meeting minutes

set forth in 16 above;


G.

Declaring Plaintiff the prevailing party and awarding it costs and a reasonable

attorney fee.
H.

Such other relief as the Court deems equitable and just.

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.

Such other relief as the Court deems equitable and just.


FOURTH COUNT
(Violation of OPMA for a lack of detail in minutes)

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:

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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.

Awarding Plaintiff its costs.

P.

Such other relief as the Court deems equitable and just.


FIFTH COUNT
(Improper redactions violate OPRA)

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

Mayors" was justified by the "Interagency or intra-agency advisory, consultative or


deliberative privilege," by the "any record within the attorney-client privilege" and because
"information which, if disclosed" would give an advantage to competitors or bidders."

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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

Bidders" was justified by the "Interagency or intra-agency advisory, consultative or


deliberative privilege," by the "any record within the attorney-client privilege" and because
"information which, if disclosed" would give an advantage to competitors or bidders."
26.

None of the claimed exemptions justify Custodian's redaction of either

"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.

Such other relief as the Court deems equitable and just.


SIXTH COUNT
(Overbroad redactions violate OPRA)

27.

Plaintiff repeats and incorporates all preceding paragraphs as if fully set forth

herein.

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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

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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.

Ordering Custodian to file solely with the Court unredacted versions of

Exhibits 4 - 30 for the Court's in camera review;


V.

Ordering the Custodian, consistent with the Court's in camera review, to

disclose to Plaintiff unredacted or more narrowly redacted versions of Exhibits 4 - 30;


W.

Declaring Plaintiff the prevailing party and awarding it costs and a reasonable

attorney fee;

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X.

Such other relief as the Court deems equitable and just.


SEVENTH COUNT
(Meeting minutes are not "reasonably comprehensible")

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:

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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

they meet or exceed a comprehensibility standard developed by the Court;


AA.

Awarding Plaintiff its costs.

BB.

Such other relief as the Court deems equitable and just.


EIGHTH COUNT
(Disallowed topics discussed during nonpublic sessions)

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

any of the N.J.S.A. 10:4-12(b) exceptions are discussed in nonpublic session.


34.

Among those examples are:


a.

Change of Swim Program on April 14, 2015;

b.

Summer work and scheduling of superintendent interviews on April 21,

c.

The sixth grade beach party on May 5, 2015;

d.

Discussion of the rocket composter on May 19, 2015;

e.

Charging for OPRA requests and water testing costs on June 2, 2015;

2015;

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f.

Calendar and school climate survey on June 16, 2015;

g.

Paraprofessional salaries on July 14, 2015;

h.

Under utilization of Virtual Backpack and Summer Reading and extra

credit on August 4, 2015;


i.

Substitute rates and Self-evaluation reminder on August 18, 2015;

j.

Change of meeting location on September 1, 2015;

k.

Change of meeting location and bills list, Secretary and Treasurer report

on September 22, 2015;


l.

Architects and Meeting with Mayors on October 20, 2015;

m.

Education Foundation and Affordable Housing on November 17, 2015.

n.

Mayors' meeting scheduling on December 2, 2015.

WHEREFORE, Plaintiff demands judgment:


CC.

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.

Awarding Plaintiff its costs.

FF.

Such other relief as the Court deems equitable and just.


NINTH COUNT

Page 15

(No public comment periods during certain public meetings)


35.

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

period at every public meeting of the Board;


II.

Awarding Plaintiff its costs;

JJ.

Such other relief as the Court deems equitable and just.


TENTH COUNT
("Adequate notice" either not given or not properly recorded in minutes)

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);

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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.

Such other relief as the Court deems equitable and just.


ELEVENTH COUNT
(Noncompliance with N.J.S.A. 10:4-13)

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 . . .

and seconded . . . to enter into executive session."


WHEREFORE, Plaintiff demands judgment:
OO.

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;

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PP.

Enjoining the Board, going forward, from failing to pass an N.J.S.A. 10:4-13

compliant resolution prior to excluding the public from a meeting;


QQ.

Awarding Plaintiff its costs.

RR.

Such other relief as the Court deems equitable and just.


TWELFTH COUNT
(Common Law right of access)

44.

Plaintiff repeats and incorporates all preceding paragraphs as if fully set forth

herein.
45.

Plaintiff's interest in gaining access to a) the resolutions responsive to 3 and

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

the records and redacted matter identified by 45 above;


TT.

Ordering the Board to disclose to Plaintiff the records and redacted matter

identified by 45 above;
UU.

Awarding Plaintiff its costs and a reasonable attorney fee.

VV.

Such other relief as the Court deems equitable and just.

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Designation of Trial Counsel


Plaintiffs designate Anthony H. Ogozalek, Jr. as trial counsel
Certification Pursuant to R.1:38-7(b)
I certify that confidential personal identifiers have been redacted from documents now
submitted to the Court, and will be redacted from all documents submitted in the future
Certification Of No Other Actions
Pursuant to R.4:5-1, it is hereby stated that the matter in controversy is not the subject of
any other action pending in any other court or of a pending arbitration proceeding to the best of
my knowledge and belief. Also, to the best of my belief, no other action or arbitration
proceeding is contemplated. Further, other than the parties set forth in this pleading, I know of
no other parties that should be joined in the above action. In addition, I recognize the
continuing obligation of each party to file and serve on all parties and the Court an amended
certification if there is a change in the facts stated in this original certification.

Dated: February 25, 2016

Anthony H. Ogozalek, Jr.


Anthony H. Ogozalek, Jr.
Beckman, Ogozalek & Londar

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

Anthony H. Ogozalek, Jr.


Beckman Ogozalek Londar
1200 Laurel Oak Road, Suite 104
Voorhees Township, NJ 08034
Phone: (856) 545-4542
Fax: (856) 545-7230
E-mail: aogozalek@beckmanlawgroup.com
New Jersey Attorney ID No. 037022006
Attorney for Plaintiff

NEW JERSEY FOUNDATION FOR


OPEN GOVERNMENT, INC.
Plaintiff,

vs.
LONG BEACH ISLAND BOARD
OF EDUCATION and LONG BEACH
ISLAND CONSOLIDATED SCHOOL
DISTRICT RECORDS CUSTODIAN
Defendants

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SUPERIOR COURT OF NEW JERSEY


LAW DIVISION, CIVIL PART
OCEAN COUNTY

DOCKET NO.
Civil Action

ORDER TO SHOW CAUSE

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,

IT IS on this __________ day of ________________, 2016 ORDERED that the


Defendants Long Beach Island Board of Education and Long Beach Island Consolidated
School District Records Custodian appear and show cause on the _______ day of
_________________, 2016 before the Honorable Marlene Lynch Ford, A.J.S.C., Superior Court,
County of Ocean, Toms River, New Jersey at _____ oclock in the _______ noon or as soon
thereafter as Plaintiff can be heard, why judgment should not be entered:
a.

