6/24/16, Heimlich v. EIRC, Lawsuit Filed in NJ's Gloucester County Superior Court For Non-Compliance With State Public Records Law

PASHMAN STEIN W ALDER HAYDEN
A Professional Corporation
Court Plaza South
21 Main Street, Suite 200
Hackensack, New Jersey 07601
(201) 488-8200
CJ GRIFFIN, ESQ. (#031422009)
RECEIVED & FILED

JUN l ~2016
Attorneys for Plaintiff,

Peter M. Heimlich
PETER M. HEIMLICH,
SUPERIOR COURT OF NEW JERSEY

LAW DIVISION: GLOUCESTER COUNTY
Plaintiffs,
DOCKET NO.: [,,--
v.
77~-(~
Civil Action
EDUCATIONAL INFORMATION &

RESOURCE CENTER and STEPHEN
H. HOFFMAN in his capacity as
Custodian of Records for the
Educational Information & Resource
Center,
VERIFIED
COMPLAINT
Defendants.
Plaintiff, Peter M. Heimlich, through his undersigned counsel, Pashman Stein Walder
Hayden, A Professional Corporation, complains against the Defendants as follows:
1.
This is an action alleging violation of the New Jersey Open Public Records Act,
47:1A-I, et seq., ("OPRA") and the common law right of access to public records,
NJ.S.A.
seeking records from the Educational Information & Resource Center.

PARTIES
2.
Plaintiff Peter M. Heimlich is an investigative blogger.
He resides in Peachtree
Comers, Georgia and publishes articles online that can be read worldwide.
3.
Defendant Educational
Information
& Resource Center ("EIRC") is a public
agency with its main place of business located at South Jersey Technology Park, 107 Gilbreth
Parkway, Suite 200, Mullica Hill, New Jersey.
4.
Defendant Stephen H. Hoffman is the designated Custodian of Records for the
EIRC. Upon information and believe, Defendant Hoffman maintains an office at South Jersey
Technology Park, 107 Gilbreth Parkway, Suite 200, Mullica Hill, New Jersey.
VENUE
5.
Venue is properly laid in Gloucester County because Defendant EIRC is located
in Gloucester County and because the cause of action arose in Gloucester County. R. 4:3-2(a).
FACTUAL ALLEGATIONS
Background of Peter M. Heimlich
6.
Plaintiff received his college degree from Syracuse University's Newhouse School
of Journalism in 1977. While in school he was an editor, reporter, and columnist for the Daily
Orange student newspaper, was a freelance writer for the Cincinnati Enquirer Sunday Magazine
and other publications, and won a 1976 Hearst Foundation national award for Excellence in
News Writing.
7.
In 2002, Plaintiff began researching the career of his father, Henry J. Heimlich
MD, and uncovered a history of unseen fraud which he has published on his website,
http://medfraud.info. Since spring 2003, Plaintiffs work has been the basis for numerous print
and broadcast media reports concerning his father and a host of other news topics including fraud
surrounding the "Save a Life Foundation." Plaintiffs research has contributed to articles that
have been published by the Washington Post, NJ.com, Slate, the Cincinnati Enquirer, The
Hollywood Reporter, and ABC News among many other news outlets. Additionally, Plaintiffs
research has contributed to broadcast reports on WSB-TV (ABC Atlanta), WPIX-TV(New
York), Fox9 News (Idaho), Fox-TV (New Jersey) and ABC 20/20.
8.
Since 2010, Plaintiff has done original document-based
reporting, mostly about
fraud and/or ethical misconduct, on his blog. He publishes articles online at his blog. http://thesidebar. com.
9.
Plaintiff's
reporting covers topics of national and international importance and
can be read worldwide on the Internet.

Plaintiffs May 27,2016 OPRA Request
10.
On May 27, 2016, Plaintiff submitted a request for government records pursuant
to OPRA and the common law right of access to the EIRC. Plaintiff's request specifically stated:
According to this page on your agency's website, recording artist
Carl Brister appeared at the April 14, 2016 International
Conference for Child Assault Prevention in Atlantic City:
http://www.eirc.orglnews-announcements/icap-internationalconference-april-14-20 16/
Please provide me with copies of all records associated with Mr.
Brister's appearance including but not limited to correspondence,
promotional materials, contracts, and fmancial records including
copies of checks.
If possible, please provide the records in digital format via e-mail.
If your office wishes to correspond with me, please feel free to do
so via e-mail.
I'm requesting these records for an article I'm reporting on my blog
and I have no financial interest in the requested information,
therefore this is to request that I be categorized as a member of the
news media.
[Attached hereto as Exhibit A is a true and accurate copy of
Plaintiff's May 27th OPRA request (the "Request).]
11.
Later
on May
27, 2016,
Defendant
Hoffman
denied
Plaintiff's
Specifically, Mr. Hoffman stated:

Your request has been denied in light of the fact that you are not
considered a "citizen" of the State of New Jersey.
More
specifically, you indicated an address on your OPRA Request that
3
Request.
is outside the State of New Jersey. and have provided no evidence

that you are a citizen of New Jersey. As such, in accordance with
applicable law, including the decision in Sheeler v. City of Cape
May et al, Docket No. CPM-L-444-15 (February 19, 2016) which
held that OPRA was only applicable to citizens of this State
(namely New Jersey), your request is denied since you are not a
citizen of New Jersey and do not have standing to submit an OPRA
Request.
[Attached hereto as Exhibit B is a true and accurate copy of
Defendants' May 27th denial of Plaintiff's Request.]
12.
To date, the EIRC has released no records in response to Plaintiff's OPRA
Request. This lawsuit challenges Defendants' contention that Plaintiff does not have standing to
submit an OPRA Request.
FIRST COUNT
<Violation of OPRA)
13.
Plaintiff repeats and incorporates by reference the allegations set forth in the
preceding paragraphs as though fully set forth at length herein.

14.
The records sought by Plaintiff are government records and are subject to access
under OPRA, N.J.S.A. 47:1A-l et seq.

15.
OPRA provides that "any person" may inspect, examine, copy, or purchase
records. N.J.S.A. 47:1A-5(a).

16.
OPRA provides that "any person" may file an action in Superior Court to
challenge the denial of access to a record. NJ.S.A. 47:1A-6.

17.
A government agency must grant access to the requested records. or otherwise
state a lawful basis for withholding, within seven (7) business days after receiving the request.
NJ.S.A. 47:1A-5(i).
18.
A public agency has the burden of proving that any denial of access is authorized
by law. NJ.S.A. 47:1A-6.

4
19.
The requested records are government records because they were "made,
maintained or kept on file," or "received in the course of ...
[the EIRe's] official business."
NJ.S.A. 47: lA-I. 1.

20.
The records Plaintiff seeks are not wholly exempt pursuant to any exemption of
OPRA or any other law.
To the extent any portion of the requested records are exempt,
Defendants have an obligation to redact any exempt portion and produce the records with the
appropriate redactions. NJ.S.A. 47:1A-5(g).
21.
Defendants failed to provide access to the requested correspondence within seven
(7) business days.

22.
Accordingly, Defendants violated OPRA by:

a.
Denying Plaintiff's OPRA Request;
b.
Failing to provide access "as soon as possible, but not later than seven
business days" to the requested correspondence in violation of N.J.S.A.
47: IA-5(i);
c.
Failing to provide a lawful basis for denying access to government

records, in violation ofN.J.S.A. 47:1A-5(g); and
d.
Failing to identify the specific public records responsive to the request and
the specific basis for withholding each of those records, in violation of
NJ.S.A.47:1A-5(g).
WHEREFORE, Plaintiff demands judgment against Defendants:
a.
Declaring that Plaintiff has standing to submit OPRA requests;
b.
Declaring said actions of Defendants to be in violation ofOPRA, N.J.S.A.

47:1A-l et seq. by failing to grant access to the requested government
records as required by OPRA;
c.
Directing Defendants to release the requested records to Plaintiff

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 portiones) which are exempt from public access and
promptly permit access to the remainder of the public record;
d.
Ordering Defendants to preserve the requested records pending the

resolution of these proceedings or as otherwise required by law;
e.
Awarding counsel fees and costs pursuant to N.J.S.A. 47: lA-6; and
f.
For such other relief as the Court may deem just and equitable.
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, other than that the issue of whether a non-citizen has standing to file
OPRA requests is presently on appeal before the Appellate Division.
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 WALDER HAYDEN

A Professional Corporation,
Peter M. Heimlich
Dated: June 23, 2016
By: -----1~~~ ~
CJ~
__
VERIFICATION
Peter M. Heimlich, offu1l age, deposes and says:
1.
I am Plaintiff in the foregoing Verified Complaint.
2.
The allegations of the Verified Complaint contained in Paragraphs 1-4 and 6-12
are true. The said Verified Complaint is made in truth and good faith and without collusion, for
the causes set forth herein. The allegations in the Verified Complaint are based on personal
knowledge.
3.
All documents attached to the Verified Complaint are true copies and have not
been redacted, changed, modified, adjusted, or otherwise altered in any manner by me or my

agents.
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.
PETER M. HEIMLICH
Dated: June 23,2016
CERTIFICATION
OF FAXIELECTRONIC
SIGNATURE
CJ Griffin, Esq., of full age, certifies and says as follows:

1.
I am an attorney with the law firm ofPashman Stein Walder Hayden, P.C. I make
this certification of the genuineness of the electronic signature of Peter M. Heimlich.

2.
I hereby certify that Mr. Heimlich has acknowledged to me the genuineness of his
signature on the foregoing verification.

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.
Peter M. Heimlich
By:
Dated: June 23,2016
CJ~
EXHIBIT A
On Fri, May 27,2016 at 5:47 AM, Peter M. Heimlich <peter.heimlich@gmail.com> wrote:
Stephen H. Hoffman
Educational Information & Resource Center
107 Gilbreth Parkway, Suite 200
Mullica Hill, NJ 08062-4446

Dear Mr. Hoffman:
This is a request for information under the NJ Open Records Act.
According to this page on your agency's website, recording artist Carl Brister appeared at the April
14, 2016 International Conference for Child Assault Prevention in Atlantic City:
http;llwww.eirc.org/news-announcements/icap-international-conference-april-14-20161
Please provide me with copies of all records associated with Mr. Brister's appearance including
but not limited to correspondence, promotional materials, contracts, and financial records
including copies of checks.
If possible, please provide the records in digital format via e-mail. Ifyour office wishes to
correspond with me, please feel free to do so via e-mail.
I'm requesting these records for an article I'm reporting on my blog and I have no financial
interest in the requested information, therefore this is to request that I be categorized as a
member of the news media. For the same reasons, this is also to request that any fees be waived.
If the fee for completing my request exceeds $5, please obtain my written approval prior to
completing this request.
If my request is denied in whole or part, I ask that you justify any and all all deletions and
redactions by reference to specific exemptions of the act. I also expect you to release all segregable
portions of otherwise exempt material.
Thank you for your attention, I look forward to receiving the requested records, and please
confirm receipt of my request.
Sincerely,
Peter M. Heimlich
3630 River Hollow Run
Peachtree Corners, GA 30096
ph: (208)474-7283
website: http://medfraud-info
blog: htt:p:llthe-sidebar.com
e-mail: peter.heimlich@gmail.com
EXHIBITB
Subject: Re: public records request. 5/27/16

From: Steve Hoffman <shoffman@eirc.org>
Date: 5/27/2016 1:36 PM
To: "Peter M. Heimlich" <peter.heitnlich@gmail.com>
cc: Taylor Ruilova <truilova@comegnolaw.com>, Charles Ivory <civory@eirc.org>
Dear Mr. Heimlich:
This email is in response to the Open Public Record Act Request that you submitted on May 27,
2016.
Your request has been denied in light of the fact that you are not considered a "citizen" of the
State of New Jersey. More specifically, you indicated an address on your OPRA Request that is
outside the State of New Jersey, and have provided no evidence that you are a citizen of New
Jersey. As such, in accordance with applicable law, including the decision in Sheeler v. City of
Cape May et aI, Docket No. CPM-L-444-1S (February 19,2016) which held that OPRA was only
applicable to citizens of this State (namely New Jersey), your request is denied since you are not a
citizen of New Jersey and do not have standing to submit an OPRA Request.
Please do not hesitate to contact me with any questions.
Sincerely,
Stephen H. Hoffinan
Custodian of Records
GLOUCESTER COUNTY COURTHOUSE

GLOUCESTER COUNTY CIVIL DIVISION
1 NORTH BROAD ST
WOODBURY
NJ 08096
TRACK ASSIGNMENT
COu~T
COURT
NOTICE
TELEPHONE NO. (856) 853-3232

HOURS
8:30 AM - 4:30 PM
DATE:
RE:
DOCKET:
THE ABOVE
CASE HAS BEEN ASSIGNED
JUNE 27, 2016

HEIMLICH VS EDUCATION
GLO L -000779 16
TO:
TRACK
INFO & RESOURCE
1.
DISCOVERY IS
150 DAYS AND RUNS FROM THE FIRST ANSWER
FROM SERVICE ON THE FIRST DEFENDANT, WHICHEVER COMES FIRST.
THE PRETRIAL
AT:
JUDGE ASSIGNED
IF YOU HAVE ~~y QUESTIONSr

(856) 853-3392.
IS:
HON GEORGIA
CO~TACT
TEAM
CENTER
OR 90 DAYS
M. CURIO
100
IF YOU BELIEVE THAT THE TRACK IS INAPPROPRIATE YOU MUST FILE A

CERTIFICATION
OF GOOD CAUSE WITHIN 30 DAYS OF THE FILING OF YOUR PLEADING.
PLAINTIFF MUST SERVE COPIES OF THIS FORM ON ALL OTHER PARTIES IN ACCORDANCE
WITH
R.4:5A-2~
ATTENTION:
ATT: CJ GRIFFIN
PASHMAN STEIN WALDER HAVDFoN PC
21 MAIN ST
STE 100
HACKENSACK
NJ 07601-7054
JUHHEWO
Appendix XII-Bl
CIVIL CASE INFORMATION STATEMENT

(CIS)
Use for initial Law Division
Civil Part pleadings (not motions) under Rule 4:5-1
Pleading will be rejected for filing, under Rule 1:5-6(c),
if information above the black bar is not completed
or attorney's signature is not affixed
ATTORNEY / PRO SE NAME
OVERPAYMENT:
BATCH NUMBER:
COUNTY OFVENUE
(201) 488-8200
Gloucester
FIRM NAME (if applicable)
DCI\
AMOUNT:
TELEPHONE NUMBER
CJ Griffin, Esq.
Dei< Dca
FAYMENiiYF'E::
CHG/CKNO.
DOCKET NUMBER (when available)
Pashman Stein Walder Hayden, P.C.
GLO-L-
OFFICE ADDRESS
'119-1
DOCUMENT TYPE
Court Plaza South

Verified Complaint & OTSC
JURY DEMAND
YES
No
NAME OF PARTY (e.g . John Doe, Plaintiff)
CAPTION
Peter M. Heimlich
Peter M. Heimlich v. Educational Information & Resource Center and

Stephen H. Hoffman
CASE TYPE NUMBER
HURRICANE SANDY
RELATED?
DYES
NO
(See reverse side for listing)
802
NO
DO YOU ANTICIPATE ADDING ANY PARTIES

(arising out of same transactio" or occurrence)?
DYES
Ii NO
IF YOU HAVE CHECKED ''YES," SEe N.J.S.A. 2A:53 A -27 AND APPLICABLE CASE LAW
REGARDING YOUR OBLIGATION TO FILEAN AFFIDAVIT OF MERIT,
IF YES, LIST DOCKET NUMBERS
RELATED CASeS PENDING?

DYES
o YES
IS THIS A PROFESSIONAL MALPRACTICE CASE?
NAME OF DEFENDANT'S PRIMARY INSURANCE COMPANY (if known)
No
NONE
UNKNOWN
--
THE INFORMAT10N PROVIDED ON THIS FORM CANNOT BE INTRODUCED tNTO EVlDENCE.

CASE CHARACTERISTICS
FOR PURPOSES OF DETERMINING IF CASE IS APPROPRIATE FOR MEDIATION
DO PARTIES HAVE A CURRENT. PAST OR

RECURRENT RELATIONSHIP?,
DYES
No
IF YES, IS THAT RELATIONSHIP:

EMPLOYER/EMPLOYEE
FAMILIAL
0
0
0
0
FRIEND/NEIGHBOR
BUSINESS
DOES THE STATUTE GOVERNING THIS CASE PROVIDE FOR PAYMENT OF FEES BY THE LOSING PARTY?
OTHER(explain)
II YES
o No
USE THIS SPACE TO ALERT THE COURT TO ANY SPECIAL CASE CHARACTERISTICS THAT MAY WARRANT INDIVIDUAL MANAGEMENT OR
ACCELERATED DISPOSITION
According to N.J.S.A. 47:1A-6, this lawsuit should be assigne

"shall proceed in a summary or expedited manner."
Do YOUORYOURCLIENTNEEDIWY DISABILITYACCOMMODATION
DYES
No
WILL AN INTERPREtERBENEEDED?
DYES
No
Furthermore, the lawsuit
QUESTEDACCOMMODATION
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 t future In accordance with Rule 1:38-7(b).
ATTORNEYSJGNATURE:
Effective12-07-2015.
CN 10517-English
page 1 of 2
Side 2
CIVIL CASE INFORMATION STATEMENT

(CIS)
Use for initial pleadings (not motions) under Rule 4:5-1
CASE TYPES (Choose one and enter number of case type in appropriate space on the reverse side.)
Track I 150 days' discovery
151
175
302
399
502
505
506
510
511
512
801
802
999
NAME CHANGE
FORFEITURE
TENANCY
REAL PROPERTY(otherthan Tenancy, Contract,Condemnation,Complex Commercial or Construction)
BOOK ACCOUNT(debt collection matters only)
OTHER INSURANCECLAIM (including declaratoryjudgment actions)
PIP COVERAGE
UM or UIM CLAIM (coverageIssuesonly)
ACTION ON NEGOTIABLEINSTRUMENT
LEMON LAW
SUMMARY ACTION
OPEN PUBLIC RECORDSACT (summary action)
OTHER (briefly describenature of action)
Track II 300 days' discovery

305 CONSTRUCTION
509 EMPLOYMENT(otherthan CEPA or LAD)
599 CONTRACT/COMMERCIALTRANSACTION
603N AUTO NEGLIGENCE- PERSONALINJURY (non-verbalthreshold)
603Y AUTO NEGLIGENCE- PERSONALINJURY (verbalthreshold)
605 PERSONAL INJURY
610 AUTO NEGLIGENCE- PROPERTYDAMAGE
621 UM or UIM CLAIM (includesbodily Injury)
699 TORT - OTHER
Track III - 450 days' discovery

005
301
602
604
606
607
608
609
616
617
618
CIVIL RIGHTS
CONDEMNATION
ASSAULT AND BATTERY
MEDICAL MALPRACTICE
PRODUCT LIABILITY
PROFESSIONALMALPRACTICE
TOXIC TORT
DEFAMATION
WHISTLEBLOWER/ CONSCIENTIOUSEMPLOYEEPROTECTIONACT (CEPA) CASES
INVERSE CONDEMNATION
LAW AGAINST DISCRIMINATION(LAD) CASES
Track IV Active Case Management by Individual Judge 1450 days' discovery

156
303
508
513
514
620
701
ENVIRONMENTAUENVIRONMENTALCOVERAGE LITIGATION
MT. LAUREL
COMPLEX COMMERCIAL
COMPLEX CONSTRUCTION
INSURANCE FRAUD
FALSE CLAIMS ACT
ACTIONS IN LIEU OF PREROGATIVEWRITS
Multicounty Litigation (Track IV)

271
274
278
279
281
282
285
286
287
288
289
ACCUTANEIISOTRETINOIN
RISPERDAUSEROQUEUZYPREXA
ZOMETAIAREDIA
GADOLINIUM
BRISTOL-MYERS SQUIBBENVIRONMENTAL
FOSAMAX
STRYKER TRIDENT HIP IMPLANTS
LEVAQUIN
YAZlYASMIN/OCELLA
PRUDENTIAL TORT LITIGATION
REGLAN
290
291
292
293
295
296
297
299
300
601
623
POMPTONLAKES ENVIRONMENTALLITIGATION
PELVIC MESH/GYNECARE
PELVIC MESHIBARD
DEPUYASR HIP IMPLANTLITIGATION
ALLODERM REGENERATIVETISSUE MATRIX
STRYKERREJUVENATEIABGII MODULARHIP STEM COMPONENTS
MIRENACONTRACEPTIVEDEVICE
OLMESARTAN MEDOXOMILMEDICATIONSIBENICAR
TALC-BASEDBODY POWDERS
ASBESTOS
PROPECIA
If you believe this case requires a track other than that provided above, please indicate the reason on Side 1,
in the space under "Case Characteristics.
Please check off each applicable
Effective12-07-2015, eN 10517-English
category
Putative Class Action
Title59
page 2 of2

Court Plaza South
(201) 488-8200
Peter M. Heimlich
PETER M. HEIMLICH,
Plaintiffs,

DOCKET NO.:
v.
Civil Action

Center,
CERTIFICATION
OF CJ GRIFFIN, ESQ.
Defendants.
I, CJ Griffin, of full age, certifies as follows

1.
T am an attorney at law of the State of New Jersey, counsel with the firm of
Pashman Stein Walder Hayden, P.C., counsel for Plaintiff, Peter M. Heimlich, in the above
referenced matter. As the attorney responsible for the handling of this matter, I am fully familiar
with the facts herein.
2.
Attached hereto as Exhibit
1 is a true and accurate copy of the trial court's
opinion in Scheeler v. Atlantic County Mun. Joint Ins. Fund, docket no. BUR-L-990-15, 2015
WL 9910117 (Law Div. October 2,2015).
3.
Attached hereto as Exhibit 2 is a true and accurate copy of the trial court's order
and opinion in Scheeler v. Ocean County Prosecutor's Office, docket no. OCN~L~3295-15, 2016
WL 1587341 (Law Div. April 14, 2016).
4.
Attached hereto as Exhibit 3 is a true and accurate
copy of the court's
unpublished opinion in Katon ex reI. Muslim Advocates v. N.J. Dep't of Law & Pub. Safety,
2015 WL 567305 (App. Div. 2015).
5.
Attached hereto as Exhibit 4 is true and accurate copy of the court's unpublished
opinion in WNBC-TV v. Allendale Bd. ofEduc., 2015 WL 3548252 (Law Div. June 4, 2015).
6.
Attached hereto as Exhibit 5 is a true and accurate copy relevant pages from the
Govenunent Record Council's Handbook for Custodians.

7.
Attached hereto as Exhibit 6 is a true and accurate copy of the trial court's order
and opinion in Sheeler v. City of Cape May et al, Docket No. CPM-L-444-15
(February 19,
2016).
8.
Aside from the contradiction between the opinions in Atlantic County and Ocean
County vis-a-vis the opinion in Cape May, I know of no unpublished opinions that contradict the
attached unpublished
opinions other than that on the same date he issued Cape May, Judge
Johnson made an identical holding in Lawyers Committee
for Civil Rights Under Law v.
Athmtic City Bd. of Educ.., Docket No. ATL-L-832-15 (Law Div. Feb. 19,2016).
I certify that the foregoing statements made by me are true to the best of my knowledge
and belief. I am aware that if any of the foregoing statements made by me are willfully false, I
am subject to punishment.

Peter M. Heimlich
Dated: June 23, 2016
By:
EXHIBIT 1
Scheeler v. Atlantic County Mun. Joint Ins. Fund, 2015 WL 9910117 (2015)
2015 WL 9910117 (N.J.Super.L.) (Trial Order)

Superior Court of New Jersey, Law Division.
Burlington County
SCHEELER,
v.
ATIANTIC COUNTY MUNICIPAL JOINT INSURANCE FUND, et al.
No. BUR-L-990-15.
October 2,2015.
Cross Motions for Summary Judgment
CJ Griffin, Esq., Phone: (201) 488-8200, for plaintiff Harry Scheeler.

James R. Birchmeier, Esq., Phone: (609) 628-3414, for defendants ACMJIF, Arthur J. Gallagher Risk Management Services,
Inc., and Paul Miola.
Ronald E. Bookbinder, Judge.
Bookbinder,
A.J.S.C.
I. PRELIMINARY
STATEMENT
*1 This matter arises out of Harry Scheeler's [hereinafter "Plaintiff'] Open Public Records Act, N.J.S.A. 47:1A-l et seq.
("OPRA") requests directed to Atlantic County Municipal Joint Insurance Fund ("ACMJIF"), by way of its Fund Administrator,
Arthur J. Gallagher Risk Management Services, Inc. ("Arthur J. Gallagher"), and Paul J. Miola ("Miola"), the Custodian of
Records for ACMnF [hereinafter collectively "Defendants"]' Plaintiff seeks detailed legal invoices submitted for payment for
lawsuits filed against the Township of Hamilton in 2014 and 2015. Plaintiff argues that Defendants did not fully comply with
his request. Defendants argue that some of the information sought by Plaintiff is contained in "Confidential and Privileged
Memos" [hereinafter "C&P Memos"]. Defendants argue that the C&P Memos for open matters involving the Township are
protected in their entirety by attorney-client or work product privilege and therefore not subject to access under OPRA.
The Court finds that Defendants violated 0 PRA by failing to provide Plaintiff access to redacted versions of the C&P Memos for
open matters involving the Township. Defendants must provide all the C&P Memos for ongoing cases to Plaintiff. Defendants
may redact any information they determine is protected by attorney-client privilege or the work product doctrine pursuant to
N.J.S.A. 47:1A-l.l and O'Boy/e v. Borough of Longport, 218 N.J. 168,185 (2014). Defendants must supply Plaintiff with a
Vaughn Index
Div.2007).
II. STATEMENT
identifying and justifying each redaction. Paffv. New Jersey Dep't of Labor, 392 N.J. Super. 334,341 (App.
OF FACTS AND PROCEDURAL
HISTORY
Plaintiff made his initial OPRA request on March 16,2015, by faxing the following request to Arthur J. Gallagher:
Please email all legal bills submitted for payment for lawsuits filed against the Township of Hamilton
(Atlantic County) in 2014 through 2015. Please email allrecordstoharryrescue911@gmail.comin
pdf
format.
Scheeler v. Atlantic
County iViun. Joint Ins. Fund, 2015 WL 9910117 (2015)
[Plaintiff Brief, p. 3].

