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PASHMAN STEIN

A Professional Corporation
Court Plaza South
21 Main Street, Suite 100
Hackensack, NJ 07601
(201) 488-8200
CJ GRIFFIN (#031422009)
Attorneys for Plaintiff,
Harry Scheeler
HARRY SCHEELER,
Plaintiff,
v.
STATE OF NEW JERSEY DEPARTMENT OF
CHILDREN AND FAMILIES and
JOHN DOE, in his/her capacity as Records
Custodian for the Department of Children and
Families,
Defendants.

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SUPERIOR COURT OF NEW JERSEY


LAW DIVISION: MERCER COUNTY
DOCKET NO.:
Civil Action
VERIFIED COMPLAINT

Plaintiff Harry Scheeler, through his undersigned counsel, Pashman Stein, A Professional
Corporation, complains against the Defendants as follows:
1.

This is a summary action alleging violation of the New Jersey Open Public

Records Act, N.J.S.A. 47:1A-1, et seq., (OPRA) and the common law right of access to public
records, seeking records from the State of New Jersey Department of Children and Families.
PARTIES
2.

Plaintiff Harry Scheeler is an open government activist and a former resident of

Woodbine, New Jersey.


3.

Defendant State of New Jersey Department of Children and Families

(Defendant or DCF) is a public agency formed under the laws of New Jersey, with its

primary place of business at 222 South Warren Street, P.O. Box 700, Trenton, New Jersey 086250700. DCF is a public agency as the term is defined by OPRA, N.J.S.A. 47:1A-1.1.
4.

Defendant John Doe is the records custodian for the Defendant DCF.

5.

DCF ma[kes], maintain or ke[eps] on file, or receive[s] in the course of . . . its

official business government records, and is thereby subject to the New Jersey Open Public
Records Act, N.J.S.A. 47:1A-1 to -13.
VENUE
6.

Venue is properly laid in Mercer County because Defendant DCF is located in

Mercer County and because the cause of action arose in Mercer County. R. 4:3-2(a).
FACTUAL ALLEGATIONS
7.

On or about November 13, 2014, Mr. Scheeler submitted a request, pursuant to

OPRA and the common law right of access, for government records relating to lawsuits filed
against DCF. [Attached hereto as Exhibit A is a true and accurate copy of the receipt containing
Plaintiffs November 13, 2014 OPRA Request.]
8.

On November 18, 2014, Mr. Scheeler received an email letter from the OPRA

Custodian at DCF in response to his OPRA request. That email stated as follows: We have a
question regarding your request and need some clarifying information. Can I give you a call?
Please forward me a number and time where its convenient to contact you. Thanks. [Attached
hereto as Exhibit B is a true and accurate copy of the November 18, 2014 OPRA Response.]
9.

On November 20, 2014, Mr. Scheeler responded to DCF clarifying his request,

and noting that he would work with DCF to reduce the request if there were a substantial amount
of responsive records. [Attached hereto as Exhibit B is a true and accurate copy of Mr.
Scheelers November 20, 2014 email.]

10.

On December 2, 2014, the OPRA Custodian at DCF responded to Mr. Scheeler,

stating that there were


several hundred pages of responsive records that would require substantial
redactions as much of our litigation involve [sic] our clients and their identifying
information and case investigatory information is confidential under various
authorities. Perhaps limiting your request to a listing or [sic] cases over the page
[sic] 3-4 month [sic] would be more reasonable. I am trying to avoid a situation
where we would have to charge a special service charge for the reproduction and
legal review of the hundreds of pages responsive to your request.
[Attached hereto as Exhibit B is a true and accurate copy of the DCF Custodians
December 2, 2014 email.]
11.

On the same date, Mr. Scheeler responded and noted that DCF could not redact

documents filed in open court, and asked for the records to be released immediately to avoid
litigation. [Attached hereto as Exhibit B is a true and accurate copy of Mr. Scheelers December
2, 2014 email.]
12.

On December 11, 2014, the Custodian responded, stating [w]e understand your

concerns and want to reiterate that we are still reviewing your request and any responsive
records. Do you remain open to limiting your request to this year? [Attached hereto as Exhibit
B is a true and accurate copy of DCFs December 11, 2014 email.]
13.

That same day, Mr. Scheeler responded and asked for the amount of records for

each year. [Attached hereto as Exhibit B is a true and accurate copy of Mr. Scheelers December
11, 2014 response.]
14.

