M.J.L. v. Heiser

1

M.J.L. individually and o/b/o J.N., a minor child, Plaintiff-Appellant, v. JAMES M. HEISER, in his official capacity as School Business Administrator/Board Secretary and MOORESTOWN TOWNSHIP PUBLIC SCHOOLS, Defendants-Respondents.

No. A-0155-23

Superior Court of New Jersey, Appellate Division

September 27, 2024

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

Argued June 4, 2024

On appeal from the Superior Court of New Jersey, Law Division Burlington County, Docket No. L-0674-23.

Walter M. Luers argued the cause for appellant (Cohn Lifland Pearlman Herrmann & Knopf LLP, attorneys; Walter M Luers of counsel and on the briefs; Jamie Epstein, on the briefs).

Anne R. Myers argued the cause for respondents (Comegno Law Group P.C. attorneys; Anne R. Myers, of counsel and on the brief; John B. Comegno II, on the brief).

Before Judges Sumners and Rose.

PER CURIAM

Plaintiff M.J.L., individually and on behalf of a minor child J.N appeals a Law Division order: (1) denying plaintiff's Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, requests of February 3, 2023, amended on March 1, 2023 (Request One), and February 20, 2023 (Request Two) to defendants Moorestown Township Public Schools (school district) and James M. Heiser, the school district's Business Administrator/Board Secretary and official records custodian; and (2) dismissing plaintiff's verified complaint. For the reasons that follow, we affirm in part, and reverse and remand in part for proceedings consistent with this opinion.

I.

On February 3, 2023, plaintiff submitted Request One to Heiser stating:

1. Date range from [March 1, 2008] to present: Immediate access to the following financial records, N.J.S.A 47:1A-5(e):

(a) . . . Financial records consist of contracts, bills, invoices, receipts, ledger accounts, purchase orders, payments, both sides of canceled checks which document payment of services provided by . . . [Dr. Joseph Hewitt, Psychiatrist] below to the [school district]. Access to the following records in 7 business days by 2/8/23, N.J.S.A 47:1A-5(i)(1):

(b) communications records/files referring [to Dr. Joseph Hewitt] in the subject or body of the communication record where the sender/recipient is [Dr. Joseph Hewitt]. Communication records consist of postings on social media, emails, memos, text messages, videos, audios, voice mail and correspondence, etc. The communication records include those on accounts provided by the [school district] and the private accounts of [Dr. Joseph Hewitt]. The communications records sought includes any attachments to said communication records.

2. Personnel information/records:

(a) It is further requested the Records Custodian provide the following additional Burnett v [County of Gloucester]^[1] contractor records for [Dr. Joseph Hewitt] which refer to [his] specific experiential, educational or medical qualifications including resumes, professional licenses and certifications.

. . . .

4. Submissions in legal proceedings: reports authored by [Dr. Joseph Hewitt] which were submitted in legal proceedings.

[(Boldface omitted).]

This request was later expanded to include the records sought from July 1, 2007 to February 3, 2023, and requested Dr. Hewitt's records related to three Office of Administrative Law (OAL) hearings in which he testified on behalf of the school district.^[2]

On February 15, 2023, Heiser denied plaintiff's request. Six days later, in response to the denial, plaintiff, citing Paff v. N.J. Dep't. of Labor, 392 N.J.Super. 334, 341 (App. Div. 2007), submitted Request Two, asking defendants to:

[p]roduce sworn statements by agency personnel setting forth in detail the following information: (1) the search undertaken to satisfy [Request One]; (2) the documents found that are responsive to [Request One]; (3) the determination of whether the document or any part thereof is confidential and the source of the confidential information; (4) a statement of the agency's document retention/destruction policy and the last date on which documents that may have been responsive to the [Request One] were destroyed. [(Boldface omitted).]

Plaintiff also demanded defendants produce "a log if [they] with[e]ld any records as privileged."

After the school district refused to provide the requested documents, plaintiff filed an order to show cause and verified complaint seeking compliance. The trial judge issued a written opinion and conforming order denying plaintiff's requests and dismissing plaintiff's verified complaint.^[3] This appeal followed.

II.

