RE: June 23, 2025, Open Public Records Act (“OPRA”) Request (the
“Request”)

Dear Plainsboro Resident,

Please accept this email is in response to the above-referenced requests
under the New Jersey Open and Public Records Act N.J.S.A. 47:1A-1 et. seq.
(“OPRA”) which you sent via electronic mail on June 22, 2025, and was
received by the West Windsor-Plainsboro Regional School District Board of
Education (the “Board”) on June 23, 2025. This response is being provided
to you in a timely manner.

OPRA defines a “government record” of a public entity as “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 …”  N.J.S.A. 47:1A-1.1. 
Accordingly, the Board is required to produce only those records which it
maintains in the official course of business and which are not otherwise
exempt from production.  Pursuant to the definition of a government
record, a public entity is not required by OPRA to research information
and/or create records that do not exist in response to OPRA requests.  See
e.g., Mag Entertainment, LLC v. Division of Alcoholic Beverage Control,
375 N.J. Super 537 (App. Div. March 2005).  

Your requests and the Board’s response to the same is as follows:

REQUEST: “(1) Records pertaining to conduct-related incidents by SLEO
Class III officer(s) assigned to West Windsor-Plainsboro High School
South:

* dated between January 1, 2024 and March 31, 2025; and

* to include:  complaints, investigative reports, notes and minutes of
administrative proceedings, records of actions taken.

(2) Emails

* dated between January 1, 2024 and March 31, 2025

* where the subject is conduct-related incident(s) by SLEO Class III
officer(s) assigned to West Windsor-Plainsboro High School South

* where the Email sender or receiver is the WW-P Superintendent or a
member the WW-P Board of Education.”

RESPONSE: 

Following a thorough review, the Board respectfully denies your first
request for the following reasons: the request seeks deliberate materials
and personnel records that are not permitted under OPRA. The information
below provides further reasoning and an explanation behind the denial.

The Board denies the above request as it seeks intra-agency or
inter-agency deliberative materials which is specifically excluded from
the definition of “government records” under OPRA which states “[t]he
terms shall not include inter-agency or intra-agency advisory,
consultative, or deliberative material.” N.J.S.A. 47:1A-1.1. The
deliberative process privilege “permits the government to withhold
documents that reflect advisory opinions, recommendations, and
deliberations comprising part of a process by which governmental decisions
and policies are formulated.” In re Liquidation of Integrity Ins. Co., 165
N.J. 75, 83 (2000). For a document to meet the requirements of the
privilege and be exempt from production in response to an OPRA request, it
must, (1) ‘have been generated before the adoption of an agency’s policy
or decision,” and, (2) “be deliberative in nature, containing opinions,
recommendations or advice about agency policies.” Id. Regarding the
instant request, the records requested would meet the requirements of the
deliberative process privilege and constitute inter-agency deliberative
materials exempt from the definition of “government records” as the
request seeks deliberative communications and records that reflect the
process by which District decisions were formulated.

The Board also denies the above request as it seeks personnel information
that is not specifically considered to be a government record under
N.J.S.A. 47:1A-10. It is presumed under OPRA that personnel records are
not considered government records and are not to be made available for
public access except, “an individual's name, title, position, salary,
payroll record, length of service, date of separation and the reason
therefor, and the amount and type of any pension received shall be a
government record.” N.J.S.A. 47:1A-10; see also Kovalcik v. Somerset Cnty.
Prosecutor's Office, 206 N.J. 581, 594 (2011); see also Danis v. Garfield
Bd. of Educ. (Bergen), GRC Complaint No. 2009-156 et seq. (Interim Order
dated June 29, 2010). Additionally, N.J.S.A. 47:1A-10 provides that
“records relating to any grievance filed by or against an individual,
shall not be considered a government record and shall not be made
available for public access,” therefore, such records are not produced.

The Board  objects to this Request because it is overly broad, vague, and
unclear, and does not sufficiently identify any specific government record
being requested.  Please be advised that if a request does not name
specifically identifiable records or is overly broad, a custodian may deny
access.  See Mag Entertainment LLC v. Division of Alcoholic Beverage
Control, 375 N.J. Super. 534 (App. Div. 2005).  In that regard, a records
custodian is not required under OPRA to conduct research to discover which
records are relevant or responsive to your open-ended request. Instead of
identifying with reasonable clarity specific documents that are sought,
the Requests inappropriately seek records “conduct-related incidents” See
New Jersey Builder’s Ass’n v. N.J. Council on Affordable Housing, 390 N.J.
Super. 166 (App. Div. 2007); MAG Entertainment, LLC v. Div. of Alcoholic
Beverage Control, 375 N.J. Super. 534 (App. Div. 2005); Bent v. Stafford
Police Department, 381 N.J. Super. 30 (App. Div. 2005); and Schuler v.
Borough of Bloomsbury, GRC Complaint No. 2007-151 (February 2009);
Shipyard Associates, L.P. v. City of Hoboken, No. A-3794-13T1, 2015 WL
10352982, at *4 (N.J. Super. Ct. App. Div. Sept. 1, 2015) (explaining that
a request containing the term “not limited to” is improper). This Request
requires the custodian to perform research to locate and identify
responsive records beyond the scope of a custodian’s duties pursuant to
MAG Entertainment, LLC v. Division of Alcoholic Beverage Control, 375 N.J.
Super. 534, 546 (App. Div. 2005) (“[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”).  

Notwithstanding the above and following a thorough review, the Board is
not in possession of any responsive records to your second request.
Pursuant to the definition of a government record, a public entity is not
required by OPRA to research information and/or create records that do not
exist in response to OPRA requests. See e.g., Mag Entertainment, LLC v.
Division of Alcoholic Beverage Control, 375 N.J. Super 537 (App. Div.
March 2005). 

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 District 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, or by e-mail at [1][email address], or at their website at
[2]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.

Sincerely,

Kia Bergman

Records Custodian

West Windsor-Plainsboro Regional School District

References

Visible links
1. mailto:[email address]
2. http://www.state.nj.us/grc

Thank you for your email. I am currently out of the office, with
limited email access, and will return on Wednesday, July 2, 2025. I
will respond to your email upon my return.

If this is an emergency and you need immediate assistance, please
contact me on my cell phone.

--

Kia Bergman

Director of Communications

West Windsor-Plainsboro Regional School District

[West Windsor-Plainsboro School District request email]

(609) 716-5000 ext. 5046

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