NORTH JERSEY MEDIA GROUP INC. VS. PASSAIC COUNTY PROSECUTOR'S OFFICE (L-1135-16, PASSAIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court."

Although it is posted on the internet, this opinion is binding only on the

parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2016-16T1

NORTH JERSEY MEDIA GROUP INC.,

Plaintiff-Appellant,

v.

PASSAIC COUNTY PROSECUTOR'S

OFFICE, and LISA VERLARDI in

her capacity as OPRA Liaison

for the Passaic County Prosecutor's

Office,

Defendants-Respondents.

__________________________________________

Submitted January 30, 2018 – Decided August 17, 2018

Before Judges Yannotti and Leone.

On appeal from Superior Court of New Jersey,

Law Division, Passaic County, Docket No. L-

1135-16.

Pashman Stein Walder Hayden, PC, and North

Jersey Media Group Inc. n/k/a Fourth Edition

Inc., attorneys for appellant (Samuel J.

Samaro and Jennifer A. Borg, Of Counsel; CJ

Griffin, on the briefs).

William J. Pascrell, III, Passaic County

Counsel, attorney for respondents (Mary

Catherine Ryan, Chief Assistant Prosecutor,

and Robert J. Wisse, Assistant Prosecutor, Of

Counsel and on the brief).

PER CURIAM

Plaintiff North Jersey Media Group Inc., now known as Fourth

Edition Inc., appeals from the trial court's September 2, 2016

order denying its request for counsel fees under the Open Public

Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and from the December

2, 2016 final order. We affirm in part, reverse in part, and

remand.

I.

On January 27, 2016, plaintiff made a request under OPRA and

the common-law right of access to defendant Passaic County

Prosecutor's Office (PCPO) and defendant Lisa Verlardi, its chief

assistant prosecutor and OPRA liaison. The request sought records

of a May 2014 shooting incident in Wayne. The request included

"Incident reports, Operations reports, Investigation reports,

and/or Offence reports, along with their supplemental reports"

(Requested Reports), "Audio recordings of 9-1-1 calls" (9-1-1

Tape), and the information which must be released within twenty-

four hours under N.J.S.A. 47:1A-3(b).

On January 29, 2016, the PCPO through Verlardi sent plaintiff

a redacted indictment and the information under N.J.S.A. 47:1A-

3(b). After obtaining an extension, the PCPO through Verlardi

responses to the remaining requests on February 12, 2016. The

2 A-2016-16T1

response stated that PCPO lacked documents or recordings

responsive to some of the requests, and that the remainder of the

requested documents were confidential or otherwise exempt from

disclosure.

Regarding the Requested Reports, Verlardi's response stated

they were "criminal investigatory records that are exempt from

disclosure under N.J.S.A. 47:1A-1.1. Further, as this case

involves a domestic violence incident the record(s) are

confidential under the Prevention of Domestic Violence Act of

1991" (DV Act), N.J.S.A. 2C:25-17 to -35. The response referenced

several provisions, including N.J.S.A. 2C:25-33.

Regarding the 9-1-1 Tape, Verlardi's response stated: "As

this case involves a domestic violence incident the audio recording

of the 911 call is confidential under the [DV Act]," citing several

provisions. The response also stated "the Legislature intended

to provide protection against disclosure of 911 tapes in those

instances where a person had a reasonable expectation of privacy,"

citing case law and N.J.S.A. 47:1A-1. Finally, the response stated

the 9-1-1 Tape "contains information relating to medical,

psychiatric or psychological history, diagnosis, treatment and/or

evaluation, which are not government records subject to public

access pursuant to OPRA," citing Executive Order No. 26, ¶ 4(b)(1),

34 N.J.R. 3043 (Aug. 13, 2002).

3 A-2016-16T1

On March 28, 2016, plaintiff filed a complaint in the Law

Division. Plaintiff alleged that the 9-1-1 caller "claim[ed]

someone had not taken his medication and was in need of medical

assistance," that the suspect had grabbed his mother while holding

a large knife and held her hostage, that after police negotiated

with the suspect for ninety minutes an officer had fired a shot

and accidentally hit the hostage, and that the suspect was found

not guilty by reason of insanity. Plaintiff alleged defendants

had violated OPRA and the common-law right of access by not

releasing the requested documents and redacting any exempt

information. Plaintiff demanded that defendants identify each

responsive record, prepare a Vaughn index,1 release the documents

or submit them for in camera review and redaction, and that the

court award counsel fees under N.J.S.A. 47:1A-6.