To promote transparency in government, Rivera v. Union Cnty. Prosecutor's Off., 250 N.J. 124, 141 (2022), OPRA was "enacted 'to maximize public knowledge about public affairs in order to ensure an informed citizenry and to minimize the evils inherent in a secluded process,'" Simmons v. Mercado, 247 N.J. 24, 38 (2021) (quoting Mason v. City of Hoboken, 196 N.J. 51, 64 (2008)). Under OPRA, "all government records shall be subject to public access unless exempt," and "any limitations on the right of access . . . shall be construed in favor of the public's right of access." N.J.S.A. 47:1A-1.

"Government record" includes

any paper, . . . document, . . . information stored or maintained electronically . . ., 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. . . . The term[] shall not include inter-agency or intra-agency advisory, consultative, or deliberative material.

[N.J.S.A 47:1A-1.1.]

Our courts have regularly held "agencies are only obligated to disclose identifiable government records." Burke v. Brandes, 429 N.J.Super. 169, 174 (App. Div. 2012) (citing MAG Ent., LLC v. Div. of Alcoholic Beverage Control, 375 N.J.Super. 534, 549 (App. Div. 2005)). Therefore, "[a] proper request 'must identify with reasonable clarity those documents that are desired.'" Ibid. (quoting Bent v. Twp. of Stafford Police Dep't, 381 N.J.Super. 30, 37 (App. Div. 2005)). In other words, "[w]holesale requests for general information to be analyzed, collated and compiled" fall outside an agency's obligations under OPRA. Ibid. (quoting MAG Ent., 375 N.J.Super. at 549).

We review de novo a trial judge's legal conclusions concerning access to public records under OPRA. N. Jersey Media Grp., Inc. v. Twp. of Lyndhurst, 441 N.J.Super. 70, 89 (App. Div. 2015) rev'd on other grounds, 229 N.J. 541 (2017). We will not disturb factual findings if they are supported by adequate, substantial and credible evidence. See Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988).

Guided by these principles, we separately address plaintiff's record requests.

III. Request One

1. Financial Records

The trial court determined "[p]laintiff's request for financial records and communications records [wa]s overly broad and thus denial of this request [by defendants] was proper." The court thus accepted defendants' contention that plaintiff "did not request specific records [maintained by the school district], but instead requested information and data" that, for the district to produce, "it would need to research, compile, and laboriously review an enormous number of documents."

Plaintiff argues the trial judge erroneously found the request for financial records involving Dr. Hewitt's service with the school district during a sixteen-year period was not sufficiently specific. Citing Loigman v. Kimmelman, 102 N.J. 98, 110 (1986) and Courier News v. Hunterdon Cnty. Prosecutor's Off., 358 N.J.Super. 373, 382-83 (App. Div. 2003), plaintiff maintains there is no evidence defendants were burdened to obtain these records. Plaintiff stresses that Heiser's summary judgment certification fails to articulate how the school district "store[s] records, for how long, what searches they ran (if any), who is the point of contact for the use of outside experts like Dr. Hewitt in OAL proceedings, or what . . . [d]efendants['] search capabilities are (and any related limitations on those capabilities)." Moreover, plaintiff argues that if there is an administrative burden to obtain the records, the school district "should not have denied access . . . [but] should have requested a special service charge" per N.J.S.A. 47:1A-5(c).

We conclude the financial records request was sufficiently specific, as it identified with "specificity and particularity" financial records with Dr. Hewitt's name, the desired categories of financial records, and a date range. See MAG Ent., 375 N.J.Super. at 549-50. In Burke, we concluded the plaintiff's request "was confined to a specific subject matter that was clearly and reasonably described with sufficient identifying information, namely, EZ Pass benefits provided to Port Authority retirees," and should be disclosed under OPRA. 429 N.J.Super. at 176, 178. Akin to Burke, plaintiff sufficiently specified search terms - Dr. Hewitt's name a date range, and a list of the specific type of financial records they desire, specifically, "contracts, bills, invoices, receipts, ledger accounts, purchase orders, payments, both sides of canceled checks which document payment of services provided by [Dr. Hewitt]" - that would effectually facilitate defendants' search. (Pa18). See Burnett, 415 N.J.Super. at 515 (stating "[t]he word search is defined as 'to go or look through carefully in order to find something missing or lost.' The word research, on the other hand, means a close and careful study to find new facts or information." (internal quotations omitted)). And as plaintiff...