Declaring that the Long Beach Island Consolidated School District

Records Custodian ("Custodian"), by failing or refusing to respond to 3 and 4 of


Plaintiff's records request violated OPRA;
b.

Ordering Custodian to properly respond to 3 and 4 of Plaintiff's

request;
c.

Declaring that Custodian violated OPRA by not disclosing, in response

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.

Ordering the Custodian to disclose to Plaintiff 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;
e.

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;

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.

Ordering Custodian to file solely with the Court unredacted versions of

Exhibits 4 - 30 for the Court's in camera review.


h.

Ordering the Custodian, consistent with the Court's in camera review, to

disclose to Plaintiff unredacted or more narrowly redacted versions of Exhibits 4 - 30;


i.

Declaring Plaintiff to be the prevailing party and ordering Custodian to

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

affidavits or certifications submitted in support of this application be served upon the


Defendants personally or by certified mail, return receipt requested, within ______ days of
the date hereof, in accordance with R.4:4-3 and R.4:4-4, this being original process pursuant to
R.4:52-1(b).
2.

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

Anthony H. Ogozalek, Jr.


Beckman Ogozalek Londar
1200 Laurel Oak Road, Suite 104
Voorhees Township, NJ 08034
Phone: (856) 545-4542
Fax: (856) 545-7230
E-mail: aogozalek@beckmanlawgroup.com
New Jersey Attorney ID No. 037022006
Attorney for Plaintiff

NEW JERSEY FOUNDATION FOR


OPEN GOVERNMENT, INC.
Plaintiff,

vs.
LONG BEACH ISLAND BOARD
OF EDUCATION and LONG BEACH
ISLAND CONSOLIDATED SCHOOL
DISTRICT RECORDS CUSTODIAN
Defendants

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SUPERIOR COURT OF NEW JERSEY


LAW DIVISION, CIVIL PART
OCEAN COUNTY

DOCKET NO.
Civil Action

CERTIFICATION OF COUNSEL

Anthony H. Ogozalek, Jr., of full age, certifies that:


1.

I am the Plaintiff's attorney in this matter and submit this certification in

accordance with R.1:36-3.


2.

Attached as Exhibit 1 is a true copy of the Government Records Council's Final

Decision and Executive Director's Findings and Recommendations in Paff v. Willingboro


Board of Education (Burlington), GRC Complaint No. 2007-272 (May 2008)

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 know of no contrary unpublished opinions.

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.

Dated: February 28, 2016

Anthony H. Ogozalek, Jr.


Anthony H. Ogozalek, Jr.
Beckman Ogozalek Londar

Page 2

EXHIBIT 1

Exhibit 1

State of New Jersey


ROBIN BERG TABAKIN, Chair
COMMISSIONER JOSEPH V. DORIA, JR.
COMMISSIONER LUCILLE DAVY
DAVID FLEISHER
CATHERINE STARGHILL Esq., Executive Director

GOVERNMENT RECORDS COUNCIL


101 SOUTH BROAD STREET
PO BOX 819
TRENTON, NJ 08625-0819

Toll Free: 866-850-0511


Fax: 609-633-6337
E-mail: grc@dca.state.nj.us
Web Address:
www.nj.gov/grc

FINAL DECISION
May 28, 2008 Government Records Council Meeting
John Paff
Complainant
v.
Willingboro Board of Education (Burlington)
Custodian of Record

Complaint No. 2007-272

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.

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. 47:1A-5.g.

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

New Jersey Is An Equal Opportunity Employer

Printed on Recycled Paper and Recyclable

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.

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.

7.

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 advisory, consultative, or deliberative
material. 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).

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

Final Decision Rendered by the


Government Records Council
On The 28th Day of May, 2008

Robin Berg Tabakin, Chairman


Government Records Council
I attest the foregoing is a true and accurate record of the Government Records
Council.

David Fleisher, Secretary


Government Records Council
Decision Distribution Date: June 4, 2008

STATE OF NEW JERSEY


GOVERNMENT RECORDS COUNCIL
Findings and Recommendations of the Executive Director
May 28, 2008 Council Meeting
John Paff1
Complainant

GRC Complaint No. 2007-272

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

August 28, 2007


Complainants Open Public Records Act (OPRA) request. The Complainant
requests the records relevant to this complaint listed above on an official OPRA request
form.
September 7, 2007
The Custodians Response to the OPRA request. The Custodian responds in
writing via facsimile to the Complainants OPRA request on the seventh (7th) business
day following receipt of such request. The Custodian states that the following items are
available upon receipt of payment:

Special meeting notice for August 7, 2007.


Agenda for special meeting on August 7, 2007.
Resolution of the Willingboro Board of Education (WBOE) for Executive
Session.
Policy 9325.1 Re: Quorum.

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:

A Receipt of Payment Acknowledgement dated October 11, 2007.


A special meeting notice dated August 2, 2007.
An Affidavit of Service allegedly evidencing that the August 7, 2007 Board
meeting was advertised in the Burlington County Times. An illegible copy of the
notice placed in the newspaper is also provided.
A two (2) page Agenda of the Boards August 7, 2007 special meeting.
A two (2) page Resolution of the Willingboro Township Board of Education to
go into Executive Session.
A page from the Boards policy manual 9325.1 defining Quorum.
Fourteen (14) pages of minutes from the Boards special meeting of Tuesday,
August 7, 2007.

November 2, 2007
Denial of Access Complaint filed with the Government Records Council (GRC)
with the following attachments:

Melissa Hayes, [Willingboro] Mayor Meets with Board Members, Burlington


County Times, August 8, 2007.
Complainants OPRA request dated August 28, 2007.
Letter from the Custodian to the Complainant dated September 7, 2007.
Letter from the Complainant to the Custodian dated September 8, 2007.
A Receipt of Payment Acknowledgement dated October 11, 2007.
A special meeting notice dated August 2, 2007.
An Affidavit of Service allegedly evidencing that the August 7, 2007 Board
meeting was advertised in the Burlington County Times. An illegible copy of the
notice placed in the newspaper is also provided.
A two (2) page Agenda of the Boards August 7, 2007 special meeting.
A two (2) page Resolution of the Willingboro Township Board of Education to go
into Executive Session.
A page from the Boards policy manual 9325.1 defining Quorum.
Fourteen (14) pages of minutes from the Boards special meeting of Tuesday,
August 7, 2007.4

The Complainants Counsel states that the Complainant submitted an OPRA


request to the Custodian on August 28, 2007 following an article published in the
Burlington County Times about an August 7, 2007 closed meeting between WBOE and
4

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:

A Receipt Acknowledgement of payment dated October 11, 2007.