Plaintiff received a responsive e-mail from an Arthur 1. Gallagher account representative on March 20, 2015. Attached to the
e-mail were three invoices for legal work performed in connection to lawsuits filed against Hamilton Township in 2014 and
2015 and submitted to the Township for payment. The same day, Plaintiff replied to the account representative's email, stating
that the bills provided were incomplete, and that he needed the "full bills" with more details. Plaintiff then sent a follow up email advising the account representative that ACMJIF must tum over the complete bills, including details, by the end of the
day on March 23, 2015, or he would institute an 0PRA action.
*2 The ACMJIF account representative replied via email on March 23,2015 that ACMJIF was working to verify that the
information requested by Plaintiff was discoverable under OPRA. Plaintiffreplied the same day, stating that the records "are
subject to immediate release," and that he would file a violation for ACMnF's delay in providing the records.
Later on March 23, 2015, Plaintiffbegan to correspond with Fund Solicitor, David DeWeese. Plaintiff expressed his frustration
to Mr. DeWeese about the delay and trouble he was having obtaining the detailed legal invoices. Mr. DeWeese replied later in
the day, explaining that the delay was due in part to having to collect information from multiple sources, and also informing
Plaintiff that much of the additional information he sought may be contained in C&P Memos. These memos are provided to
the Fund from the attorneys who performed legal work for the Township on various matters. Mr. DeWeese described the C&P
Memos as follows:
These memos contain detailed attorney/client privileged information regarding the work that was performed
by attorneys and the litigation strategies that are being utilized in the handling of the matter. For files that
are closed, these Memos will be released to you. For files that are still open, the Memos are exempt from
disclosure [NJSA 47: 1 A-l.l (7) ] at this time as attorney/client privileged information in an active litigation
file. Once those files are closed, the Memos can be provided to you.
[Complaint, Ex. I]. Mr. DeWeese further informed Plaintiff that the C&P Memos containing the bill details are separate
documents from the invoices he originally requested, so Plaintiff made a second OPRA request on March 23,2015, requesting
the C&P Memos from the same time frame of2014 through 2015.
Plaintiff responded to Mr. DeWeese via e-mail on March 23, 2015, objecting to the nondisclosure of the bill details and the
C&P Memos. Plaintiff argued that pending litigation is not a lawful reason to deny an OPRA request and that the attorneyclient privilege did not apply to the bill details he sought.
The Area Vice President at Arthur J. Gallagher responded to Plaintiff via e-mail on March 27, 2015. Attached to the e-mail
were copies of invoices and billings pertaining to four closed claims against the Township of Hamilton, as well as the C&P
Memos associated with those matters. The attachments also included invoices pertaining to open matters against the Township,
but not the C&P Memos for the open matters. The Arthur J. Gallagher VP restated the nature of the memos to Plaintiff:
As to open claims that meet the parameters of your OPRA request, the attorney handling the matter submits
invoices for payment. The attorney also submits "Confidential and Privileged Memos" to the Fund Solicitor
which contain the detail of the work performed and litigation strategies which is attorney/client privileged
information [N.J.S.A. 47: lA-l.l (7)]. These Memos are exempt from disclosure until the matter has been
concluded.
[plaintiff Brief, p. 7]. Plaintiff responded to this e-mail later in the day, stating: "I disagree with the tactic used to hide these
public documents. I will be filing for a court order to release them."
Sch~'eier v. Atlantic County Mun. Joint Ins. Fund, 2015 WL 9910117 (2015)
On or about April 27,2015, Plaintiff filed his Verified Complaint in the Superior Court of New Jersey Law Division, Burlington
County. Plaintiffs Complaint alleged OPRA and common law right of access to public records violations. Plaintiff's Complaint
also included an application for an Order to Show Cause seeking relief from Defendants' denial of Plaintiffs OPRA request. In
addition, Plaintiff submitted a supporting letter brief dated April 23, 201~.
*3 On or about May 26,2015, Defendants filed an Answer to Plaintiff's Verified Complaint and asserted several Defenses
on Behalf of Defendants.
On or about May 28,2015, the Court signed Plaintiff's Order to Show Cause, directing Defendants to show good cause why
they did not fully comply with Plaintiff's OPRA requests.
On or about June 22, 2015, Defendants filed a Brief in Opposition to Plaintiffs Order to Show Cause and the Relief Requested
in Plaintiffs Verified Complaint.
On or about July 15,2015, Plaintiff submitted a letter brief in Reply to Defendants' Opposition to Plaintiffs Application for
an Order to Show Cause.
m. ARGUMENTS
1. Plaintiffs
Complaint and Supporting Brief
Plaintiff argues that the detailed legal invoices he seeks are government records subject to access under OPRA. NJ.S.A.
47: lA -1.1. In his Verified Complaint, Plaintiff asserts that Defendants have violated a number of OPRA requirements by failing
to provide the "Confidential and Privileged Memos" as requested. Additionally, Plaintiff argues that Defendants have violated
his common law right of access to public records. Keddie v. Rutgers, 148 NJ. 36 (1997). Plaintiff argues that there is a strong
public interest in favor of disclosure of requested information and that there is no overriding, countervailing interest in the
nondisclosure of the requested records.
Plaintiff argues that the detailed legal invoices he seeks should have been made "readily accessible" by the Defendants.
NJ.S.A. 47; lA-I. 1Plaintiff argues that OPRA mandates "immediate access" be granted to requests for budgets, bills, vouchers,
contracts, and other types of public documents. NJ.S.A. 47:1A-5(e). Plaintiff argues the documents are "unequivocally"
government records, and the burden rests on the Defendants to prove that their denial of his request is authorized by law.
NJ.S.A.47:1A-6.
Plaintiff acknowledges Defendants' argument that the requested legal invoices and billing details sought are contained within
documents called C&P Memos. Plaintiff admits that documents or information protected by attorney-client privilege are exempt
from access under OPRA. Plaintiff argues that simply labeling a document "Confidential and Privileged" does not actually make
the entire document excluded from access under OPRA. Plaintiff argues that even if the C&P Memos do contain privileged
information, then that information should be redacted and the rest of the document provided. NJ.S.A. 47:1 A-I.I.
Plaintiff argues that it makes no difference for the purposes of OPRA access if documents pertain to ongoing litigation. Relying
on an opinion by the Government Records Council (GRC), Plaintiff argues that ''pending litigation is not a lawful basis for
denial of access to records requested under OPRA. OPRA provides a statutory right of access to government records which is
not in any way supplanted by pending or ongoing litigation." Darata v. Monmouth County Ed Of Chosen Freedholds, GRC
Complaint No. 2009-312 (May 24,2011).
Plaintiff argues that Defendants have misconstrued what sort of information the attorney-client privilege protects. Plaintiff
argues that the privilege protects "communications between a lawyer and his client in the course of that relationship and in
professional confidence." NJ.S.A. 2A:84A-20(1). Plaintiff argues that Defendants have not explained how the legal bills for
Scll\"~lcr v. Atlantic
County Mun. Joint Ins. Fund, 2015 WL 9910117 (2015)
the Township of Hamilton reflect specific confidential communications between the lawyer and the client. Plaintiff further
argues that the C&P Memos pertaining to closed claims against the Township and already provided to Plaintiff "are actually
just detailed legal invoices that provide descriptions of the work performed. Overwhelmingly, none of it is actually attorneyclient privileged information." [Plaintiff Brief, p. 11]. Plaintiff argues that Defendants should be compelled to provide these
memos with any actual privileged information redacted.
*4 Plaintiffs argue that if any information in the memos is redacted, Defendants must provide a list of the redactions and an
explanation as to why the information was redacted. Horizon Blue Cross Blue Shield of New Jersey v. State, 26 NJ. Tax 575,
605 (Super. ct. App. Div. 2012). Plaintiff argues that Defendants have not provided a privilege log nor any explanation for why
certain information requested by the Plaintiff is privileged. Plaintiff argues that Defendants have merely cited the fact that the
cases are still ongoing, which is insufficient to qualify for the privilege exemption available under OPRA.
Plaintiff argues that he has a common law right of access to the requested records. Plaintiff argues that he is entitled to these
government records because Plaintiff and the public have a legitimate interest in reviewing the records to determine legal costs
and fees associated with municipal litigation. Plaintiff argues that this interest outweighs Defendants' interest in keeping these
government records a secret, and therefore, should be entitled to access them under the common law right of access doctrine.
Shuttleworth v. City of Camden, 258 NJ. Super. 573,583 (App.Div. 1992).
2. The Defendants' Answer and Reply in Opposition to Plaintiffs
Order to Show Cause and Relief Request in Plaintiffs
Complaint
Defendants deny that they improperly denied Plaintiff's OPRA request. Defendants assert a number of defenses and argue that
they have fully complied with Plaintiffs OPRA requests pursuant to NJ.S.A. 47: lA-I.
Defendants first argue that Plaintiff does not have standing to file OPRA requests because he is no longer a citizen of the State
of New Jersey. Defendants argue that the public policy of this State is that OPRA exists to benefit "citizens of this State."
NJ.S.A. 47:IA~1. Accordingly, Defendants argue, out-of-state litigants such as the Plaintiff are precluded from making OPRA
requests or filing OPRA actions. Defendants cite McBurney v. Young, 133 S. Ct. 1709 (20l3) for the proposition that a "citizen's
only" public records or freedom of information act does not violate the Privileges and Immunities Clause of the United States
Constitution. Defendants argue that Plaintiff admits to no longer being a citizen of New Jersey, since he moved to North Carolina
and is now a citizen there. Defendants note that the bill for Plaintiffs numerous lawsuits are now being footed New Jersey tax
payers, a class of which Plaintiff is no longer a member.
Defendants argue that they have fully complied with Plaintiffs OPRA request with the exception of providing the C&P Memos
for ongoing legal matters involving the Township. Defendants argue that these memos, in their entirety, contain attorney-client
privileged information and that they are exempt from disclosure. NJ.S.A. 47:1 A-l.l (7). Defendants argue that OPRA "dose
not abrogate or erode ... any privilege or grant of confidentiality ... established or recognized by ... court rule." NJ.S.A.
47:1A-9(b). Defendants further argue that material protected by the work-product doctrine is also exempt from OPRA. O'Boyle
v. Bor. of Longport, 426 NJ. Super. 1, 9 (App.Div.), certif. granted, 212 NJ. 431 (2012). Defendants argue that documents
including billing entries are subject to the attorney-client privilege "to the extent that they reveal litigation strategy and/or the
nature of the services performed." Ftdenlity & Deposit Company of Maryland v. Mclllloch, 168 F.R.D. 516,523 (E.D. Pa.
1996). Defendants argue that the C&P Memos do reveal litigation strategy and a roadmap going forward for the litigation.
Defendants note that the memos contain the following information:
*5 These Confidential and Privileged Memos as to open litigation files include detailed information as to
whom the attorney spoke to; what he/she spoke to them about; when he/she spoke to them; what documents
he/she reviewed; what legal research he/she performed; and communications with respect to litigation
strategy or settlement discussions. [Defendants' Brief, p. 11].
County ill1un. Joint Ins. Fund, 2015 WL 9910117 (2015)
Defendants argue that "the pendency of litigation" is not to be ignored with respect to OPRA requests. Specraserv, Inc. v.
Middlesex County Utilities Authority, 416 NJ. Super. 565,581 (App. Div. 2010). Defendants also argue that OPRA is not an
"alternative to civil discovery." MAG Entertainment, LLC v. The Division of ABC, 375 NJ. Super. 534, 550 (App. Div, 2005).
Defendants argue that forcing them to comply with these requests would have a "chilling effect" on the defenses of the ACMllF
member municipalities, and that granting Plaintiffs request would allow attorneys opposing the municipalities in the various
open lawsuits against the Township to pursue additional discovery through OPRA. Defendants acknowledge that privileged
information in the documents could be redacted, but take the position that the memos are privileged in their entirety, and that
the cost of redacting privileged information would be "enormous."
3. PlaintijJ's Reply to Defendants' Opposition to PlaintijJ's Application for An Order to Show Cause
Plaintiff argues that his Verified Complaint and Order to Show Cause demonstrate a clear-cut, obvious violation of OPRA.
Plaintiff argues that the C&P Memos which Defendants refuse to disclose are, in reality, simply legal invoices, that they are
not protected by attorney-client or work-product privilege, and must be disclosed pursuant to Plaintiffs request.
Plaintiff argues that despite no longer being a resident of New Jersey, he still has standing to file OPRA requests. Plaintiff argues
that Mciiurney v. Young, 133 S. Ct. 1709 (2013) is distinguishable from the instant matter because Virginia's public records act
is significantly different from the public records act in New Jersey. Plaintiff cites the specific provision in the Virginia statute
which repeatedly identifies "citizens of the Commonwealth" as those who may avail themselves of Virginia's law. Va. Code.
Ann. 2.2-3704. Plaintiff further argues that unlike OPRA, Virginia's law does not permit anonymous requests.
Plaintiff argues that OPRA permits "any person" to gain access to government records, including out-of-state entities, like
media companies and newspapers, and even anonymous individuals. Plaintiff cites numerous OPRA provisions in which the
phrase "by any person" is used to denote who may utilize a particular OPRA provision. Plaintiff argues that the term "any
person" is to be broadly construed and is defined as clearly broader than the term "citizen." In re Zhan, 424 N.J. Super. 231,
237 (App. Div. 2012); Hamilton v. Gov't Employees Inc., Co., 283 NJ. Super. 424, 428 (App. Div. 1995).
Plaintiff argues that New Jersey Courts disfavor interpretations of statutes that would allow individuals to evade legislative
intent. E.g. Hasbrouck Heights Hospital Ass'n v. Borough of Hasbrough Heights, 15 NJ. 447,453 (1985). Because OPRA
explicitly authorizes individuals to file anonymously, Plaintiff argues that it could not be limited to New Jersey citizens only,
since non-residents could simply file anonymously to evade this limitations.
*6 Plaintiff further argues that the Government Records Council (GRC) has interpreted OPRA as being open to "Anyone!,"
including residents of other states. Plaintiff argues that this Court owes deference to the GRC's interpretation as an administrative
agency. PajJv. City ofE. Orange, 407 NJ. Super. 221, 226 (App. Div. 2009).
Plaintiff argues that Defendants have violated OPRA by withholding access to legal invoices. Plaintiff notes that he does
not dispute that the attorney-client privilege and work-product doctrines could exempt some of the information in the C&P
Memos Plaintiff wishes to review. However Plaintiff argues that Defendants should redact those portions that are covered by
the privilege doctrines, and disclose the remainder of the memos. Plaintiff argues that Defendants are "trying to evade their
obligation to produce legal invoices by labeling them another name," and that the C&P Memos are simply legal invoices subject
to disclosure under OPRA. NJ.S.A. 47:1 A-l.1. Plaintiff argues that the same memos he already received pertaining to closed
lawsuits against Hamilton Township do not contain any privileged information, and therefore, Defendants should be ordered
to provide the memos in their entirety to Plaintiff. Alternatively, Plaintiff requests the Defendants provide the memos with
redactions, along with a Vaughn Index to Plaintiff justifying the redactions, and for the Court to review the records in camera
to determine the lawfulness of the redactions.
WESTLAW
Scheeler v. Atlantic County l'vIun. Joint Ins. Fund, 20~5 WL 9910117 (2015)
IV. STANDARD
OF REVIEW
OPRA actions are summary cases governed by NJ.S.A. 47: lA-6. "Any such proceeding shall proceed in a summary or expedited
manner. The public agency shall have the burden of proving that the denial of access is authorized by law." NJ.S.A. 47:IA-6.
Additionally, "any limitations on the right of access accorded by [OPRA] shall be construed in favor of the public's right of
access." NJ.S.A. 47: I A-I. OPRA actions are normally considered as cross motions for summary judgment. See, e.g., Burnett
v. County of Gloucester, 415 NJ. Super. 506,511 CAppoDiv. 2010). As the burden rests on the defendant, Defendants must
demonstrate that they are entitled to summary judgment as a matter of law. Brill V. Guardian Life Ins. Co., 142 NJ. 520,535
(1995).
V.ANALYSIS
The Court finds that Defendants violated OPRA by failing to provide Plaintiff access to redacted versions of the C&P Memos for
open matters involving the Township. Defendants must provide all the C&P Memos for ongoing cases to Plaintiff. Defendants
may redact any information they determine is protected by attorney-client privilege or the work product doctrine pursuant to
NJ.S.A. 47:1 A-l.1 and O'Boyle v. Borough of Longport, 218 N.J. 168,185 (2014). Defendants must supply Plaintiff with a
Vaughn Index identifying and justifying each redaction. Paff v. New Jersey Dep't 0/ Labor, 392 N.J. Super. 334,341 CAppo
Div.2007).
1. OPRA Claims
The Open Public Records Act requires that "government records ... 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 ... be construed in favor of the public's right of access." NJ.S.A. 47:1A-1. All government records are subject to public
access unless exempt under a specific exclusion. Id. OPRA defines "government record" as follows:
*7 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 soundrecording 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-l.l].
The definition of "government record" also encompasses third party documents, including "bill[s] for services prepared by an
attorney retained by a public entity and submitted [for] payment." O'Boyle v. Bar. a/Longport, 218 NJ. 168,184-85 (2014).
The public agency bears the burden of proving a denial of access is authorized by law. N.J.S.A. 47:1A-6. Although OPRA
defines "government record" broadly, the public's right of access is not absolute. Educ. Law Ctr. V. N.J. Dep't of Educ., 198
NJ. 214, 284 (2009). The statute excludes twenty-one categories of information, which are exempt from disclosure. Mason v.
City a/Hoboken, 196 NJ. 51,65 (2008). NJ.S.A. 47:1A-I states:
[A]U government records shall be subject to public access unless exempt from such access by; [other
provisions of OPRA]; 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.
Scheeler v. At:antic County rtllun. Joint Ins. Fund, 20'i5 WL 99'.0117 (2015)
Information protected by the attorney-client privilege is excluded from access under OPRA.
N.JSA.
47:1A-1.1 states:
A government record shall not include the following information which is deemed to be confidential ...
(a]ny record within the attorney-client privilege. This paragraph shall not be construed as exempting from
access attorney or consultant bills or invoices except that such bills or invoices may be redacted to remove
any information protected by the attorney-client privilege.
The attorney-client privilege is a recognized privilege that may shield documents otherwise accessible under OPRA. KL. v.
Evesham Twp. Bd of Educ., 423 N.J Super. 337,352-53 (App. Div. 2011), certif denied, 210 N.]' 108 (2012); Gannett N.J
Partners, L.P. v. Cnty. of Middlesex, 379 N.]' Super. 205,218 (App. Div, 2005). Documents or information that fall within the
scope of the work-product doctrine are also exempt from OPRA access. Sussex Commons Assocs., LLC v, Rutgers, the State
Unlv., 210 NJ 531,548 (2012).
A. Plaintiff
has standing
to fde OPRA requests
The Court finds that Plaintiff has standing to file OPRA requests despite no longer living in New Jersey. A question of standing
is a question oflaw and New Jersey courts have historically taken a liberal approach to the issue of standing. See Crescent Park
Tenants Ass'n. v. Realty Equities Corp, of New York, 58 NJ 98, 111-12 (1971). Resolving the issue of standing under OPRA
requires this Court to interpret various OPRA provisions. "Our task in statutory interpretation is to determine and effectuate the
Legislature's intent." See D'Annunzio v. Prudential Ins. Co. of Am., 192 N.J. 110, 119 (2007); Daidone v. Buterick Bulkheading,
191 N.J 557,565 (2007). When determining the intent of the Legislature, courts must "look first to the plain language of the
statute, seeking further guidance only to the extent that the Legislature's intent cannot be derived from the words it has chosen."
Bosland v. Warnock Dodge, lnc., 197 N.J 543, 553 (2009). Additionally, a statute should not be construed so that the purpose
behind the law can easily be defeated by evasion. Hasbrouck Heights Hospital Ass'n v. Bar, of Hasbrouck Heights, 15 N.]' 447,
453 (1954). When interpreting an OPRA provision, there is a presumption in favor of public access: "any limitation on the right
of access accorded by (OPRA) shall be construed in favor of the public's right of access." N.JS,A. 47:1 A-I.
*8 Defendants argue that Plaintiff does not have standing to file an OPRA request because he is no longer a citizen of the
State of New Jersey, and the purpose behind OPRA is to benefit the "citizens of this State." N.JS.A. 47:1 A-I. However this
argument ignores the many operational provisions of OPRA in which the phrase "any person" is used, with no mention of a
citizenship requirement. These provisions include:
The custodian of a government record shall permit the record to be inspected, examined, and copied by any person during
regular business hours. [N.JS.A. 47:1A-5(a) (emphasis added)].
A copy or copies of a government record may be purchased by any person
regulation. (N.J.S.A. 47: I A-5(b) (emphasis added) J.
upon payment of the fee prescribed by law or
The 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. (N]'S.A. 47:1 A-S(t) (emphasis added)].
A custodian must post a "statement that sets forth in clear, concise, and specific terms the right to appeal a denial of, or failure to
provide, access to a government record by any person for inspection, examination or copying ... [N.J SA. 47: 1A-50) (emphasis
added) J.
A person
(NJ.S.A.
who is denied access to a government record by the custodian of the record, at the option of the requestor, may ...
47:IA-6 (emphasis added)].
WESTLA'N
County Mun. Joint Ins. Fund, 2015 WL 9910117 (~015)
The plain language in these provisions suggest the Legislature's intent is that anyone may file an OPRA action and gain access
to public records, not only New Jersey citizens. This interpretation squares with the provision relied on by Defendants, N.JS.A.
47:1 A-I, as New Jersey citizens would benefit the same from an out-of-state OPRA request that increases the transparency
and efficiency of a New Jersey public entity as they would from the same request made by an in-state resident.
This interpretation is also supported by the Government Records Council (GRC). In its Handbook for Records Custodians, the
GRC states: "Who may file an OPRA request? Anyone! Although OPRA specifically references "citizens of this State," the
Attorney General's Office advices that OPRA does not prohibit access to residents of other states." N.J. Gov't Records Council,
Handbook for Records Custodians (5 th ed. Jan. 2011), at 6.
Plaintiff argues that OPRA cannot be interpreted as having a citizenship requirement because such a requirement would be
incredibly easy to evade. This Court agrees. Any citizenship requirement read into OPRA would be meaningless because OPRA
appears to allow for anonymous filings:
The custodian may require a deposit against costs for reproducing documents sought through an
anonymous request whenever the custodian anticipates that the information thus requested will cost in
excess of$5 to reproduce. [N.J.S.A. 47:IA-5(f) (emphasis added)]
See also Handbook for Custodians, supra, at 6 ("Also, requestors may file OPRA requests anonymously without providing any
personal contact information, even though space for that information appears on the form. "); c.f A.A. v. Gramicctonl, 2015 N.J
Super. LEXIS 158, "'8 (App. Div. Sept. 17, 2015) ("Even assuming that OPRA permits an anonymous request to a custodian
or the GRC, OPRA does not authorize an anonymous filing in the Superior Court"). If this Court were to interpret OPRA as
requiring New Jersey citizenship, then any non-resident could easily evade this requirement by choosing to file their request
anonymously, making such an interpretation implausible. Hasbrouck Heights Hospital Ass'n v. Bor. of Hasbrouck Heights, IS
NJ. 447,453 (1954).
*9 As a potential limitation on the right of access provided by OPRA, this Court must construe the question of standing in favor
of the public's right of access. N.J.S.A. 47: lA-I. Additionally, New Jersey courts have historically taken a liberal approach to
questions of standing. Crescent Park Tenants Ass'n. v. Realty Equities Corp. a/New York, 58 N.J 98, 111-12 (1971). Limiting
OPRA standing to New Jersey residents would greatly limit the public's right of access to records under OPRA, as out-of-state
news agencies and media companies could not request, review, and share government records from the State of New Jersey.
Given the presumption in favor of the right of access and New Jersey's liberal approach to questions of standing, mis Court
finds Defendants' interpretation of OPRA incorrect, and holds that Plaintiff has standing to make OPRA requests despite no
longer living in New Jersey.
B. Defendants violated OPRA by failing to provide access to redacted versions of'the C&P Memos
The Court finds that Defendants violated OPRA by failing to provide access to redacted versions of the C&P Memos for
ongoing legal matters involving the Township. Neither party disputes that ACMnF is a public entity as defined by OPRA or
that the records requested would normally be available for access pursuant to OPRA. N.J.S.A. 47: 1 A-5(e) ("Immediate access
ordinarily shall be granted to budgets, bills, vouchers, contracts, including collective negotiations agreements and individual
employment contracts, and public employee salary and overtime information."); see also O'Boyle v. Bor. a/Longport, 218 N.J.
168, 184-85 (2014) (finding that the definition of "government record" encompasses third party documents, including "bi1l[s]
for services prepared by an attorney retained by a public entity and submitted [for] payment."). The issue is whether all or
portions of the C&P Memos are exempt from disclosure due to attorney-client or some other confidentiaL privilege.
County Mun. Joint Ins. Fund, 2015 WL 9910117 (2J15)
The Court finds the provision ofOPRA exempting information protected by attorney-client privilege almost entirely dispositive
of the central issue in this dispute. N.J.S.A. 47: 1 A-l.I. The language used is directly applicable to the instant matter:
A government record shall not include the following information which is deemed to be confidential .,.
faJny record within the attorney-client privilege. This paragraph shall not be construed as exempting from
access attorney or consultant bills or invoices except that such bills or invoices may be redacted to remove
any information protected by the attorney-client privilege.
Although "[t]he attorney-client privilege (and work product doctrine) shields the disclosure of documents otherwise accessible
under OPRA," O'Boyle, supra, 218 N.J. at 185, the Legislature expressly stated that legal bills and invoices are not entirely
exempt from OPRA access. Rather, the plain language of the statute provides that only the information in the invoices that
is privileged is exempt from disclosure, and that this information can be redacted pursuant to attorney-client privilege before
providing the rest of the bill or invoice.
The Court finds that the C&P Memos pertaining to closed matters already provided to the Plaintiff are detailed legal invoices,
showing what work was completed by the attorneys representing the member municipalities, how long the attorneys spent
on the tasks, and how much this work cost the Township based on the hourly rate of the attorney assigned to the task. This
information is needed for the Plaintiff's "audit" of the reasonableness of municipality spending with respect to legal fees. These
sorts of bills or invoices are very explicitly not exempt under the plain language ofOPRA referencing attorney-client privilege.
N.J.S.A. 47:1A-l.l. One of the cases cited by the Defendants states that these documents are privileged not in their entirety, but
only "to the extent that they reveal litigation strategy and/or the nature of services performed." Fidelity & Deposit Company
of Maryland v. McUlioch, 168 F.R.D. 516, 523 (E.D. Pa. 1996). Accordingly, the Court finds that the C&P Memos are not
privileged in their entirety.
*10 The same provision provides that Defendants may redact any information covered by the attorney-client privilege, and
Plaintiff has never disputed Defendants' right to do so. There may indeed be information in the C&P Memos that "reveal[s]
litigation strategy and/or the nature of services performed." Fidelity, supra, 168 F.R.D. at 523. OPRA provides further guidance
on how to proceed when redacting information from otherwise publicly accessible documents:
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-l et seq.) 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-5J.
Given the plain language and direction of the statute, the correct course of action would have been for Defendants to redact
the privileged information from the C&P Memos pertaining to ongoing matters and then provide the remainder of the memos
to Plaintiff.
Defendants' arguments regarding the scope of attorney-client privilege, the work product doctrine, and the common interest
rule are unavailing in light of the clear, unambiguous plain language of the OPRA exemption regarding legal bills and invoices,
as well as the Court's determination that the C&P Memos are in-fact legal invoices. Although collateral litigation is not
to be ignored, this fact "does not, in itself, relieve the government agency of its obligation to comply with OPRA." MAG
Entertainment. LLC v, Division of Alcoholic Beverage Control, 375 N.J. Super. 534, 544 (App. Div. 2005). The Legislature
indicated no such exception to its general provision governing documents protected by attorney-client privilege, nor is this Court
aware of any case law suggesting the same. Defendants argue that disclosing these documents would have a "chilling effect"
on the legal defenses of the municipalities in these matters, but that will not be the case if privileged information is properly
redacted. Defendants also fear the plaintiffs in those matters may use OPRA as an additional discovery tool, but existing law
expressly precludes this sort of action. Mag, supra, 375 N.J Super. at 581 (reaffirming that New Jersey courts "expressly
disapprove" of using OPRA as an alternative to civil discovery).
Defendants' only argument for failing to redact the privileged information and disclosing the remainder of the C&P Memos is
that it would cost a great deal of tax payer money to do so, and that they have provided alternative means for Plaintiff to obtain
the information he seeks. This is essentially a public policy argument. However the Legislature did not have the same public
policy concerns when enacting the OPRA provision regarding attorney-client privilege and detailed legal invoices. There is
nothing in OPRA or the case law to support this argument as a defense to an OPRA claim or as a reason to deny public access to
the C&P Memos. The statute states very clearly that in regard to the documents sought, they are not privileged in their entirety,
and must be provided with redactions, notwithstanding the cost of redacting the information. N.J.S.A. 47: IA-I. 1.
Accordingly, Defendants were obligated to redact the privileged information and provide the C&P Memos for ongoing matters
to Plaintiff. The Court finds the Defendants' failure to do so in violation ofOPRA, and orders Defendants to provide the redacted
documents to Plaintiff, complete with a Vaughn Index identifying and justifying the redactions. See Paff v. New Jersey Dep't of
Labor, 392 N.J. Super. 334, 341 (App, Div. 2007) (requiring an administrative agency withholding otherwise publicly accessible
information due to confidentiality to provide an index or privilege log justifying the basis of each redaction).
2. Common Law Right of Access Claims

*11 Nothing in OPRA limits the common law right of access to a government record. N.J.S.A. 47:IA-8. To qualify as a
government record under the common law, the item must be:
One required by law to be kept, or necessary to be kept in the discharge of a duty imposed by law, or directed
by law to serve as a memorial and evidence of something written, said, or done, or a written memorial made
by a public officer authorized to perform that function, or a writing filed in a public office. The elements
essential to constitute a public record are that it be a written memorial, that it be made by a public officer,
and that the officer be authorized by law to make it.
S. Jersey Pub. Co. v. N.J. Expressway Auth., 124 N.J. 478,487-88 (1991). To access records under the common law, a request
is governed by a two-prong test: (I) the requestor must establish an interest in the subject matter of the material; and (2) the
requestor's rightto access must be balanced against the State's interest in preventing disclosure. Mason, supra, 196 N.J. at 67-68.
"The requisite interest necessary to accord u plaintiff standing to obtain copies of public records may be either 'a wholesome
public interest or a legitimate private interest." Higg-A-Rella, Inc. v. County of Essex, 141 N.J. 35,47 (1995) (quoting Loigman
v. Kimmelman, 102 N.J. 98, 112 (1986).
Once the plaintiff establishes an interest in the public record, his interest in disclosure must outweigh the State's interest in nondisclosure in order to gain access. Education Law Center v. New Jersey Department of Education, 198 N.J. 274,302-03 (2009).
The six Loigman factors that courts are to consider when making this determination are:
(1) The extent to which disclosure will impede agency functions by discouraging citizens from providing information to the
government;
(2) the effect disclosure may have upon persons who have given such information, and whether they did so in reliance that
their identities would not be disclosed;
(3) the extent to which agency self-evaluation, program involvement, or other decision making will be chilled by disclosure;
(4) the degree to which the information sought includes factual data as opposed to evaluative reports ofpolicymakers;
(5) whether any findings of public misconduct have been insufficiently corrected by remedial measures instituted by the
investigative agency; and
VSTLAW
10
Scheeler v. Atlantic County hlun. Joint Ins. Fund, 2015 WL 9910117 (2015)
(6) whether any agency disciplinary or investigatory proceedings have arisen that may circumscribe the individual's asserted
need for the materials.
Loigman, supra, 102 NJ. at 113.

