Open Public Records Act and Common Law Request Regarding Implementation of the New Jersey Attorney General Immigrant Trust Directive 2018-6
S.I. Newhouse Center for Law and Justice
Rutgers, The State University of New Jersey
123 Washington Street
Newark, New Jersey 07102-3094
p. 973-353-3159
October 13, 2020
Municipal Clerk for Municipal Police
RE: Open Public Records Act and Common Law Request Regarding Implementation of the New Jersey Attorney General Immigrant Trust Directive 2018-6
Dear Records Custodian,
Pursuant to the New Jersey Open Public Records Act (OPRA – N.J.S.A.47:1A-1, et seq.) and common law right of access, we write seeking to obtain records related to how your department (herein referred to as “the Department”) has implemented the New Jersey Attorney General Gurbir Grewal’s Immigrant Trust Directive 2018-6 and how this agency works with federal immigration enforcement officials. We ask that you please direct this request to all appropriate offices, departments, and records custodians within the Department that may supply any of the records sought through this request.
A. Our Common Law Interest
The Immigrant Trust Directive intends to curtail state and local participation in federal immigration enforcement, ensure effective policing, and foster relationships between law enforcement agencies and immigrant communities. As part of a scholarly research project, we, the requestors, seek these documents in order to assess the degree to which the Department is committed to implementing the directive and is in compliance with public records request laws.
We the requesters are Dean Rose Cuison-Villazor and Dr. Peter Mancina. Dean Cuison-Villazor is Vice Dean, Professor of Law, and Chancellor’s Social Justice Scholar of the Rutgers Law School and Director of the Center for Immigration Law, Policy, and Justice. She has written and published extensively about non-cooperation policies or “sanctuary” policies, which have been published in the Columbia Law Review, Minnesota Law Review, Washington University Law Review, and UC Davis Law Review. Dean Cuison-Villazor is also Director of the Center for Immigration Law, Policy and Justice (CILPJ), which engages in interdisciplinary scholarship, research, and advocacy focused on exploring more inclusive immigration and citizenship laws.
Dr. Peter Mancina is Visiting Scholar in the Center for Immigration Law, Policy, and Justice at
Rutgers Law School, Researcher in the Department of Social Anthropology at Stockholm
University, and Research Associate in the University of Oxford Centre for Criminology and Border Criminologies Program. Dr. Mancina has examined the historical development of sanctuary policy in the United States and police compliance with “sanctuary” laws at the local, county, and state levels. He is author of the 2019 policy implementation report Turning the Golden State into a Sanctuary State: A Report on the Impact and Implementation of the California Values Act (SB54).
We greatly appreciate your assistance in providing us the following documents.
B. Requested Records
I. Policies, Regulations, Memorandum, Guidance, and Forms
1. All records of policies, regulations, memorandum, guidance, or forms that the Department has adopted related to the implementation of the New Jersey Attorney General Gurbir Grewal’s Immigrant Trust Directive 2018-6 version 1 (issued on November 29, 2018) and version 2 (issued on March 15, 2019) , herein both versions referred to collectively as the “Directive.” Date Range: November 29, 2018 to the present.
2. All records of policies, procedures, protocols, directives, general orders that the Department has adopted regarding providing any form of assistance to, undertaking joint operations with, or forming joint task forces with the Department of Homeland Security (“DHS”), U.S. Customs and Border Protection (“CBP”), or Immigration and Customs Enforcement (“ICE” (including ICE Homeland Security Investigations (“HSI”)).