A special meeting notice dated August 2, 2007.
An Affidavit of Service allegedly evidencing that the August 7, 2007 Board
meeting was advertised in the Burlington County Times. An illegible copy of the
notice placed in the paper is also the newspaper is also provided.
A two (2) page Agenda of the Boards August 7, 2007 special meeting.
A two (2) page Resolution of the Willingboro Township Board of Education to go
into Executive Session.
A page from the Boards policy manual 9325.1 defining Quorum.
Fourteen (14) pages of minutes from the Boards special meeting of Tuesday,
August 7, 2007.
The Complainants Counsel asserts that the Custodian violated OPRA in three (3)

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:

Melissa Hayes, [Willingboro] Mayor Meets with Board Members, Burlington


County Times, August 8, 2007.
Complainants OPRA request dated August 28, 2007
Facsimile from the Custodian to the Complainant confirming receipt of the
Complainants OPRA request dated August 28, 2007.
Letter from the Custodian to the Complainant dated September 7, 2007.
Mail Receipt form dated September 7, 2007
A special meeting notice dated August 2, 2007.
An Affidavit of Service allegedly evidencing that the August 7, 2007 Board
meeting was advertised in the Burlington County Times. An illegible copy of the
notice placed in the newspaper is also provided.
A two (2) page Agenda of the Boards August 7, 2007 special meeting.
A two (2) page Resolution of the Willingboro Township Board of Education to go
into Executive Session.
A page from the Boards policy manual 9325.1 defining Quorum.
Fourteen (14) pages of minutes from the Boards special meeting of Tuesday,
August 7, 2007.

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?

Legal Authority for


Denial

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.

Special meeting agenda Not applicable.


for August 7, 2007 (2
pages).
Sent
September 7, 2007.

Item No. 4 Public meeting minutes Public


minutes
of Not applicable.
for special meeting.
special meeting for
August 7, 2007 (17
pages), sent September
7, 2007. It should be
noted
that
these
minutes
were
not
included
in
the
September 7, 2007
letter.

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

Item No. 5 Any list of attendees at Page 1 of Public Not applicable.


the special meeting.
Minutes of special
meeting for August 7,
2007 (1 page). Sent
September 7, 2007.
Item No. 6 Any audio or video No.
recording of the Special meeting.

No records responsive
exist.

Item No. 7 Any record evidencing


or memorializing that President
Owens created the committee
meeting Monday night to facilitate
the meeting with the Mayor.
Item No. 8 Any motion or
resolution passed at the July 23, 2007
meeting at which the Board voted
to meet in full with the Mayor

No.

No records responsive
exist.

Item No. 9 Any resolution passed,


in accordance with N.J.S.A. 10:4-13,
that authorized any closed or
executive meeting of the Board held
on August 7, 2007.

Resolution
of
the Not applicable.
WBOE
to
into
Executive Session (2
pages). Sent September
7, 2007.

Minutes of special Not applicable.


meeting for August 7,
2007 (1 page). Sent
September 7, 2007.

Item No. 10 Any minutes or notes Executive


Session
of any closed or executive meeting of minutes for special
the Board held on August 7, 2007.
meeting
will
be
provided on December
4, 2007 if the Board
approves the minutes.

Executive
Session
minutes will be provided
on December 4, 2007 if
the Board approves the
minutes.

Item No. 11 Any Board policy, Board


Policy
No. Not applicable.
bylaw or other authority which, 9325.1 (1 page). Sent
similar to Section 9325.1 of the West September 7, 2007.
Milford Township Boards policies,
defines a quorum of the WBOE.

March 10, 2008


E-mail from the GRC to the Complainants Counsel. The GRC states that it has
been unsuccessful in locating OShea v. Kearny Board of Education, Docket No. HUDL-856-07 and requests that the Complainants Counsel submit a copy to the GRC.
March 10, 2008
E-mail from the Complainants Counsel to the GRC attaching the Kearny Order.
John Paff v. Willingboro Board of Education (Burlington), 2007-272 Findings and Recommendations of the Executive
Director

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

[i]f the custodian of a government record asserts that part of a particular


record is exempt from public access pursuant to [OPRA] as amended and
supplemented, the custodian shall delete or excise from a copy of the
record that portion which the custodian asserts is exempt from access and
shall promptly permit access to the remainder of the record. N.J.S.A.
47:1A-5.g.
Further, OPRA holds that:
[t]he provisions of this act shall not abrogate or erode any executive
or legislative privilege or grant of confidentiality heretofore established or
recognized by the Constitution of this State, statute, court rule or judicial
case law, which privilege or grant of confidentiality may duly be claimed
to restrict public access to a public record or government record.
(Emphasis added.) N.J.S.A. 47:1A-9.b.
The Custodians response to the Complainants OPRA request denied access to
the special meeting minutes requested because the minutes... have not been approved by
the Board and are not available. Additionally, the Custodian certifies that the Public
Session minutes were provided to the Complainant on September 7, 2007 and that the
Executive Session minutes would be provided pending approval at a December 4, 2007
Council meeting.
The Complainants Counsel contends that although Parave-Fogg v. Lower
Alloways Creek Township, GRC Complaint No. 2006-51 (August 2006) exempts
unapproved minutes from disclosure, a disclosure order in OShea v. Kearny Board of
Education, Docket No. HUD-L-856-07 ordered that Kearny Board of Education meeting
minutes must be made available no later than three business days before the next
meeting. The Complainants Counsel asserts that even though the minutes might not be
available under OPRA, the minutes can be obtained through another statute: OPMA.
In Parave-Fogg, however, the GRC held that meeting minutes not approved at the
time an OPRA request is made are exempt from disclosure as intra-agency advisory,
consultative and deliberative (ACD) material pursuant to N.J.S.A. 47:1A-1.1. In this
complaint, the Custodian responded in a timely manner stating that the minutes have not
been approved by the Board and are not available.
Therefore, 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 Parave-Fogg 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.
Additionally, OShea v. Kearny Board of Education, Docket No. HUD-L-856-07
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 Kearny is not binding in the matter now before the Council.
John Paff v. Willingboro Board of Education (Burlington), 2007-272 Findings and Recommendations of the Executive
10
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.

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. 47:1A-5.g.

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.

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.

7.

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 advisory, consultative, or deliberative
material. 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).