The Court finds that the C&P Memos qualify as government records under common law and that Plaintiff has a recognizable
interest in the C&P Memos. Plaintiff is plainly invested in government transparency by virtue of the hundreds ofOPRArequests
he has filed throughout his life, and his plans to "audit" municipal spending with respect to legal fees constitutes a "wholesome
public interest." Htggs-AsRellai, supra, 141 NJ. at 47. Although Defendants argue that Plaintiff no longer has an interest in
these documents since he no longer lives in New Jersey, Plaintiff was a life-long New Jersey resident prior to 2014, still has
friends and family in the state, and has expressed an intent to return in the future. Such factors suggest and the Court so finds
that Plaintiff still has an interest in the functioning of public entities in New Jersey.
*12 With Plaintiffs interest in the C&P Memos established, the Court must balance the Plaintiffs interest in disclosure against
the Defendants' interest in non-disclosure. "Unlike a citizen's absolute statutory right of access, a plaintiffs common-law right
of access must be balanced against the State's interest in preventing disclosure." Higgs-A-Rella, supra, 141 NJ. at 46. Here,
the Court finds that the Defendants' interest in non-disclosure outweighs the Plaintiffs interest in disclosure given the ongoing
litigation, costs associated with reviewing and redacting the privileged information, and the availability of the confidential
information at a later date. Defendants argue that legal work on behalf of the Township will be impeded or "chilled" by providing
these documents, and that disclosure could have a negative effect on the attorneys, the Township, and the ongoing litigation.
Loigman, supra, 102 NJ. at 113. See also Spectraserv, Inc. v. Middlesex Cnty. Util. Auth., 416 N.J. Super. 565,581 (App. Div.
2010) (finding that in the context ofan OPRA claim, "the pendency of ongoing litigation" is not to be ignored). While most of
these concerns can be alleviated with proper redaction of confidential information, the Court recognizes the additional burden
and impact that redacting this information will have on the Defendants, member municipalities, and the attorneys working on
their behalf.
More significantly, however, is that redacting the privileged information in the C&P Memos will cost the Township and New
Jersey tax payers "tens of thousands of dollars." [DeWeese Cert., p. 3]. Plaintiff was already provided legal invoices (absent
necessary details) for the open matters against the Township, and the Defendants have offered to provide the detailed legal
invoices to Plaintiff regarding open matters when those matters close. Plaintiff has not offered any reason why he needs
immediate access to the detailed legal memos for open matters. Rather than demand immediate access to these memos, Plaintiff
could instead conduct his audit of legal invoices with respect to closed matters over a longer time period or wait for the open
matters to reach their conclusion. This Court believes either option may better serve the public interest Plaintiff seeks to protect
(avoiding unreasonable or wasteful spending on legal fees by municipalities). Accordingly, the Court finds that Plaintiff is not
entitled to the C&P Memos for open matters under a common law right of access because of the ongoing litigation against
the Township, the costs of redacting the privileged information from the C&P Memos) and the availability of the information
at a later date.
VI. TENTATIVE
DISPOSITION
The Court finds that Defendants violated OPRA by failing to provide Plaintiff access to redacted versions of the C&P Memos.
Defendants must provide all the C&P Memos for open cases to Plaintiff. Defendants may redact any information they determine
is protected by attorney-client privilege or the work-product doctrine pursuant to NJ.S.A. 47:1A-1.1 and O'Boyle v. Borough
of Longport, 218 N.J. 168, 185 (2014). Defendants must supply Plaintiff with a Vaughn Index identifying and justifying each
redaction. Poff v. New Jersey Dep't 0/ Labor, 392 N.J. Super. 334, 341 (App. Div. 2007).
016 TIl
11
AFTER REVIEWING THE TENTATIVE, PLEASE COMMUNICATE WITH YOUR ADVERSARY AND NOTIFY THE
COURT WHETHER YOU WOULD LIKE TO PROCEED WITH ORAL ARGUMENT.
Footnotes
1
"[A] Vaughn index, is a detailed affidavit correlating the withheld documents with the claimed exemptions. To pass muster, a Vaughn
index must consist of one comprehensive document, adequately describe each withheld document or redaction, state the exemption
claimed, and explain why each exemption applies." Cozen O'Connor v, United States Dep't a/Treasury, 570 F. Supp. 2d 749, 765
(E.O. Pa. 2008).
f,nd uf I~{;C'U;o.lC nt
EXHIBIT 2
Schueler v, Ocean COlmty Prosecutor's
Office, 2016 WL 158"341 (2016)
2016 WL 1587341 (N.J.Super.L.) (Trial Order)

Ocean County
Harry SCHEELER, Plaintiff,
v.
OCEAN COUNTI PROSECUTOR'S
OFFICE and Nicholas Monaco in his Capacity
as Records Custodian for the Ocean County Prosecutor's
Office, Defendants.
No.OCN-L-3295-15.
April 14, 2016.
Order
CJ Griffin, Esquire for the finn ofPashman Stein, on behalf of the Plaintiff, Harry Scheeler,
John C. Tassini, Assistant Prosecutor on behalf of the Defendants, Ocean County Prosecutor's Office and Nicholas Monaco,
individually.
Mark A. Troncone, Judge,
*1 THIS MATTER, having come before the Court, and the Court having considered submissions by counsel and any and all
responses thereto the Court having found that the following order should be entered;
IT IS, on this 14th day of April, 2016, ORDERED as follows:
IT IS ORDERED that plaintiff's request for attorney fees and court costs is GRANTED; and
IT IS FURTHER ORDERED that plaintiff shall submit a certification of legal fees and court costs for review within 20 days
from the date of this Order; and
IT IS FURTHER ORDERED that Defendant OCPO shall have ten days thereafter to submit a written response to plaintiff's
certification; and
IT IS FURTHER
ORDERED that a copy of this Order shall be served on all parties within 7 days,
signature
MARK. A. TRONCONE, J.S,C.
NATURE OF THE PROCEEDING

Plaintiff, Harry Scheeler, ("Scheeler") seeks reliefunder New Jersey's Open Public Records Act ("OPRA"), NJ.S.A. 47: IA-I.I
et. seq., Specifically, Scheeler seeks records relating to the January 8, 2015 arrest of Andrew Flinchbaugh ("Flinchbaugh"),
a local journalist. Defendant, Ocean County Prosecutor's Office ("OCPO"), the agency who arrested Flinchbaugh has denied
Scheeler's request. Initially, the OCPO denied access on the basis that the records were exempt from public access as a part
of an ongoing investigation. OCPO also claimed the records were exempt as a result of a pending settlement between it and
Flinchbaugh.
Sch~eler v. Ocean County Prosecutor's
Based upon OCPO's response
to his request,
of the OCPO to be in violation
actions
Office, 2016 WL 1587341 (2016)
access by his rights under common
Scheeler brought
an Order to Show Cause action asking this court to declare the
of OPRA and ordering
law. Finally,
plaintiff
OCPO to release the requested
also sought attorney
Since the filing of the Order to Show Cause, the parties have resolved
documents.
The only issue remaining
relates to plaintiffs
request
Scheeler
also claims
fees and court costs as authorized
records.
by OPRA.
their dispute relating to the production
for attorney
fees and costs. In response,
of the requested
the OCPO asserts
that Scheeler does not have standing to bring this action because he is not "a citizen" of the State of New Jersey. He is therefore
not entitled to an award of attorney fees and costs. No other defense has been asserted by OCPO before this court.
For the reasons
expressed
below, the court rejects defendant's
lack of standing
defense and accordingly
finds the plaintiff
is
entitled to an award of counsel fees.
STATEMENT
According
to the certification
"open government
activist."
seek the production
submitted
OF FACTS AND PROCEDURAL
in support of his application
to the court, plaintiff Harry Scheeler is a self-described
Since the time he was fifteen years old and for decades since, Mr. Scheeler has utilized OPRA to
of public records and has filed, by his own count, over one hundred actions with the Government
Council and twenty five actions in New Jersey Superior Court. Although
Carolina
in August,
*2 Despite
2014 for health and financial
his relocation,
Mr. Scheeler
OPRA requests
has continued
continues
to submit
for his own purposes,
assistance
to third parties and at times files requests
his so-called
freely admits that because
On the evening of January 8, 2015, Flinchbaugh,
Flinchbaugh
the emergency
same but steadfastly
of law administration
On September
of OPRA he often lends
response
was approached
surrender possession
arrived at the scene of a fatal one-car accident
at the scene, Flinchbaugh

by Detective
("Margentino")
of his smart phone since it contained evidence of the
also offered to allow Margentino
refused to surrender
took photos and a video
David Margentino
his phone. Ultimately,
asserted that as a member of the press he
to view any photos or video footage and make
Margentino
arrested Flinchbaugh
for obstruction
and seized his phone. Two days after the arrest, OCPO dropped all charges against Flinchbaugh.
9,2015,
This is an OPRA
that Flinchbaugh
the scene. Flinchbaugh
in New Jersey. He
appeal. While doing this work
of his intimate knowledge
refused. The two parties argued for several minutes. Flinchbaugh
had a right to document

copies ofthe
demanded
files the appropriate
a reporter for a local newspaper,
a detective for the OCPO. In documenting
of the OCPO. Margentino
of local and state agencies
on their behalf so they can remain anonymous.
on his smart phone. As he was leaving the scene, Flinchbaugh

accident.
a lifelong resident of New Jersey, he moved to North
"audits"
and where denied he, on occasion,
Mr. Scheeler
Records
reasons.
primarily
involving
HISTORY
Scheeler submitted
request.
an anonymous
I am also asserting
OPRA request seeking the following
my rights under the Common
records:
Law Right of Access for the following
records.
Please fax all records to 704-870-3173.

Please
provide
Flinchbaugh,
the arrest report and all information

23, of Lacey, working
Please also provide
for
any incident reports
provide any correspondence

Please provide the accident
obtainable
under executive
order 69 for the 1/8/15 arrest of Andrew
P.
The Lacey Reporter.

associated
with Mr. Flinchbaugh

report associated
with this arrest. It's my understand

notifying
[sic] the charges were dropped. Please
him the charges were dropped.
with the investigation
by Detective
David Margentino
for the crash involving
the
OCPO on Dover Road on 1/8/2015.

Please also provide
training certifications.
the resume for David Margentino
at the time of hire, the date of hire and salary. Please also provide all
Scheeler v. Ocean County Prosecutor's
Office, 2016 WL 1587341 (2016)
Please see the attached article for additional information.
On September 18,2015, Assistant Prosecutor Nicholas Monaco ("Monaco"), the Custodian of Records for OCPO, responded
to Scheeler's anonymous request. In his letter, Monaco stated:
Please be advised that, pursuant to N.1.S.A. 47:1A-1.l et seq., the requested materials concerning Andrew Flinchbaugh are
criminal investigatory records and therefore exempt from disclosure through OPRA. Please also see the recent rulings in North
Jersey Media v. Township of Lyndhurst, 441 N.J. Super. 70 (App. Div, 2015), with regards to criminal investigatory records
exemptions and N.J.S.A. 47: IA-3, [Records of investigations in progress], which provides in part:
Notwithstanding any other provision of this subsection, where it shall appear that the information requested or to be examined
will jeopardize the safety of any person or jeopardize any investigation in progress or may be otherwise inappropriate to
release, such information may be withheld. This exemption shall be narrowly construed to prevent disclosure of information
that would be harmful to a bona fide law enforcement purpose or the public safety ...
*3 The underlying matter involving Andrew Flinchbaugh, a reporter from the Lacey Reporter, is the subject of settlement
negotiations between the Ocean County Prosecutor's Office, the County of Ocean, and legal representatives from the American
Civil Liberties Union (ACLU), on behalf of Mr. Flinchbaugh. Therefore, disclosure of any materials related thereto would be
entirely inappropriate and would be inconsistent with the proposed settlement, whose purpose it is to protect Mr. Flinchbaugh's
privacy interests. Therefore, for the reasons set forth hereinabove, your request for documents is denied.
With regard to your request for materials pertaining to Detective David Margentino, please be advised of the following:
A public employee's training and education are personnel records, exempt from disclosure unless they fall within one of the
statutory exemptions. Kovalcik v, Somerset County Prosecutor's Office, 206 N.J. 581, 593-594 (2011). NJ.S.A. 47:1A-I0
provides that "data contained in information which disclose conformity with specific experiential, educational or medical
qualifications required for government employment or for receipt of a public pension, but not including any detailed medical
or psychological information, shall be a government record." See, also Executive Order 11 (Bryne [sic] 1974). However,
this exemption is further narrowed by Executive Order 26 4(c) (McGreevey 2002), which exempts from production "[t]est
questions, scoring keys and other examination data pertaining to the administration of an examination for public employment
or licensing."
As a result, public employee training and education documents are only subject to production to the extent that they disclose
the public employee has completed specific training or education that is required for his or her employment. Id. at 593-594. The
applicability of this exemption depends on the nature of the contents of the particular documents and the specific educational
requirements for employment. Id. at 595, See, e.g., Killino v. Municipal Clerk, Delran Township, GRC Compliant No. 2003-20
(February 18, 2004) (township produced certain firearms and vehicular training records under N.J.S.A. 47: 1A-I 0 because they
reflected compliance with "experiential" qualifications for employment of the individuals in question).
For the reasons set forth hereinabove, your request for the resume and training certifications of Detective David Margentino
are denied. Pursuant to N.1.S.A. 47:1A-IO, however, the information you requested about Detective Margentino is as follows:
Title - Detective, date of hire - September 8, 2009, and current salary - $69,127.00.
In his letter, Monaco also denied Scheeler's common law right of access,
Also, on September 18, 2015, Scheeler submitted a second OPRA request to OCPO seeking:
VESTLAW
Scheelerv.
Ocean County Prose.:utor's
Offica, 2016 WL 1587341 (2016)
1) All information pertaining to the arrest of Andrew Flinchbaugh on January 8,2015 pursuant to N.J.S.A. 47:1A-3b;
2) All complaints filed against Andrew Flinchbaugh regarding the January 8,2015 arrest even if they were later withdrawn; and
3) A copy of Detective David Margentino's 2015 year to date payroll register.
On October 16,2015, Mr. Monaco responded to Mr. Scheeler. I Monaco stated at that time that OCPO was still reviewing his
requests, A copy of Margentino's payroll register was provided. However, no other documents were provided.
Dissatisfied with OCPO's response to his various requests, Scheeler filed the Order to Show Cause on November 30,2015.
As noted above, subsequent to the filing of the Order to Show Cause, Scheeler and the OCPO came to an agreement on the
disclosure of the requested documents. Therefore, the only remaining issue is whether the plaintiff is entitled to fees and costs
under OPRA. At the return date on February 19,2016, the court heard arguments of the parties on that issue. The court also
received additional legal briefs from the parties following oral argument.
STANDARD
OF COURT REVIEW
*4 It is well-settled that OPRA matters are to be considered in a summary fashion. The statute provides that "[a]ny such
proceeding shall proceed in a summary or expedited manner." N.J.S.A. 47: lA-6. Upon the denial of an OPRA request, a plaintiff
has forty five days to bring an action either before the Government Records Councilor to the Superior Court. Ibid. A government
agency's defense of the OPRA claim is considered as a cross-motion for summary judgment. Barnett v. County of Gloucester,
415 NJ. Super. 506,511 (App. Div. 2010).
Under OPRA, the government agency has the burden of proving the denial of access is authorized by the statute. N.J.S.A.
47:1A-6. To meet that burden, the agency must establish that the requested governmental record fits within one of the twenty
one categories of information which are exempted from disclosure. See, Mason v. City of Hoboken, 196 N.J. 51, (2008) citing
to N.J.S.A. 47:IA-1.
Although OCPO had cited to several categories of exemptions when denying Scheeler's request, it now bases its defense on
one contention, i.e., that as a resident of North Carolina, Mr. Scheeler is not a "citizen" of New Jersey and therefore has no
standing to bring this action under OPRA.
LEGAL FINDINGS
PLAINTIFF HAS STANDING TO BRING THIS ACTION AND IS THEREFORE
ENTITLED TO AN AWARD OF ATTORNEY FEES AND COURT COSTS
The lack of standing defense advanced by OCPO makes this case one of first impression. There does not appear to be any
controlling statutory or case law on this issue. 2
OCPO urges this court to limit standing to bring an action under OPRA to New Jersey "citizens." It bases this decision on the
use of that term in the statement of Legislative Findings and Declarations:
The Legislature finds and declares it to be public policy of this State that:
[G]ovemment 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 on the right of access accorded by [this law] shall
be construed in favor of the public's right of access; ... N.J.S.A. 47:1A-l
Scheeler v. Ocean County Prosecutor's
Office, 2016 WL 1587341 (2016)
The use of term "citizen", according to OCPO evinces an intent on the part of the Legislature to limit public access to citizens of
New Jersey to the exclusion of all others "because New Jersey citizens are the ones with a legitimate interest in the documents
held by New Jersey agencies.") Although OCPO does not cite to any controlling New Jersey case law, it argues that the United
States Supreme Court decision in Mcburney v. Young, 133 S. Ct. 1709 (213) supports its position.
In Mcbumey, the Supreme Court upheld the State of Virginia's Freedom of Information Act which limited access to public
records to citizens of that Commonwealth. Unlike New Jersey's law, however, the word "citizen" is used throughout the text
of the statute, and significantly, in its operational provisions.
*S In the final analysis, OCPO's argument rests on too slender a reed and must therefore be rejected.
Under OPRA, the term "citizen" is not defined and appears nowhere other than in the statement of Legislature Findings and
Declarations which is essentially a preamble of the statute, In the operational provisions of the statute, the more general term
"person" is used. This term is broader than "citizen" and compels a finding that the legislature did not intend to so limit access to
public records. See, Dep't of Labor v. Cruz, 45 N.J. 372,380 (1965) and In re Zhan, 424 N.J. Super. 231, 237 (App. Div. 2012).
The beginning point for determining the intent of a statute is the language of the statute itself. Courts must be bound by the
axiom that when a legislature speaks by drafting a statute, the law says what the legislature meant. Thus, if the words of a statute
are plain, clear and unambiguous, the "judicial inquiry is complete." Connecticut Nat'l Bank v. Germain, 503 U.S. 249,253-54
(1992). In this state, the New Jersey Supreme Court has ruled:
When interpreting statutory language, the goal is to divine and effectuate the Legislature's intent. In
furtherance of that goal, we begin each such inquiry with the language of the statute, giving the terms
used therein then ordinary and accepted meaning. When the Legislature'S chosen words lead to one clear
and unambiguous result, the interpretative process comes to a close, without the need to consider further
intrinsic aids. We seek out extrinsic evidence, such as legislative history, for assistance when statutory
language yields ''more than one plausible interpretation." (citations omitted). State v. Shelley, 2015 N.J.
320,323 (2011) citing to and quoting DiProspero v. Penn, 183 N.J 477, 492-93.
In the court's view, the language of OPRA is clear and unambiguous. Access to public records under OPRA is not limited to
New Jersey "citizens." If the Legislature intended to do so it could have, as the Virginia Legislature did, incorporating that
term in the statute's operational provisions.
Furthermore, public policy as evidenced in the statute's legislative Findings and Declarations, the very paragraph relied on by
OCPO, provides "[a]ny limitation on the right of access accorded by [OPRA], shall be construed in favor of the public's right
of access." N.JS.A. 47:1A-1 (emphasis supplied). Thus to the extent there is any ambiguity in the law as to the scope of those
entitled to access, such ambiguity must be resolved in favor of a more liberal reading. Such a reading of the statute would also
comport with the generally liberal view of standing taken by New Jersey courts. In re Camden County, 170 N.J 439,449 (2002).
It is clear that taken to its logical conclusion, the position advanced by OCPO would leave many parties who have a legitimate
need to access to public records without recourse. For example, a non-resident property owner and taxpayer could not obtain
public records affecting his property; the out-of-state motorist involved in an accident would be unable to access documents
from law enforcement officials relating to the incident; and a newspaper, published in a neighboring state but circulated in
New Jersey, investigating a claim of alleged official misconduct or corruption would be barred from obtaining public records.
Clearly, all of these parties have a real and legitimate interest in obtaining those records but, under OCPO's overly restrictive
view of the reach ofOPRA would be prevented from doing so. This would clearly frustrate the intent and purpose of the statute.
r.
Scheekr
v. Ocean County Prosecutor's
Office, 2016 WL 1587341 (2016)
CONCLUSION
*6 For these reasons, the court finds in favor of the plaintiff. Counsel for plaintiff shall submit a certification oflegal fees and
court costs for review within twenty days from the date of the order accompanying this opinion. Defendant oepo shall have
ten days thereafter to submit a written response to plaintiffs certification.
Footnotes
1
By this time, Scheeler had disclosed his identity to Mr. Monaco.
Recently, two New Jersey trial courts have considered this issue with conflicting results. On October 2, 2015, the Hon. Ronald
Bookbinder, A.J.S.C. rejected the lack of standing defense of a public joint insurance fund defendant in Scheeler v. Atlantic County
Municipal Joint Insurance Fund. et. al., Docket No. BUR -L-990-15 (Burlington County). Subsequently, in a Cape May County case,
the Hon, Nelson C. Johnson, lS.C. agreed with the defendant municipality's contention that the plaintiff lacked standing to bring his
OPRA claim. Scheeler v. City a/Cape May, Docket No. CPM-L-444-15 (Cape May County). Both of these cases were brought by
the same person who is the plaintiff here and thus the facts relating to his standing are identical to those presented in this matter.
3
Motion brief of OCPO at page 4.
filii of bt,;:unlcn,
EXHIBIT 3
Katon ex rei. Muslim Advocates
v. NJ Dept. of Law and ..., Not Reported in A.3d ...
2015 WL 567305
2015 WL 567305
Only the Westlaw citation is currently available.
UNPUBLISHED OPINION. CHECK
COURT RULES BEFORE CITING.
I.
On May 24, 2012, then-Attorney General Jeffrey S. Chiesa
issued a press release stating that
his office has taken steps to improve
law enforcement coordination and
address concerns expressed by Muslim
community
leaders following a
three-month fact-finding review of
intelligence-gathering conducted by
the New York Police Department
(N.Y.PD) in New Jersey. The factfinding review, which is on-going,
has revealed no evidence to date that
NYPD's activities in the state violated
New Jersey civil or criminal laws.
Superior Court of New Jersey,

Appellate Division.
Glenn KATON (on behalf of Muslim
Advocates),
Complainant-Appellant,
v.
NJ DEPARTMENT OF LAW AND PUBLIC
SAFETY, OFFICE OF THE ATTORNEY
GENERAL, Custodian of Record-Respondent.
Submitted Jan. 26, 2015.
1
Decided Feb. 12, 2015.
On appeal from the Government Records Council, Complaint
No. 2012-267.
Attorneys and Law Firms
McCarter & English, LLP, attorneys for appellant (Steven A.
Beckelman and Roktim Kaushik, on the briefs).
John J. Hoffman, Acting Attorney General, attorney
for respondent (Lewis A. Scheindlin, Assistant Attomey
General, of counsel; Valentina M. DiPippo, Deputy Attorney
General, on the brief).
The press release stated the OAG had taken the following
steps: reaching an "agreement ... to strengthen the lines
of communication with NYPD concerning investigative
activities in New Jersey related to counter-terrorism"; issuing
an Attorney General's Directive containing "formalized
notification protocols" for New Jersey law enforcement
agencies "to follow when they learn of law enforcement
activity being conducted by out-of-state police agencies
within their jurisdictions"; and establishing "a Muslim
outreach committee in order to enhance communication
and encourage a greater understanding regarding issues
of importance to both law enforcement and the Muslim
community."
Before Judges SABATINO, GUADAGNO and LEONE.