Examples of such policies may pertain to how the Department
a. books or releases federal criminal or immigration detainees; transfers individuals into federal custody;
b. provides DHS, CBP, ICE, and HSI access to department facilities, Department computers, information technology networks, department databases;
c. provides immigration agencies use of Department offices, desk space, or space where they can carry out their federal work;
d. responds to federal requests for a notification of an inmate’s release date, time, and place, as well as any personally identifying information for the individual;
e. detains individuals for the purpose of enforcing immigration law;
f. acts upon DHS, CBP, ICE, and HSI administrative warrants;
g. responds to federal immigration agency requests to interview people in Department custody and provides access to these individuals to carry out an interview;
h. provides backup assistance including but not limited to traffic control and perimeter security in the event of an immigration enforcement action or emergency situation;
i. provides booking rosters, intake rosters, or lists of detainees in Department detention facilities;
j. asks members of the public, witnesses, suspects, or those who have been arrested about immigration status information;
k. patrols U.S. national borders;
l. processes requests for T- and U-visa certifications; or
m. submits Immigrant Alien Queries (IAQs) to the ICE Law Enforcement Support Center (“ICE-LESC”) and acts upon Immigrant Alien Responses (IARs) from the ICE-LESC as part of the State Criminal Alien Assistance Program (SCAAP) Date Range: November 29, 2018 to the present.
II. Agreements, Contracts, or Memorandum of Understanding
3. All agreements, contracts, or Memorandum of Understanding, including any addendum or renewal document between DHS, ICE, ICE-HSI, or CBP and the Department. Date Range: November 29, 2018 to the present
III. Training Records
4. All records that the Department has used to train its members about the Directive, including training materials, manuals, memorandums, and power point presentations. Date range: November 29, 2018 to the present
5. Any training logs records that the Department has created to track the completion of training of its employees in the Directive or Directive-related Department policies. Date range: November 29, 2018 to the present
IV. Incident Reports
6. All incident reports related to the Department providing any form of assistance to CBP or ICE, (including HSI) as described in request number 2, participation in joint task forces, a 287g program, or any other form of joint operation with CBP, or ICE (including HSI).
Date Range: November 29, 2018 to the present
7. All incident reports related to incidents when CBP or ICE, (including HSI) arrested an individual on Department property immediately after they were released from Department custody to the public. Date Range: November 29, 2018 to the present
V. Quantitative Data Reports Regarding Department Assistance to ICE and CBP
8. All records (including electronically stored information in a database, written reports, statistics, memoranda or other data) that provide the number of instances when the Department accommodated an ICE or CBP request for the Department to
a. detain an individual
b. transfer an individual to ICE or CBP custody
c. notify ICE or CBP of the person’s release from Department custody
d. provide backup assistance for an immigration enforcement action
e. provide backup assistance for an emergency situation
f. allow ICE or CBP to interview an individual in Department custody
g. participate in a joint operation with ICE or CBP; or
h. any other form of assistance to ICE or CBP Date Range: November 29, 2017 to the present
9. All reports, emails, and memorandum that explain the reason, purpose, policy basis, or goal for which the Department accommodated ICE or CBP requests for assistance outlined in request number 8. Date Range: November 29, 2017 to the present
10. All records (including electronically stored information in a database, written reports, statistics, memoranda or other data), arrest reports, CAD reports or similar records) that list
a. the number of individuals arrested during joint operations with DHS, ICE, or
CBP;
b. the criminal charges brought against each individual that was arrested during joint operations with DHS, ICE, or CBP; or
c. the number of individuals charged with civil immigration violations during joint operations with DHS, ICE, or CBP.
Date Range: November 29, 2017 to the present
11. All records (including electronically stored information in a database, written reports, statistics, memoranda or other data), that list the number of people that the Department released to the public and who were immediately arrested by ICE or CBP on Department property. Date Range: November 29, 2017 to the present
VI. Detainee Movement Logs
12. All records that include the “movement history” logs of individuals in Department custody for whom an I-247 detainer, notification request, or transfer request was lodged. This may include records logging how individuals are moved through different Department divisions, wings, areas, programs, or Department facilities (ie. Booking, housing). Date Range: November 29, 2017 to the present
VII. Communications Records
13. All communications (herein, “communications” refers to emails, texts, faxes, letters, social media posts) about implementing the Directive in the Department, how the Department interacts with or assists ICE and CBP, or making inmate release information available to the public between Department Command Staff or Supervising Staff and the following types of Department employees:
a. Those who contribute to the development of department policy;
b. Those who directly interact with the public;
c. Those who directly interact with people in Department custody; and
d. Those who directly interact with federal immigration agencies Date Range: November, 29, 2018 to the present
14. All communications about implementing the Directive in the Department, how the Department interacts with ICE and CBP, or making inmate release information available to the public between Department Personnel and individuals in the following external agencies:
a. ICE;
b. CBP;
c. The U.S. Department of Justice;
d. The White House;
e. The New Jersey Department of Justice;
f. The Sheriffs Association of New Jersey; or
g. The New Jersey State Association of Chiefs of Police Date Range: November, 29, 2018 to the present
We request that all responsive records be sent as electronic files via email to [email address]. If the Department cannot provide responsive documents to certain requests above, please indicate the number of the request and the reason for the denial.
