OPRA could apply to criminal & DWI complaints Simmons v. Mercado & City of Millville (A-18-20) Decided June 17, 2021
Because Millville City officers create the information contained in the CDR-1s, the Complaint Summons CDR-1s fall well within OPRA’s definition of a government record. Further, AADARI’s records request is narrowly tailored and would not constitute research beyond OPRA’s scope.
In this appeal, the Court considers whether a records request for complaint- summonses from a municipal police department is proper under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. The key question is whether the complaint- summonses -- electronic records populated with information by local police officers but stored on Judiciary servers -- are the police department’s government records under OPRA and, if so, whether the records request at issue here was sufficiently narrow.
Plaintiffs Baffi Simmons and the African American Data and Research Institute (collectively, AADARI) submitted a request under OPRA to defendants Millville City Clerk Wendy Mercado, the City of Millville, and the City of Millville Police Department (collectively, MPD) for complaint-summonses, known as CDR-1s, for certain classes of drug-related offenses. Specifically, AADARI requested copies of the following four categories of documents prepared by MPD from January 2017 onward: (1) driving while intoxicated/driving under the influence (DWI/DUI) complaints and summonses; (2) drug possession complaints and summonses; (3) MPD’s “Arrest Listings”; and (4) drug paraphernalia complaints and summonses. AADARI requested those records as part of a comparative data analysis on the subject of disparate treatment in the administration and enforcement of marijuana and other drug-related offenses in New Jersey.
In response to AADARI’s OPRA request, MPD provided documents responsive to category 3 and advised AADARI to request the other three categories of items from the Millville Municipal Court. AADARI filed a complaint and an order to show cause, after which MPD provided AADARI documents responsive to category 1. So when the parties appeared before the trial court on the order to show cause, the only outstanding requests were the documents in categories 2 and 4 -- the drug-related complaints and summonses.
The trial court ruled in favor of AADARI, rejecting MPD’s claims that it did not need to produce the pertinent records because MPD did not maintain them. The court also found that the records request did not require MPD to conduct research and therefore did not go beyond OPRA’s scope.
The Appellate Division reversed, finding that the requested records are in the custody of the Judiciary and that AADARI must therefore direct its records request to the Judiciary, not MPD. 464 N.J. Super. 77, 79, 84 (App. Div. 2020). The appellate court did not address whether AADARI’s request would require research. Id. at 84.
The Court granted AADARI’s petition for certification. 244 N.J. 342 (2020).
HELD: Because MPD officers create the information contained in the CDR-1s, the CDR-1s fall well within OPRA’s definition of a government record. Further, AADARI’s records request is narrowly tailored and would not constitute research beyond OPRA’s scope.
1. New Jersey boasts of a long and proud tradition of openness and hostility to secrecy in government. OPRA was enacted to maximize public knowledge about public affairs in order to ensure an informed citizenry and to minimize the evils inherent in a secluded process. To effectuate its mission to make government records “readily accessible” to the state’s citizens, OPRA substantively provides that “all government records shall be subject to public access unless exempt,” N.J.S.A. 47:1A-1, and it places on the government the burden of establishing an exemption, N.J.S.A. 47:1A-6. Although OPRA favors broad public access to government records, it is not intended to be a research tool that litigants may use to force government officials to identify and siphon useful information. Thus, to prompt disclosure under OPRA, requests for information must be properly circumscribed.
2. In furtherance of OPRA’s goal of transparency and public access to government records, the Legislature broadly defines a “government record” subject to OPRA to include “information stored or maintained electronically . . . 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.” N.J.S.A. 47:1A-1.1 (emphases added). “Information” is the key word. Applying those principles to the present case, and bearing in mind OPRA’s goals, it is evident that the CDR-1s sought in this matter are government records subject to disclosure by MPD under OPRA.
3. MPD’s argument that members of the Judiciary, not law enforcement officers, “make” the CDR-1 forms obscures the nature of the information being sought here. AADARI is not seeking blank forms that provide zero information regarding arrests made by MPD.
It is the substantive information regarding arrests used to populate the CDR-1s that is at issue here, and that information is inputted by MPD and only MPD. The CDR-1 form developed by the Judiciary is nothing but an empty shell until law enforcement officers, in the course of their official business, make that shell into an official government document by inputting the information that is sought in this case.
4. Further, MPD’s argument that it is not obligated to produce the CDR-1s because it does not “maintain” the records does not square with the provision that, if a government official makes, maintains, or keeps on file electronic information in the course of his or her official business, it is a “government record” subject to OPRA. See N.J.S.A. 47:1A- 1.1. The use of “or” plainly indicates that any of those three listed actions is sufficient to satisfy the statutory definition. Thus, regardless of who maintains the files, the fact that MPD “makes” the CDR-1s means that it can be called upon to disclose those government records. Nothing in the text of OPRA or Rule 1:38 or the Court’s jurisprudence suggests that information cannot be both a court record and a government record. Indeed, the language of the statute that defines a government record as one that has been “made, maintained, or kept on file” itself suggests the possibility that different government entities, working cooperatively, could be simultaneous custodians of the same information. The statutory language presupposes that there may be more than one proper place where a requestor can submit an OPRA request. That the Judiciary might maintain on its servers the information that MPD made does not absolve MPD of its obligation to produce that information pursuant to a proper OPRA request made to MPD.
5. The Court therefore turns to MPD’s argument that the request at issue here was not a proper request for OPRA purposes because it required research. In Paff v. Galloway Township, the Court explained the proper parameters of OPRA requests, stating that “[a] records request must be well defined so that the custodian knows precisely what records are sought. The request should not require the records custodian to undertake a subjective analysis to understand the nature of the request. Seeking particular information from the custodian is permissible; expecting the custodian to do research is not.” 229 N.J. 340, 355 (2017). The Court reviews MAG Entertainment, LLC v. Division of Alcoholic Beverage Control, 375 N.J. Super. 534 (App. Div. 2005), in which the Appellate Division found a request requiring research to be beyond OPRA’s statutory ambit, and Paff, in which the Court found that the challenged request did not require research. The distinction between a research and non-research request lies with whether the plaintiff’s request demands the government agency engage in analysis or the exercise of judgment in identifying responsive records.
6. The Court explains why AADARI’s records request is distinguishable from the request at issue in MAG and is instead akin to the permissible request in Paff. The request was well within OPRA’s scope and does not require research by MPD. The Court therefore reinstates the trial court’s order granting AADARI’s OPRA request. MPD must comply with the trial court order and provide the requested documents to AADARI within five business days of the filing of the Court’s opinion.
REVERSED. The order of the trial court is REINSTATED.
PIERRE-LOUIS, J., writing for a unanimous Court.