Complainant
Opinion
PER CURIAM.
*1 Complainant Glenn Katon, on behalf of an entity
called Muslims Advocates, appeals from a decision of the
Government Records Council (GRC). The GRC concluded
the Records Custodian (Custodian) of respondent, the
Department of Law and Public Safety of the Office of
the Attorney General (OAG), lawfully denied access to
documents complainant had requested under the Open Public
Records Act (OPRA), NJ.S.A. 47:1A-l to -13. Because the
record is inadequate to resolve the issues raised, we vacate
and remand this case to the GRC for further proceedings.
sent an OPRA request to the Custodian,
requesting six categories of records regarding: (1) the factfinding review, (2)-(3) the determination of the legality of
the NYPD's activities, (4) the agreement with the NYPD,
(5) the formalized notification protocols, and (6) the Muslim
outreach committee. After not receiving a response to his
requests, complainant filed a "Denial of Access Complaint"
with the GRC.
The Custodian then responded to complainant's OPRA
request in a "Receipt." The Custodian asserted that requests
(1), (2), and (3) sought non-existent or privileged records.
Regarding the other requests, the Custodian: (4) stated the
agreements with NYPD were oral; (5) provided a copy of
the Attorney General's directive; and (6) provided copies
of five documents relating to the outreach committee.
WESTLAW 2016 Thomson Reuters. No claim to original U.S. Government Works.
v. NJ Dept. of Law and ..., Not Reported in A.3d ...
2015 WL 567305
The Custodian gave similar responses in a "Statement of

Information" (Statement) subsequently filed with the GRC.
Without reviewing any records, the GRC's Executive Director
issued "Findings and Recommendations" that the Custodian
had not unlawfully denied access to responsive records.
On July 23, 2013, the GRC adopted those findings and
recommendations as its final administrative determination,
Complainant appeals, challenging only the Custodian's
failure to produce records in response to requests (1), (2), and
(3).
*2 We must hew to our standard of review of a decision
by the GRC, which "is governed by the same standards
as review of a decision by any other state agency." Fisher
v. Div. of Law, 400 N'J.Super. 61, 70 (App.Div.2008). "A
reviewing court will not overturn an agency's decision unless
it violates express or implied legislative policies, is based
on factual findings that are not supported by substantial
credible evidence, or is arbitrary, capricious or unreasonable."
Ibid. "[U]nder our deferential standard of review, we give
weight to the GRC's interpretation of OPRA." McGee v.
Twp. ofE. Amwell, 416 NJ.Super. 602,616 (App.Div.2010).
"We do not, however, simply rubber stamp the agency's
decision." Paff v. N.J. Dept. of Labor, 392 NJ.Super. 334,
340 (App.Div.2007) ("Paff II "); e.g., Paffv. NJ. Dept. of
Labor, 379 NJ.Super. 346,358 (App.Div.2005) ("PaffI").
II
Complainant's requests asked for "records, as defined in
NJ.S .A. 47:1A-1.1." Specifically, request (1) sought:
1. All records collected and/or created
as part of the "fact-finding review"
of intelligence-gathering conducted by
the New York Police Department
(NY.PD) in New Jersey, including but
not limited to all records reflecting
communications with the NYPD, such
as emails, audio recordings, notes of
telephone and other communications,
and memos[.]
The Custodian responded: "While the OAG met with and
discussed intelligence gathering with the [NYPD), OAG is
not in possession of records created by the NYPD pertaining
to counter-terrorism investigations or intelligence gathering."
That answer only partially responded to request (1), which

sought records created or collected by the OAG as part of
its fact-finding review. The Custodian did not state whether
the OAG created any records, collected records not created
by the NYPD, or created or collected records reflecting
communications with the NYPD.
The Custodian's partial answer raises the possibility that

responsive documents may not have been produced. The
press release stated that the ~AG's fact-finding review
lasted three months and "included gathering information
from individuals within the ranks of law enforcement in
New Jersey, New York, and other states, as well as from
civilians within the Muslim and other communities in New
Jersey." Indeed, in his Statement, the Custodian reported
there were 579 pages in the files of a Special Assistant to
the Attorney General (SAAG) and 31 pages in the files of
a Deputy Attorney General (DAG), which they "collected"
and "created," and which ''pertain[ ed] to issues surrounding
intelligence gathering by the [NYPD] in New Jersey."
These 610 pages appear to fall within the scope of request
(1). Nonetheless, the GRC simply accepted the Custodian's
partially-responsive answer that there were no responsive
documents. In these circumstances, it was "inconsistent with
the GRC's responsibilities" to accept the Custodian'S largely
unresponsive, "blanket and conclusionary assertion." PafJ I,
supra, 379 N.J.Super. at 353.
*3 The Custodian's response to request (1) also "note[d]
that OPRA exempts from disclosure 'security measures and
surveillance techniques which, if disclosed, would create a
risk to the safety of persons, property, electronic data or
software.' " (quoting NJ.S .A. 47:1A-l.l). The Custodian
also cited executive orders and NJ .S.A. App. A:9-68(5)(a)
and -68( 11)(a) as exempting security records from disclosure.
See N.J.S.A. 47:1A-9(a). However, the Custodian did not
expressly allege that any records collected or created by the
OAG fell within these security exemptions. In any event, the
GRC did not address the Custodian's claim of exemption, but
upheld the Custodian solely "because the Custodian certified
that no responsive records exist." The security-surveillance
exemption claims thus remain unresolved.
We turn now to requests (2) and (3). They sought:
2. All records upon which the Office of the Attorney
General relied for its determination that the NYPD's
activities in the state did not violate New Jersey civil or
criminal laws; (and]
v, NJ
Dept. of L.aw and ..., Not Reported in A.3d ...
2015 WL 567305
3. All records reflecting the Office of the Attorney

General's determination that the NYPD's activities in the
state did not violate New Jersey's civil or criminallaws[.]
The Custodian's Receipt responded to request (2):
(2) Records relied upon by OAG
in reaching its determinations are
protected
from access by the
deliberative process privilege; see
Edue. Law Ctr. v. N.J. Dep't of Educ.,
198 NJ. 274 (2009). Legal research,
legal memoranda and internal emails are also exempt as attorney
work product and as attorney-client
privileged documents[.]
The Receipt's response to request (3) was "see response to (2)
above."
In the Custodian's Statement's response to requests (2) and
(3), he claimed that the more than 600 pages collected or
created by the SAAG and DAG were exempt from OPRA
"as they contain documents protected under the attorney work
product, attorney-client, and deliberative process privileges,
along with records" which may fall under the securitysurveillance exemption. The Custodian asserted that the
files of the SAAG and DAG were created and used "to
provide advice, deliberation and consultation, including legal
advice, to Attorney General Chiesa pertaining to issues
surrounding intelligence gathering by the [NYPD] in New
Jersey, including advice in support of and in anticipation of
litigation. "
The GRC upheld the Custodian solely on the basis that
"[t]he records responsive to request items numbered 2 and 3
are exempt from disclosure as inter-agency or intra-agency
advisory, consultative, or deliberative materials" (ACD
material). See N.J.S.A. 47:1A-l .1. For a document to be
ACD material, it "must meet two requirements." In re
Liquidation of Integrity Ins. Co., 165 N.J. 75, 84 (2000).
"First, it must have been generated before the adoption of
an agency's policy or decision. In other words, it must be
pre-decisional. Second, the document must be deliberative
in nature, containing opinions, recommendations, or advice
about agency policies." Id. at 84-85 (citation omitted).
upon to make a determination would necessary contain

opinions, recommendations, and/or advice." However, it
is undeniable that a decision-maker can rely on factual
documents containing no opinions, recommendations, or
advice. In such circumstances, the Supreme Court has
held that " '[p ]urely factual material that does not reflect
deliberative processes is not protected.' " Edue. Law Ctr.,
supra, 198 N.] . at 297 (quoting Integrity, supra, 165 NJ.
at 85). Whether the withheld 610 pages contain such factual
documents is unclear from the Custodian's Statement. On
the one hand, the Custodian stated "that the documents in
question were written by subordinates to their superior and
that the documents contained inter/intra-agency advisory,
consultative or deliberative materials." 2 On the other hand,
the Custodian stated that the SAAO and the DAG "collected"
documents and the documents were "created or relied upon"
by the SAAG and DAG (emphasis added).
Addressing request (3) which sought records reflecting
the ~AG's determination, the GRC adopted the Executive
Director's finding: "Although such records would have
been made either contemporaneously with, or after
the determination, they would represent pre-decisional
deliberative material exempt from disclosure." However,
that contravenes the Supreme Court's requirement that ACD
material "must be 'pre-decisional,' which means that' it must
have been generated before the adoption of an agency's policy
or decision.' " Id. at 286 (quoting Integrity, supra, 165 N.J.
at 84).
Also with regard to requests (2) and (3), the ORC adopted
the Executive Director's finding that "[c]omplainant, by the
very wording of his request, is seeking ACD material."
Because ACD material only includes pre-decisional material,
that finding cannot alone support the denial of request (3),
which could include decisional and post-decisional materials
"reflecting the [~AG's] determination." 3
By contrast, request (2) sought "[a]lI records upon which
the [OAG] relied for its determination." By asking the OAG
to detail the "culling process" that was "integral to the
agency's process of deliberation," request (2) by definition
would "expose the agency's deliberative processes." Id. at
300, 281. Accordingly, we uphold the GRC's finding that
the Custodian properly declined to produce documents in
response to request (2) because, by its own terms it sought
ACD material.
*4 Regarding request (2), the ORC adopted its Executive

Director's finding that "it is axiomatic that records relied
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2016 Thomson Reuters. No claim to original U.S. Government Works.
v. NJ Dept. of Law and ... Not Reported in A.3d ..
2015 WL 567305
However, denial of request (2) does not resolve the status of

any document. Every document on which the OAG relied was
presumably "collected and/or created" by the OAG, and thus
also sought by request (1). Unlike request (2), request (1) does
not ask whether the OAG relied on the document. Thus, the
disclosure of a document in response to request (1) would
not necessarily reveal the OAG's deliberative processes. The
Custodian would be required to make that showing. "[A]
record, which contains or involves factual components, is
entitled to deliberative-process protection when it was used in
the decision-making process and its disclosure would reveal
deliberations that occurred during that process." Id. at 280
(emphasis added).
*5 Moreover, the Custodian has failed to furnish us or
the GRC with the necessary information to resolve requests
(1) and (3). "OPRA 'generally places the burden upon the
custodian of a public record to state the "specific basis"
for the denial of access.' " Newark Morning Ledger Co.
v. NJ Sports & Exposition Auth., 423 NJ.Super. 140, 162
(App.Div.2011) (citation omitted); see NJS.A. 47:1A-5(g),
-6. "[TJhe agency to which [an OPRA] request is made shall
be required to produce sworn statements by agency personnel
setting forth in detail" specified information, including "the
documents found that are responsive to the request," and "the
determination of whether the document or any part thereof is
confidential and the source of the confidential information."
Paff II, supra, 392 Nil.Super. at 341. "The sworn statement
shall have appended to it an index of all documents deemed
by the agency to be confidential in whole or in part,
with an accurate description of the documents deemed
confidential." Ibid "The index is essentially a 'privilege
log' that must provide sufficient information 'respecting the
basis of the privilege-confidentiality-exception claim vis a
vis each document.' " Ibid. "An accurate index is necessary
for substantive review by the requesting party as well as the
reviewing court." Ibid.
Contrary to Paff IL the Custodian's sworn Statement and
index listed only those documents responsive to the requests
that were not confidential. The Custodian did not index the
documents deemed confidential, did not give a description
of any such document, and did not particularize the privilege
claim for each document. Instead, he simply stated he
was withholding more than 600 pages and asserting four
privileges. His failure to relate each privilege to particular
documents is particularly worrisome as the GRC did not
consider three of the asserted privileges, and thus it is
possible ''that some of the documents may not in fact be
privileged." See Paffv. Div. of Law, 412 N.JSuper. 140,161

& n. 9 (App.Div.) ("Paff III "), certif. denied, 202 N.J 45
(2010). The Custodian's index is insufficient "to facilitate
the decision-maker's review of governmental records to
determine whether they contain privileged material" or
"to provide the party seeking disclosure with as much
information as possible to use in presenting his case" for
disclosure. See Fisher, supra, 400 N.JSuper. at 76.
Accordingly, we vacate and remand this case to the GRC. The
Custodian shall provide the GRC with a revised Statement
and index that responds in full to requests (1) and (3), lists
all responsive documents which are not being produced. and
particularizes the claim of privilege for each document. In
light of our rulings, the Custodian may alter his assertions of
privilege to requests (1) and (3).4
The Custodian must provide sufficient information ''to
establish why confidentiality is necessary." Corr. Med Servs.
v. State, Dep't of Corrs., 426 Nsl.Super. 106. 125 n. 6
(App.Div.2012). The Custodian
*6 should be guided by the standard included in R.
4:10-2(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."
PaffI, supra, 379 Nil.Super. at 354.
The index shall be provided to complainant, ibid., unless
the GRC decides this is one of the ''rare cases" in which
submission of a confidential index for "in camera inspection
is appropriate." Loigman v. Kimmelman, 102 N.J 98, 11113 (1986).
The GRC shall "determine, on a document-by-document
basis, whether each such claim of privilege should be
accepted or rejected." Paff III, supra, 412 N.JSuper. at 161
n. 9. The GRC should conduct an "in camera review of the
records that an agency asserts are protected when such review
is necessary to a determination of the validity of a claimed
exemption." Paff I, supra, 379 NJSuper. at 355; see Fisher,
supra, 400 N'J.Super. at 174; see also N.l.S.A. 47:IA-7(c),
(e), (f).
Given the GRC's finding that the Custodian failed to respond
in a timely fashion to complainant's initial request, the
Custodian shall produce the revised Statement and index
v. NJ Dept. of Law and ... Not Reported in A.3d ..
2015 WL 567305
promptly
in a reasonable
time to be set by the GRC within ten
days of the date of this opinion.

Affirmed
in part, vacated
in
part, and remanded.
AU Citations
We do not
Not Reported
in A.3d,
2015 WL 567305
retain jurisdiction.
Footnotes
Elsewhere in the Receipt. and later in the Statement, the Custodian summarily stated that "[tJhe records sought in (1) are
not made. maintained, kept on file, nor have they been received in the ordinary course of business by OAG." However,
in both the Receipt and the Statement, the Custodian then "explained" by giving the partially-responsive answer quoted
above.
The Custodian added "that the facts and opinions in the documents were so inextricably intertwined that [he] could not
reasonably redact material."
Indeed, the OAG now argues that complainant already has records reflecting the OAG's determination, namely the press
release and the Attorney General's directive. Because the Custodian did not make such an argument before the GRC,
we do not now address it.
If the Custodian renews his claim of attorney-client privilege, he should identify the client. See N.J.SA
2A:84A-20(3).
Further explanation may be needed if he identifies the client as the Attorney General, given that "the Attorney General,
acting through the Division of Law, is the 'sole legal adviser' for all state agencies, boards and authorities, and is also
responsible for 'interpret[ing] all statutes and legal documents' for those clients." Paff III, supra, 412 NJ.Super.
at 145
(quoting N.J.S.A. 52:17A~(e.
End of Document
WESTlAW
EXHIBIT 4
WNBC-TV v. Allendale
Bd. of Educ., 2015 WL 3548252 (2015)
2015 WL 3548252 (N.J.Super.L.) {Trial Order)

Bergen County
WNBC- TV, a television station owned and operated by NBCUniversal
Media, LLC, Plaintiff,
v.
ALLENDALE BOARD OF EDUC. & John Boreman, Alpine Board of Educ. & Daniel Hauser, Bergen
Tech. & Special Servs. School Dists. & John Susino, Bergenfield Board of Educ, & Christopher
Demarest Board of Educ. & Frank Chilson, Englewood
Cliffs Board of Educ. & Mary Welfel, Hillsdale
Board of Educ. & Lirca Garcia, Little Ferry Board of Educ. & R. Paul ViZZllSO,Lyndhurst
Board of Educ. & David Dipisa, N. Highlands
Tully,
Public Schools
Reg'l School Dist. Board of Educ. & J ames Davis, Oakland
Board of Educ. & Kyle Bleeker, Old Tappan Board of Educ. & Douglas Barrett, Ramapo Board of Educ.
for the Ramapo-Indian
Hills Reg'l High School Dist. & Frank Ceurvels, Ramsey Board of Educ, & Robert
Marcotulli, River Vale Board of Educ. & Kelly Ippolito, and Tenafly Board of Educ. & Yas Usami, Defendants.
No. BER-L-176S-15.
June 4, 2015
Opinion
Robert P. Contillo, Judge.
Argued: May 26, 2015

Decided: June 4, 2015
Honorable Robert P. Contillo, P.J. Ch.
*1 Donald M. Doherty, Jr., Esq. appearing on behalf of the plaintiff, WNBC-TV (The Law Office of Donald M. Doherty, Jr.).
Stephen R. Fogarty, Esq. and Rodney T. Ham, Esq. appearing on behalf of the defendants, Allendale Board of Education
and JohnBoreman, Bergenfield Board of Education and Christopher Tully, Englewood Cliffs Board of Education and Mary
Welfel, Hillsdale Board of Education and Lirea Garcia, Oakland Board of Education and Kyle Bleeker, Old Tappan Board of
Education and Douglas Barrett, River Vale Board of Education and Kelly Ippolito, and Tenafly Board of Education and Yas
Usami (Fogarty & Hara, Esqs.)
Kegan S. Andeskie, Esq. appearing on behalf of the defendants, Ramapo-Indian Hills Regional Board of Education and Frank
Ceurvels (Methfessel & Werbel, P.C.).
William C. Soukas, Esq. appearing on behalf of the defendants, Board of Education of the Vocational Schools in the County
of Bergen, Board of Education of the Bergen County Special Services School District, and John Susino (Nowell, Amoroso,
Klein & Bierman, P.A.).
Robert M. Jacobs, Esq. appearing on behalf of the defendants, Ramsey Board of Education and Robert Marcotulli (Winnie,
Banta, Hetherington, Basralian & Kahn, P.C.).
WESTLAW
2016 Thomson Reuters. No claim to original U.S. Government
Works.
Bd. of Educ., 2015 WL 3548252 (2015)
Introduction
Presented is an application tiled by counsel for plaintiff, WNBC- TV ("plaintiff or "WNBC"), a television station owned and
operated by NBCUniversal Media, LLC (''NBC''), against various public school district boards of education (collectively,
"defendants," the "schools" or the "boards") seeking access to certain "Security Drill Record Forms." 1 These records, the
maintenance of which is required by guidelines issued by the New Jersey Department of Education ("NJDOE" or the ''NJDOE
guidelines"), contain specific information relating to fire and "school security drills" that are mandated by NJ.S.A. 18A:41-1.
The drills are to be conducted by all schools on a monthly basis. 3

Defendants' responses to WNBC's requests for records were varied. Some boards produced unredacted documents, while
others produced no documents. All remaining defendants in this litigation have asserted the records and/or certain information
contained therein are exempt from disclosure pursuant to OPRA's "security" exemption. 4 Plaintiff, however, has asserted it is
entitled to access pursuant to the Open Public Records Act, NJ.S.A. 47:1A-l to -13 ("OPRA" or the "Act"), and the cornmon
law right of access to government records.
FactsIProcedural History
A. Background
*2 The OPRA requests at issue in this litigation were submitted to defendants by Pei-Sze Cheng ("Cheng"), an investigative
reporter for WNBC. Although submitted on different dates, the content of the requests is, apparently, the same. The requests
provide as follows:
Dear__
I hereby request public records under the OPRA Act pertaining to school "security drills" for all schools in your dis~ct.
Specifically, I am requesting the following documents/records for all schools in your district:
"Security Drill Record Forms" for all school security drills dating back to the 2012 school year through the present.
We would like to obtain these records in electronic form ifpossible. lfmy request appears to be extensive or fails to reasonably
describe the records, please contact me in writing or by phone at 212-664-5351.
If there are any fees for copying the records requested, please supply the records without informing me if the fees are not in
excess of$100.
As you know, the New Jersey Open Public Records Act requires a response time of seven business days. If access to the records
I am requesting will take longer than this amount of time, please contact me with information about when I might expect copies
or the ability to inspect the requested records.
If for any reason any portion or my request is denied, please inform me of the reasons for the denial in writing and provide the
name and address of the person or body to whom an appeal should be directed.
Sincerely,
Pei-Sze Cheng
Bd. of Educ., 2015 WL 3548252 (2015)
WNBCNews
30 Rockefeller Plaza
New York, New York 10112
212-664-5351
All defendants responded to plaintiffs requests between mid-January and February 26,2015. These responses are set forth in
detail below.
B. The Boards' Responses

1. Allendale Board of Education
On or about January 29, 2015, plaintiff submitted an OPRA request to the custodian of records for the Allendale Board of
Education ("Allendale" or "Allendale board"), John Boreman, Jr. ("Boreman"). Thereafter, on January 30, 2015, Boreman
responded to plaintiffs request. Specifically, he produced copies of all school security drill records made and maintained by the
Allendale Public School District from July 1, 2012 through January 31, 2015. Boreman, however, redacted certain information
he determined to be exempt from disclosure pursuant to OPRA's security exemption, NJ.S.A. 47:1A-l.l, including the exact
day, time and duration of the drills that were conducted. He also redacted portions of the drill summaries, to the extent they
discussed intemallockdown procedures and student/staff movement during the drills.
2. Bergenfield Board of Education

On or about January 20, 2015, plaintiff submitted an OPRA request to the custodian of records for the ~ergenfield Board
of Education ("Bergenfield" or "Bergenfield board"), Christopher Tully ("Tully"). Thereafter, on January 26, 2015, Tully
responded to plaintiff's request. Specifically, he produced copies of all security drill records made and maintained by the
Bergenfield Public School District from September 1, 2012 through December 30, 2014. Tully, however, redacted certain
information he determined to be exempt from disclosure pursuant to OPRA's security exemption, NJ.S.A. 47:1A-l.l, including
the exact day, time and duration of the drills that were conducted.
3. Bergen Technical and Special Services School Districts

*3 On or about January 20, 2015, plaintiff submitted an OPRA request to the Board of Education of the Vocational Schools
in the County of Bergen ("Bergen Tech") and the Board of Education of the Bergen County Special Services School District
("Bergen Special Services"). The request was addressed to "Ms. Oahei" and e-mailed to "Joan Heisler" ("Heisler"), an employee
of Bergen Special Services. On the same day, Heisler forwarded the e-mail to Rita Costa, who delivered it to John Susino
("Susino"), the custodian of records for Bergen Tech and Bergen Special Services. Thereafter, on January 28,2015, Susino
responded to plaintiffs request. Specifically, he denied the request on the basis that the documents plaintiff sought were exempt
from disclosure pursuant to OPRA's security exemption, NJ.S.A. 47:1A-1.1. On March 2, 2015, however, Susino produced
redacted school security drill records for the 2012-2013 and 20l3-2014 school years. The redactiens included the time, duration
and description of the drills that were conducted.
4. Englewood Cliffs Board of Education

On or about January 20, 2015, plaintiff submitted an OPRA request to the custodian of records for the Englewood Cliffs
Board of Education ("Englewood" or "Englewood board"), Mary Welfel ("Welfel"). Thereafter, on January 29, 2015, Welfel
WNBC-TV v. Allendale Bd. of Educ., 2015 WI. 3548252 (2015)
responded to plaintiffs request. Specifically, she produced copies of all school security drill records made and maintained by
the Englewood Cliffs Public School District from September 1,2011 through January 29, 2015. Welfel, however, redacted
certain information she determined to be exempt from disclosure pursuant to OPRA's security exemption, NJS.A. 47: lA-I. 1,
including the exact day, time and duration of the drills that were conducted.
On or about January 29, 2015, Cheng requested unredacted records from Englewood. On February 2, 2015, counsel for
Englewood, at the custodian's request, responded and explained the board's security concerns. Counsel explained, in relevant
part, as follows:
Specifically, the Board is concerned that public access to this information could enable an ill-intentioned
individual to determine approximately when and where the next drill will occur, and then use that
information for a nefarious scheme or purpose that could jeopardize the health and safety of the District's
students, staff members and/or visitors. In this day and age, where the risk of school violence has become
unacceptably commonplace, the Board believes that OPRA weighs in favor of redaction.
5. Hillsdale Board of Education

On or about January 29, 2015, plaintiff submitted an OPRA request to the custodian of records for the Hillsdale Board of
Education ("Hillsdale" or "Hillsdale board"), Lirca Garcia ("Garcia"). Thereafter, on February 5, 2015, Garcia responded to
plaintiff's request. Specifically, she produced copies of all school security drill records made and maintained by the Hillsdale
Public School District from September I, 2012 through January 30,2015. Garcia, however, redacted certain information she
determined to be exempt from disclosure pursuant to OPRA's security exemption, NJ S.A. 47: IA-1.1, including the exact day,
time and duration of the drills that were conducted.
6. Oakland Board of Education

On or about January 29, 2015, plaintiff submitted an OPRA request to the custodian of records for the Oakland Board of
Education ("Oakland" or "Oakland board"), Kyle Bleeker ("Bleeker"). Thereafter, on February 6, 2015, Bleeker responded to
plaintiffs request. Specifically, he produced copies of all school security drill records made and maintained by the Oakland
Public School District from September 1, 2012 through December 30, 20)4. Bleeker, however, redacted certain information
he determined to be exempt from disclosure pursuant to OPRA's security exemption, NJS.A. 47:1 A-I. 1, including the exact
day, time and duration of the drills that were conducted.
On or about February 9, 2015, Cheng requested unredacted records from Oakland. On February 18, 2015, counsel for Oakland,
at the custodian's request, responded and explained the board's security concerns. Counsel explained, in relevant part, as follows:
*4 In addition, the Board respectfully disagrees with your assertion that you need to know the actual date
and time of each drill in order to determine the District's level of compliance with N.J.S.A. 18A:41-1. The
law requires only that the District document the date and time of each drill, not that the District complete
each drill on certain days of the month or at certain times of day. Therefore, the redactions, in and of
themselves, demonstrate the Board's compliance with this legal provision. Indeed, if no dates, times or
duration had been documented, nothing would have been redacted.
7. Old Tappan Board of Education

On or about January 29, 2015, plaintiff submitted an OPRA request to the custodian of records for the Old Tappan Board
of Education ("Old Tappan" or "Old Tappan board"), Douglas Barrett ("Barrett"). Thereafter, on January 30, 2015, Barrett
responded to plaintiff's request. Specifically, he produced copies of all school security drill records made and maintained by
WESTlAW
WNBC-TV
v. Allendale
Bd. of Educ., 2015 WL 3548252 (2015)
the Old Tappan Public School District from September 1,2012 through January 30, 2015. Barrett, however, redacted certain
information he determined to be exempt from disclosure pursuant to OPRA's security exemption, NJ.S.A. 47: 1A-1.1, including
the exact day, time and duration of the drills that were conducted. He also redacted portions of the drill summaries, to the extent
they discussed intemallockdown procedures during the drills.
8. Ramapo-Indian
Hills Board of Education
On or about January 29, 2015, plaintiff submitted an OPRA request to the custodian of records for the Ramapo-Indian
Hills Board of Education ("Ramapo" or "Ramapo board"), Frank Ceurvels ("Ceurvels"). Thereafter, on February 5, 2015,
Ceurvels responded to plaintiff's request. Specifically, he produced copies of all school security drill records for the 2011- 2012,
2012-2013 and 2013-2014 school years. He also produced records for the period September 2014 through January 2015.
Ceurvels, however, redacted certain information he determined to be exempt from disclosure pursuant to OPRA's security
exemption, NJ.S.A. 47:1 A-l.l, including the exact day and time of the drills that were conducted. He also redacted the drill
type, duration, participants and description, to the extent they discussed the names of the participants and/or their location
during the drills.
9. Ramsey Board of Education