DCF responded on December 11, stating that about 50-60 matters at least with

prospectively several records corresponding to each. DCF also noted that [t]he disclosability
of each [record] would have to be assessed . . . There are even further protections that are
involved as you are asking for the copies of litigation from NJDCF, a child protection agency,

and not the judiciary. Also, certain settlements that do not involve public money and involve our
clients would be put under seal by the court. Let me know how you want to proceed. [Attached
hereto as Exhibit B is a true and accurate copy of DCFs December 11, 2014 email.]
15.

Mr. Scheeler responded to DCF, noting that he would have his attorney review the

issue. [Attached hereto as Exhibit B is a true and accurate copy of Mr. Scheelers December 11,
2014 email.]
16.

The Custodian responded and asked Mr. Scheeler to let me know how you prefer

to proceed and we will forward over those records that are responsive and releasable to what you
request. I will keep the pulled records here awaiting your response. [Attached hereto as
Exhibit B is a true and accurate copy of DCFs December 11, 2014 email.]
17.

In the final email dated December 11, 2014, Mr. Scheeler reduced his request to

include the filings of the 2013 cases at this time. He also indicated that he would narrow is
requests to only complaints. He also advised DCF that he would not accept broad and blanket
redactions in the records produced. [Attached hereto as Exhibit B is a true and accurate copy of
Mr. Scheelers December 11, 2014 email.]
18.

On December 19, 2014, Mr. Scheeler sent an email to the DCF OPRA Custodian

stating that his request is over 30 days old, and advising that if the records were not released
by the end of that day, he would seek a court order. [Attached hereto as Exhibit B is a true and
accurate copy of Mr. Scheelers December 19, 2014 email.]
19.

On the following Monday, December 22, 2014, the DCF OPRA Custodian

responded and stated that DCF had


properly informed you of several needed extensions as required by statute as your
request is quite voluminous and has required the review of thousands of pages of
documents that are filled with protected client information. In fact, we have been
courteous in not requiring a special service charge . . . If you remain open to
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receiving these records under our current arrangement, this email serves to notify
you that we will have to extend the date of release to January 9, 2015.
[Attached hereto as Exhibit B is a true and accurate copy of the DCF OPRA
Custodians December 22, 2014 email.]
20.

On the same date, Mr. Scheeler responded that the DCF Custodians request was

an open ended extension in violation of OPRA. He stated that he would wait for the release of
the documents on January 9, 2015. [Attached hereto as Exhibit B is a true and accurate copy of
Mr. Scheelers December 22, 2014 response.]
21.

On January 9, 2015, the DCF Custodian sent an email to Mr. Scheeler informing

him that his OPRA request was still in progress and still under a thorough review and
redaction process . . . note that we have not assessed a special service charge for these efforts.
The DCF Custodian asked that the anticipated date for release be extended to January 16, 2015.
[Attached hereto as Exhibit C is a true and accurate copy of the DCF Custodians January 9,
2015 request.]
22.

By letter dated January 15, 2015, DCF produced records responsive to Plaintiffs

request. DCFs letter stated that pursuant to the protections of New Jerseys Title 9 Statute and
HIPAA, we have had to redact any identifying client and family information such as names,
addresses, and social security numbers. [Attached hereto as Exhibit D is a true and accurate
copy of DCFs January 15, 2015 letter.]
23.

As a preliminary matter, Defendants unreasonable delay in responding to

Plaintiffs request is in violation of OPRA.


24.

Further, there is no lawful basis for the redactions made by Defendants to the

documents eventually produced to Plaintiff.

25.

Defendant has therefore violated OPRA by not providing the required access to all

records responsive to Mr. Scheelers OPRA request.


FIRST COUNT
(Violation of OPRA)
26.

Plaintiff repeats and incorporates by reference the allegations set forth in the

preceding paragraphs as though fully set forth at length herein.


27.

Pursuant to N.J.S.A. 47:1A-1, all government records must be readily

accessible to the citizens of this State unless specifically exempted by law.


28.

Plaintiff submitted a valid request pursuant to OPRA, N.J.S.A. 47:1A-1 et seq.

29.

The requested records are government records because they were made,

maintained or kept on file, or received in the course of . . . [DCFs] official business. N.J.S.A.
47:1A-1.1.
30.

The requested records are not subject to any exemption under OPRA.

31.