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

PREPARED BY THE COURT:


SUPERIOR COURT OF NEW JERSEY
LAW DIVISION
MORRIS COUNTY

Tucker Kelley,
Plaintiff,
v.

DOCKET NO. MRS-L-524-14

Borough of Riverdale and Carol


Talerico in her official capacity
As Municipal Clerk and Records
Custodian of the. Borough of
Riverdale

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.

THOMAS L. WEISENBECK, A.J.S.C.

Dated: April/I, 2014

Kelley v. Borough of Riverdale


Docket No. MRS-L-524-14
STATEMENT OF REASONS
I

BACKGROUND AND PROCEDURAL HISTORY


Plaintiff Tucker Kelley ("Kelley") is a resident of Rockaway, New Jersey and receives

mail at P.O. Box 291, Hibernia, New Jersey.


Defendant Borough of Riverdale ("Riverdale") is a governmental agency with a business
address at 91 Newark-Pompton Turnpike, Riverdale, New Jersey. Defendant Carol J. Talerico
("Talerico") is Riverdale's Municipal Clerk and Records Custodian. As a public agency,
Riverdale is subject to the provisions of the Open Public Records Act, N.J.S.A. 47:1A-1 et. seq.
("OPRA").
On June 20, 2013, Kelley filed a municipal court complaint against non-party Philip
Tobaygo for Mr. Tobaygo's alleged maintenance of unregistered and abandoned vehicles on his
property in Rockaway. Verified Complaint 117. The Court Administrator found that there was
probable cause, and the matter was transferred to Riverdale Municipal Court. Ibid. The matter
was dismissed. Ibid. Plaintiff submitted the matter of the dismissal to the Prosecutor's Office for
investigation and began submitting OPRA requests with the intention of finding out how and
why the matter was dismissed. Ibid.
On January 9, 2014, Mr. Kelley emailed Ms. Talerico and Linda Forbes requesting "the
complete audio recording for the matter State v. Philip Tobaygo on September 17, 2013,"
Certification of Carol J. Talerico, Exh. B. Ms. Talerico and Ms. Forbes brought a copy of the
email to Riverdale's Municipal Court Administrator, Ms. Kathleen Latta, because such a
recording is a municipal court record, which the Municipal Court Administrator, and not the
Municipal Clerk and Records Custodian, controls. Id. at 10. By email dated January 9, 2014,
Ms. Latta informed Mr. Kelley that "the above referenced case was a transfer from Rockaway
Township. Upon disposition, all records were returned to Rockaway. Please contact Rockaway
Township Court Office." Id. at Exh. A. By email dated January 10, 2014, Mr. Kelley responded
to Ms. Latta's email, on which he copied both Ms. Talerico and Ms. Forbes, stating that he did
not feel comfortable communicating with Ms. Latta, because of his alleged mistrust towards her
stemming from her statement .to detectives involved in the matter, and asked that Ms. Talerico
1

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

amended and supplemented; any other statute; resolution of either


or both houses of the Legislature; regulation promulgated under
the authority of any statute or Executive Order of the Governor;
Executive Order of the Governor; Rules of Court; any federal law,
federal regulation, or federal order;
a public agency has a responsibility and an obligation to safeguard
from public access a citizen's personal information with which it
has been entrusted when disclosure thereof would violate the
citizen's reasonable expectation of privacy; and nothing contained
in P.L.I963, c.73 (C.47:1A-1 et seq.), as amended and
supplemented, shall be construed as affecting in any way the
common law right of access to any record, including but not
limited to criminal investigatory records of a law enforcement
agency.
N.J.S.A. 47:1A-5 reads: "Wile custodian of a government record shall permit the record

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,

: DOCKET NO: OCN-L-852-15


v.

Civil Action

TOWNSHIP OF STAFFORD, and


BERNADETTE PARK, in her capacity as
Records Custodian for Township of Stafford,

ORDER AWARDING FEES

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
$

730.0in attorneys' fees and $

the date of this Order; and it is further

/11

in litigation costs within y S

days from

ORDERED that a copy of this Order shall be served upon all parties within 7

ur

this service of this Order.

MARK A. TRONCONE, J.S.C.


Opposed
Unopposed

days of

CIVIL MOTION STATEMENT OF REASONS


Return Date:

July 24, 2015

Motion #87

Paff v. Township of Stafford, et al.


L-852-15

Relief Sought:

Motion for Attorney's Fees

Moving Party Counsel: CJ Griffin of Pashman Stein


Opposition:

Yes

Opponent:

Defendants

Opposition Counsel:

Christopher J. Dasti of Dasti, Murphy, McGuckin,


Ulaky, Koutsouris & Connors

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

action deprived Plaintiff the opportunity to determine whether Plaintiff has a


recognizable claim to the records pursuant to OPRA or the common law.
The Court found that Plaintiff had a legitimate basis for his litigation and
that a Vaughn index was necessary for plaintiff to advocate his case under both
OPRA and the common law. Additionally, the Court explained that Defendant
provided no information about the documents that it withheld but simply argued
the confidentiality requirements under the personnel record exemption. Such
action left Plaintiff with no information or opportunity to advocate his position and
assess whether he had a recognizable claim under the law.
Plaintiff now moves for an award of attorney's fees and costs of the suit on
the basis Plaintiff was a requester under OPRA who prevailed in a proceeding.
Plaintiff argues that under settled law, the prevailing Plaintiff is entitled to a fee
award whether or not Defendant was at fault.
Defendants opposes this motion in arguing the Township maintained all
along that no documents exists in which Officer McKenna admitted to committing
unlawful acts and to award Plaintiff fees for a vague OPRA request would be
improper. Defendants also assert Plaintiff's request for documents was duly
denied and that Plaintiff is not a prevailing party under OPRA.
The issue now before the Court is whether the Township acted in accordance
with settled law when Plaintiff's initial request was received. Additionally, the
Court must determine whether the Township followed the determinations as set
forth by the The Honorable Vincent J. Grasso, A.J.S.C. (retired) in his Opinion
dated May 26, 2015.

