The following is being sent on behalf of Sara Winchester, Custodian of Records.

Concerned resident,

Ocean County College received your Open Public Records Act (OPRA) request on February 1, 2023. The official Records Custodian, Sara Winchester, received your OPRA request on February 1, 2023. As such, the seven (7) business day deadline to respond to your request is February 10, 2023. This response to your request is being provided to you on the 3rd business day after the custodian’s receipt of said request.

The following records were requested:

The number and titles of positions that were interim that ended up being given to that same person as a permanent position from 2010 to present across OCC.

The New Jersey Open Public Records Act (“OPRA”) provides that “government records shall be accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions, for the protection of the public interest . . . .” N.J.S.A. 47:1A-1. The statute also provides that “any limitations on the right of access [. . .] shall be construed in favor of the public’s right of access . . . .” Id.

Under OPRA, “all government records” are subject to public access. OPRA defines “government record” as:

[A]ny 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 . . . 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 that has been received in the course of his or its official business by any such officer, commission, agency, or authority of the State . . . . Id. N.J.S.A. 47:1A-1.1

The New Jersey Superior Court has held that “[w]hile OPRA provides an alternative means of access to government documents not otherwise exempted from its reach, it is not intended as a research tool litigants may use to force government officials to identify and siphon useful information. Rather, OPRA simply operates to make identifiable government records ‘readily accessible for inspection, copying, or examination.’ N.J.S.A. 47:1A-1.” (Emphasis added.) MAG Entertainment, LLC v. Division of Alcoholic Beverage Control, 375 N.J.Super. 534, 546 (App. Div. 2005) As the Court noted in invalidating MAG’s request under OPRA:

“Most significantly, the request failed to identify with any specificity or particularity the governmental records sought. MAG provided neither names nor any identifiers other than a broad generic description of a brand or type of case prosecuted by the agency in the past. Such an open-ended demand required the Division's records custodian to manually search through all of the agency's files, analyze, compile and collate the information contained therein, and identify for MAG the cases relative to its selective enforcement defense in the OAL litigation. Further, once the cases were identified, the records custodian would then be required to evaluate, sort out, and determine the documents to be produced and those otherwise exempted.” Id. at 549.

The Court further held that “[u]nder OPRA, agencies are required to disclose only ‘identifiable’ government records not otherwise exempt ... In short, OPRA does not countenance open-ended searches of an agency's files.” Id.

In addition, in Bent v. Stafford Police Department, 381 N.J.Super. 30 (App. Div. 2005) the Superior Court references MAG in that the Court held that a requestor must specifically describe the document sought because OPRA operates to make identifiable government records “accessible.” “As such, a proper request under OPRA must identify with reasonable clarity those documents that are desired, and a party cannot satisfy this requirement by simply requesting all of an agency's documents.”

Moreover, in NJ Builders, supra, the Court enumerated the responsibilities of a custodian and a requestor as follows:

“OPRA identifies the responsibilities of the requestor and the agency relevant to the prompt access the law is designed to provide. The custodian, who is the person designated by the director of the agency, N.J.S.A. 47:1A-1.1, must adopt forms for requests, locate and redact documents, isolate exempt documents, assess fees and means of production, identify requests that require "extraordinary expenditure of time and effort" and warrant assessment of a "service charge," and, when unable to comply with a request, "indicate the specific basis." N.J.S.A. 47:1A-5(a)-(j). The requestor must pay the costs of reproduction and submit the request with information that is essential to permit the custodian to comply with its obligations. N.J.S.A. 47:1A-5(f), (g), (i). Research is not among the custodian's responsibilities.” (Emphasis added), Id. at 177.

The Court additionally cited MAG by stating that “…when a request is ‘complex’ because it fails to specifically identify the documents sought, then that request is not ‘encompassed’ by OPRA…” The Court also quoted N.J.S.A. 47:1A-5.g. in that “‘[i]f a request for access to a government record would substantially disrupt agency operations, the custodian may deny access to the record after attempting to reach a reasonable solution with the requestor that accommodates the interests of the requestor and the agency.’” The Court further stated that “…the Legislature would not expect or want courts to require more persuasive proof of the substantiality of a disruption to agency operations than the agency’s need to…generate new records…” Accordingly, the test under MAG then, is whether a requested record is a specifically identifiable government record.

