Dear Freehold Regional High School District,

This is a request for public records made under OPRA and the common law right of access. I am not required to fill out an official form. Please acknowledge receipt of this message.
Records requested:
1) Any and all Board of Education Minutes that mention the Merchant BARK, BARK LLC., and/or Bark for Schools between 9/1/2018 and 2/26/2022. This should include any mention of BARK in School district official emails from frhsd.com, School District Board Policy, Regulations, Board of Education minutes as well as any Contracts executed or Bills Paid to Bark Inc. occurring during the mentioned time frame 9/1/2018 and 2/26/2022.

2) Any and all official email communication between employees of the Freehold Regional High School District and Bark, Bark Inc., Bark LLC, and/or Bark for schools between 9/1/2018 and 2/126/2022. redacted as nesessary.

Bark.us/schools
Yours faithfully,
Brian Bender

Dear Sean Boyce,
I appreciate your timely response to my request. This letter responds to your email regarding my request dated February 26, 2022. However, to clarify, if you review my request, it was both an OPRA and a Common Law Request. Your response details my Request under OPRA; however, it does not mention my Request under Common Law.

Citing the following from "A citizens guide to the Open Public Record Act," If, in addition to requesting records under OPRA, a requestor seeks government records under the Common Law Right to Access Public Records, please consider the following:
“A public record under the common law is 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 writing filed in a public office. The elements essential to constitute a public record are that it be in
writing, that a public officer makes it, and that the officer is authorized by law to make it.
Suppose the information requested is a "public record" under common law and the requestor has a
legally recognized interest in the subject matter contained in the material. In that case, the material must
be disclosed if the individual's right of access outweighs the State's interest in preventing disclosure.”
(“A citizens guide to the Open Public Record Act," NJ Public Records Council, May 2020.)

In review, your response to my request is as follows:
The Board's response to my request follows:
1. My Request:
Any and all Board of Education Minutes that mention the Merchant BARK, BARK LLC., and/or Bark for Schools between 9/1/2018 and 2/26/2022. This should include any mention of BARK in School district official emails from frhsd.com, School District Board Policy, Regulations, Board of Education minutes, as well as any Contracts executed or Bills Paid to Bark Inc. occurring during the mentioned time frame 9/1/2018 and 2/26/2022.

a. Your Response to my 1st request:
As an initial matter, the Board objects to the use of "any and all" in your request since it is well established that under OPRA. a request "any and all" documents or records is unclear, overly broad, and burdensome. See New Jersey Builder's Ass'n v. N.J. Council on Affordable Housing, 390 N.J. Super. 166 (App. Div. 2007);

b. My Request Broken Down for Clarification purposes:
1. Any and all Board of Education Minutes that mention the Merchant BARK, BARK LLC., and/or Bark for
Schools between 9/1/2018 and 2/26/2022. BARK LLC., and/or Bark for Schools between 9/1/2018 and
2/26/2022.
a. Your Response - In the spirit of OPRA, please note that there are no references in the Board's minutes
to the search terms noted in your request.

2. This request should include :
a. Any mention of BARK in School district official emails from frhsd.com,
i. Your Response - With respect to your request for "all email communications," as noted above,
that request is denied for the following reasons. First, a search of the Board's records revealed
that the request as currently written would encompass approximately 63,000 emails that would
have to be located, retrieved, reviewed, and redacted as appropriate and necessary. Such an
undertaking constitutes an undue burden on District staff and would severely disrupt the day-to-
day operations of the District.
The Board objects to and is denying this request because it is overly burdensome and would be
disruptive to District operations, as well as the fact that the request fails to seek an identifiable
government record.
My Response Here: You Just said this request would encompass approximately 63,000 emails,
and these emails are public records under Both OPRA and Common Law. How can you now say
the request fails to seek an identifiable record. It sounds like you identified 63,000 of them and
need more clarification from me to fine-tune it down. Instead, you deny the request and don’t see
that as a violation of the right to access public records.

b. Any mention of BARK in School District Board Policy,
i. Your Response- In the spirit of OPRA, please note that there are no references in the Board's minutes
to the search terms noted in your request.

c. Any mention of BARK in Regulations,
i. Your Response- in the spirit of OPRA, please note that there are no references in the Board’s Policies
or Regulations to the search terms noted in your request.

d. Board of Education minutes
Your Response- In the spirit of OPRA, please note that there are no references in the Board's minutes to
the search terms noted in your request.

e. Any mention of BARK in any Contracts executed or Bills Paid to Bark Inc.
Your Response- the Board does not have documents that are responsive to this request. By way of
further response, the BARK monitoring program is provided free of charge to school-issued accounts.