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

deprived Plaintiff of the ability to determine if he was entitled to the subject


documents under OPRA and the common law. Defendants oppose Plaintiffs
motion in arguing the Township maintained that no records exist pertaining to
documents in which Office McKenna admitted to committing unlawful acts.
Pursuant to the Opinion of Judge Grasso, Defendants were ordered on May
26, 2015, to produce a Vaughn index within thirty (30) days as the Court found
Plaintiff had a legitimate basis for his litigation. More importantly, the Court
found the Township did not identify what records exist which are responsive to
Plaintiffs request but exempt from disclosure. Plaintiffs Exhibit A at 6. The
Court cited to N.J.S.A. 47:1A-5(g) which mandates a custodian of records to
provide a lawful basis for denial of access to public records and states in part:
. . . A custodian shall promptly comply with a
request to inspect, examine, copy, or provide a
copy of a governmental record. If 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. If the custodian of a government record
asserts that part of a particular record is exempt
from public access pursuant to P.L. 1963, c.73
(C.47:1A-1 et seq.) . . . the custodian shall delete
or excise from a copy of the record that portion
which the custodian asserts is exempt from access
and shall promptly permit access to the remainder
of the record. If the government record requested
is temporarily unavailable because it is in use or in
storage, the custodian shall so advise the requestor
and shall make arrangements to promptly make
available a copy of the record. If a request for
access to a government record would substantially
disrupt agency operations, the custodian may deny
access to the record after attempting to reach a
4

reasonable solution with the requestor that


accommodates the interests of the requestor and
the agency.
The Court also relied upon O'Connor v. United States Dep't of Treasury,
570 F. Supp. 2d 749, 765 (E.D. Pa. 2008) which indicated a Vaughn index is "a
detailed affidavit correlating the withheld documents with the claimed
exemptions." (citing Vaughn v. Rosen, 484 F.2d 820, 827 (D.C. Cir. 1973). Judge
Grasso ultimately found that a Vaughn index is necessary for Plaintiff to advocate
his case under both OPRA and the common law.
Here, the Court finds Plaintiff is a prevailing party in accordance with
N.J.S.A. 47:1A-6 and is entitled to reasonable attorney's fees as Plaintiff achieved
his desired result. Plaintiff made three OPRA requests dated February 9, 16, and
21, 2015 as it pertained to alleged unlawful acts committed by Officer McKenna.
On February 12, 2015, counsel for Defendants indicated to Plaintiff's counsel that
no documents exist regarding criminal charges or complaints relating to Officer
McKenna. On February 20 and 27, 2015, counsel for Defendant indicated there
was an internal affairs investigation for Officer McKenna and such documents are
confidential and exempt from disclosure. Plaintiff's Complaint was filed on March
24, 2015. On April 8, 2015, defense counsel again advised Plaintiff's counsel that
no records exists in which Officer McKenna admitted to committing unlawful acts.
Judge Grasso then subsequently addressed the matter by way of an order to show
cause whereby Judge Grasso found Defendants had an obligation to identify which
records existed and compelled Defendants to produce a Vaughn index.
Defendants ultimately submitted a certification from Captain Thomas
Dellane (hereainfter "Captain Dellane) that certified there were no records that
were responsive to Plaintiff's OPRA requests. It is the opinion of the Court that
Captain Dellane's certification is the first time Defendants adequately responded to
5

Plaintiff's three February 2015 requests. Additionally, Captain Dellane's


certification indicated compliance with the Opinion of Judge Grasso which
ultimately found Plaintiff was entitled to a response as Plaintiff did not have
information nor the opportunity to effectively advocate his position and assess
whether he had a recognizable claim to the records pursuant to OPRA or the
common law. As Plaintiff ultimately received the relief ordered by Judge Grasso
and what Judge Grasso found Plaintiff was entitled to under OPRA, the Court finds
Plaintiff prevailed in his claim.
As a prevailing party, Plaintiff is entitled to reasonable attorney's fees and
costs. Here, Plaintiff seeks a full amount of fees totaling $12,120 and costs
totaling $439.14. Plaintiff indicates the firm's attorneys spent 33.10 hours working
on Plaintiff's case which was documented through June 17, 2015. Counsel for
Plaintiff attached a certification dated June 17, 2015, which outlines each charge
beginning on March 2, 2015, when the matter was initially reviewed. Defendants
argue Plair,f;ff's request for fees is extreme and completely unwarranted and that
the purpose of the fee award under OPRA is not to punish municipalities for
candid and forthright responses.
The Court finds did not provide adequate responses to Plaintiff's three
requests for documentation. Additionally, Plaintiff's certification provides a
methodical breakdown of time spent on the matter by Plaintiff's counsel. As all
the issues arising from this matter were not solved until the filing of this motion,
the Court finds June 17, 2015 is a fair and reasonable date in which Plaintiff s
counsel seized work on this case. The Court also finds the fees and costs are both
fair and reasonable based on counsel's time spent and background in OPRA. Fees
will be awarded at a cost of $300.00 per hour. Accordingly, Plaintiff's motion is
granted.

CONCLUSION
For the foregoing reasons, Plaintiff's motion for attorney's fees and costs is
GRANTED.

bcN.-L-_-85P--15-

BECKMAN OGOZALEK LONDAR


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

February 28, 2016


Hon. Marlene Lynch Ford, A.J.S.C.
Superior Court of New Jersey - Law Division
100 Hooper Avenue
Toms River, NJ 08753
RE:

New Jersey Foundation for Open Government, Inc. v. Long Beach Island
Board of Education, et al.

Dear Judge Ford:


We are submitting this Letter Brief in lieu of a more formal brief in support of the
First, Second, Fifth and Sixth Counts, as well as part of the Third Count, of the Verified
Complaint, which seek relief under the Open Public Records Act ("OPRA"), N.J.S.A.
47:1A-1, et seq., and the Twelfth Count, which seeks relief under the common law right
of access. Since the remaining counts, which seek enforcement of the Open Public
Meetings Act ("OPMA") N.J.S.A. 10:4-6, et seq., are not eligible for summary
disposition, they will be addressed in future proceedings.
First, we discuss the facts of this case. Second, we discuss legal arguments why
this matter should proceed in a summary manner and why Plaintiff is entitled to the
relief requested.

Hon. Marlene Lynch Ford, A.J.S.C.


February 25, 2016
Page 2 of 18
STATEMENT OF FACTS
The Court is respectfully referred to the Verified Complaint for a complete
recitation of the facts. In summary, however, Plaintiff New Jersey Foundation for Open
Government, Inc. ("Plaintiff" or "Foundation"), has, through serving an OPRA request
upon Defendant Long Beach Island Consolidated School District Records Custodian
"(Custodian)" the records custodian for Defendant Long Beach Island Board of
Education ("Board"), uncovered various violations of OPRA and patterns of the Board's
noncompliance with the OPMA.
One complication is that it is not clear whether the minutes of 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 meetings, which were included in Custodian's response to the
Foundation's OPRA request, are the minutes of the Board's public meetings or
nonpublic sessions held on those dates. This ambiguity has required Plaintiff to set out
three alternative claims for relief within the Second, Third and Fourth Counts of the
Verified Complaint.
LEGAL ARGUMENT
POINT I
THE FIRST, SECOND, FIFTH AND SIXTH COUNTS, AS WELL AS PART OF THE
THIRD COUNT, OF PLAINTIFF'S ACTION SHOULD PROCEED IN A SUMMARY
MANNER.