Furthermore, in Schuler v. Borough of Bloomsbury, GRC Complaint No. 2007- 151 (March 2008), the complainant requested in part:

Item No. 2: “From the Borough Engineer’s files: all engineering documents for all developments or modifications to Block 25, Lot 28; Block 25, Lot 18; Block 23, Lot 1; Block 23, Lot 1.02. 3.
Item No. 3: From the Borough Engineer’s files: all engineering documents for all developments or modifications to North St., to the south and east of Wilson St.
Item No. 4: From the Borough Attorney’s files: all documents related to the development or modification to Block 25, Lot 28; Block 25, Lot 18; Block 23, Lot 1; Block 23, Lot 1.02. 5.
Item No. 5: From the Borough Attorney’s files: all documents related to the development or modification to North Street, to the south and east of Wilson St.”

In Schuler the Government Records Council held that “[b]ecause the Complainant’s OPRA requests [No.] 2-5 are not requests for identifiable government records, the requests are invalid and the Custodian has not unlawfully denied access to the requested records pursuant to MAG Entertainment, LLC v. Division of Alcoholic Beverage Control, 375 N.J.Super. 534 (App. Div. 2005) and Bent v. Stafford Police Department, 381 N.J.Super. 30 (App. Div. 2005).”

In LaMantia v. Jamesburg Public Library (Middlesex), GRC Complaint No. 2008-140 (February 2009), the complainant requested the number of Jamesburg residents that hold library cards. The GRC deemed that the complainant’s request was a request for information, holding that: “because request Item No. 2 of the Complainant’s June 25, 2008 OPRA request seeks information rather than an identifiable government record, the request is invalid pursuant to MAG Entertainment, LLC v. Division of Alcoholic Beverage Control, 375 N.J. Super. 534 (App. Div. 2005) and Bent v. Stafford Police Department, 381 N.J. Super. 30 (App. Div. 2005)…” Id. at pg. 6.

The GRC also decided a similar issue in Watt v. Borough of North Plainfield (Somerset), GRC Complaint No. 2007-246 (September 2009). Specifically, the complainant submitted an OPRA request to the Borough on September 13, 2007 seeking answers to five (5) questions regarding a property named the Villa Maria. The GRC held that the Complainant’s request was invalid because it failed to identify a specific government record. See also Ohlson v. Township of Edison (Middlesex), GRC Complaint No. 2007-233 (August 2009).

In Shain v. Ocean County Board of Taxation, GRC Complaint No. 2007-127 (November 2007), the complainant sought a “list of all of Lakewood Township’s counter tax appeals (sic) filed for 2007,” to contain certain types of information, such as defendant name, property address, block and lot number and so on. The custodian initially responded stating that the requested information would be available by the end of June 2007 because tax appeals were currently being scheduled. The custodian then argued in the SOI that the complainant’s request was an invalid request for information and would compel the Board to review several hundred appeals to compile data and generate a new record. The GRC agreed with the custodian’s assessment of the OPRA request, noting that:

“[t]he Complainant … seeks a “list” of certain information, not specific identifiable records. Further, the Complainant specifies precisely how he wants the Custodian to prepare the record responsive to his request, which contemplates the creation of a new document rather than the production of an existing record … Because the Complainant’s request was for information and not for specific identifiable records, and because agencies are required to disclose only identifiable government records not otherwise exempt, the Custodian has lawfully denied the Complainant access to the requested records pursuant to the Superior Court’s decision in MAG, supra, and has met her burden of proof that access to the requested information was not unlawfully denied pursuant to N.J.S.A. 47:1A-6.” Id. at pg. 5.

In the instant matter, the above request seeks information rather than identifiable government records and is invalid under OPRA pursuant to MAG, supra, New Jersey Builders, supra, LaMantia, supra, Watt, supra and Shain supra.

If your request for access to a government record has been denied or unfilled within the seven (7) business days required by law, you have a right to challenge the decision by the (agency) to deny access. At your option, you may either institute a proceeding in the Superior Court of New Jersey or file a complaint with the Government Records Council (GRC) by completing the Denial of Access Complaint Form. You may contact the GRC by toll-free telephone at 866-850-0511, by mail at P.O. Box 819, Trenton, NJ, 08625, by e-mail at [email address], or at their website at www.state.nj.us/grc. The GRC can also answer other questions about the law. All questions regarding complaints filed in Superior Court should be directed to the Court Clerk in your County.

ANN M. FENEIS
SPECIAL ASSISTANT TO THE EXECUTIVE VICE PRESIDENT
OF FINANCE AND ADMINISTRATION
OCEAN COUNTY COLLEGE
TOMS RIVER, NJ 08742
(732) 255-0400 Ext. 2049
[OCC request email] | www.ocean.edu
 

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