As N.J.S.A. 47:1A-5(i) provides that public agencies respond to OPRA records requests within 7 days, I look forward to hearing from you within this time.
Thank you in advance and we look forward to your response.
Sincerely,
Dean Rose Cuison-Villazor
Vice Dean, Professor of Law and Chancellor’s Social Justice Scholar
Director, Center for Immigration Law, Policy and Justice
Rutgers Law School
123 Washington Street
Newark, NJ 07102
Phone number: (973) 353-3159
Email: [email address]
Dr. Peter Mancina
Visiting Scholar, Center for Immigration Law, Policy and Justice
Rutgers Law School
123 Washington Street
Newark, NJ 07102
Phone number: (415)-226-8714
Email: [email address]
FN 1 . The term “records” as used herein means records as broadly defined by N.J.S.A.47:1A-1.1 and includes, “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 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.” “Records” that we are interested in obtaining are those that not only are stored in government office locations, on government servers, or on government computers and devices but also in private locations and storage facilities, on private servers, on private computers and devices, in private email accounts, and in public and private social media accounts.
FN 2. Version 1: https://web.archive.org/web/201905020003...
FN 3. Version 2: https://www.nj.gov/oag/dcj/agguide/direc...
Yours faithfully,
Rose Cuison-Villazor
Dear Shrewsbury Borough Records Custodian,
This email is to confirm that I have not yet received your records responsive to my request “Open Public Records Act and Common Law Request Regarding Implementation of the New Jersey Attorney General Immigrant Trust Directive 2018-6” and I ask that you please send them as soon as possible. Thank you.
Yours faithfully,
Rose Cuison-Villazor
Dean Rose Cuison-Villazor
Rutgers Law School
123 Washington Street
Newark, NJ 07102
Re: OPRA Request
Dear Ms. Cuison-Villazor:
The Borough of Shrewsbury (“Borough”) records custodian received your Open
Public Records Act (“OPRA”) request dated October 13, 2020. As such, the
Borough is responding to your request in accordance with New Jersey law.
N.J.S.A. 47:1A-5.
Your OPRA requests seek the following itemized records listed below. The
Borough’s response immediately follows each item.
1. All records of policies, regulations, memorandum, guidance, or
forms that the Department has adopted related to the implementation of the
New Jersey Attorney General Gurbir Grewal’s Immigrant Trust Directive
2018-6 version 1 (issued on November 29, 2018) and version 2 (issued on
March 15, 2019), herein both versions referred to collectively as the
“Directive.” Date Range: November 29, 2018 to the present.
Response: Please note that this request is overly broad. New Jersey
Courts have consistently held that OPRA does not countenance open-ended
searches of an agency's files. MAG Entm't, LLC v. Div. of ABC, 375 N.J.
Super. 534, 549 (App. Div. 2005); See New Jersey Builders Ass’n v. New
Jersey Council on Affordable Housing, 390 N.J. Super. 166 (App. Div.),
cert. denied, 190 N.J. 394 (2007). Consequently, 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.” See e.g., Spectraserv, Inc. v. Middlesex
Cnty. Utilities Auth., 416 N.J. Super. 565, 576 (App. Div. 2010); Bent v.
Twp. of Stafford Police Dep’t, 381 N.J. Super. 30, 37 (App. Div. 2005).