2) My Second Request: Any and all official email communication between employees of the Freehold Regional High School District and Bark, Bark Inc., Bark LLC, and/or Bark for schools between 9/1/2018 and 2/26/2022. Redacted as necessary.
a. Your Response to my Second Request-: The second request is also denied since it is an invalid
request for email communications. In that respect, the G.R.C. has previously established that for an
O.P.R.A. request seeking emails to be valid, the request must contain: "(1) the content and/or subject
of the email, (2) the specific date or range of dates during which the email was transmitted or the
emails were transmitted, and (3) a valid email request must identify the sender and/or the recipient
thereof." See Joseph A. Elcavage v. West Milford Twp., G.R.C. Complaint No. 2009-07 (April 8, 2010).
Here, the request fails to identify any sender and/or recipient and rather impermissibly seeks "all of
the emails" referencing the search terms noted in Your Request.
b. My Response: Based on your concern over the 63,000 emails that meet my search terms, I will slim
that down as that number was highly unexpected and now represents the only public records that
mention Bark in the FRHSD. This reaffirms the Public Interest in this matter and the Common Law
Access to Public Records.
c. I am now modifying my 2nd request to only include emails between the Director of Technology, Don
Markese and Bark, Michael Dillon, Director of Operations and Bark, Mr. Michael Mendes, Director of
Operations and Bark, and reduce the time frame to between 9/1/2019 and 9/1/2020.
d. Should you be unable to reopen the request, I will submit a new one limited to item “c” above as
your response has satisfied my other requests concerning Bark.

Summary,
This has to be one of the strangest responses I have ever received from a public entity. You denied my requests yet somehow managed to answer all but one of them.
To summarize your response:
1. In the spirit of OPRA, please note that there are no references in the Board's minutes to the search
terms noted in your request.
2. A search of the Board's records revealed that the request as currently written would encompass
approximately 63,000 emails that would have to be located, retrieved, reviewed, and redacted as
appropriate and necessary. Such an undertaking constitutes an undue burden on District staff and
would severely disrupt the day-to-day operations of the District.
3. In the spirit of OPRA, please note that there are no references in the Board's minutes to the search
terms noted in your request.
4. In the spirit of OPRA, please note that there are no references in the Board’s Policies or Regulations
to the search terms noted in your request.
5. Any mention of BARK in any Contracts executed or Bills Paid to Bark Inc. The Board does not have
documents that are responsive to this request. By way of further response, the BARK monitoring
program is provided free of charge to school-issued accounts.
The purpose of my OPRA/Common Law Public Record Access request is simply to investigate the extent to which Bark is utilized in the State of NJ. Similar Requests have gone out to other large school districts across the State.
So after your response, I am left with the Freehold Regional High School District appears to be using a Monitoring program called Bark that is Free of charge, not under contract with the district, not mentioned in any Board meeting minutes, Bill List, policies, or regulation, and sum how generates 63,000 emails within the frhsd.com network over a period of 3 ½ years. Since the Board of Education establishes a Policy that the Superintendent carries out with regulation, how exactly is this system operated, and what control are in place.

In closing, your response frequently cites “Any and All” as grounds for denial of the request citing “New Jersey Builder’s Ass’n v. N.J. Council on Affordable Housing, 390 N.J. Super. 166 (App. Div. 2007). I don’t know how long it has been since you updated your standard citation list; however, you need to look at the recent Appellate Division decision that provides a valuable discussion of how to determine when a request under the Open Public Records Act (OPRA) is “overly broad.” As highlighted in Wronko v. Township of Jackson et al., not all blanket requests may be denied under OPRA as you appear to have done so.
Your frequent use of the phrase “In the spirit of OPRA” is condescending, as well as repeatedly citing the rule that you need to produce a record that does not exist. Although you are trying to be polite, the Spirit of OPRAH is public access to public records. How would you know whether a public record exists if not to ask for the custodian of Public Records to check? Your answer should have been no, we have no record, yes we have the record, and here it is, or can you clarify your request before you deny it, or is it exempt for the following reasons. Your response seemed hostile at times, and the overwhelming citation of law, some outdated, could be considered intimidating to some.
All checks that a citizen could have done to locate these records were done, and probably used the same methods you used on everything but the email, and when that process failed or could not be confirmed as current and accurate, did the request then go to you. I am sorry if it was or is overly Burdensome. There are 63,000 emails associated with a company not listed anywhere in the accessible public record of the FRHSD. This may be nothing, but your response raised many questions as I compare your answers to those of the other Public School Districts around the State using Bark.

Respectfully,
Brian Bender