Hon. Marlene Lynch Ford, A.J.S.C.


February 25, 2016
Page 3 of 18
"A person who is denied access to a government record by the custodian of the
record . . . may institute a proceeding to challenge the custodian's decision by filing an
action in Superior Court." N.J.S.A. 47:1A-6. Once instituted, "[a]ny such proceeding
shall proceed in a summary or expedited manner." Id. "This statutory language requires
a trial court to proceed under the procedures prescribed in R. 4:67." Courier News v.
Hunterdon County Prosecutor's Office, 358 N.J. Super. 373, 378 (App. Div. 2003). Any
such action must be initiated by Order to Show Cause, supported by a verified
Complaint. Id. (citing R. 4:67-2(a)). Here, because OPRA authorizes actions under it to
proceed in a summary manner, and Plaintiff's request for an order to show cause is
supported by a verified complaint, the relevant documents have been provided and
certified as exhibits to the Verified Complaint, and the relevant facts should not
reasonably be disputed, the order to show cause should be granted so this matter may
proceed in a summary manner. R. 4:67-2(a).
POINT II
DEFENDANT CUSTODIAN VIOLATED OPRA BY FAILING TO RESPOND AT ALL TO
3 AND 4 OF PLAINTIFF'S OPRA REQUEST (FIRST COUNT).
Paragraphs 3 and 4 of Plaintiff's OPRA request (Exhibit 1) state:
3.

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.

Hon. Marlene Lynch Ford, A.J.S.C.


February 25, 2016
Page 4 of 18
4.

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

Hon. Marlene Lynch Ford, A.J.S.C.


February 25, 2016
Page 5 of 18
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.
May 28, 2008 Findings and Recommendations of the Executive Director,
emphasis supplied.
Here, as in Willingboro, Custodian "failed to respond to each request item
individually." Accordingly, this Court should declare, as requested in A of the
Verified Complaint, that "Custodian, by failing or refusing to respond to 3 and 4 of
Plaintiff's request, violated OPRA."
This Court should also order Custodian, as requested in B of the Verified
Complaint," to properly respond to 3 and 4 of Plaintiff's request." Such a response
will reveal whether or not the requested resolutions exist.
Based on the reasoning set forth in Point V, p. 12, below, the Court should, as
requested in C of the Verified Complaint, find that the Plaintiff is the prevailing party
and award it its costs and attorney fees regardless of whether the requested resolutions
exist.
POINT III
DEFENDANT CUSTODIAN MAY HAVE VIOLATED OPRA BY FAILING TO PROVIDE
CERTAIN MEETING MINUTES THAT ARE IN THE SCOPE OF 2 OF PLAINTIFF'S
REQUEST (SECOND AND THIRD COUNTS).
Among the records Custodian disclosed on January 15, 2016 are minutes from
the Board's April 27, 2015 (Exhibit 6), April 30, 2015 (Exhibit 7), May 11, 2015 (Exhibit 9),

Hon. Marlene Lynch Ford, A.J.S.C.


February 25, 2016
Page 6 of 18
May 18, 2015 (Exhibit 10), May 27, 2015 (Exhibit 13), June 9, 2015 (Exhibit 16), August
18, 2015 (Exhibit 21), August 31, 2015 (Exhibit 22), September 1, 2015 (Exhibit 23) and
September 10, 2015 (Exhibit 25) meetings. The problem is, however, is that it is difficult
to determine whether these minutes are: a) public meeting minutes, which were not
requested by Plaintiff or b) nonpublic meeting minutes that, while within the scope of
Plaintiff's request, are seriously lacking in detail of that which occurred during the
nonpublic session.
The available evidence, as set forth below, suggests that these ten sets of minutes
are public meeting minutes and that the nonpublic meeting minute for these dates have
been withheld by Custodian.
First, Exhibit 28 consists of two different versions of minutes for the November
10, 2015 meeting. The first version, which is unredacted and captioned "Minutes of the
Special Meeting," sums up that which occurred between 5:35 and 7:28 p.m. as
"Attorney/Client Privilege: Discussion" and shows that the public meeting was
adjourned at 7:29 p.m. By contrast, the second set of minutes contains a large block of
redacted text, is captioned "Executive Meeting Minutes" and does not show the
adjournment at 7:29 p.m.

Hon. Marlene Lynch Ford, A.J.S.C.


February 25, 2016
Page 7 of 18
The first version of the minutes, which appear to be the public session minutes,
are nearly identical in form to the ten sets of minutes identified in the first paragraph of
this brief point.
Second, all of the minutes identified in the first paragraph of this brief point are
contained within Exhibit 31 which was downloaded from the Board's website.
Accordingly, it appears that for each set of minutes identified in the first
paragraph of this brief point are public meeting minutes and that there is (or at least
should be) a separate, corresponding set of nonpublic meeting minutes. If this is true,
then Custodian plainly violated OPRA by providing Plaintiff with public meeting
minutes when the request called for nonpublic meeting minutes.
Accordingly, this Court should declare, as requested in E of the Verified
Complaint, that "Custodian violated OPRA by not disclosing 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.
This Court should also order Custodian, as requested in F of the Verified
Complaint, to disclose those ten sets of minutes to Plaintiff's request.
Based on the reasoning set forth in Point V, p. 12, below, the Court should, as
requested in G of the Verified Complaint, find that the Plaintiff is the prevailing party

Hon. Marlene Lynch Ford, A.J.S.C.


February 25, 2016
Page 8 of 18
and award it its costs and attorney fees even if it turns out, as hypothesized in the Third
Count, that the requested ten sets of nonpublic minutes do not exist.
POINT IV
DEFENDANT CUSTODIAN VIOLATED OPRA BY REDACTING INFORMATION THAT
HAS BEEN PUBLICLY DISCLOSED ON THE BOARD'S WEBSITE (FIFTH COUNT).
Among the records Custodian disclosed on January 15, 2016 were the minutes
from the allegedly nonpublic, but presumably public, meetings held by the Board on
May 27, 2015 (Exhibit 11) and August 31, 2015 (Exhibit 22). Both sets of minutes had
innocuous information ("Meeting with the Mayors" or "Meeting with Bidders") redacted
from them. The versions of those minutes available on the Board's website (Exhibit 31),
however, disclosed the information that Custodian had redacted from the versions he
supplied to Plaintiff on January 15, 2016. The justifications for the redactions set forth
in the Privilege Log (Exhibit 3) are nonsensical.
Since it is impossible for Custodian to bear his burden of proving in
accordance with N.J.S.A. 47:1A-6 that the redactions were in any way justified, the
Court should, as requested in Q of the Verified Complaint, declare " that Custodian
violated OPRA by redacting the versions of the May 27, 2015 and August 31, 2015
meeting minutes that he disclosed to Plaintiff" and, as requested in R, declare
"Plaintiff the prevailing party and award it costs and a reasonable attorney fee."
POINT V

Hon. Marlene Lynch Ford, A.J.S.C.