OPRA is not intended to be used as a research tool used to force
government officials to manually search, analyze, identify and siphon
useful information. MAG Entertainment, LLC v. Div. of Alcoholic Beverage
Control, 375 N.J. Super. 534, 546 (App. Div. 2005).
In order to comply with this request, the records custodian would need to
review every policy, regulation, memorandum, guidance, and form issued by
the Department and then determine whether it is "related" to the
implementation of the Immigrant Trust Directive in order to determine its
responsiveness to the request. Thus, this request would require research
beyond the scope of a custodian’s duties. MAG Entertainment, LLC v. Div.
of Alcoholic Beverage Control, 375 N.J. Super. 534, 546 (App. Div. 2005);
see also Lagerkvist v. Office of Governor of State, 443 N.J. Super. 230,
237 (App. Div. 2015) (holding that OPRA does not convert a custodian into
a researcher, which would have been the effect of the request); New Jersey
Builders Ass’n v. New Jersey Council on Affordable Housing, 390 N.J.
Super. 166 (App. Div.).
Notwithstanding the invalidity of the request, the Borough conducted a
good faith search and identified eight (8) pages of documents that are
potentially responsive to your request.
2. All records of policies, procedures, protocols, directives,
general orders that the Department has adopted regarding providing any
form of assistance to, undertaking joint operations with, or forming joint
task forces with the Department of Homeland Security (“DHS”), U.S. Customs
and Border Protection (“CBP”), or Immigration and Customs Enforcement
(“ICE” (including ICE Homeland Security Investigations (“HSI”))… Date
Range: November 29, 2018 to the present.
Response: The Borough did not identify any records responsive to this
request.
3. All agreements, contracts, or Memorandum of Understanding,
including any addendum or renewal document between DHS, ICE, ICE-HSI, or
CBP and the Department. Date Range: November 29, 2018 to the present.
Response: The Borough did not identify any records responsive to this
request.
4. All records that the Department has used to train its members
about the Directive, including training materials, manuals, memorandums,
and power point presentations. Date range: November 29, 2018 to the
present.
Response: The Borough did not identify any records responsive to this
request.
5. Any training logs records that the Department has created to track
the completion of training of its employees in the Directive or
Directive-related Department policies. Date range: November 29, 2018 to
the present.
Response: The Borough identified and has provided two (2) pages of
records responsive to this request.
6. All incident reports related to the Department providing any form
of assistance to CBP or ICE, (including HSI) as described in request
number 2, participation in joint task forces, a 287g program, or any other
form of joint operation with CBP, or ICE (including HSI). Date Range:
November 29, 2018 to the present.
Response: The Borough did not identify any records responsive to this
request.
7. All incident reports related to incidents when CBP or ICE,
(including HSI) arrested an individual on Department property immediately
after they were released from Department custody to the public. Date
Range: November 29, 2018 to the present.
Response: The Borough did not identify any records responsive to this
request.
8. All records (including electronically stored information in a
database, written reports, statistics, memoranda or other data) that
provide the number of instances when the Department accommodated an ICE or
CBP request for the Department to
a. detain an individual
b. transfer an individual to ICE or CBP custody
c. notify ICE or CBP of the person’s release from Department
custody
d. provide backup assistance for an immigration enforcement action
e. provide backup assistance for an emergency situation
f. allow ICE or CBP to interview an individual in Department
custody
g. participate in a joint operation with ICE or CBP; or
h. any other form of assistance to ICE or CBP
Date Range: November 29, 2017 to the present
Response: This request is overly broad. New Jersey Courts have
consistently held that OPRA does not countenance open-ended searches of an
agency's files. MAG Entm't, LLC v. Div. of ABC, 375 N.J. Super. 534, 549
(App. Div. 2005); See New Jersey Builders Ass’n v. New Jersey Council on
Affordable Housing, 390 N.J. Super. 166 (App. Div.), cert. denied, 190
N.J. 394 (2007). Consequently, 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.” See e.g., Spectraserv, Inc. v. Middlesex Cnty. Utilities
Auth., 416 N.J. Super. 565, 576 (App. Div. 2010); Bent v. Twp. of Stafford
Police Dep’t, 381 N.J. Super. 30, 37 (App. Div. 2005). OPRA is not
intended to be used as a research tool used to force government officials
to manually search, analyze, identify and siphon useful information. MAG
Entertainment, LLC v. Div. of Alcoholic Beverage Control, 375 N.J. Super.