On or about January 29, 2015, plaintiff submitted an OPRA request to the custodian of records for the Ramsey Board of
Education ("Ramsey" or "Ramsey board"), Robert Marcotulli ("Marcotulli"). Thereafter, on February 9, 2015, Marcotulli
responded to plaintiff's request. Specifically, he produced copies of school security drill records made and maintained by the
Ramsey Public School District from September 2012 through January 2015. Marcotulli, however, redacted certain information
he determined to be exempt from disclosure pursuant to OPRA's security exemption, NJ.S.A. 47:IA-1.l, including the exact
day, time and duration of the drills that were conducted.
10. River Vale Board of Education

On or about January 30, 2015, plaintiff submitted an OPRA request to the custodian of records for the River Vale Board of
Education ("River Vale" or "River Vale board"), Kelly Ippolito ("Ippolito") On the same day, Ippolito responded to plaintiff's
request. Specifically, she produced copies of all school security drill records made and maintained by the River Vale Public
School District for the 2011-2012, 2012-2013 and 2013-2014 school years. Subsequently, she also produced records for the
period September through December 2014. In addition, due to a ministerial error, portions of the 2013-2014 security drill
records, namely, the "Drill Participants" and ''Brief Summary" columns, were inadvertently withheld. On April 1, 2015, Ippolito
provided updated copies of these records to Cheng.
*5 All of the documents produced by River Vale, however, contained redactions. Ippolito determined the redacted information
was exempt from disclosure pursuant to OPRA's security exemption, N.J.S.A. 47:1A-1.1, including the exact day, time and
duration of the drills that were conducted.
11. Tenafly Board of Education

On or about January 30, 2015, plaintiff submitted an OPRA request to the custodian of records for the Tenafly Board of
Education ("Tenafly" or "Tenafly board"), Vas Usami ("Usami"). Thereafter, on February 10, 2015, Usami responded to
plaintiffs request. Specifically, he produced copies of all school security drill records made and maintained by the Tenafly
Public School District from September 1,2011 through January 31, 2015. Usami, however, redacted certain information he
determined to be exempt from disclosure pursuant to OPRA's security exemption, N.J.S.A. 47:1 A-l.l, including the exact day,
WESTlAW
Bd. of Educ., 2015 WL 3548252 (2015)
time and duration of the drills that were conducted. He also redacted portions of the drill summaries, to the extent they discussed
internallockdown procedures and student/staff movement during the drills.
12. Remaining Districts

The remaining defendant school districts are as follows: (1) Alpine Board of Education ("Alpine" or "Alpine board"); (2)
Demarest Board of Education ("Demarest" or "Demarest board"); (3) Little Ferry Board of Education ("Little Ferry" or "Little
Ferry board''); (4) Lyndhurst Board of Education ("Lyndhurst" or "Lyndhurst board"); and (5) Northern Highlands Board
of Education ("Northern Highlands" or ''Northern Highlands board"). According to plaintiffs counsel, Donald M. Doherty,
Jr., Esq. ("Doherty"), the Alpine, Demarest, Little Ferry and Northern Highlands boards have settled. See Plaintiffs Reply
Brief ("Reply Brief) at pp. 1-2. Recently, counsel has also advised that plaintiff and the Lyndhurst board have resolved their
differences.
C. Pleadings
On February 20, 2015, plaintiff had filed an order to show cause with a verified complaint (the "complaint") and a memorandum
of law in support of the relief requested. The complaint alleged violations of OPRA and the common law right of access to
government records. It also sought a judgment directing the immediate release of the requested documents, awarding counsel
fees and costs of suit, and granting any other relief the court may deem just and equitable.
On March 24, 2015, defendant Ramsey had filed opposition to the order to show cause. In support thereof, counsel for Ramsey,
Robert M. Jacobs, Esq. ("Jacobs"), included an answer to the complaint, letter memorandum in opposition and his certification
("Jacobs Cert.").
On April 6, 2015, defendants Allendale, Bergenfield, Englewood Cliffs, Hillsdale, Oakland, Old Tappan, River Vale and
Tenafly had filed opposition to the order to show cause. In support of the opposition, each of these defendants had filed answers
to the complaint, a brief in opposition and the certifications of various personnel, including the custodians of records for the
boards and the police chiefs of the respective townships.
On the same date, defendants Bergen Tech and Bergen Special Services had filed opposition to the order to show cause. In
support thereof, counsel, William C. Soukas, Esq. ("Soukas"), included an answer to the complaint, a brief in opposition and
the certification of Mark Lepinski ("Lepinski Cert."), the officer in charge of the Bergen County Police Department.
*6 Also on April 6, 2015, defendant Ramapo had filed opposition to the order to show cause and a cross-motion (the "crossmotion") for summary judgment. In support thereof, counsel for Ramapo, Kegan S. Andeskie, Esq. ("Andeskie"), included a
brief in opposition and various certifications, including the custodian of records, Frank Ceurvels ("Ceurvels Cert."), the Police
Chief for the Borough of Oakland, Edward Kaspar ("Kaspar Cert.") and the Police Chief for the Borough of Franklin Lakes,
Carmine Pezzuti ("Pezzuti Cert.").
On April 14, 2015, plaintiff had filed a reply to defendants' oppositions. In support thereof, counsel for plaintiff, Doherty,
included his certification ("Doherty Cert.").
Oral argument was entertained on May 26, 2015. The court reserved decision.
Legal Standards
A.OPRA
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WNBC-TV v. Allendale Bd. of Educ., 2015 WL 3548252 (2015)
1. Generally
The purpose of OPRA, NJ.S.A. 47:1 A-I to -13, is plainly set forth in the statute: "to insure that government records, unless
exempted, are readily accessible to citizens of New Jersey for the protection of the public interest." Mason v. City of Hoboken,
196 NJ. 51,57 (2008) (citing NJ.S.A. 47:1A-l). The Act replaced the former Right to Know Law, NJ.S.A. 47:1A-l to -4
(repealed 2002), and perpetuates "the State's long-standing public policy favoring ready access to most public records." Bent v.
Twp. of Stafford Police Dep't, 381 NJ. Super. 30, 36 (App. Div. 2005) (quoting Serrano v. S. Brunswick Twp., 358 NJ. Super.
352,363 (App. Div. 2003)). To accomplish that objective, OPRA establishes a comprehensive framework for access to public
records. Mason, supra, 196 NJ. at 57. Specifically, the statute requires, among other things, prompt disclosure of records and
provides different procedures to challenge a custodian's decision denying access. Ibid.
OPRA mandates "all government records shall be subject to public access unless exempt." NJ.S.A. 47: lA-I. Therefore, records
must be covered by a specific exclusion to prevent disclosure. Ibid. The Act defines "government record" as follows:
[AJny 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:IA- Ll.]
The OPRA framework contemplates a swift timeline for disclosure of government records. Mason, supra, 196 N.J. at 57.
Unless a shorter time period is prescribed by statute, regulation or executive order, a records custodian must grant or deny
access to a government record "as soon as possible, but not later than seven business days after receiving the request." NJ.S.A.
47:IA-5(i). Failure to respond within seven business days "shall be deemed a denial of the request." Ibid. If the record is in
storage or archived, the custodian must report that information within seven business days and advise when the record will
be made available. Ibid.
If access to a government record is denied by the custodian, the requestor may challenge that decision by filing an action in
Superior Court or a complaint with the Government Records Council ("GRC"). N.J.S.A. 47:lA-6. The right to institute any
proceeding under this section, however, belongs solely to the requestor. Ibid. Ifthe requestor elects to file an action in Superior
Court, the application must be brought within forty-five days of the denial. See Mason, supra, 196NJ. at 70 (holding, explicitly,
a 45-day statute oflimitations applies to OPRA actions). The Act, however, specifically provides "a decision of the [GRC] shall
not have value as precedent for any case initiated in Superior Court," NJ.S.A. 47:1A-7, though such decisions are normally
considered unless "arbitrary, capricious or unreasonable, Or [violative ofJ legislative policies expressed or implied in the act
governing the agency." Serrano, supra, 358 NJ. Super. at 362 (citing Campbell v. Dep't 0/ Civil Service, 39 NJ. 556, 562
(1963)).
*7 In OPRA actions, the public agency bears the burden of proving the denial of access is authorized by law. NJ.S.A. 47:IA-6.
As such, an agency "seeking to restrict the public's right of access to government records must produce specific reliable evidence
sufficient to meet a statutorily recognized basis for confidentiality." Courier News v. Hunterdon Cnty. Prosecutor's Office,
358 NJ. Super. 373, 382-83 (App. Div. 2003). Absent the necessary proofs, "a citizen's right of access is unfettered." Ibid In
assessing the sufficiency of the proofs submitted by the agency in support of its claim for nondisclosure, "a court must be guided
by the overarching public policy in favor of a citizen's right of access." Ibid. If it is determined access has been improperly
denied, such access shall be granted, and a prevailing party shall be entitled to a reasonable attorney's fee. NJ.S.A. 47: lA-6.
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2. OPRA Exemptions
Although OPRA defines "government record" broadly, the public's right of access is not absolute. Educ. Law Ctr. v. N.J.
Dep't ofEduc., 198 N.J. 274,284 (2009) (citing Mason, supra, 196 N.J. at 65). The statute excludes twenty-one categories of
information, which are exempt from disclosure. Mason, supra, 196 N.J. at 65. Specifically, N.J.S.A. 47:1 A-I provides:
[A]ll government records shall be subject to public access unless exempt from such access by: [other
provisions of OPRA]; 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.
The Supreme Court noted these protected categories include "criminal investigatory records, victims' records, trade secrets,
various materials received or prepared by the Legislature, certain records relating to higher education, and other items." Mason,
supra, 196 N.J. at 65. The Court also noted "records within the attorney-client privilege or any executive or legislative privilege,
as well as items exempted from disclosure by any statute, legislative resolution, executive order, or court rule" are excluded. Ibid.
3. Security Information
One such exception from disclosure is OPRA's "security exemption." N.J.S.A. 47:A-l.1 provides, in relevant part, a government
record shall not include the following information, which is deemed confidential for purposes ofOPRA:
Emergency or security information or procedures for any buildings or facility which, if disclosed, would jeopardize security
of the building or facility or persons therein;
Security measures and surveillance techniques which, if disclosed, would create a risk to the safety of persons, property,
electronic data or software ....
[N.J.S.A.47:1A-l.l.]
There is a dearth of case law to guide the court in interpreting the significance of the security exemption, and no illuminating
legislative history. There is, though, a recent appellate division case that is instructive. In Gilleran v. Twp. of Bloomfield, the
plaintiff made a written OPRA request for security video recordings from a stationary camera located on the back of the town's
municipal building. Gilleran v. Twp. of Bloomfield, No. A-5640-13T4 (App. Div. May 13,2015) (slip op. at 1_2).6 The town
denied the plaintiff's request, citing the security exemption. Id. at 2. The trial court found that the town violated OPRA as it
failed to "meet its burden of proving under the pertinent statutes that security-related exemptions applied in the circumstances
of [that] case," and the appellate division affirmed. Id. at 5, 16. Specifically, the appellate court held "[t]o avoid the requested
disclosure, there must be a clear showing that one of OPRA's exclusions applies." Id. at 9-10 (internal quotation marks omitted)
(citing Tractenberg v. Twp. of West Orange, 416 N.J. Super. 354,378-79 (App. Div. 2010), abrogated on other grounds by
Ciesla v. New Jersey Dep't of Health & Senior Servs., 429 N.J. Super. 127, 144 (App. Div. 2012. "A government agency
seeking to restrict the public's right of access to government records must produce specific reliable evidence sufficient to meet
a statutorily recognized basis for confidentiality." Id. at 10 (internal quotation marks omitted) (citing Courier News, supra,
358 N.J. Super. at 382-83). The court concluded that the town violated OPRA as its "conclusory and general allegations of
exemptions" were insufficient to justify withholding the records from disclosure. Id. at 11 (citation omitted).
4.0PRAFees
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*8 Generally, in New Jersey, a prevailing party is not entitled to attorney's fees from the losing party. Id. at 70 (citation
omitted). Fees may be awarded, however, when a statute, court rule or contractual agreement so provides. Ibid. Under OPRA,
"[a] requestor who prevails in any proceeding shall be entitled to a reasonable attorney's fee." NJ.S.A. 47:1A-6. The Supreme
Court, interpreting legislative revisions to the Act, has held OPRA "mandate[s] rather than permit[s], an award of attorney's
fees to a prevailing party." Mason, supra, 196 NJ. at 75.
As the mandatory fee-shifting provision of OPRA is triggered only when a requesting party prevails, there must be a
determination what constitutes a "prevailing party." The Supreme Court has adopted a two-part test (the "catalyst theory") to
ascertain whether a requesting party has prevailed under OPRA. Id. at 76. Under this test, requestors are entitled to fees, absent
a judgment or an enforceable consent decree, when they can show: "(1) a factual causal nexus between plaintiff's litigation
and the relief ultimately achieved; and (2) the relief ultimately secured by plaintiffs had a basis in law." Ibid (quoting Singer
v. State, 95 NJ. 487,495 (1984 (internal quotation marks omitted). The Court has held requestors seeking fees are required
to make this showing. Ibid.
B. New Jersey Common Law

In addition to OPRA, disclosure can be sought under the common law. The Act provides "[njothing contained in [OPRA]
shall be construed as limiting the common law right of access to a government record." NJ.S.A. 47:lA-8. Thus, even if the
information requested falls within one of the exceptions to access under the statutory construct ofOPRA, requestors may still
prevail by resorting to the common law right to access public records. To constitute a government record under the common
law, the item must be:
[O]ne required by law to be kept, or necessary to be kept in the discharge of a duty imposed by law, or directed by law to serve
as a memorial and evidence of something written, said, or done, or a written memorial made by a public officer authorized to
perform that function, or a writing filed in a public office. The elements essential to constitute a public record are ... that it be
a written memorial, that it be made by a public officer, and that the officer be authorized by law to make it.
{So Jersey Publ'g Co. V. NJ. Expressway Auth. , 124NJ. 478,487-88 (1991) (quoting Nero
V. Hyland,
716NJ. 213,222 (1978.]
To reach this broader class of documents, requestors must satisfy a higher burden than required under OPRA: "(1) the person
seeking access must establish an interest in the subject matter of the material; and (2) the citizen's right to access must be
balanced against the State's interest in preventing disclosure." Mason, supra, 196 N.J. at 67-68 (quoting Keddie V. Rutgers, 148
NJ. 36, 50 (1997 (internal quotations and citations omitted). The Supreme Court has articulated several factors for a court
to consider in performing its balancing:
(1) [T]he extent to which disclosure will impede agency functions by discouraging citizens from providing information to the
government; (2) the effect disclosure may have upon persons who have given such information, and whether they did so in
reliance that their identities would not be disclosed; (3) the extent to which agency self-evaluation, program improvement,
or other decisionmaking will be chilled by disclosure; (4) the degree to which the information sought includes factual data
as opposed to evaluative reports of policymakers; (5) whether any findings of public misconduct have been insufficiently
corrected by remedial measures instituted by the investigative agency; and (6) whether any agency disciplinary or investigatory
proceedings have arisen that may circumscribe the individual's asserted need for the materials.
*9 {So Jersey Pub., supra, 124 N.J. at 488 (quoting Loigman
V. Kimmelman,
102 N.J. 98, 113 (1986.]
Analysis
WESllAW
Bd. of Educ., 2015 WL 3548252 (2015)
Presented is the narrow question whether certain categories of information pertaining to fire and school security drills are
exempt from disclosure pursuant to OPRA's security exemption. These categories refer to the date, time and duration of the
drills that were conducted by defendant school districts. 7 In making this inquiry, the court must determine whether defendants
have produced specific reliable evidence to justify withholding these records from disclosure. That is, the court must determine
whether disclosure would create a risk to the safety and security of the schools, their students and their teachers.
A.OPRA
1. DaylTimeIDuration
Data
As distilled in a telephone conference with all counsel on May 5, 2015 and confirmed at oral argument, the primary remaining
issue is whether defendants have met their burden of producing specific reliable evidence to justify their redactions of the day/
time/duration data. All remaining litigants, including plaintiff, are in agreement that information regarding specific internal
lockdown procedures, identity of participants and their locations during drills may be properly redacted.
Remaining are twelve separate defendant school districts represented by four different law firms. g They have nuanced
differences in their arguments, but the common theme is the claim that disclosure of the day/time/duration data wouldjeopardize
the safety and security of the schools, namely, their buildings, their students and their teachers.
A representative "Security Drill Record Form" is annexed to this decision as "Exhibit A.,,9 As required by the NJDOE
guidelines, the form specifies the following categories of information: (1) date and time; (2) duration; (3) drill type; (4) weather
conditions; (5) participants; and (6) brief description of what occurred and procedures followed. An excerpt of this form is
also reproduced below:
20142015
District Name: Ramsey
July
[2014)
School
School Security Drill
Fire Drill
Date
Time
Date
Time
Drill
Dura/ion
Weather
Participants
Description
Type
W.D.Tisdale
07/[Text redacted
[Text redacted in
Fire
[Text redacted in
Sunny. bot!
128 students 33
Fire Drill- RPD
School Summer
in copy.)/14
copy.)
Drill
copy.)
humid
adults
present
Sunny. bot!
129 students 33
Lock Down-
humid
adults
RPFpreseot
Sensations
W. D. Tisdale
07/[T.~t redscted
[Text redacted In
Lock
[Text
School-, Summer
incopyYl4
copy.)
Down
copy.J
redacted in
Sensations
As the representative form indicates, the redacted information is the day/time/duration data. Specifically, in this example, the
Ramsey custodian, Marcotulli, redacted the exact day in July the drills were conducted, the precise time of day the drills
commenced and how long the drills lasted. All other information - i.e., drill type, weather conditions, participants and a brief
description -was provided without redactions.
*10 The NJDOE guidelines require the forms to be completed by all schools and maintained at the district level. They are
subject to audit by the NJDOE. In addition, districts are required to submit "Security Drill Statements of Assurance" to their
county office of education by June 30 of each year. 10 These statements include a certification that the district has completed
10
Bd. of Educ., 2015 WL 3548252 (2015)
the required monthly drills in compliance with NJ.S.A. 18A:41-1. A representative statement of assurance is annexed to this
decision as "Exhibit B."
I1
Ramsey argues its redaction of the day/time/duration data is "fundamental to protecting student and faculty safety," and that
those redactions fall squarely within the security exemption. Specifically, it contends the disclosure of historical information
relating to the specific day, time and duration of prior drills, if studied, could lead an ill-intentioned individual intending to
harm students or faculty, or engage in other criminal activity related to a school building or its occupants, to predict the next
scheduled drill. Ramsey also contends disclosure of the day/time/duration data would defeat the purpose of conducting the drills
- i.e., to prepare students and faculty for the possibility of an emergency situation at any time.
Similarly, Bergen Tech and Bergen Special Services argue the records are covered by the security exemption, and that their
disclosure would "jeopardiz [e] the safety and security of students and school buildings." Specifically, they contend the release
of these forms could pose a threat to operational security, particularly as disclosure of the time, duration and type of drill
may provide pre-operational surveillance data to aggressors planning to "conduct a mission" on school grounds. In addition,
they contend the release of this information would "compromise] ] school security and safety, and significantly and materially
increaser ] the risk[] of potential violence and terrorism in schools."
Ramapo argues its redaction of the date and time data is proper pursuant to the security exemption, and that disclosing unredacted
copies of this information would jeopardize the safety of the school and its occupants. Specifically, it contends the disclosure
of this information might reveal a pattern that could be utilized to predict the occurrence of future drills.
Hypothetically, an ill-intentioned individual could look at dates prior and come to the conclusion that fire
and/or security drills tend to be held towards the beginning and end of each month, and are usually in the
early morning. This alone would allow that individual, with some accuracy, to predict when the school was
more likely to hold a drill, and when that individual would be more likely to find large groups of children
waiting in the open, outside of the school.
Ramapo also contends there is no legal requirement that the drills be conducted randomly.
An omnibus opposition was filed by the following defendants: Allendale, Bergenfield, Englewood Cliffs, Hillsdale, Oakland,
Old Tappan, River Vale, Tenafly and the respective custodians for each of those entities. 12 Collectively, they argue the
redactions of the date/time/duration data are justified under the security exemption, and that the release of such information
would jeopardize the security of the school buildings and their occupants. Specifically, they contend the disclosure of the date
and time data might reveal a pattern that could be used to predict the approximate date andlor time of future drills. They also
contend the disclosure of the duration data "could jeopardize building security and the safety [of] students, staff and visitors
during unannounced emergencies."
*11 Specifically, if this information were disclosed, an individual intent on causing harm could trigger an unplanned
emergency response, i.e., call in a bomb threat to the school, and then utilize this information to cause maximum harm ....
The disclosure of the duration of prior security drills would provide potential assailants with crucial information regarding the
approximate window of time during which an attack on property or person could be conducted and completed.
In addition, the Allendale defendants contend there is no legal basis for the contention that the drills be conducted randomly.
Plaintiff, however, argues fervently in favor of disclosure. First, it contends the day/time/duration data is "historical in nature"
and that this information lacks any predictive value. Put somewhat differently, plaintiff contends this data does not reveal any
"pattern" that could be used to predict the occurrence of future drills.
wrSTlAW
11
WNBC-TV
v. Allendale
Bd. of Educ., 2015 WL 3548252 (2015)
Revealing the day a drill was conducted - past tense - does not reveal anything that jeopardizes security
now or in the future .... The fact [a] drill was conducted on a date years in the past does not correlate to one
being held on that date now or in the future. Further, even if a drill were to be held on the same date year
after year, or even on the same day month after month, there is no indication they would occur at the same
time. Moreover, there is no requirement the drills be conducted on the same day year after year or month
after month. And in practice they do not. If the districts' goal is to protect the secrecy of when drills are
conducted, the dates and times would/should/do change.
Second, plaintiff contends that fire and/or security drills should be "randomized" to promote school security. While
acknowledging there is no requirement the drills need be conducted randomly, plaintiff argues as follows:
If the Defendants are truly concerned with safety, they should be conducting drills in such a fashion that
maximizes safety (i.e., random days and times or some other method), not holding them in such a predictable
pattern and then asking the Court to not let anyone know about it so they are not subject to criticism.
Third, plaintiff contends that the disclosure of the day/time/duration data would not create a risk to the schools' security greater
than that which already exists.
[I]f someone is intent on causing the harms, they are going to do it with or without [these] records and the
records do not make it any easier .... All someone has to do is call in a phony bomb threat and the entire
school would empty en masse allowing the evil-doer to do their deeds. They can do this easily and without
the records at issue and to a more effective level than reverse engineering public records and predicting
the future. These records do not create (the standard for the exemption) or appreciably increase any risk
that is not already present.. .. The crimes are more easily committed based upon common knowledge (i.e.,
pull the fire alarm and everyone exits).
In this case, the court must determine whether defendants have produced specific reliable evidence sufficient to indicate that
their redactions of the day/time/duration data are justified by the security exemption. Courier News, supra, 358 N.J. Super. at
382-83. In assessing the sufficiency of the proofs submitted, the court is guided by the State's strong public policy favoring
access to government records. For the reasons that follow, however, the court finds that policy is outweighed by defendants'
acute interest in protecting the safety and security of the school community.
*12 What has been denominated the "security exemption," consists of two separate provisions. The first refers to "emergency
or security information or procedures" and the second to "security measures and surveillance techniques." The day/time/
duration data is factual descriptive data, which, the court finds, consists of "emergency or security information." If disclosed,
it would jeopardize the safety and security of the schools, their buildings and their occupants. The potential for danger lies in
the aggregate. Although the day/time/duration data for a single drill in isolation might not jeopardize safety or security, there
is a greater risk such interests will be infringed where, as here, disclosure is sought from twelve separate school districts over
a period of more than two years. In such a case, the chances are greater a person intent on causing harm could utilize that
information to predict the occurrence of future drills in aid of execution of a malevolent plan on school premises.
In addition, defendants have produced specific reliable evidence for the redactions. The Allendale defendants, for example,
have submitted sixteen separate certifications from various records custodians, police chiefs and other emergency personnel in
support of nondisclosure. The Chief of Police for Bergenfield, Michael T. Carr, for example, asserts:
The disclosure of the day and specific start time of prior drills would pose a risk to individual safety and
building security during upcoming security drills. If an ill-intentioned individual were able to access the
information and decipher a pattern from the same, he/she could use that information to ascertain when and
WESTlAW
12
WNBeTV v. Allendale
Bd. of Educ., 2015 WL 3548252 (2015)
where a future security drill might occur. That person would be then capable of causing significant bodily
injury or property damage before the [police department] would have time to respond to a 9-1-1 call. The
disclosure of the duration of prior drills would similarly jeopardize the District's safety and security by
providing individuals with information capable of assisting in the planning of an attack, abduction or other
act of violence against the individuals participating in future security drills. This knowledge would inform
an individual intent on causing barm of the approximate duration of time during which his/her crime could
be committed and completed.
This demonstration is in stark contrast to that in Gilleran, where the town's "conclusory and general allegations of exemptions"
were insufficient to justify withholding the records from disclosure. See Gilleran, supra, No. A-5640-13T4 at II (bolding,
among other things, the custodian's certification "was not sufficiently specific to establish a risk to the safety of any person or
property or jeopardy to the security measures taken for the building" and that the town "provided no specific information from
police officials stating that the identify of informants, crime victims, or confidential victims would in fact be revealed"). In tbis
case, the risk to the schools created by disclosure is very real. Armed with the day/time/duration data, a potential assailant could
pinpoint when the drills are most likely to occur, and know how long they tend to last, creating a ''window of opportunity" in
which to attempt to inflict maximum damage with reasonable accuracy.
In opposition, plaintiff argues there is no enhanced risk posed by disclosure as there are easier methods of causing harm than
"reverse engineering public records and predicting the future." Plaintiff argues: "[p]eople intent on committing these crimes
are not aided by the records. The crimes are more easily committed based upon common knowledge (i.e., pull the fire alarm
and everyone exits)." This argument, however, is misguided. That there might exist easier or alternative methods of inflicting
harm does not necessarily mean that disclosure of the records in this case would not increase the risk of harm to defendants.
The inquiry is not whether easier or alternative methods exist, but whether the method at issue - i.e., disclosure of the day/time/
duration data - would create a risk to the school community.
*13 Clearly, knowing when a school or district tends to schedule fire drills, for example, provides a person with useful
information as to when the buildings are likely to be empty, and, correspondingly, when the entire school population is likely to
be congregated outside. That information relates to "security measures," which, if disclosed, would create a risk to the school
buildings, students and staff. Likewise, knowing when a school's entire population will be locked down within the building
provides a diseased or malignant mind with useful information as to when the maximum population will likely be confined
within a structure. The lockdown is therefore a "security measure" the exact day, time and duration of which, if disclosed,
would create a risk to the safety of persons and property. That data is exempt from disclosure under the security exemption.
In addition, disclosure of the exact day, time and duration of a drill might well reveal a discernable pattern useful to a person
intent on causing harm. The redaction of this information is justified under the other provision of the security exemption for
"emergency or security information."
Plaintiff also argues "[i]f the defendants are truly concerned with safety, they should be conducting drills in a fashion that
maximizes safety (i.e., random days and times or some other method)." There is not, however, any legal basis for this argument
That is, there is no provision, specifically, in N.J.S.A. 18A:41-1 or the NJDOE guidelines, which mandates that the drills be
conducted randomly. Although it might be prudent to conduct random drills, it is not this court's task, nor plaintiffs, to direct
defendants to conduct drills on certain days or times or for certain durations, or to conduct them randomly.
Plaintiff further argues the "missing material" is critical to "assessing and commenting on how useful the drills really are." The
court, however, notes plaintiff was provided with, among other things, the date (month!year), drill type and, in most cases, a
brief description. This information will enable plaintiff to draw its own conclusions about the ''usefulness'' of the drills and
defendants' compliance with the statute. It is also noted the records are not "unreviewed" as alleged by plaintiff. The records,
in unredacted form, are subject to audit by the NJDOE and the New Jersey Task Force on School Security.
WESTloAW 2016 Thomson Reuters. No claim to original U.S. Government Works.
13
WNBe- TV v. Allendale
Bd. of Educ., 2015 WL 3548252 (2015)
In summary, the court finds defendants have produced specific reliable evidence in support of their position for nondisclosure.
The day/time/duration data, as it pertains to the fire and school security drills conducted by defendants, is "emergency or
security information," which, if disclosed, would jeopardize the safety and security of the school buildings and occupants. This
information also relates to "security measures," the disclosure of which would create a risk to persons and property. Therefore,
the court finds the day/time/duration data is statutorily exempt from disclosure.
2. Additional Arguments
Defendants have advanced several additional arguments as to why the records should not be produced, and plaintiff has set
forth alternate grounds for disclosure.
a. Advisory, Consultative or Deliberative Material