The records requested, therefore, should have been produced within seven

business days in the medium requested by Plaintiff.


32.

Accordingly, as demonstrated above, Defendants violated OPRA by:


a. Failing to provide access to the requested public records as soon as possible,
but not later than seven business days after receiving the request, in violation
of N.J.S.A. 47:1A-5(i);
b. Failing to provide a lawful basis for denying access to government records, in
violation of N.J.S.A. 47:1A-5(g);
c. Failing to prove that the denial of access is authorized by law, in violation of
N.J.S.A. 47:1A-6; and

d. Knowingly and willfully denying access to public records, as per N.J.S.A.


47:1A-11(a).
WHEREFORE, Plaintiff demands judgment against Defendants:
(a)

Declaring said actions of Defendants to be in violation of OPRA, N.J.S.A. 47:1A1 et seq. by failing to grant access to the requested records, as required by OPRA;

(b)

Directing Defendants to release un-redacted versions of requested records to


Plaintiffs forthwith; Alternatively, if the Court believes that any information is
exempt from public access, Plaintiff respectfully asks the Court to review the
document(s) in camera and then require Defendants to delete or excise from the
records the portion(s) which are exempt from public access and promptly permit
access to the remainder of the public record;

(c)

Directing Defendants to conduct a further search of its email system and files for
responsive records;

(d)

Ordering Defendants to preserve the requested records pending resolution of these


proceedings or as otherwise required by law;

(e)

Awarding counsel fees and costs pursuant to N.J.S.A. 47:1A-6; and

(f)

For such other relief as the Court may deem just and equitable.
SECOND COUNT
(Common Law Right of Access)

33.

Plaintiff repeats and incorporates by reference the allegations set forth in the

preceding paragraphs as though fully set forth at length herein.


34.

The public enjoys a vested common law right of access to public records

generated or maintained by public entities. See, e.g., Keddie v. Rutgers, 148 N.J. 36 (1997); S.
Jersey Publing Co. v. N.J. Expway Auth., 124 N.J. 478 (1991).
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35.

Defendants generate and/or maintain the requested public records, which are

necessary to be kept in the discharge of a duty imposed by law. S. Jersey Publishing Co., 124
N.J. at 487; N.J.S.A. 10:4-14 (requiring each public body to maintain reasonably
comprehensible minutes of all its meetings).
36.

There is a strong public interest in favor of disclosure of the requested

information, and there is no overriding, countervailing interest in confidentiality of these records.


37.

Plaintiff and publics need for access to these records is greater than the

Defendants need for secrecy.


38.

Defendants failure to disclose the requested records violated Plaintiffs common

law right of access to public records.


WHEREFORE, Plaintiff demands judgment against Defendants:
(a) Declaring said actions of Defendants to be unlawful and invalid;
(b) Directing Defendants to release the requested records to Plaintiff forthwith;
(c) Awarding counsel fees and costs; and
(d) Granting such other relief as the Court may deem just and equitable.
PASHMAN STEIN
A Professional Corporation,
Attorneys for Plaintiff,
Harry Scheeler

Dated: March 2, 2015

By: ____________________________
CJ GRIFFIN, ESQ.

CERTIFICATION PURSUANT TO R. 4:5-1


Plaintiff, by his attorney, hereby certifies that the matter in controversy is not the subject
of any other action pending in any Court and is likewise not the subject of any pending
arbitration proceeding. Plaintiff further certifies that he has no knowledge of any contemplated
action or arbitration regarding the subject matter of this action and that Plaintiff is not aware of
any other parties who should be joined in this action.
PASHMAN STEIN
A Professional Corporation,
Attorneys for Plaintiff,
Harry Scheeler
Dated: March 2, 2015

By: _____________________________
CJ GRIFFIN, ESQ.

VERIFICATION
Harry Scheeler, of full age, deposes and says:
1.

I am a citizen of the State of New Jersey, Plaintiff in the foregoing Verified

Complaint.
2.

I have read the Verified Complaint. The allegations of the Verified Complaint

contained in Paragraphs 2 and 7-21 are true. The said Verified Complaint is made in truth and
good faith and without collusion, for the causes set forth herein.
3.

All documents attached to the Verified Complaint and Brief are true copies and

have not been redacted, changed, modified, adjusted or otherwise altered in any manner by me or
my agents unless so stated.
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.

________________________________
HARRY SCHEELER
Dated: February 25, 2015

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