Concerned resident,           

The following records were requested:

The emails leading up to and the final contract given to Jon Larson by the
OCC Board of Trustees to be paid for two years after his retirement.

Reply:  Attached please find a copy of Dr. Larson’s latest contract.  In
regards to emails please find the following:

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 [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.

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

[3][OCC request email] | [4]www.ocean.edu

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