Bergen Tech and Bergen Special Services argue the records are "inter-agency or intra-agency advisory, consultative or
deliberative material" ("ACD material',) and, therefore, are not government records subject to disclosure. The court, however,
disagrees.
OPRA exempts from the definition of a "government record" any "inter-agency or intra-agency advisory, consultative or
deliberative material." McGee 11. Twp. of B. Amwell, 416 N.J Super. 602,618 (App. Div. 2010). This provision encompasses the
common law deliberative process privilege. Educ. Law Ctr. 11. New Jersey Dep't ofEduc., 198 N.J. 274,284 (2009) (citations
omitted). The deliberative process privilege "permits the government to withhold documents that reflect advisory opinions,
recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated."
McGee, supra, 416 N.J. Super. at 618 (quoting Educ. Law Ctr., supra, 198 N.J at 285). Applying this reasoning to OPRA,
the Supreme Court adopted a two-step inquiry to determine whether certain information is ACD material: (1) "whether the
information sought is a part of the process leading to formulation of an agency's decision"; and (2) "the material's ability to
reflect or to expose the deliberative aspects of that process." Educ. Law Ctr., supra, 198 N.J. at 295.
* 14 In this case, plaintiff has conceded that certain information regarding internal security procedures and/or security measures
may be properly redacted. Although such information might be ACD material, that issue is left for another day. The only issue
remaining in this case is whether, specifically, the day/time/duration data constitutes ACD material. The court finds it does not.
N.JS.A. 18A:41-1 provides that certain schools must conduct at least one fire drill and one school security drill each month
during school hours. To ensure compliance with the statute, the NIDOE requires these schools to record certain categories
of information, including the day, time and duration of the drills that were conducted. These records serve a "recordkeeping"
function, i.e., they are intended to demonstrate compliance with the statute. They do not, though, provide any insight into the
schools' deliberations or decisions regarding security measures and/or procedures. The day/time/duration data is unlike an email, for example, which identifies the escape route during an active shooter situation as "south stairwell." A school might, as
defendants suggest, utilize this information to evaluate the effectiveness of its fire and security drills, but it does not reveal the
deliberative aspects of that process. Therefore, the court declines to find that the day/time/duration data is ACD material.
b. Executive Order 21
Bergen Tech and Bergen Special Services also argue the records are exempt from disclosure pursuant to Executive Order 21
(the "Executive Order" or the "Order"). The Executive Order provides, in pertinent part, as follows:
1. At all levels of government - State, county, municipal and school district - the following records shall not be deemed to be
public records under the provisions of [OPRA] and thus shall not be subject to public inspection, copying or examination:
WESTlAW
14
Bd. of Educ., 2015 WL 3548252 (2015)
a. Any government record where the inspection, examination or copying of that record would substantially interfere with the
State's ability to protect and defend the State and its citizens against acts of sabotage or terrorism, or which, if disclosed, would
materially increase the risk or consequences of potential acts of sabotage or terrorism.
[N.J. Exec. Order No. 21, l(a) (July 8, 2002), http://www.state.nj.us/infobanklcircular/eorn21.shtrnl.]
On July 8, 2002, the day after OPRA became effective, Governor McGreevey issued the Executive Order for the purpose of
implementing the new OPRA legislation. Slaughter v. Gov't Records Council, 413 NJ. Super. 544,548 (App. Div. 2010). The
Order exempts certain categories of information from public access, including documents whose disclosure would "substantially
interfere" with the State's ability to protect against acts of terrorism. Ibid. Section 1(a) indicates this latter provision is applicable
to "all levels of government," i.e., State, county, municipal and school district.
In this case, defendants have asserted disclosure of the records would "significantly increase" the risk of sabotage or terrorism.
The court, however, need not determine whether the Executive Order applies to the day/time/duration data as its decision
achieves a similar result based on other grounds. Accordingly, the court does not determine whether or not these specific
categories of information are exempt from public access under the Executive Order.
c. Doe v. Poritz Balancing Test

The Allendale defendants urge the court to adopt the balancing test set forth in Doe v. Poritz, 142 NJ. 1 (1995) to resolve
the competing interests in this case. 13 Specifically, they argue the schools' interest in safety and security outweighs plaintiff's
interest in viewing unredacted records. This test has already been applied to OPRA requests that implicate privacy rights.
Burnett v. Cnty. a/Bergen, 198 NJ. 408,427 (2009). The key inquiries are as follows:
1. the type of record requested;
2. the information it does or might contain;
3. the potential tor harm in any subsequent nonconsensuai disclosure;
4. the injury from disclosure to the relationship in which the record was generated;
5. the adequacy of safeguards to prevent unauthorized disclosure;
6. the degree of need for access; and
7. whether there is an express statutory mandate, articulated public policy, or other recognized interest militating toward access.
*15 [Ibid. (quoting Doe, supra, 142 N.J. at 88).]
In this case, defendants have asserted the Doe balancing test should be applied to OPRA matters implicating the security
exemption. They have not, though, cited any authority for this proposition. Presently, the test has limited application in the
OPRA context; it has only been applied to matters involving privacy rights. In Burnett, the Supreme Court indicated "we look
to Doe for guidance" to "balance OPRA's interests in privacy and access." Ibid. The Court did not, however, suggest the test
should be extended to other OPRA areas. For these reasons, this court declines to find the Doe balancing test applies to matters
involving the security exemption.
15
Bd. of Educ., 2015 WL 3548252 (2015)
B. Common Law Right of Access

Plaintiff also seeks relief under the common law right of access to government records. This right depends on three requirements:
"(1) the records must be common-law public documents; (2) the person seeking access must establish an interest in the subject
matter of the material; and (3) the citizen's right to access must be balanced against the State's interest in preventing disclosure."
Keddie, supra, 148 N.J. at 50 (internal quotations and citations omitted).
The first determination is whether the records sought are common law public documents. The definition of a public document
under the common law is broader than under OPRA. The Supreme Court has held: "Common law records are any records made
by public officers in the exercise of public functions. These materials 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." Higg-AsReita, Inc. v.
Cnty. of Essex, 141 N.J. 35,46 (1995) (internal quotations and citations omitted). In this case, it appears only Bergen Tech and
Bergen Special Services have asserted the records are not common law public documents. The court, however, disagrees with
this assertion. Schools are required to keep these documents by N.J.S.A. 18A:41-l and the NJDOE guidelines. They were also
created and/or maintained by public officers employed by defendant school districts. Therefore, the court finds these records
are public documents.
The second determination is whether the person seeking access has established an interest in the subject matter of the material.
To satisfy this "standing" requirement, "the applicant's interest need not be personal; thus, a citizen's concern about a public
problem is a sufficient interest for purposes of standing." Home News v. Dep't 0/ Health. 144 N.J. 446,454 (1996) (citations
omitted). ''The press's role as 'the eyes and ears of the public' generally is sufficient to confer standing on a newspaper that seeks
access to public documents." Ibid. (quoting S. Jersey Publ'g, supra, 124 N.J. at 496). U[A] legitimate, private profit motive is
also sufficient." Ibid. (citing Higg-A -Rella, supra, 141 N.J. at 47). Here, several defendants have questioned plaintiff's standing
to pursue this action. The court, however, finds plaintiff's status as an international newsgathering organization, whether its
interest serves a legitimate public and/or private function, is sufficient for purposes of standing.
*16 The third determination, and the issue in this case, requires the court to balance the citizen's right of access against
the State's interest in nondisclosure. The Supreme Court has described this process as "concretely focused upon the relative
interests of the parties in relation to [the requested] materials." Loigman, supra, 102 N.J. at 103 (citation omitted). The Court
has also identified six factors a court may consider in performing its balancing. These factors, though, are not intended to be
exclusive. See id. at 113 (emphasis added) ("Against these and any other relevant/actors should be balanced the importance
of the information sought to the plaintiff's vindication of the public interest.").
Initially, it is noted the Loigman factors are ill-suited to the facts of this case. These factors generally contemplate a situation in
which a member of the public provides information to a government agency. The first factor, for example, considers 'The extent
to which disclosure will impede agency functions by discouraging citizens from providing information to the government."
Ibid The records in this case, however, were generated not from public input, but rather from information collected by public
officers during certain fire and school security drills conducted by defendant school districts. Thus, the main issue is whether
disclosure of this information would create a risk to the safety and security of the schools and their occupants.
As with OPRA, the court's common law analysis is focused only on the day/time/duration data. Plaintiff argues its ''need''
for the records "derives from an investigation being performed by the WNBC 'I-Team' regarding the thoroughness of drill
training and the accuracies of the reports recounting the drills."
14
Specifically, it contends plaintiff received ''tips'' that some
of the drills were "hopelessly disorganized," while others "never occurred." Plaintiff maintains the records are "relevant to
newsworthy events and public and political discourse, to wit, the preparedness of New Jersey schools to deal with disasters
ranging from weather events and fires to those more sinister beginnings." Plaintiff further maintains" [s]uch information would
either confirm the efforts of our school employees or be a motivational point for change."
WESTlAW 2016 Thomson Reuters. No claim to original U.S. Government Works.
16
WNBC-TV
v. Allendale
Bd. of Educ., 2015 WL 3548252 (2015)
Defendants, however, argue their interest in school safety and security outweighs plaintiffs interest in receiving unredacted
documents. Specifically, they contend disclosure of the records would provide plaintiff, and others, with "extensive data" that
might reveal a pattern which could be used to predict the occurrence of future drills. Simply put, ''while the day, time and
duration of one drill would be unlikely to jeopardize security, the amount of data available in the responsive records shifts the
balance against disclosure." Defendants also contend schools are "soft targets," which allows "knowledgeable aggressors ...
to utilize the information contained on security drill forms to further their nefarious intent." Moreover, they contend plaintiff
does not require the day/time/duration data to serve its stated interest - i.e., to confirm the schools' compliance with NJS.A.
18A:41-1 -as the month and year were provided.
For the same reasons set forth in the court's OPRA analysis (adopted herein), the court finds defendants' interest in protecting
school safety and security outweighs plaintiffs interest in receiving unredacted records. The court's concern is aptly summarized
by counsel for the Allendale defendants. Although the day/time/duration data for one drill in isolation might not jeopardize
safety or security, there is a greater risk such interests will be infringed where, as here, disclosure is sought from twelve separate
school districts over a period of more than two years. In such a case, the chances are greater an ill-intentioned individual could
utilize that information to facilitate execution of a malevolent plan on school premises. At the same time, the court is cognizant
of this State's strong public policy favoring access to government records. Surely, some benefit could derive from compelling
unredacted access to the day/time/duration data. Having this information, in addition to the unredacted data, certainly provides
a more transparent window into these drills, but at a cost to the safety and security of the schools. That cost is not imaginary
or de minimis. Specific and material harm may flow from and/or be facilitated by disclosure, which settles the issue in favor
of defendants.
C. Attorney's Fees
*17 Plaintiff also seeks an award ofattomey's fees pursuant to N.JS.A. 47:1A-6, which provides "[a] requestor who prevails
in any proceeding shall be entitled to a reasonable attorney's fee." To be eligible for fees, then, there must be a determination
as to whether a requesting party has ''prevailed.'' The Supreme Court has held, in the absence of a judgment or an enforceable
consent decree, a requestor must demonstrate: "( 1) a factual causal nexus between plaintiffs litigation and the relief ultimately
achieved; and (2) the relief ultimately secured by plaintiffs had a basis in law." Mason, supra, 196 NJ at 76.
In this case, the court recognizes there might be an issue regarding attorney's fees. As, though, none of the parties have briefed
this issue, the court finds it is not ''ripe'' for determination. The court reserves the right to conduct a fee analysis at a later point,
upon further application, if necessary.
Conclusion
OPRA is intended to be construed in favor of the public's right of access. The purpose of the statute is "to maximize public
know ledge about public affairs in order to ensure an informed citizenry and to minimize the evils inherent in a secluded process."
Asbury Park Press v. Ocean Cnty. Prosecutor's Office, 374 NJ Super. 312,329 (Law Div. 2004). To that end, "the court must
always maintain a sharp focus on the purpose of OPRA and resist attempts to limit its scope, absent a clear showing that one
of its exemptions or exceptions incorporated in the statute by reference is applicable to the requested disclosure." Ibid
In this case, defendants have satisfied their burden of demonstrating by specific reliable evidence that the redactions of the day/
time/duration data are justified by the security exemption. The court finds these redactions are necessary to protect defendants'
interest in maintaining the safety and integrity of the school community. Any other result would risk this information falling
into the wrong hands and being of use in an effort to cause harm.
The result reached in this case is the product of a balancing of interests. On one hand, the court recognizes the unique function
that schools serve in our society. They are centers for education, socialization and childrearing. On the other, the court is
17
WNBCTV v. Allendale
Bd. of Educ., 2015 WL 3548252
(2015)
cognizant of the public's need for ready access to information concerning public affairs to promote transparency in government.
In this case, however, the court finds plaintiffs interest in receiving unredacted records is outweighed by defendants' interest
in protecting school safety and security. This result comports with both OPRA and the common law.
Counsel for defendants are hereby directed to submit the appropriate order in conformity with this decision under the fiveday rule.
signature
ROBERT P. CONTILLO, Pl. CH.
Footnotes
1
A companion action, WNBC v. Harrington Park (BER-L-259S-15), was resolved to the satisfaction of counsel and, accordingly,
N.J.S.A. 18A:41-6 defines "school security drill" as "an exercise, other than a fire drill, to practice procedures that respond to an
has been dismissed.

emergency situation, including, but not limited to, a non-fire evacuation, lockdown, or active shooter situation and that is similar
in duration to a fire drill."
3
N.J.S.A. l8A:41-1 provides that "a school of two or more rooms" or "a school of one room, when located above the first story of
a building," must comply with the statute.
See infra for proper identification of OPRA and its security exemption.
In each request, following the salutation, Cheng included the name of the custodian of records for the board to which the letter was
addressed. The provision set forth herein is intended to be a representative sample.
The court notes this decision was approved for publication on May 13, 2015.
Hereinafter, these categories shall be referred to collectively as "day/time/duration data."
There are twelve districts as Bergen Tech and Bergen Special Services are treated as separate districts.
Hereinafter, the "Security Drill Record Forms" shall be referred to as the "forms" or the "records." The representative form is taken
from the Ramsey board for the 2014-2015 school year. See Ramsey's Opp. Br., Jacobs Cert., Ex. A.
10
Hereinafter, the "Security Drill Statements of Assurance" shall be referred to as the "statements" or the "statements of assurance."
11
The representative statement is taken from a non-party, Perth Amboy Public Schools. See Pltf.'s Reply Br., Doherty Cert., Ex. A,
12
Hereinafter, these defendants shall be referred to collectively as the "Allendale defendants."
13
Hereinafter, this test shall be referred to as the "Doe balancing test" or the "test."
14
Plaintiff represents the "I-Team" is an award-winning "cadre of some of [WNBC's] most respected investigative journalists."
According to plaintiff's counsel, it is intended lu be demonstrative.
End of Document
WESTLAW
II)
2016 Thomson
Reuters. No claim to original U.S. Government
Works.
18
EXHIBIT 5
Page 1 0130
F:Iftb Edition - Ja .. ary lOll
The New Jersey

Open Public Records Act
Handbook for
Records Custodians
New Jersey Government Records CouRcil

101 S. Broad Street
P.O. Box 819

Trenton,
NJ 08625-0819
omce: (609) 191-6830

Fax: (609) 633-6337
Ton-free Information Line: (166) 850-0511
E-Mail: grc@dca.state.nj.W!
Website: www tate.nj.us/gre
Fifth Edition - January lOll
Page 6 of 30
Government records must be readily accessible for inspection, copying. or

examination by its citizens, with certain exceptions, for the protection of the public
interest.
Any limitations on the right of access to government records must be interpreted in

f.vor of the public's right of access.
A public agency has a responsibility and an obligation to protect a citizen's personal

information that is in the possession of a public agency when disclosure of that
information would violate the citizen's reasonable expectation of privacy;'
t\!gain. these three policies must be incorporated in a custodian's handling of each OPRA request
for access to government records.
In fact, in Burnett v. County of Bergen. 198 N.J. 408 (2,009). the Court held without ambiguity,
that the privacy provision "is neither a preface nor a preamble." Rather. "the very language
expressed in the privacy clause reveals its substantive nature; it does not offer reasons why
OPRA was adopted, as preambles typically do; instead, it focuses on the law's implementation."
"Speclfically, it imposes an obligation on public agencies to protect against disclosure of
personal information which would run contrary to reasonable privacy interests."
Who may file lUI OPRA request?
Anyone! Although OPRA specifically references "citizens of this State," (N.J.S,A, 47:1A-l) the
Attorney Geaeral's Office advises that OPRA does not prohibit access to residents of other
states. Also. requestors may :tile OPRA requests anonymously without providing any personal
contact infonnation, even though space for that infonr.atlon appears on the form; thus
anonymous requests are permitted, However, OPRA specifically prohibits anonymous requests
for victims' records. N,J's.A.47:1A-2.2.
If a permissible anonymous request involves making
copies and the estimated cost exceeds $5.00~ the custodian may request a deposit.
What is a government record?
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 Dr maintained eleetronically or
by sound-recording or in a similar device. or any copy thereof, that has been made, momtained
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.
Generally stated, a "government record" means any record that has been made. maintained. or
kept .on tile in the course of official business, or that has been received in the course of official
business.
OPRA's definition of a government record expands the old Right to Know Law definition
(which was limited to records required by law to be maintained on file).
EXHIBIT 6
L
FEB 19 2016
',,'
'.~".
COURT INITIATED
I
HARRY SCHEELER
PLAINTIFF(S)
VS

LAW DIVISION
CAPE MAY COUNTY
DOCKET NO. CPM- L-444-15
CITY OF CAPE MAY, et al.

ORDER
OEFENDANT(S)
THIS MA TIER having been opened to the Court by Pashman Stein, A Professional
Corporation, attorneys for Plaintiff, CJ Griffin, Esquire appearing; and Anthony P. Monzo,
Esquire, of the law finn of Monzo, Catanese Hillegass, appearing on behalf of the
\
....:
I
~
I,
I
1f
Defendant; and the Court having entered an Order to Show Cause on September 30, 2015,
setting down a hearing date of November 18,2015; and said hearing having been adjourned
at the request of Plaintiff to January 12,2016; and the Court having heard oral argument on
January 12, 2016, at which time it was presented with an unpublished decision of the
Honorable Ronald E. Bookbinder, A.J.S.C. dated October 8, 2015; and, notwithstanding

the provisions of Rule 1:36-3, the Court having granted counsel the opportunity to
comment on said decision; and the Court having reviewed the submissions and considered
the arguments of counsel; and for the reasons stated in the Court's Memorandum of
Decision of even date herewith; and for good cause shown;
IT IS ON THIS
191h
day of FEBRUARY, 2016, ORDERED, that Plaintiff's
petition is DENIED. Plaintiffs Complaint is dismissed with prejudice,

IS FURTHER ORDERED that a copy of this Order shall be served upon all parties
within seven (7) days of its receipt.
','
'NELSONC.
JOHNSON, J.S.C.
.,,-FEBlg 2016
'\1J.;tb c. .inAalAAA.
~
U~r'
NELSON C, JOHNSON,
J.S.C,
1201 Bacharach Boulevard

Atlantic City, NJ 084014527
(609) 594-3384
MEMORANDUM
OF DECISION
II
TO:
RE:
CJ Griffin, Esquire
Pashman Stein
Anthony P. Monzo, Esquire
(201) 270-4930
(609) 463-4601 .
Monzo, Catanese Hillegass

211 Bayberry Drive, Suite 2A
Cape May Court House, New Jersey 08210
Scheeler vs. City of Cape May, et al
DOCKET NO.
CPM-L-444-15
HAVING CAREFULLY REVIEWED THE MOVING PAPERS AND ANY RESPONSE FILED,
RULED ON THE ABOVE CAPTIONED MOTION(S) AS FOLLOWS:
PRELIMINARY
I HAVE
OBSERVATIONS
Plaintiff, Harry Scheeler ("Scheeler") is a self-proclaimed "open government activist"

who is "presently a resident of North Carolina,"
approximately 100 OPRA requests
01'
As certified
more" each year.
by Plaintiff, he "file[s]
It's clear from Mr. Scheeler's
Certification that a non-taxpaying, non-citizen, with an over-sized interest in New Jersey local
politics, wishes to assert equal claim to exercise statutory rights of New Jersey citizens to engage
in the political processes of our state, without coming to our state, nor assuming any of the
responsibilities, or incurring obligations of a citizen of New Jersey.
Query, at the time the
OPRA was adopted, did the members of the New Jersey Legislature contemplate that they were
authorizing an out-of-state gadfly to repeatedly bombard local governments with demands to
produce public records? That is the question before the Court.
I
Ii
II
POSTURE OF CASE
This matter comes before the Court on Plaintiff's petition seeking access to the records of
the City of Cape May ("the City") pertaining to several government practices, primarily with
regard to government spending on legal services by the City. The Defendant has provided
res~onses, but has yet to comply with said request(s) to Plaintiff's satisfaction. As illustrated by
"Exhibit A" to defense counsel's pleadings of November 4, 2015, Plaintiff is an inquiring
person. The Plaintiff, Scheeler is a former resident of Woodbine, New Jersey, presently living in
North Carolina.
The City is obligated to comply with the requirements of the Open Public
I.
Records Act, viz., N.J.S.A. 47:1A-l et seq. ("OPRA").

This Court entered an Order to Show Cause on September 30, 2015, setting down a
hearing date of November 18, 201 S. At the request of Plaintiff, the matter was adjourned to
January 12, 2016. This matter was ready to proceed, essentially as cross-motions for Summary
Judgment, each party asserting their position 'to be correct under OPRA. At the oral argument on
January 12, 2016, Plaintiffs
counsel presented the Court with a copy of an unpublished
"tentative" decision issued by the Honorable Ronald E. Bookbinder, A.J.S.C. dated October 8,
2015, wherein Judge Bookbinder interpreted OPRA to grant a right of access to public records
by a non-citizen of New Jersey.
Notwithstanding the provisions of Rule 1:36-3, the Court
granted both counsel an opportunity to provide written comments on the aforesaid decision in
Scheeler v. Atlantic Co. Mun. JIF, Docket No.: BUR-L-990-1S.

COUlt
The record is complete for the
to rule.
PARTIES' CONTENTIONS
Defendant:
In support of its Motion to Dismiss, Defendant avers as follows:
First, Defendant contends that Plaintiff lacks standing to claim a violation of OPRA
because the Act only states that government records be accessible to "citizens" of New Jersey.
According to Plaintiff, he identifies himself as a citizen of North Carolina. Moreover, Defendant
contends that the Attorney General's Position in 2009, that OPRA requestors do not need to be
citizens of the State, is now invalid under the
u.s.
Supreme Court's decision in McBurney v.
Young, 133 S.Ct. 1709 (2013).

Second, Defendant asserts that Plaintiff lacks standing to claim a violation of the
common law right of access. According to Defendant, standing under the common law light of
2
access was premised on one being a citizen and having an established "interest in the subject
matter of the material he
01'
she is seeking." South Jersey Pub. Co. v. N.J Expressway Auth., 124
NJ 478,487 (1991). Because Plaintiff is not a citizen of New Jersey, he does not have standing
under the common law right to access. Defendant rejects Judge Bookbinder's decision as an
inaccurate interpretation of OPRA.
(NOTE: for purposes of this ruling, the Court has not
addressed either party's position on redactions to the legal bills sought by Plaintiff.)
Plaintiff; In opposition to Defendant's motion, Plaintiff avers as follows:

First, Plaintiff argues that Judge Bookbinder got it right. Citing the decision in
Scheeler v. Atlantic Co. Mun. JIF counsel argues that this Court is obligated to take a "liberal
approach" in construing OPRA and must grant standing to an out-of-state requestor of public
records. In essence, Plaintiff argues that "where the Legislature changes statutory language from
'any citizen' to 'any person' that it intended to broaden the scope of the law's provisions to
include non-citizens."
Second, Plaintiff maintains that Defendant has failed to state a specific lawful basis for
redacting responsive legal bills. Plaintiff notes that OPRA "places the burden upon the custodian
of a public record to state the 'specific basis' for the denial of access." Gannett N.J. Partners,
LP v. City of Middlesex, 379 NJ Super. 205, 215 CAppoDiv. 2005). In this case, Plaintiff avers
that Defendants have attempted to justify hundreds of redactions with extremely generalized and
conclusory allegations of exemption. Plaintiff believes that Defendant's assertions of privilege
are overbroad, as arc the redactions.
Additionally, Plaintiff argues that Defendant should be
ordered to prepare a Vaughn Index and the Court should review the records in camera.
STANDARD OF REVIEW AND STATUTORY INTERPRETATION

OPRA actions are intended to be summary proceedings governed by NJ.S.A. 47:1A-6.
"Any such proceeding shall proceed in a summary or expedited manner. The public agency shall
have the burden of proving that the denial of access is authorized by law." N.J.S.A. 47:1A-6.
Additionally, "any limitations on the right of access accorded by [OPRA] shall be construed in
favor of the public's right ofaccess[.]"
NJSA.47:1A-1.
OPRA actions are normally considered
as cross motions for Summary Judgment. See, e.g., Burnett v. County of Gloucester, 415 N.J.
Super. 506. 511 (App. Div. 2010).
As the burden rests on the Defendant, Defendant must
demonstrate
that it is entitled to Summary Judgment
as a matter of law.
Brill
1'.
Guardian Life
Ins. Co. of Am., 142 N.J. 520,535 (1995).