The trial court issued an order to show cause. Defendants

answered the complaint and provided five certifications.

Verlardi's certification stated that during her review of the

Requested Reports, she located a one-page Supplementary Domestic

Violence Offense Report (DVO Report). Verlardi "conceded" that

1

A "Vaughn index" is a list of the records responsive to a request

and of the exemptions claimed to warrant non-disclosure. N. Jersey

Media Grp. v. Bergen Cty. Prosecutor's Office, 447 N.J. Super.

182, 191 (App. Div. 2016) (citing Vaughn v. Rosen, 484 F.2d 820,

826-27 (D.C. Cir. 1973)).

4 A-2016-16T1

the DVO Report was "required to be made pursuant to N.J.S.A. 2C:25-

24(a) and is therefore not a criminal investigatory record," and

"that I should have listed the [DVO Report] separately in my

[February 12] response . . . clearly indicating it does not fall

within a criminal investigatory record." She stated she did not

violate OPRA because the DVO Report was properly withheld as

confidential under the DV Act. Defendants later supplied Vaughn

indexes detailing the requested records and the reasons for non-

disclosure.

Meanwhile, the mother had sued numerous parties for her

injuries in May 2014. The trial court asked defendants to alert

her that records regarding the incident were the subject of OPRA

litigation.

On June 29, 2016, the mother's lawyer wrote Passaic County

stating he had discussed the OPRA request with the mother and her

daughter. He reported the "family" joined plaintiff's OPRA

request, and asked the trial court to order the release of all the

records, including the 9-1-1 Tape.

The trial court held a show cause hearing. On September 2,

2016, the court denied plaintiff's request for a declaration that

the non-disclosure of the Requested Reports and 9-1-1 Tape violated

OPRA. The court also denied plaintiff's request for counsel fees

under N.J.S.A. 47:1A-6. Nonetheless, the court granted

5 A-2016-16T1

plaintiff's request for access to all requested documents under

the common law, subject to redactions by the court. The court

ordered defendants to provide the documents, with suggested

redactions, for in camera review.

The prosecutor supplied the trial court with the documents,

and provided an index of requested redactions. On September 14,

2016, the mother's counsel wrote the trial court stating he had

reviewed the index, and had no objection to the disclosure of the

documents, but had an objection to some of the redactions.

In a December 2, 2016 order, the trial court ruled that the

documents could be released with defendants' proposed redactions.

Defendants supplied to plaintiff the unredacted DVO Report, the

unredacted 9-1-1 Tape, and the other unredacted and redacted

documents. Plaintiff appeals the denial of counsel fees.

II.

Plaintiff claims it was entitled to counsel fees because

defendants violated OPRA by not disclosing the 9-1-1 Tape and the

DVO Report. We must hew to our standard of review.

"[D]eterminations about the applicability of OPRA and its

exemptions are legal conclusions, and are therefore subject to de

novo review." In re N.J. Firemen's Ass'n Obligation to Provide

Relief Applications Under Open Pub. Records Act, 230 N.J. 258,

273-74 (2017) (citations omitted). "We also conduct plenary review

6 A-2016-16T1

of the trial court's legal conclusion that a privilege exempts the

requested records from disclosure, . . . as well as its

determination . . . whether plaintiff is entitled to attorney's

fees." K.L. v. Evesham Twp. Bd. of Educ., 423 N.J. Super. 337,

349 (App. Div. 2011) (citations omitted).

III.

OPRA succinctly sets forth the State's policy

in favor of broad access to public records:

(1) 'government records shall be readily

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; (2)

"any limitations on the right of access . . .

shall be construed in favor of the public's

right of access," ibid.; and (3) public

agencies "shall have the burden of proving

that the denial of access is authorized by

law," N.J.S.A. 47:1A-6.

[N. Jersey Media Grp. v. Twp. of Lyndhurst,

229 N.J. 541, 555 (2017).]

"OPRA broadly defines the term 'government record.'" Brennan

v. Bergen Cty. Prosecutor's Office, 233 N.J. 330, 337 (2018).