February 25, 2016
Page 9 of 18
DEFENDANT CUSTODIAN VIOLATED OPRA BY REDACTING TOO MUCH TEXT
FROM THE BOARD'S NONPUBLIC MEETING MINUTES (SIXTH COUNT).
Where a statutorily-recognized basis for confidentiality is being asserted to
withhold a government record, "an agency need not reveal the contents and should be
guided by the standard included in R. 4:102(e), which permits a party claiming
privilege to 'describe the nature of the documents ... not produced or disclosed in a
manner that, without revealing information itself privileged or protected, will enable
other parties to assess the applicability of the privilege or protection.'" Burke v. Brandes,
429 N.J. Super. 169, 178 (App. Div. 2012) quoting Paff v. N.J. Dep't of Labor, 379 N.J.
Super. 346, 354 (App. Div. 2005).
As shown in Point IV, Custodian's privilege log has proven to be less than
reliable.

It contains vague, conclusory and sometime fabricated justifications that

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

Hon. Marlene Lynch Ford, A.J.S.C.


February 25, 2016
Page 10 of 18
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 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

Hon. Marlene Lynch Ford, A.J.S.C.


February 25, 2016
Page 11 of 18
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 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

From Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973)

Hon. Marlene Lynch Ford, A.J.S.C.


February 25, 2016
Page 12 of 18
will also protect any material in the minutes that is "so highly confidential that its
disclosure to anyone, including a judge, will irreparably hamper an agency's
procedures." Loigman, at 109.
Further, Plaintiff having access to the privilege log will enable "the adversary
system to operate by giving the requester as much information as possible, on the basis
of which he can present his case to the trial court." Lykins at 1463.
Accordingly, this Court should order Custodian, as requested in T of the
Verified Complaint, "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." To the extent that the new log does not resolve
the issue, the Court should order the Custodian, as requested by U of the Verified
Complaint, to file unredacted copies of Exhibits 4 - 30 under seal with the Court for an
in camera review. The Court may, of course, Order both forms of relief without waiting
to determine if the privilege log will itself be sufficient.
Further, the Court should, as requested in V of the Verified Complaint, find
that the Plaintiff to be the prevailing party and award it its costs and attorney fees
regardless of whether the new privilege log and in camera review ultimately cause
Custodian to disclose matter that he previously suppressed.

Hon. Marlene Lynch Ford, A.J.S.C.


February 25, 2016
Page 13 of 18
Prevailing party status is justifiably conferred upon Plaintiff at this stage of the
proceeding because Custodian has thus far made an insufficient effort to inform
Plaintiff of the reasons or justifications for the redactions applied to the nonpublic
meeting minutes at issue. The privilege log is very general and vague and has, as
pointed out in Point IV above, proven to be erroneous.
By refusing to provide the Foundation with meaningful justifications for and
explanations of the redactions, the Custodian has violated its rights under OPRA. The
Foundation is being forced to litigate this matter not only to obtain disclosure of
redacted information, but to also learn the precise reason why the information was
redacted. Plaintiff was entitled to a proper and complete explanation as to why the
information was redacted when the Custodian responded to its request. Had the
Custodian then given the Foundation proper information, it might have determined
that the Custodian's redaction decisions were reasonable and that it would therefore be
unwise to bring an OPRA lawsuit.
The Custodian, of course, knows what information has been redacted and also
knows that his inadequate justification of the redactions presents the Foundation with
an unenviable choice. First, it can retain an attorney to file an OPRA lawsuit knowing
that the suit may very well be unsuccessful if the Custodian's redaction decisions
ultimately turn out to be correct. Second, it can decide not to go through the trouble

Hon. Marlene Lynch Ford, A.J.S.C.


February 25, 2016
Page 14 of 18
and expense of filing suit but risk not being able to access information that the Court
would have granted him had it filed suit.
In sum, the Custodian is not playing fair by keeping the Foundation in the dark
with its insufficient and erroneous privilege log. Fairness dictates that the Custodian
must provide the Foundation with proper justifications and explanations, as required
by Burke v. Brandes, so that it is in a position to realistically judge whether an OPRA
lawsuit is wise or unwise. Fairness further dictates that the Foundation be considered a
"prevailing party" pursuant to N.J.S.A. 47:1A-6 regardless of whether this lawsuit
results in the disclosure of any previously redacted information. To hold otherwise
permits custodians, who are fully aware that their redactions or suppressions are legally
defensible, to provide the requestor with insufficient justifications for the suppressions,
knowing full well that if the requestor sues for disclosure, he or she will lose. If they are
permitted to get away with this, those same custodians can, as a matter of policy,
always justify their redactions and suppressions in an insufficient manner thus placing
requestors in the unenviable position described above.
"A requestor who prevails in any proceeding shall be entitled to a reasonable
attorney's fee." N.J.S.A. 47:1A-6. Prevailing in an OPRA case does not require that the
government agency sued ultimately discloses a record to which access was previously
denied. Rather "the test for whether a party requesting fees under Open Public Records

Hon. Marlene Lynch Ford, A.J.S.C.


February 25, 2016
Page 15 of 18
Act (OPRA) qualifies as a 'prevailing party' for purposes of attorney fee award is
whether the proceeding initiated by the plaintiff modified the public agency's behavior
in a way that directly benefited the plaintiff. Burnett v. County of Bergen, 402 N.J.
Super. 319, 346 (App. Div. 2008), reversed on other grounds 198 N.J. 408 (2008), citing
Teeters v. DYFS, 387 N.J. Super. 423, 431 (App. Div. 2006), certif. denied, 189 N.J. 426
(2007).
In an April 11, 2014 unpublished decision, Morris County Assignment Judge
Thomas L. Weisenbeck considered whether a plaintiff prevailed in an OPRA matter
where records responsive to an OPRA request did not exist but the requestor was not
informed of their non-existence until after he filed suit.
In Tucker Kelly v. Borough of Riverdale, et al, Docket No. MRS-L-524-143, Judge
Weisenbeck wrote:
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
3

See Exhibit 2 to Plaintiff's counsel's certification.