When interpreting a statute,
Legislature's
(2006).
intent.
the Court's
primary
responsibility
is to determine
the
American Fire and Cas. Co. v. New Jersey Dlv. of Taxation, 189 N.J. 65, 79
The starting point is to examine the plain language
of the statute and ascribe to the
Dil'rospero v, Penn, 183 N.J. 477, 492 (2005); Mun. Council v.
words their ordinary meaning.
James,_183 NJ. 361, 370-71 (2005). The Court's analysis of the parties' positions is guided by
well-established
principles
of statutory construction,
In re T.S., 364 N.J. Super. I, 7 (App. Div, 2003). To determine that intent, the plain
Legislature.
language of the statute is examined

absent a legislative
(superseded
meaning
and in doing so it should be given "its ordinary meaning,
Burns v. Belafsky, 166 NJ. 466. 473 (2001)
intent to the contrary."
on other grounds),
in the context
construction
The words of a statute must be given their common-sense
of the entire
statute,
which
should
supersedes
be afforded
.. , and read . , . so as to give effect to all of its provisions
T.S; supra, 364 N.}' Super, at 6. In determining
will."
(App.
the most important being the intent of the
a general one[.]"
legislative
a "harmonizing
and to the legislative
intent, "[sjpecific
meaning
City Council of Orange Twp. v. Brown. 249 N.J. Super. 185. 191
Div, 1991) (overruled on other grounds).
See also Lewis v. Bd. of Trs., Pub. Employees'
Retirement Sys., 366 N..! Super. 411, 416 (App. Div.) C"[T]he inclusion of specific words and
phrases controls or limits more general words and phrases."),
Finally, as stated by the Court in
certif denied. 180
N.J. 357 (2004).
Foxworth v. Morris, i341v.J. 284. 288 (1993), our task
ij
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is. to have the law make sense:

produce absurd results,"
1816 n.
"it is a venerable principle that a law will not be interpreted to
K Mart Corp. v. Cartier, inc .486 U.S. 281,324
n. 2, 108
S,Ct. 1811,
2, 100 L.Ed.2d 313,345 n. 2 (1988) (Scalia, J., concurring in part and dissenting in part).
We '''effectuate
the legislative
sought to be achieved!"
intent [of the law] in light of the language used and the objects
Merin v. Maglaki, 126
N.J. 430,435,599
A.2d 1256 (1992) (quoting
State v. Maguire, 84 NJ. 508, 514, 423 A, 2d 294 (1980).
DISCUSSION
As discussed
Law (the ''RTKL'')
hereinafter,
OF LAW AND RULING
the history preceding
and the adoption
the repeal of the former Right to Know
of OPRA comprises
a substantial
Legislative
record.
What's clear from that record, and prior Court rulings, is that the DPRA was adopted primarily
4
to grant citizens a more unfettered right of access to public records.
From this Court's
perspective, the most fundamental difference between the statutes was a shifting of the burden of
proof for entitlement to records from the citizen to government. Under the RTKL, citizens had to
prove they had an interest in and/or need for the record, and that the record sought was a public
record. Under OPRA, statutory public records have been defined and the burden of proof has
been placed squarely upon government to present a rationale explaining why the citizen's right
of access must be denied.
Burden shifting, coupled with counsel fee shifting in the event the governmental agency
fails to meet its burden, have put teeth into the OPRA which the RTKL did not have. In making
these fundamental changes to the statutory right to access public records, the Court must be
mindful of all the circumstances entailed and whether or not the right to access should be upheld
over the objections of a municipal goverrunent. Teeth can be sharp. Finding the right of access;
particularly as here, where the Plaintiff is a non-citizen, must be granted with due caution and
judicious restraint.
As noted above, OPRA is the progeny of the former RTKL, the purpose of which was to
illuminate and avoid secrecy in government affairs. As such, the benefits of the RTKL and
OPRA are properly given to those who not only "foot the bill" for such benefits but who also are
directly affected by the very political processes the aforementioned legislation was enacted to
protect and serve.
Presently before the Court is a non-citizen Plaintiff who, by his own
admission, files 100(+) OPRA requests per year. Sitting in the comfort of his home, hundreds of
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miles away in North Carolina, Plaintiff types a note at his keyboard, and with the click of his
mouse submits an email making demands upon the City Clerk. Query, when dealing with such a
professional requestor, is it reasonable for the municipality to have the burden of proof and run
the risk of paying legal fees in each and every instance Mr. Scheeler decides he's interested in a
particular issue involving local government in New Jersey?
Informative to this Court's analysis is the excellent argument of counsel to the City
regarding the U.S. Supreme Court's decision in Mcburney v. Young, 133 S.Ct. 1709 (2013).
Mcburney involved a challenge to Virginia's Freedom of Information Act ("Virginia's FOIA")
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which is similar to New Jersey's OPRA.

The Petitioners in McBurney, like the Plaintiff here, were citizens of states other than the
commonwealth of Virginia - the state in which the request for records was made. Id. 133 S. Ct.
5
1709 at 1714. Upon receipt of their requests, two different agencies of state government denied
the requests (of both Plaintiffs) on the grounds that he was not a Virginia citizen. Petitioners
then filed suit under 42
u.s.c.
1983 and sought declaratory and injunctive relief for violations
of the Privileges and Immunities Clause of the
u.s.
Constitution ("PIC") and the dormant
Commerce Clause to the United Stales Constitution. Ibid.

In holding that Petitioners' rights under the PIC were not violated, the Court opined,
This does not mean, we have cautioned, that state citizenship or
residence may never be used by a State to distinguish among
persons. Nor must a State always apply all its laws or all its
services equally to anyone, resident or nonresident, who may
request it so to do. Rather, we have long held that the Privileges
and Immunities Clause protects only those privileges and
immunities that are fundamental. [Ibid.] [internal quotations and
citations omitted].
According to the City, a holding that OPRA applies only to New Jersey citizens fits
squarely within the PIC jurisprudence, interpreting Art IV 2 cl. 1 of the U.S. Constitution.
Though this Court respects the ruling in McBurney and the thorough and persuasive arguments
made by the City's attorney, the facts here are so very different than those in Mcburney that the
Court is obligated to look to our own state's jurisprudence for guidance. Additionally, the Court
must examine the Legislative history in the transition from RTKL to OPRA.
The Plaintiff claims that the Legislature amended the RTKL so that any person (including
non-citizens) can request government records. In South Jersey Pub. Co. v, NJ. Expressway
Auth., 124 N.J. 478, 489 (1991), a decision this Court knows well, the Supreme Court applied the
R TKL and stated in relevant part:
In 1963, the Legislature supplemented the public's right of access
to public records by enacting the Right to Know Law, NJS.A.
47:1A-l to -4, declaring the public policy of the State to be 'that
public records shall be readily accessible for examination by the
citizens of this State, with certain exceptions, for the protection of
the public interest.' NJS.A. 47:1A-1. Although the Legislature
did not curtail 01' affect the common-law right to inspect and
examine public records, lrval Realty, supra, 61 N.J at 373, 294,
A.2d 425, it did eliminate the standing requirement for access;
under the Right to Know Law, one need only be a citizen of the
State to obtain access to public records. [d. at 489. [Emphasis
added.]
6
If the intent of the Legislature was to abrogate the RTKUs standing requirement as set
forth above, then the Legislative findings and declarations portion of OPRA, along with the
transcript of the public hearing to discuss the enactment of OPRA, would have clearly stated that
was the change in policy. If the Legislature had amended the RTKL so as to make records
accessible both to citizens of this State as well as any person, including non-citizens, then the
first sentence of OPRA might well have stated that: 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 all citizens of this State, and any person, including non-citizens,
That language is not the law. N.J.S.A. 47:1A-l reads, in limited/relevant part:
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-l, et seq.) as amended and supplemented, shall be
construed in favor of the public's right of access ... [Emphasis
added.]
Accordingly, from this Court's perspective, Plaintiffs
argument that "any person"
broadens the scope of access under OPRA to non-citizens does not conform to the clear
Legislative intent. Contrary to Plaintiffs interpretation of OPRA, OPRA was enacted to expand
the scope of accessible government records, not to expand the scope of those who had access to
these records.
Query, why should Plaintiff, a non-New Jersey resident, who does not pay taxes within
the State of New Jersey or the City of Cape May reap the benefits of a similarly situated citizen?
What is more, why should Plaintiff, who is not affected by New Jersey or Cape May's political
process, be entitled to the records at issue? And finally, is it likely that the Legislature intended
that the City should be compelled to continue its exchange(s), and have the burden to continually
explain its position and be required to satisfy multiple inquiries of a non-resident gadfly? Is this
someone the Legislature had in mind when OPRA was adopted? As discussed more fully
hereinafter, the PIC, United States and New Jersey Supreme Court jurisprudence, and the
Legislative history lead this Court to conclude that Mr. Scheeler is not someone the Legislature
had in mind when it adopted OPRA.
Notwithstanding a municipality's authority to assess a reasonable special service charge

for the expenditure of time and effort it takes to respond to OPRA requests, no amount of
reimbursement makes up for the fact that when a public employee responds to an OPRA request,
he/she is unable to devote their energies to their primary mission of serving the local
constituency.
The exhibits accompanying the pleadings reveal a time-consuming exchange
between City officials and a practiced, disruptive gadfly, bent on intimidating public officials.
The Certification of City Clerk, Louise Cummiskey, dated November 4, 2015, (with
attached emaiIs) illustrates the disruption caused by the "barrage of requests" [~7] made by
Plaintiff In her Certification, Ms. Cummsikey characterizes Plaintiff's
communications as
"inciteful, harassing and derogatory" [,4]. An objective reading of Plaintiff's emails might
characterize them as rude, bellicose and obnoxious.
The Exhibit to Ms. Cummiskey's
Certification containing the exchange of emails between her and Plaintiff is replete with one
belligerent demand after another. Plaintiffs truculence is palpable; his penchant for rebuke is
totally inappropriate.
Any further discussion of his bullying comments would lend them a
dignity they do not deserve. It is inconceivable that the drafters of OPRA would find Plaintiffs
II
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badgering tactics to be reasonable requests for public records.

Plaintiff's counsel would have this Court ignore the Legislative history of OPRA which
noted that the Legislative changes required to make the transition from the RTKL to OPRA were
limited to: (1) the definition of what constitutes a "government record"; (2) the definition of a
"custodian of a government record"; (3) the ability for a public entity to assess a Special Service
Charge; (4) the ability that a custodian of records may require a deposit against costs; and (5)
clarification that a custodian of records will either grant access to government records or deny a
request no later than seven (7) business days after receiving a request. NJ Assembly Government
Committee Statement on Assembly, No. 1309, p. 2 (March 6, 2000).
See a/so Judiciary
Committee Statement to Assembly, No. /309, p. 1 (December 6, 2001) ("the bill expands the
public's right to access to all public records to include all government records and facilitates the
way in which that access is provided by the custodian of a government record").
A reading of the New Jersey Senate bills preceding the adoption of OPRA demonstrates
that the Legislature intended to make OPRA applicable only to citizens of this State. It is this
Court's understanding of the Legislative enactments, particularly as to statutes which amend
existing statutes, that when the Legislature includes limiting (or expansive) language in an earlier
8
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version of proposed legislation, but deletes it prior to enactment of the statute, it is presumed that
the limitation (or expansion) was not intended by the Legislature. In this case, Senate Bill, No.
351, introduced on January 11, 2000, by Senators Kenny and Kyrillos stated in their proposed
Legislative findings and declarations, in part: "[T]he Legislature finds and declares it to be the
public policy of this State that public records shall be readily accessible for examination by
members of the public," striking the phrase "citizens of this State;'
This change, as initially
proposed and as stated in the accompanying Statement, was intentionally made to "broaden[s]
the scope of the public policy regarding availability of public information to incorporate any
member of the public and not just citizens. Currently, the right to information access exists for
citizens alone." [NOTE: Senate Bill, No. 351 was not adopted by the Legislature.]
It was Senate Bill No. 866, subsequently introduced by Senator Martin on January 31,
2000. which ultimately became OPRA. It was drafted to state, at N.J.S.A. 47:1A-l, that "[tjhe
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 ...
for the protection of the public interest."
Senator Martin stated during the Senate Judiciary
Committee Public Hearing regarding the adoption of OPRA that. "I fundamentally believe that
the public is entitled to the records of its government, and the legislation that we've introduced
today will be the subject of this hearing basically takes that approach." Mr. Scheeler cannot call
the New Jersey government "[his] its government."
Similarly, the Assembly Floor Amendments are likewise devoid of any suggestion that
aPRA "changed course" from RTKL and ex.panded who may freely access government records
to include non-New Jersey citizens.
Statement to Assembly No. 1309, Assemblymen Geist
(March 27,2000), Collins (June 26, 2000). Martin (May 3, 2001). Geist and Collins (January 3.
2002). Indeed, even the transcript of the Public Hearing before the Senate Judiciary Committee
(the "Committee") (Senate Bill Nos. 161. 351. 573 and 866) (the "Hearing") is also devoid of
Plaintiff's suggestion that OPRA "changed course" from the RTKL and deleted or otherwise
amended its citizenship requirement.
Additionally, Scheeler's argument that just because OPRA's provisions contain the
phrase "any person" New Jersey's government records must be made accessible to "any" person,
a New Jerseyan or not, is not persuasive. The Legislative "citizens of this State" limitation is
similar to other New Jersey residency restrictions that also use Plaintiff's frequently cited, "any
9
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person" verbiage from the Act. For example) N,J.S.A, 19:31~1 ("Registration required to vote")
provides that, "no 'person' shall be permitted to vote at any election unless such 'person' shall
have been registered].]"; N.J.S.A. 39:3~10 ("Licensing of drivers; classification") provides that,
"no person" under 18 years of age shall be issued a basic license to drive motor vehicles].]"
Under the Legislative construction of the phrase "any person" as proposed by Plaintiff, a
fortiori a North Carolina resident could vote in New Jersey's elections and obtain a New Jersey
driver's license all while never obtaining New Jersey residency.
Stated differently, voting in
New Jersey's elections and domicile requirements for obtaining a New Jersey license to operate
a vehicle all require that the recipient (i.e. the New Jersey citizen) of the benefit (i.e., the ability
to vote for public officials and the privileges of having a New Jersey license) to also bear the
burden of said benefit's cost via tax dollars. The Act does not contemplate that a non-resident,
non-tax paying, out-of-state gadfly is entitled to the benefits of OPRA.
This Court also relies upon our Supreme Court's ruling in Burnett v. County of Bergen,
et al, 198 NJ. 408, (2009) wherein the Court found that the initial precatory language at N.JS.A.
47:1A-l is not a non-operational "preamble" but rather is part of the substantive body of the law.
At N.J.S.A. 47:1A-I - "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. ..
to
The Court in Burnett, 423, ruled that N.J.S.A. 47:1A-l " .. .is neither a preface nor a preamble. It
,has not telltale "whereas" clauses that often appear in a preamble.
It appears after OPRA's
enactment clause, making the provision part of the body of the law."
Prior to discussing the common law, this Court addresses the reliance (in part) of the
Court in Scheeler v. Atlantic Co. Mun. JIF upon NJ.S.A. 47:1A-5F. This Court has always had
difficulty understanding the enforceability of an "anonymous request." For the reasons stated by
the Court in A.A. v. Gramiocioni, 442 NJ. Super. 276 CAppoDiv, 2015), Plaintiff's reliance upon
N.J.S.A. 47:1A-5F is of no moment to this Court's analysis.

Appellate Court's
opinion in Gramiccioni
Both the Trial Judge and the
articulate well the law on anonymous legal
proceedings.
Finally, with regard to the common law right of access, existent per N.J.S.A, 47: lA-8, the
Court also concludes that Plaintiff is not entitled to the records sought. In the cases decided
under the former RTKL, New Jersey citizenship was required to gain access to public records
10
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under the Conunon Law. Atlantic City Convention Center v. South Jersey Publishing Co., Inc.,
135 HJ. 53 at 59 (1994) ("At common law, however, courts required citizens to demonstrate
some "personal" or "particular" interest in the material sought to be examined.") See Loigman v.
Kimmelman, 102 N.J. 98 at 104-05 ("[o]rdinarily> only an assertion of citizen or taxpayer status
is necessary for production of common-law records".) This Court also receives guidance from
Justice O'Hem's admonisIunent to the trial court as expressed in Loigman v. Kimmelman, 102
N.J. 98, 112 (1986), wherein the Court stated " ... the trial court will want to consider whether
the demand for inspection is 'premised upon a purpose which tends to advance or further a
wholesome public interest or a legitimate private interest,'" (internal citations omitted.) The
pleadings and exhibits filed with the Court fall far short of establishing a wholesome public
interest or a legitimate private interest.

Accordingly, Mr. Scheeler has no rights of access to the City'S records under either the
OPRA or the New Jersey common law. Plaintiffs Complaint is dismissed with prejudice. An
appropriate Order has been entered. Conformed copies accompany this Memorandum of
Decision.
NELSON C. JOHNSON, J.S.C.
Date of Decision:
2/19116
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"

Court Plaza South
Hackensack, NJ 07601
(201) 488-8200
Peter M. Heimlich
PETER M. HEIMLICH,

DOCKET NO.:
Plaintiffs,
v.
Civil Action

Center,
ORDER TO SHOW CAUSE
Defendants.
THIS MATTER
being brought before the court by Pashman Stein Walder Hayden, a
Professional Corporation, attorneys for Plaintiff Peter M. Heimlich, CJ Griffin, Esq. appearing,
seeking relief by way of summary action pursuant to R. 4:67-1(a), based upon the facts set forth
in the Verified Complaint filed herewith; and the court having determined that this matter may
be commenced by Order to Show Cause as a summary proceeding pursuant to the Open Public
Records Act, NJ.S.A. 47:1A-6, and for good cause shown:
IT IS on this
Educational
Information
day of
, 2016, ORDERED
that Defendants the
& Resource Center and Stephen H. Hoffman, in his capacity as
Custodian of Records for the Educational Information & Resource Center, shall appear and show
cause on the
day of
, 2016 before the Superior Court at the
Cumberland County Courthouse in Bridgeton, New Jersey at
a.m.lp.m., or as soon
thereafter as counsel can be heard, why judgment should not be entered:

1.
Declaring said actions of Defendants to be in violation ofOPRA, NJ.S.A. 47:1A-
1 et seq. by failing to grant access to government records within seven business days;
2.
Ordering Defendants to release the requested records pursuant to OPRA.
3.
In the alternative, directing Defendants to provide all public records responsive to
Plaintiffs request to the Court in camera and then require Defendants to delete or excise from
the records the portiones), if any, that are exempt from public access and promptly permit access
to the remainder of the record;
4.
Alternatively, declaring Defendants have violated Plaintiffs rights under the
common law right of access in their handing of Plaintiff s requests for public records;
5.
Ordering Defendants to provide the requested records under the common law;
6.
Ordering Defendants to preserve the requested record pending resolution of these
proceedings or as otherwise required by law;

7.
Awarding counsel fees and costs pursuant to l.f.J.S.A. 47:1A-6; and
8.
For such other relief as the Court may deem just and equitable.
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 Defendants

personally or by Certified Mail, Return Receipt Requested, within __
days of the date this
order was received by Plaintiff, in accordance with R. 4:4-3 and R. 4:4-4, this being original
process.
2.
The Plaintiff must file with the court its proof of service of the pleadings on the
Defendants 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 opposition papers must be 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 Judge
4.
. The papers must be served upon Plaintiff this same date.
The Plaintiff must file and serve any written reply to the Defendants' opposition
to the Order to Show Cause 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 Judge
. The papers must be served upon
Defendant this same date.

5.
If the Defendants do 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 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.
Defendants 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 your 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 directory of these offices is available in the Civil Division Management Office in the
county
listed
above
and
http://www.judiciary.state.nj.us/prose/lOI53deptyclerklawref.pdf.
online
Include
at
a $175
filing
fee
payable to the "Treasurer State of New Jersey." You must also send a copy of your Answer and
opposition 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 or the Legal Services of New Jersey Statewide Hotline at 1-888-LSNJ-LAW (1-888576-5529). 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. A directory with contact
information for local Legal Services Offices and Lawyer Referral Services is available in the Civil
Division Management Office in the county listed above and online at
http://www.judiciary.state.nj.us/prose/l
9.
0 153deptyclerklawref.pdf.
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.
,J.S.C.
.C. GmFHIN
PashmanStein
Counsel
cgriffin@pashmanstein.com
YY~.!9,~r.~
ayde~
Direct: 201.270.4930
June 23, 2016

VIA OVERNIGHT MAIL
Hon. Georgia M. Curio, A.J.S.C.
Cumberland County Courthouse
60 West Broad Street, Courtroom 346
Bridgeton, New Jersey 08302
Re: Heimlich v. Educational Information & Resource Center, et al:

Our File No. 1749-001
Dear Judge Curio:
Please accept this letter brief, in lieu of a more formal brief, in support of Plaintiff's
application for an Order to Show Cause seeking relief from Defendants' unlawful response to the
Open Public Records Act ("OPRA") Request identified in the Verified Complaint and discussed
in detail below.
PRELIMINARY
STATEMENT
Plaintiff Peter M. Heimlich is an investigative blogger. Plaintiff's research and reporting

has uncovered fraud and ethical misconduct.
While he resides in Georgia, his work has been the
basis for numerous print and broadcast media reports from major news outlets across the nation,
including
outlets here in New Jersey.
In addition to leaking stories and data to major
publications, Plaintiff also self-publishes investigative articles online on his website and blog.
As part of his research and a potential news story, Plaintiff submitted a valid OPRA
request to Defendant Educational Information & Resource Center ("EIRC") seeking copies of
records related to the appearance of a recording artist at a conference the EIRC was hosting. The
EIRC responded to Plaintiff's request by denying it on the basis that he was not considered a
Court Plaza South
Phone: 201.488.8200

Hackensack, NJ 07601
Fax: 201.488.5556
www.pashmanstein.com

June 23, 2016
Page 2
"citizen" of the State of New Jersey. Defendants' denial of the request cited Judge Johnson's
decision earlier this year in Sheeler v. City of Cape May. Plaintiff challenges this denial.
As explained in more detail below, Defendants' denial of Plaintiff's request was
unlawful.
Defendants' reliance on the Cape May decision ignored two other New Jersey
decisions, including one decided after Cape May, where the both Judge Bookbinder and Judge
Troncone held that out-of-state residents could indeed submit an OPRA request. Moreover, the
Cape May decision itself is erroneous for several reasons including that OPRA itself repeatedly
states that "any person" may gain access to government records and the legislative history
demonstrates an intention to permit "anyone" to access records. For these reasons and the others
explained below, Plaintiff submits that this Court should not be persuaded by the nonbinding
opinion of Cape May.
Accordingly, for the reasons argued herein, this Court should enter an order finding
Defendants to be in violation of OPRA, compelling Defendants to search for and produce
responsive records, and awarding Piaintiff his reasonabie attorney's fees and costs of suit.
STATElVLENT OF FACTS
Plaintiff received his college degree from Syracuse University's Newhouse School of
Journalism in 1977. While in school he was an editor, reporter, and columnist for the Daily
Orange student newspaper, was a freelance writer for the Cincinnati Enquirer Sunday Magazine
and other publications, and won a 1976 Hearst Foundation national award for Excellence in
News Writing.
In 2002, Plaintiff began researching the career of his father, Henry J. Heimlich MD, and
uncovered a history of unseen fraud which he has published on his website, http://medfraud.info.

June 23,2016
Page 3
Since spring 2003, Plaintiffs work has been the basis for numerous print and broadcast media
reports concerning his father and a host of other news topics including fraud surrounding the
"Save a Life Foundation."
Plaintiff's research has contributed to articles that have been
published by the Washington Post, NJ.com, Slate, the Cincinnati Enquirer, The Hollvwood
Reporter, and ABC News among many other news outlets. Additionally, Plaintiff's research has
contributed to broadcast reports on WSB-TV (ABC Atlanta), WPIX-TV(New York), Fox9 News
(Idaho), Fox-TV (New Jersey) and ABC 20/20.
Since 2010, Plaintiff has done original document-based reporting. mostly about fraud
and/or ethical misconduct, on his blog. He publishes articles online at his blog. http://thesidebar.com. Plaintiff's reporting covers topics of national and international importance and can
be read worldwide on the Internet.
A. Plaintiffs May 27,2016 OPRA Request
On May 27, 2016, Plaintiff submitted a request (the "Request") for government records
pursuant to OPRA and the common law right of access to the EIRC.
Plaintiffs request
specifically stated:
According to this page on your agency's website, recording artist
Carl Brister appeared at the April 14, 2016 International
Conference for Child Assault Prevention in Atlantic City:
http://www.eirc.orglnews-announcements/icap-intemationalconference-april-14- 20161
Please provide me with copies of all records associated with Mr.
Brister's appearance including but not limited to correspondence,
promotional materials, contracts, and financial records including
copies of checks.
If possible, please provide the records in digital format via e-mail.
If your office wishes to correspond with me, please feel free to do

so via e-mail.

June 23, 2016
Page 4
I'm requesting these records for an article I'm reporting on my blog

and I have no financial interest in the requested information,
therefore this is to request that I be categorized as a member of the
news media.
[See Verified Complaint, Exhibit A.]
Later on May 27, 2016, Defendant
Stephen Hoffinan
denied Plaintiff's
Request.
Specifically, Mr. Hoffman stated:

Your request has been denied in light of the fact that you are not
considered a "citizen" of the State of New Jersey.
More
specifically, you indicated an address on your OPRA Request that
is outside the State of New Jersey, and have provided no evidence
that you are a citizen of New Jersey. As such, in accordance with
applicable law, including the decision in Sheeler v. City of Cape
May et al, Docket No. CPM-L-444-15 (February 19,2016) which
held that OPRA was only applicable to citizens of this State
(namely New Jersey), your request is denied since you are not a
citizen of New Jersey and do not have standing to submit an OPRA
Request.
[See Verified Complaint, Exhibit B.]
As of the date of this filing, the EIRe has released no records in response to Plaintiff's Request.
LEGAL ARGUMENT
I.
DEFENDENTS HAVE VIOLATED OPRA BY REFUSING TO RESPOND TO IDS

OPRA REQUEST BASED ON AN ERRONEOUS CLAIM THAT NON-CITIZENS
ARE BARRED FROM FILING OPRA REQUESTS
OPRA reflects
government"
actions."
New Jersey's
"history
of commitment
to public
participation
in
and its "tradition favoring the public's right to be informed about governmental
South Jersey Pub. Co. Inc. v. N.J. Expressway Auth., 124 N.J. 478, 486-87 (1991).
The statute's "purpose is 'to maximize public knowledge about public affairs and to minimize
the evils inherent in a secluded process.'"
Mason v. City of Hoboken. 196 N.J. 51,64 (2008)

June 23, 2016
Page 5
(quoting Lakewood Residents Assoc., Inc. v. Twp. of Lakewood. 294 N.J. Super. 207, 225
(Law Div. 1994)).
A citizen's right to access public records has been deemed "unfettered"
absent a statutory exemption.
Courier News v. Hunterdon County Prosecutor's
N.J. Super. 373, 382-83 CAppoDiv. 2003)(emphasis
Office, 358
added). Accordingly, pursuant to OPRA,
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] shall be
construed in favor of the public's right of access. " ..
fNJ.S.A. 47:1A-I (emphasis added).]
It is the public agency's burden to prove that denial of access is authorized by law. N.J.S.A.
47: 1A-6. Based on the reasons below, Defendants cannot meet this burden.
A.
Defendants Bave Violated OPRA by Denying

Based on his Residency Outside of New Jersey
1.
Plaintiff's
OPRA Request
OPRA Permits "Any Person" to Gain Access to Government Records

and OPRA's Legislative History Demonstrates
an Intent to Permit
Non-Citizens to Access Records
When interpreting OPRA, this court must construe any limitation on the right of access
in favor of granting access. N.J.S.A. 47:1A-1.
Thus, all of OPRA's provisions must be
construed in favor of granting access to Plaintiff. Defendants' assertion that OpRA is limited to
only New Jersey citizens (residents) is at odds with the unambiguous statutory language used
throughout numerous OPRA operating provisions.
See In re Kollman, 210 N.J. 557,568 (2012)
(noting "courts begin with the language of the statute . . . If the plain language is clear, the
court's task is complete.").
The review of the legislative history of OPRA is critical in
demonstrating that citizenship is not a requirement for accessing government records.