534, 546 (App. Div. 2005).
Requests such as this one seeking “all records” are typically held to be
overly broad and unclear. Bent v. Twp. of Stafford Police Dep’t, 381 N.J.
Super. 3 (App. Div. 2005) (holding that request for "any and all" records
did not amount to a request for an identifiable government record); see
also New Jersey Builders Ass’n v. New Jersey Council on Affordable
Housing, 390 N.J. Super. 166 (App. Div. 2007) (holding that request for
“any and all documents and data used or considered…supporting,
demonstrating, justifying or verifying” determinations relevant to COAH’s
determinations about fair-share housing was overly broad).
The request here would require the Records Custodian to search through a
wide range of documents and analyze which documents happen to contain a
reference to a Department accommodation of a request from ICE or CBP. This
type of records research is not required, and the request is therefore
overly broad. In addition, it is unclear what is meant by "accommodated
an ICE or CBP request." Such terminology is vague and would require the
Records Custodian to make a judgment call on whether or not the Department
accommodated ICE or CBP. As a result, this request has failed to properly
identify a government record.
9. All reports, emails, and memorandum that explain the reason,
purpose, policy basis, or goal for which the Department accommodated ICE
or CBP requests for assistance outlined in request number 8. Date Range:
November 29, 2017 to the present.
Response: This request is overly broad. New Jersey Courts have
consistently held that OPRA does not countenance open-ended searches of an
agency's files. MAG Entm't, LLC v. Div. of ABC, 375 N.J. Super. 534, 549
(App. Div. 2005); See New Jersey Builders Ass’n v. New Jersey Council on
Affordable Housing, 390 N.J. Super. 166 (App. Div.), cert. denied, 190
N.J. 394 (2007). Consequently, a proper request under OPRA “must identify
with reasonable clarity those documents that are desired.” See e.g.,
Spectraserv, Inc. v. Middlesex Cnty. Utilities Auth., 416 N.J. Super. 565,
576 (App. Div. 2010); Bent v. Twp. of Stafford Police Dep’t, 381 N.J.
Super. 30, 37 (App. Div. 2005). OPRA is not intended to be used as a
research tool used to force government officials to manually search,
analyze, identify and siphon useful information. MAG Entertainment, LLC v.
Div. of Alcoholic Beverage Control, 375 N.J. Super. 534, 546 (App. Div.
2005).
The request here would require the Records Custodian to review every
single report, e-mail and memorandum and make a judgment call on whether
the record explains the "reason, purpose, policy basis, or goal" of the
Department's accommodation to ICE or CBP. This type of records research is
not required, and the request is therefore overly broad. In addition, it
is unclear what is meant by "accommodation to ICE or CBP." Such
terminology is vague and would require the Records Custodian to make a
judgment call on whether or not the Department accommodated ICE or CBP.
In addition, as it relates to the request for emails, the GRC has upheld
an established criteria deemed necessary to specifically identify and
facilitate a search for responsive e-mails and other written
communications. See Armenti v. Robbinsville Bd. of Educ., GRC Complaint
No. 2009-154 (Interim Order May 24, 2011); see also Zahler v. Ocean Cty.
College, GRC Complaint No. 2013-266 (Jan. 2016); Elcavage v. West Milford
Twp., GRC Complaint No. 2009-07 and 2009-08 (April 2010).