Hon. Marlene Lynch Ford, A.J.S.C.


February 25, 2016
Page 16 of 18
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.
Similarly, in John Paff v. Township of Stafford, et al, Docket No. OCN-L-852-154,
Judge Mark A. Troncone found that the person responding to Paff's request "provided
no information about the documents that [Stafford] withheld but simply argued the
confidentiality requirements under the personnel record exemption. Such action left
[Paff] with no information or opportunity to advocate his position and assess whether
he had a recognizable claim under the law."
Both Judge Weisenbeck and Judge Troncone found the plaintiffs to be prevailing
parties and awarded them their costs and attorney fees. This Court should similarly
find that this lawsuit is the catalyst causing the Custodian to properly justify the
redactions, even if the redactions are ultimately held to be valid.
POINT VI
COMMON LAW RIGHT OF ACCESS (TWELFTH COUNT).
Common law public records "include almost every document recorded,
generated, or produced by public officials whether or not 'required by law to be made,
maintained or kept on file.'" Shuttleworth v. City of Camden, 258 N.J. Super. 573, 582
4

See Exhibit 3 to Plaintiff's counsel's certification.

Hon. Marlene Lynch Ford, A.J.S.C.


February 25, 2016
Page 17 of 18
(App. Div. 1992). Accordingly, the Board's nonpublic meeting minutes as well as the
other records identified in 45 of the Verified Complaint are common law public
records. Whether or not Plaintiff is entitled to the information that the Custodian
redacted from those minutes depends on how the Court balances the Foundation's
interest in disclosure against the governmental interest in confidentiality. Loigman v.
Kimmelman, 102 N.J. 98, 113 (1986). The Foundation might be entitled to disclosure
under the common law even if it is not entitled to disclosure under OPRA. Bergen
County Imp. Authority v. North Jersey Media Group, Inc., 370 N.J. Super. 504, 509-10
(App. Div. 2004). ("We now hold that the common law definition of "public record" is
broader than the statutory definition of "government record" contained in [OPRA].")
For most of the redactions made the the nonpublic meeting minutes, the
Foundation has thus far been deprived of knowing the nature of the material that was
redacted from the minutes, so it is impossible for it to argue that its interest in the
excised material exceeds the governmental interest in confidentiality. Accordingly, its
common law argument must wait until after the Court orders the Custodian to produce
a privilege log or until the Court conducts an in camera inspection.
Respectfully,
Dated: February 25, 2016

Anthony H. Ogozalek, Jr.


Anthony H. Ogozalek, Jr.
Beckman Ogozalek Londar

Anthony H. Ogozalek, Jr.


Beckman Ogozalek Londar
1200 Laurel Oak Road, Suite 104
Voorhees Township, NJ 08034
Phone: (856) 545-4542
Fax: (856) 545-7230
E-mail: aogozalek@beckmanlawgroup.com
New Jersey Attorney ID No. 037022006
Attorney for Plaintiff

NEW JERSEY FOUNDATION FOR


OPEN GOVERNMENT, INC.
Plaintiff,

vs.
LONG BEACH ISLAND BOARD
OF EDUCATION and LONG BEACH
ISLAND CONSOLIDATED SCHOOL
DISTRICT RECORDS CUSTODIAN
Defendants

:
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SUPERIOR COURT OF NEW JERSEY


LAW DIVISION, CIVIL PART
OCEAN COUNTY

DOCKET NO.
Civil Action

ORDER TO SHOW CAUSE

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,

IT IS on this __________ day of ________________, 2016 ORDERED that the


Defendants Long Beach Island Board of Education and Long Beach Island Consolidated
School District Records Custodian appear and show cause on the _______ day of
_________________, 2016 before the Honorable Marlene Lynch Ford, A.J.S.C., Superior Court,
County of Ocean, Toms River, New Jersey at _____ oclock in the _______ noon or as soon
thereafter as Plaintiff can be heard, why judgment should not be entered:
a.

Declaring that the Long Beach Island Consolidated School District

Records Custodian ("Custodian"), by failing or refusing to respond to 3 and 4 of


Plaintiff's records request violated OPRA;
b.

Ordering Custodian to properly respond to 3 and 4 of Plaintiff's

request;
c.

Declaring that Custodian violated OPRA by not disclosing, in response

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.

Ordering the Custodian to disclose to Plaintiff 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;
e.

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;

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.

Ordering Custodian to file solely with the Court unredacted versions of

Exhibits 4 - 30 for the Court's in camera review.


h.

Ordering the Custodian, consistent with the Court's in camera review, to

disclose to Plaintiff unredacted or more narrowly redacted versions of Exhibits 4 - 30;


i.

Declaring Plaintiff to be the prevailing party and ordering Custodian to

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

affidavits or certifications submitted in support of this application be served upon the


Defendants personally or by certified mail, return receipt requested, within ______ days of
the date hereof, in accordance with R.4:4-3 and R.4:4-4, this being original process pursuant to
R.4:52-1(b).
2.

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

Anthony H. Ogozalek, Jr.


Beckman Ogozalek Londar
1200 Laurel Oak Road, Suite 104
Voorhees Township, NJ 08034
Phone: (856) 545-4542
Fax: (856) 545-7230
E-mail: aogozalek@beckmanlawgroup.com
New Jersey Attorney ID No. 037022006
Attorney for Plaintiff

NEW JERSEY FOUNDATION FOR


OPEN GOVERNMENT, INC.
Plaintiff,

vs.
LONG BEACH ISLAND BOARD
OF EDUCATION and LONG BEACH
ISLAND CONSOLIDATED SCHOOL
DISTRICT RECORDS CUSTODIAN
Defendants

:
:
:
:
:
:
:
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:
:

SUPERIOR COURT OF NEW JERSEY


LAW DIVISION, CIVIL PART
OCEAN COUNTY

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

Custodian ("Custodian"), by failing or refusing to respond to 3 and 4 of Plaintiff's records request,


violated OPRA;

2.

ORDERED that Custodian shall, within 10 days, properly respond to 3 and 4 of

Plaintiff's request;
3.

DECLARED that Custodian violated OPRA by not disclosing, in response 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, 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

versions of Exhibits 4 - 30 for the Court's in camera review;


8.

DECLARED Plaintiff is be the prevailing party who is entitled to costs and a reasonable

attorney fee in accordance with N.J.S.A. 47:1A-6.

________________________________
Marlene Lynch Ford, A.J.S.C.
Opposed

_____

Unopposed _____
Page 2