June 23, 2016
Page 6
While Section 1 of OPRA declares that public records are to be readily available to
"citizens of this State," OPRA's operational provisions do not require that a requestor be a
resident of New Jersey. Instead, the operational provisions uniformly and unambiguously grant
access to public records under OPRA to "any person," not just "citizens." Indeed, critically, the
word "citizen" is never used in any of OPRA's operational provisions. Instead, section after
section provides substantive rights under OPRA to "any person," as demonstrated by the
following provisions:
III
NJ.S.A. 47:1AS(a) provides that "[tjhe custodian ofa government record

shall permit the record to be inspected, examined, and copied by any
person during regular business hours." (emphasis added);
NJ.S.A. 47:1AS(b) provides that "[a] copy or copies of a government
record may be purchased by any person upon payment of the fee
prescribed by law or regulation" (emphasis added);
N.J.S.A. 47:1A-5(f) provides that "[t]he custodian ofa 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." (emphasis
added);
N.J.S.A. 47:1A-5G) provides that a custodian must post a "statement that

sets forth in clear, concise and specific terms the right to appeal a denial
of, or failure to provide, access to a government record by any person for
inspection, examination or copying ... " (emphasis added);
N.J.S.A. 47:1A-5G) provides that case files maintained by the Office of

the Public Defender "shall not be open to inspection by any person unless
authorized by law" (emphasis added);
N.J.S.A. 47:1A-6 provides that, "A person who is denied access to a

government record by the custodian of the record, at the option of the
requestor, may institute a proceeding to challenge the custodian's decision
... " (emphasis added);
NJ.S.A. 47:1A-7(b) provides that the GRC must "receive, hear, review,
and adjudicate any complaint filed by any person concerning a denial of
Hon. Georgia M. Curio, A.1.S.C.

June 23,2016
Page 7
access to a government record by a records custodian . . ." (emphasis

added);
NJ.S.A. 47:1A-7(b) provides that the GRC must "allow any person to
request mediation or to file a complaint with the council when access has
been denied." (emphasis added);
NJ.S.A. 47:1A-6(d) provides that the GRC must provide mediation

opportunities "[u]pon the receipt of a written complaint signed by any
person alleging that a custodian of a government record has improperly
denied that person access to a government record" (emphasis added);
N.J.S.A. 47:1A-l.l provides that personal firearms records are exempt

"except for use by any person authorized by law to have access to these
records" (emphasis added);
N.J.S.A. 47:1A-1.1 provides that a government record does not include

''that portion of any document which discloses the social security number,
credit card number, unlisted telephone number or driver license number of
any person" (emphasis added);
N.J.S.A. 47:1A-5(a) provides that "[p]rior to allowing access to any

government record, the custodian thereof shall redact from that record any
information which discloses the social security number, credit card
number, unlisted telephone number, or driver license number of any
person" (emphasis added);
Thus, the Legislature used the phrase "any person" in the operating provisions of OPRA twelve
times: six times in Section 5; two times in Section 6; two times in Section 7; and two times in
Section 1.1.
The use of the "any person" language is critical when considering OPRA's predecessor
law, the Right to Know Law ("RTKL"). OPRA was enacted to expand access to government
records over what was provided in the RTKL. Mason v. City of Hoboken, 196 N.J. 51, 64
(2008). It did so by significantly broadening the definition of "government record," N.J.S.A.
47:1A-1.1, and by making fee awards mandatory rather than permissible, NJ.S.A. 47:1A-6. But

June 23,2016
Page 8
OPRA also broadened the RTKL's operational provisions to provide access to non-citizens. The
RTKL's operational provisions were starkly different from OPRA's and did limit access only to
citizens. Section 2, the operational provision, provided:
Every citizen of this State, during the regular business hours
maintained by the custodian of any such records, shall have the
right to inspect such records. Every citizen of this State shall also
have the right, during such regular business hours and under the
supervision of a representative of the custodian, to copy such
records by hand, and shall also have the right to purchase copies of
such records. . . . If the custodian of any such records shall find
that there is no risk of damage or mutilation of such records and
that it would not be incompatible with the economic and efficient
operation of the office and the transaction of public business
therein, he may permit any citizen who is seeking to copy more
than 100 pages of records to use his own photographic process,
approved by the custodian, upon the payment of a reasonable fee,
considering the equipment and the time involved, to be fixed by
the custodian of not less than $10.00 or more than $50.00 per day.
[N.J.S.A. 47:1A-2 (Repealed by L.2001, c. 404 (OPRA)(emphasis
added).]
The change from "any citizen" to "any person" in the operational provisions is significant and
demonstrates an intention to make government records accessible to any person, not just citizens.
DiProspero v. Penn, 183 N.J. 477, 494 (2005) ("A change of language in a statute ordinarily
implies e purposeful alteration in [the] substance of the law.") (emphasis added).
In In re Zhan, 424 N.J. Super. 231, 237 CAppoDiv. 2012), the Appellate Division held
that a statute which read that "any person may institute an action in Superior Court for authority
to assume another name" did not apply only to citizens because "the term 'any person' is
clearly broader than the term 'citizen.'"
Dep't of Labor
V.
(emphasis added). The Zahn court also looked to
Cruz, 45 N.J. 372 (1965), a case in which the Supreme Court construed an
amendment of a civil rights statute as broadening its protections to cover noncitizens because:

June 23, 2016
Page 9
The elimination of "citizens of the State of New Jersey" and the

substitution of "any person" reveals the intention to prohibit
discrimination of the nature described against aliens, as well as
citizens in the hiring of employees on [public works] projects.
[Cruz, supra, 45 N.J. at 380 (emphasis added).]
The same is here: the Legislature amended the RTKL so that the "any citizen" provisions
were repealed and replaced with "any person" provisions. It did this to increase access to
government records so that records would be accessible both to citizens of this State as well as
any other person, including non-citizens. See also Application of Pirlamarl~ 208 N.J. Super.
112, 115 (Ch. Div. 1985) (holding that "any person" is facially broad enough to confer upon a
noncitizen the statutory authorization to seek a name change). It is well-established that "the
Legislature is presumed to be aware of judicial construction of its enactments." DiProspero,
supra, 183 N.J. at 494. The Legislature is thus well aware that our courts have repeatedly held
that where the Legislature changes statutory language from "any citizen" to "any person" that
it intended to broaden the scope of the law's provisions to include non-citizens.
Accordingly, New Jersey courts have treated out-of-state requestors in the exact same
manner as in-state requestors. See~,
Scheeler v. Atlantic County Mun. Joint Ins. Fund, docket
no. BUR-L-990-15, 2015 WL 9910117 (Law Div. October 2, 2015/ (holding non-citizen may
file OPRA requests); Scheeler v. Ocean County Prosecutor's Office, docket no. OCN-L-3295-15,
2016 WL 1587341 (Law Div. April 14, 2016i (holding non-citizen may file OPRA requests);
Philadelphia Newspapers, Inc. v. State, 232 N.J. Super. 458, 460 (App. Div. 1989) (granting
access to government records under the Right to Know Law, which also included "citizens of
1
2
Attached as Exhibit 1 to the Certification of CJ Griffin ("Griffm Cert,"),

Attached as Exhibit 2 to the Griffin Cert.

June 23, 2016
Page 10
this State" language); Katon ex reI. Muslim Advocates v. N.J. Dep't of Law & Pub. Safety, 2015
WL 567305 (App. Div. 2015)(no mention of requestor's address where the requestor was the
legal director for a national organization located in California)"; WNBC-TV v. Allendale Bd. of
Educ., docket no. BER-L-1765-15, 2015 WL 3548252 (Law Div. June 4, 2015) (no mention of
citizenship issue where requestor is television company located in New York City)."
2.
Our Courts Disfavor Unenforceable Interpretations of Statutes
When legislative intent is unclear, our courts disfavor interpretations

unenforceable
or evadable.
See, e.g., Hasbrouck
Heights Hospital
that would be
Assln v. Borough
of
Hasbrouck Heights, 15 N.J. 447, 453 (1954)("A statute should not be construed to permit its
purpose to be defeated by evasion[.]").
For example, in Kovalcik v. Somerset County, 206 N.J.
581 (2011), the Supreme Court rejected the defendants' argument that criminal defendants were
prohibited from using OPRA to obtain records that they were denied in discovery. The Supreme
Court held that OPRA did not contain such an exemption, but importantly held: "More to the
point, were we to agree with the Attorney Generalis suggestion, we would be crafting a remedy
that would be unenforceable as a practical matter. That is, were we to impose a limitation
on the use of OPRA that applied to criminal defendants generally, they could easily evade it
by employing others to make requests on their behalf." Id. at 591 (emphasis added).
The same is true here-any
attempt to limit the statute to New Jersey residents only
would not only contradict the many provisions of OPRA that plainly state that "any person" can
request government records, but it would also be completely unenforceable
matter of law.
3
4
and evadable as a
OPRA expressly authorizes a person to file a request anonymously, NJ.S.A.

Hon. Georgia M. Curio, AJ.S.C.

June 23, 2016
Page 11
47:1A-5 (f) & (i), and Plaintiff therefore could simply proceed going forward by simply
submitting his anonymous requests to the EIRC via an anonymous email address.
Defendants
would then be obligated to respond and produce the records because OPRA permits anonymous
requests.
3.
Limiting OPRA to "Citizens" Could Bar Media Entities from Filing

Requests
Plaintiff submitted his request as part of his journalistic
pursuits.
A decision by this
Court that limits OPRA only to "citizens" rather than "any person" not only conflicts with the
plain language of at least twelve separate provisions of OPRA, it prohibits out-of-state media
entities and bloggers, such as Plaintiff, from gaining access to New Jersey's records.
Even
worse, such a decision might also put any media corporation's right to obtain public records at
risk.
Our Legislature dictates that, when used in any statute, the word "person" "includes
corporations, companies, associations, societies, firms, partnerships and joint stock companies as
well as individuals, unless restricted by the context to an individual as distinguished from a
corporate entity or specifically restricted to 1 or some of the above enumerated synonym[.]"
N.J.S.A. 1:1-2. Thus, OPRA's "any person" language obviously includes media corporations,
nonprofit organizations, and other types of business entities.
In sharp contrast, a holding that
OPRA may only be utilized by "citizens" may bar these other entities from gaining access to
records even if they are entities formed within the State of New Jersey. In Int'l & Life Assur.
Co. v. Haight, 35 N.l.L. 279 (Sup. Ct. 1871), the Supreme Court held that a tax exemption,
which exempts "stocks and other personal estates owned by citizens of this state, situated and
being out of this state ... " was not applicable to corporations,
only natural persons, because

June 23,2016
Page 12
the "ordinary reference to the word is to a natural person, and when construed otherwise, the
general purpose and spirit of the law must require it." Id. at 284.
While it is true that corporations are considered "citizens" or "residents" of states for
certain limited purposes such as venue/jurisdiction (Id. at 283), courts have repeatedly refused
to treat corporations and business entities as "citizens" when a law gives substantive rights to
"citizens" instead of "persons."
See,~,
Braswell v. United States, 487 U.S. 99, 104-10
(l988)(holding that corporations are not "persons" entitled to the Fifth Amendment's selfincrimination privilege).
For example, the U.S. Supreme Court has refused to give
corporations protections under the Fourteenth Amendment's Privileges & Immunities Clause,
which commands that "[n]o state shall make or enforce any law which shall abridge the
privileges or immunities of citizens."
Western & S.L.I. Co. v. Board of Equalization, 451
U.S. 648, 656 (1981). In contrast, the Court has held that corporations have equal protection
rights under the Fourteenth Amendment because those rights apply to "any person."
See
Pembina Consolidated Silver Mining Co. v. Pennsylvania, 125 U.S. 181, 189 (1888)("Under
the designation of 'person' there is no doubt that a private corporation is included."). Thus, a
holding that only "citizens" can utilize OPRA could ban media corporations from gaining
access to government records.
4.
The GRC Directs that OPRA is for "Anyone"
In enacting OPRA, the Legislature also formed the Government Records Council
("GRC") and gave it substantial administrative powers. Though the GRC's decisions are not
precedential, our courts do give deference to the GRC's administrative actions just as they do for
any other administrative agency. See ~
Paff v. City of E. Orange, 407 N.J. Super. 221, 226

June 23,2016
Page 13
(App. Div. 2009)( deferring to GRC because when "the Legislature delegates authority to a state
agency to administer and interpret a statute, our courts will defer to that agency's interpretation of
the statute "provided it is not plainly unreasonable").
shall "prepare guidelines and an informational
complying
with the law governing
Our Legislature has dictated that the GRC
pamphlet for use by records custodians
access to public records."
NJ.S.A.
47:1A-7(b).
in
In
compliance with this dictate, the GRC has authored the Handbook for Records Custodians' to
instruct records custodians as to how to lawfully respond to OPRA requests. The GRC provides
the following guidance to custodians:
Who may file an OPRA request?
Anyone! Although OPRA specifically references "citizens of this

State," (N.l.S.A. 47:1A-l) the Attorney General's Office advises
that OPRA does not prohibit access to residents of other states.
Also, requestors may file OPRA requests anonymously without
providing any personal contact information, even though space for
that information appears on the form; thus anonymous requests are
permitted. However, OPRA specifically prohibits anonymous
requests for victims' records. N.J.S.A. 47:1A-2.2.
[N.J. Gov't Records Council, Handbook for Records Custodians
(5th ed. Jan. 2011), 6, (emphasis added).]
Accordingly,
it is clear that from the language of OPRA's
operational provisions
and the
guidance of the administrative agency tasked with handling OPRA disputes that New Jersey's
public records are accessible to any person, not just New Jersey "citizens" or its "residents."
Therefore, Plaintiff has standing to submit OPRA requests.
5.
Two New Jersey Courts Have Found That Non-Residents Have

Standing to Submit OPRA Requests
-----------------5 The relevant excerpt from the Handbook is attached Exhibit 5 to the Griffin Cert. The full handbook is available
online at: http://www.nj.gov/grc/pdflCustodians%20Handbook%20(Updated%20January%202011).pdf.

June 23,2016
Page 14
Three New Jersey trial courts have previously addressed the issue before the Court in this
matter, namely does an out-of-state resident have standing to submit OPRA requests to New
Jersey government agencies?
Not surprisingly, here, Defendants base their entire denial of
Plaintiff's Request on the trial court's decision in Sheeler v. City of Cape May et al, Docket No.
CPM-L-444-15
(February 19,2016),6
written by the lone judge who held that an out-of-state
resident did not have standing to submit an OPRA request. Plaintiff submits that the decisions in
both Scheeler v. Atlantic County Mun. Joint Ins. Fund, docket no. BUR-L-990-15,
2015 WL
9910117 (Law Div. October 2,2015) and Scheeler v. Ocean County Prosecutor's Office, docket
no. OCN-L-3295-15,
2016 WL 1587341 (Law Div. April 14, 2016), which found that out-of-
state residents do have standing to submit an OPRA request, are persuasive decisions that this
Court follow.
All three of the Cape May, Atlantic County and Ocean County cases were brought by the
same plaintiff who at the time of his requests resided in North Carolina. In the Atlantic County
case, the Honorable Ronald E. Bookbinder, A.J.S.C., analyzed the arguments set forth above and
reached the conclusion that:
Limiting OPRA standing to New Jersey residents would greatly
limit the public's right of access to records under OPRA, as out-ofstate news agencies and media companies could not request,
review, and share government records from the State of New
Jersey. Given the presumption in favor of the right of access and
New Jersey's liberal approach to questions of standing, [this] Court
finds Defendants' interpretation of OPRA incorrect, and holds that
Plaintiff has standing to make OPRA requests despite no longer
living in New Jersey.
[Atlantic County Mun. Joint Ins. Fund, 2015 WL 9910117 at *9.]

June 23,2016
Page 15
Likewise, in the Ocean County case, a decision reached after Cape May, the Honorable Mark A.
Troncone, J.S.C. analyzed the various provisions ofOPRA and held that:
In the court's view, the language of OPRA is clear and
unambiguous. Access to public records under OPRA is not limited
to New Jersey "citizens." If the Legislature intended to do so it
could have, ... , incorporating that term in the statute's operational
provisions.
Furthermore, public policy as evidenced in the statute's legislative
Findings and Declarations, the very paragraph relied on by OCPO,
provides "[a]ny limitation on the right of access accorded by
[OPRA] , shall be construed in favor of the public's right of
access." N.J.S.A. 47:1A-I (emphasis supplied). Thus to the extent
there is any ambiguity in the law as to the scope of those entitled to
access, such ambiguity must be resolved in favor of a more liberal
reading. Such a reading of the statute would also comport with the
generally liberal view of standing taken by New Jersey courts. In
re Camden County, 170 N.J. 439, 449 (2002)
It is clear that taken to its logical conclusion, the position advanced
by OCPO would leave many parties who have a legitimate need to
access to public records without recourse. For example, a nonresident property owner and taxpayer could not obtain public
records affecting his property; the out-of-state motorist involved in
an accident would be unable to access documents from law
enforcement officials relating to the incident; and a newspaper,
published in a neighboring state but circulated in New Jersey,
investigating a claim of alleged official misconduct or corruption
would be barred from obtaining public records.
[Ocean County Prosecutor's Office, 2016 WL 1587341 at *5.]
In reaching their decisions, Judge Bookbinder and Judge Troncone focused solely on the
language of the OPRA statutes and its underlying public policy. On the other hand, in the Ca~
May decision, the Honorable Nelson C. Johnson, J.S.C., peppered his decision with clear and
biting animosity towards the actual plaintiff.
referred to Mr. Scheeler as a "gadfly."
Four different times Judge Johnson derisively
Moreover, he referred to Mr. Scheeler's correspondence

June 23, 2016
Page 16
with the defendants as "bullying."
It is clear that Judge Johnson's distaste for Mr. Scheeler led
to his erroneous conclusion that "Mr. Scheeler is not someone the Legislature had in mind when
it adopted OPRA." Cape May op. at 7. His opinion of Mr. Scheeler then led Judge Johnson to
interpret OPRA in such a way as to deny Mr. Scheeler the ability to submit requests.
That
holding was erroneous and should not be accepted by this Court, which would preclude wellintentioned bloggers like Plaintiff from filing OPRA requests and writing stories that advance the
public interests of New Jerseyans.
Beyond his personal opinion of Mr. Scheeler, Judge Johnson's
decision also fails to
properly appreciate the law. In both of their decisions, Judges Bookbinder and Troncone took
into account that "[a]ny limitation on the right of access accorded by [OPRA], shall be construed
in favor of the public's right of access."
N.J.S.A 47:1A-1.
provide any analysis of this imperative mandate.
Judge Johnson's opinion did not
Additionally, in attempting to explain that the
"any person" language that is repeated twelve times in the OPRA statute does not actually mean
any person, Judge Johnson referenced New Jersey statutes that refer to registering to vote and
obtaining a driver's license in New Jersey, neither of those statutes is informative in the present
context. The voter registration statute has a specific residency requirement that is not present in
OPRA. See N.J.S.A
applies
19:31-5 ("Each person, who is at least 17 years of age at the time he or she
for registration,
vote... ")(emphasis added).
who resides in the district in which he or she expects to

On the other hand, the driver's license statute actually does allow
for licenses to be issued to out-of-state residents.
See N.J.S.A 39:3-10n (''Notwithstanding
the
7 It should also be noted that Plaintiff in this case does not share any of the "character concerns" that seemed to
offend Judge Johnson with respect to Mr. Scheeler. Plaintiff here is essentially an investigator who submitted a
simple OPRA request to Defendants seeking basic information. There was no acrimonious correspondence, nor any
badgering or belittling. Denying Plaintiff access to OPRA would be tantamount to preventing any out-of-state news
agency from ever submitting OPRA requests in New Jersey.

June 23,2016
Page 17
provisions of any law to the contrary, the chief administrator may .. .issue a temporary driver's
license that is valid... to New Jersey licensees who ... temporarily are residents of another state or
foreign country."). The foregoing makes it clear that Judge Johnson's analysis simply does not
holdup.
He wholly ignored the fact that the Legislature changed the RTKL's operating
provisions from stating "any citizen" to "any person," despite the fact that courts are required to
presume that the Legislature acted purposefully and intentionally in making such a change.
DiProspero, 183 N.J. at 494. ("A change of language in a statute ordinarily implies a
purposeful alteration in [the] substance of the law.").
Accordingly, this Court should not be persuaded by Judge Johnson. Instead, this Court
should follow in the well-reasoned footsteps of Judge Bookbinder and Judge Troncone and find
that Plaintiff has the standing to submit OPRA requests.
II.
PLAINTIFF IS A PREVAILING PARTY AND ENTITLED TO AN AWARD OF

ATTORNEY'S FEES
Plaintiff is statutorily entitled to reasonable attorney's fees and costs. Pursuant to OPRA,
A person who is denied access to a government record by the
custodian of the record, at the option of the requestor, may ...
institute a proceeding to challenge the custodian's decision by
filing an action in Superior Court . . . . The public agency shall
have the burden of proving that the denial of access is authorized
by law. If it is determined that access has been improperly
denied, the court or agency 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 (emphasis added).]
New Jersey law has long recognized the "catalyst theory" in regards to an award of attorney's
fees. Mason v. City of Hoboken, 196 N.J. 51, 73 (2008). A plaintiff is entitled to attorney's fees
if they can demonstrate "1) a factual causal nexus between plaintiff's litigation and the relief

June 23, 2016
Page 18
ultimately achieved; and 2) that the relief ultimately secured by plaintiffs had a basis in law." rd.
at 76; See also Smith v. Hudson Cnty. Register, 422 N.J. Super. 387, 394 (App. Div. 2011)("A
plaintiff may qualify as a prevailing party, and thereby be entitled to a fee award, by taking legal
action that provides a 'catalyst' to induce a defendant's compliance with the law.").
Here, Plaintiff
made a valid OPRA request
for government
records;
Defendants
unlawfully denied access to those records. This litigation, if successful, will serve as the catalyst
for Plaintiff obtaining the unlawfully withheld records.
Therefore, Plaintiff is entitled to an
award of attorney's fees and costs of suit.

CONCLUSION
For the foregoing reasons, Plaintiff respectfully asks this Court to enforce his statutory
rights under OPRA by 1) declaring that Plaintiff has standing to submit OPRA requests; 2)
declaring that Defendants are in violation of OPRA by failing to provide timely access to the
requested records; 3) directing Defendants to immediately
release copies of all responsive
records to Plaintiff 4) naming Plaintiff a prevailing party entitled to an award of legal fees and
costs of litigation; and 5) for such other relief the Court may deem just and equitable,
Respectfully Submitted,
CJG

6/24/16, Heimlich v. EIRC, Lawsuit Filed in NJ's Gloucester County Superior Court For Non-Compliance With State Public Records Law

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6/24/16, Heimlich v. EIRC, Lawsuit Filed in NJ's Gloucester County Superior Court For Non-Compliance With State Public Records Law

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PASHMAN STEIN W ALDER HAYDEN

RECEIVED & FILED

Attorneys for Plaintiff,

SUPERIOR COURT OF NEW JERSEY

DOCKET NO.: [,,--

EDUCATIONAL INFORMATION &

seeking records from the Educational Information & Resource Center.

Plaintiff Peter M. Heimlich is an investigative blogger.

& Resource Center ("EIRC") is a public

Defendant Stephen H. Hoffman is the designated Custodian of Records for the

Venue is properly laid in Gloucester County because Defendant EIRC is located

Since 2010, Plaintiff has done original document-based

reporting, mostly about

reporting covers topics of national and international importance and

can be read worldwide on the Internet.

Specifically, Mr. Hoffman stated:

is outside the State of New Jersey. and have provided no evidence

To date, the EIRC has released no records in response to Plaintiff's OPRA

preceding paragraphs as though fully set forth at length herein.

under OPRA, N.J.S.A. 47:1A-l et seq.

records. N.J.S.A. 47:1A-5(a).

challenge the denial of access to a record. NJ.S.A. 47:1A-6.

A government agency must grant access to the requested records. or otherwise

by law. NJ.S.A. 47:1A-6.

maintained or kept on file," or "received in the course of ...

[the EIRe's] official business."

NJ.S.A. 47: lA-I. 1.

OPRA or any other law.

To the extent any portion of the requested records are exempt,

Defendants failed to provide access to the requested correspondence within seven

(7) business days.

Accordingly, Defendants violated OPRA by:

Denying Plaintiff's OPRA Request;

Failing to provide a lawful basis for denying access to government

WHEREFORE, Plaintiff demands judgment against Defendants:

Declaring that Plaintiff has standing to submit OPRA requests;

Declaring said actions of Defendants to be in violation ofOPRA, N.J.S.A.

Directing Defendants to release the requested records to Plaintiff

Ordering Defendants to preserve the requested records pending the

Plaintiff further certifies

PASHMAN STEIN WALDER HAYDEN

Dated: June 23, 2016

I am Plaintiff in the foregoing Verified Complaint.

been redacted, changed, modified, adjusted, or otherwise altered in any manner by me or my

CJ Griffin, Esq., of full age, certifies and says as follows:

this certification of the genuineness of the electronic signature of Peter M. Heimlich.

signature on the foregoing verification.

On Fri, May 27,2016 at 5:47 AM, Peter M. Heimlich <peter.heimlich@gmail.com> wrote:

Mullica Hill, NJ 08062-4446

Subject: Re: public records request. 5/27/16

Dear Mr. Heimlich:

Please do not hesitate to contact me with any questions.

GLOUCESTER COUNTY COURTHOUSE

TELEPHONE NO. (856) 853-3232

CASE HAS BEEN ASSIGNED

JUNE 27, 2016

INFO & RESOURCE

IF YOU HAVE ~~y QUESTIONSr

IF YOU BELIEVE THAT THE TRACK IS INAPPROPRIATE YOU MUST FILE A

CIVIL CASE INFORMATION STATEMENT

FIRM NAME (if applicable)

DOCKET NUMBER (when available)

Pashman Stein Walder Hayden, P.C.