In Elcavage v. West Milford Twp., GRC Complaint No. 2009-07 and 2009-08
(April 2010), the GRC determined that in accordance with legal precedent:
“[I]n order to specifically identify an e-mail the OPRA request must
contain (1) the content and/or subject of the e-mail, (2) the specific
date or range of dates during which the e-mail was transmitted or the
e-mails were transmitted, and (3) identification of the sender and/or the
recipient thereof.” Here, your request fails to identify any particular
senders or recipients. Thus, in addition to the broad and vague nature of
the request, your request for e-mails clearly does not satisfy OPRA's
specificity requirements, and would require the Borough's records
custodian to conduct research in order to respond to this item of your
request. See Coughlin v. High Bridge, GRC Complaint No. 2011-120 (Sept.
25, 2012) (finding that request for “e-mails to and from the golf
department” was properly denied because "[i]n order for the Custodian to
respond to this request, the Custodian would be required to evaluate all
e-mails in their database. Such a request is not feasible. … and… would
constitute research that is not the statutory duty of a Custodian"; See
also Lagerkvist v. Office of Governor of State, 443 N.J. Super. 230, 237
(App. Div. 2015) (holding that OPRA does not convert a custodian into a
researcher, which would have been the effect of the request).
As a result, this request has failed to properly identify a government
record.
10. All records (including electronically stored information in a
database, written reports, statistics, memoranda or other data), arrest
reports, CAD reports or similar records) that list
a. the number of individuals arrested during joint operations with DHS,
ICE, or CBP;
b. the criminal charges brought against each individual that was
arrested during joint operations with DHS, ICE, or CBP; or
c. the number of individuals charged with civil immigration violations
during joint operations with DHS, ICE, or CBP.
Date Range: November 29, 2017 to the present.
Response: As a threshold matter, your request for “all records” and
“similar records” is overly broad. New Jersey Courts have consistently
held that OPRA does not countenance open-ended searches of an agency's
files. MAG Entm't, LLC v. Div. of ABC, 375 N.J. Super. 534, 549 (App. Div.
2005); See New Jersey Builders Ass’n v. New Jersey Council on Affordable
Housing, 390 N.J. Super. 166 (App. Div.), cert. denied, 190 N.J. 394
(2007). Consequently, 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.” See e.g., Spectraserv, Inc. v. Middlesex Cnty. Utilities
Auth., 416 N.J. Super. 565, 576 (App. Div. 2010); Bent v. Twp. of Stafford
Police Dep’t, 381 N.J. Super. 30, 37 (App. Div. 2005). OPRA is not
intended to be used as a research tool used to force government officials
to manually search, analyze, identify and siphon useful information. MAG
Entertainment, LLC v. Div. of Alcoholic Beverage Control, 375 N.J. Super.
534, 546 (App. Div. 2005).
In order to comply with this request as it relates to “all records,” the
records custodian would need to review all records in the Department in
order to determine if it contained the requested information. Thus, this
request would require research beyond the scope of a custodian’s duties.
MAG Entertainment, LLC v. Div. of Alcoholic Beverage Control, 375 N.J.
Super. 534, 546 (App. Div. 2005); see also Lagerkvist v. Office of
Governor of State, 443 N.J. Super. 230, 237 (App. Div. 2015) (holding that
OPRA does not convert a custodian into a researcher, which would have been
the effect of the request); New Jersey Builders Ass’n v. New Jersey
Council on Affordable Housing, 390 N.J. Super. 166 (App. Div.).
As it relates to the request for arrest report and CAD reports, the
Borough did not identify any records responsive to this request.
11. All records (including electronically stored information in a
database, written reports, statistics, memoranda or other data), that list
the number of people that the Department released to the public and who
were immediately arrested by ICE or CBP on Department property. Date
Range: November 29, 2017 to the present.
Response: The Borough did not identify any records responsive to this
request.
12. All records that include the “movement history” logs of individuals
in Department custody for whom an I-247 detainer, notification request, or
transfer request was lodged. This may include records logging how
individuals are moved through different Department divisions, wings,
areas, programs, or Department facilities (ie. Booking, housing). Date
Range: November 29, 2017 to the present.
Response: The Borough did not identify any records responsive to this
request.
