Due to the coronavirus including the need to protect safety, the Division will require additional time within which to respond to your request. We anticipate being able to respond by May 29, 2020.

Noah Mamber, Regulatory Officer
Custodian of Records for the Medicinal Marijuana Program Division of Medicinal Marijuana New Jersey Department of Health Trenton, NJ 08625-0360
Pronouns: he, him, his

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Due to the coronavirus, the Division will require additional time within which to respond to your request. We anticipate being able to respond by June 12, 2020.

Noah Mamber, Regulatory Officer
Custodian of Records for the Medicinal Marijuana Program Division of Medicinal Marijuana New Jersey Department of Health Trenton, NJ 08625-0360
Pronouns: he, him, his

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Dear #NJMMP:

This will respond to the referenced request for government records under OPRA and the common law right of access on behalf of the Division. You requested “electronic communication, including, but not limited to, emails and messages between September 2019 to April 2020 from any and all employees that work for Curaleaf or represent Curaleaf;” and “any investigation reports into Curaleaf and all electronic communication that corresponds with any investigation.”

Regarding a request made under the common law right of access, which requires a greater showing than is required under OPRA, a requestor must have a legally recognized interest in the subject matter of the material, and the citizen’s right to access must outweigh the State’s interest in preventing disclosure. Mason v. City of Hoboken, 196 N.J. 51, 67-68, 951 A.2d 1017 (2008), citing Keddie v. Rutgers, 148 N.J. 36, 50, 689 A.2d 702 (1997).

The requestor’s individual interest need not be “purely personal,” and may be “slight.” South Jersey Publishing Co. v. New Jersey Expressway Auth., 124 N.J. 478, 487, 591 A.2d 921 (1991), citing Red Bank Register v. Board of Educ., 206 N.J. Super. 1, 9, 501 A.2d 985 (App.Div. 1985) (quoting Nixon v. Warner Communications, Inc., 435 U.S. 589, 598 (1978)); Nero v. Hyland 76 N.J. 213 , 223, 386 A.2d 846 (1978). The interest may be "`a wholesome public interest or a legitimate private interest.” Higg-A-Rella, Inc. v. County of Essex, 141 N.J. 35, 47, 660 A.2d 1163 (1995), citing Loigman v. Kimmelman, 102 N.J. 98, 112, 505 A.2d 958 (1986) (quoting City of St. Matthews v. Voice of St. Matthews, Inc., 519 S.W.2d 811, 815 (Ky. 1974)). This request does not state a legally recognized interest in the information, so this prong has not been satisfied.

The degree of the requestor’s interest becomes important in the context of the balancing test, as it must outweigh the State’s interest in nondisclosure which stems from the need to maintain the confidentiality of the information sought. Higg-A-Rella, Inc. v. County of Essex, 141 N.J. 35, 48, 660 A.2d 1163 (1995). The N.J. Supreme Court has set forth the following factors for use in conducting this balancing test: “(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 selfevaluation, 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.” Loigman v. Kimmelman, 102 N.J. 98, 113 (1986). Again, because the requestor has not stated the requestor’s interest in receiving the information, the Division cannot conduct the balancing test against the State’s interest in nondisclosure. Additionally, as will be discussed further in the next paragraph, the request is vague and overbroad, and does not identify specific, identifiable government records. Even with more information about the requestor’s interest, it would still be impossible to conduct the balancing analysis when it is unclear which identifiable government records the requestor is asserting an interest in, and it would require research through every Department record to balance the State and individual interest in each record. Thus, I am required by law to deny your request for the common law right of access.

Under OPRA, your request for information is vague and/or overbroad, uses several undefined terms, and does not request specific, identifiable government records. Your request would require the custodian to “conduct research among its records,” and as such, is improper. Lagerkvist v. Office of the Governor of New Jersey, 2015 N.J. Super. LEXIS 207 (App. Div. 2015) (citing MAG Entertainment, LLC v. Div. of Alcoholic Bev. Control, 375 N.J. Super. 534 (App. Div. 2005)); American Civil Liberties Union of New Jersey v. New Jersey Division of Criminal Justice, 435 N.J. Super. 533, 541 (App. Div. 2014). Your request did not identify which Department staff recipients of electronic communication were the target of the requests. Your request used the phrase, “from any and all employees that work for Curaleaf or represent Curaleaf,” which is particularly vague and would require all Department staff to conduct research through all of the Department’s records, and exercise discretion as to which records are from individuals that “represent Curaleaf” and which do not. Similarly, it is unclear which documents would constitute “any investigation reports into Curaleaf” and which documents would constitute “all electronic communication that corresponds with any investigation.” All staff would have to conduct research and use their discretion on each document to determine if it fell within the definition of those phrases. Such research and exercise of discretion is beyond the statutory ambit of OPRA, and such extensive research would “substantially disrupt agency operations.” (N.J.S.A. 47:1A-5.g.) In the absence of a set of specific, identifiable documents requested, I am required by law to deny your request.

Sincerely,


Noah Mamber, Regulatory Officer
Custodian of Records for the Medicinal Marijuana Program
Division of Medicinal Marijuana New Jersey Department of Health Trenton, NJ 08625-0360
Pronouns: he, him, his

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