13. All communications (herein, “communications” refers to emails, texts,
faxes, letters, social media posts) about implementing the Directive in
the Department, how the Department interacts with or assists ICE and CBP,
or making inmate release information available to the public between
Department Command Staff or Supervising Staff and the following types of
Department employees:
a. Those who contribute to the development of department policy;
b. Those who directly interact with the public;
c. Those who directly interact with people in Department custody; and
d. Those who directly interact with federal immigration agencies
Date Range: November, 29, 2018 to the present.
Response: The GRC has upheld an established criteria deemed necessary to
specifically identify and facilitate a search for responsive e-mails and
other written communications. See Armenti v. Robbinsville Bd. of Educ.,
GRC Complaint No. 2009-154 (Interim Order May 24, 2011); see also Zahler
v. Ocean Cty. College, GRC Complaint No. 2013-266 (Jan. 2016); Elcavage v.
West Milford Twp., GRC Complaint No. 2009-07 and 2009-08 (April 2010).
In Elcavage v. West Milford Twp., GRC Complaint No. 2009-07 and 2009-08
(April 2010), the GRC determined that in accordance with legal precedent:
“[I]n order to specifically identify an e-mail the OPRA request must
contain (1) the content and/or subject of the e-mail, (2) the specific
date or range of dates during which the e-mail was transmitted or the
e-mails were transmitted, and (3) identification of the sender and/or the
recipient thereof.”
Here, the request for "communications" does not meet these criteria as it
fails to provide specific enough content or subject, and the recipient of
the communication is left vague as it is unclear who in the Department
would meet the definition of individuals who "contribute to the
development of department policy." Thus, the request for communications
does not satisfy OPRA's specificity requirements, and would require the
Borough's records custodian to conduct research in order to respond to
this item of your request. See Lagerkvist v. Office of Governor of State,
443 N.J. Super. 230, 237 (App. Div. 2015) (holding that OPRA does not
convert a custodian into a researcher, which would have been the effect of
the request).
14. All communications about implementing the Directive in the
Department, how the Department interacts with ICE and CBP, or making
inmate release information available to the public between Department
Personnel and individuals in the following external agencies:
a. ICE;
b. CBP;
c. The U.S. Department of Justice;
d. The White House;
e. The New Jersey Department of Justice;
f. The Sheriffs Association of New Jersey; or
g. The New Jersey State Association of Chiefs of Police
Date Range: November, 29, 2018 to the present.
Response: This request is overly broad. New Jersey Courts have
consistently held that OPRA does not countenance open-ended searches of an
agency's files. MAG Entm't, LLC v. Div. of ABC, 375 N.J. Super. 534, 549
(App. Div. 2005); See New Jersey Builders Ass’n v. New Jersey Council on
Affordable Housing, 390 N.J. Super. 166 (App. Div.), cert. denied, 190
N.J. 394 (2007). Consequently, a proper request under OPRA “must identify
with reasonable clarity those documents that are desired.” See e.g.,
Spectraserv, Inc. v. Middlesex Cnty. Utilities Auth., 416 N.J. Super. 565,
576 (App. Div. 2010); Bent v. Twp. of Stafford Police Dep’t, 381 N.J.
Super. 30, 37 (App. Div. 2005). OPRA is not intended to be used as a
research tool used to force government officials to manually search,
analyze, identify and siphon useful information. MAG Entertainment, LLC v.
Div. of Alcoholic Beverage Control, 375 N.J. Super. 534, 546 (App. Div.
2005).
The request here would require the Records Custodian to review every
Department employee’s email account and other communications to determine
whether the employee sent an e-mail or communication to any individual in
various public and private entities. It then would require the Records
Custodian to determine whether each of these records were about
"implementing the Directive, "how the Departments interacts with ICE and
CBP" or "making inmate release information available to the public." This
type of records research is not required, and the request is therefore
overly broad. As a result, this request has failed to properly identify
a government record.
Your OPRA Request is now deemed answered and closed. Thank you for your
attention to this matter.
Very truly yours,
Maureen Muttie
Municipal Clerk