"Government record" includes any document or sound-recording "that

has been made, maintained or kept on file in the course of . . .

its official business by any . . . agency or authority of the

State or of any political subdivision." N.J.S.A. 47:1A-1.1. "The

custodian of a government record shall permit the record to be

inspected, examined, and copied by any person . . . unless a

7 A-2016-16T1

government record is exempt from public access by . . . any other

statute; . . . Executive Order of the Governor; [or] Rules of

Court[.]" N.J.S.A. 47:1A-5(a).

"A government record shall not include" a "criminal

investigatory record[]," "which is deemed to be confidential for

the purposes of [OPRA]." N.J.S.A. 47:1A-1.1. "'Criminal

investigatory record' means a record which is not required by law

to be made, maintained or kept on file that is held by a law

enforcement agency which pertains to any criminal investigation

or related civil enforcement proceeding." Ibid. Thus, "OPRA's

criminal investigatory records exception does not apply to records

that are 'required by law to be made, maintained or kept on file.'"

Lyndhurst, 229 N.J. at 551 (quoting N.J.S.A. 47:1A-1.1); see id.

at 565-66 (finding "Use Of Force" reports are required by law as

they are required by the Attorney General's Use of Force Policy).2

A.

We first address the 9-1-1 Tape. Defendants do not dispute

that it is a government record but not a criminal investigatory

record. We have found "that 911 calls are required by law to be

recorded by a government agency and that these tapes must be

2

No claim was made here that the documents "pertain to an

investigation in progress by any public agency." N.J.S.A. 47:1A-

3(a).

8 A-2016-16T1

retained for 'no less than 31 days.'" Serrano v. S. Brunswick

Twp., 358 N.J. Super. 352, 364 (App. Div. 2003) (quoting N.J.A.C.

17:24-2.4).3 "From this, we conclude[d] that the subject 911 tape

comes within the definition of a government record for purposes

of N.J.S.A. 47:1A-1." Ibid. "Because the tape falls within the

definition of a 'government record' in N.J.S.A. 47:1A-1.1, and

because the law requires that such tapes be made and kept, it does

not qualify as a 'criminal investigatory record.'" Id. at 365;

see N. Jersey Media Grp. v. Twp. of Lyndhurst, 441 N.J. Super. 70,

107 & n.22 (App. Div. 2015), aff'd in part & rev'd in part on

other grounds, 229 N.J. 541 (2017).

However, we made clear in Serrano that 9-1-1 calls are not

necessarily discoverable under OPRA. We pointed out that OPRA

contained a privacy provision stating that "a public agency has a

responsibility and an obligation to safeguard from public access

a citizen’s personal information with which it has been entrusted

3

The Administrative Code's Chapter 17:24 "establishes the

technical requirements and operational standards for all

components of the Statewide 9-1-1 Enhanced Emergency Telephone

System." N.J.A.C. 17:24-1.1. The chapter requires that "[e]ach

9-1-1 line or each 9-1-1 terminal shall be connected to a logging

recorder that records" all voice communications in "all 9-1-1

calls." N.J.A.C. 17:24-2.1(f); see N.J.A.C. 17:24-1.1. N.J.A.C.

17:24-2.4 provides that each entity receiving a 9-1-1 call "shall

maintain the . . . [r]ecordings produced by the logging recorder

and all documents or records related to 9-1-1 calls in a secured

area for no less than 31 days[.]" N.J.A.C. 17:24-2.4(a), (a)(1);

see N.J.A.C. 17:24-1.1.

9 A-2016-16T1

when disclosure thereof would violate the citizen’s reasonable

expectation of privacy." Id. at 368 (quoting N.J.S.A. 47:1A-1).

We emphasized that "no privacy claim has been asserted" in Serrano;

indeed, the 9-1-1 caller was represented by counsel in the OPRA

proceedings and made no objection to disclosure of the content of

the call to the news media. Id. at 368-69.

Nonetheless, we noted that in other cases privacy concerns

might present "complex and challenging" issues that "might entail

a consideration and balancing of the interests, not only of those

who call 911 or who utilize other police or emergency

communications services, but of others who are mentioned in or

affected by the calls." Id. at 369. "We emphasize[d] that our

disposition is based on the particular circumstances with which

we are confronted, including the characteristics of the 911 call

involved in this case, and in particular the caller's express lack

of objection to the disclosure." Id. at 362. We did "not predict

what disposition may be appropriate in other cases involving 911

tapes." Ibid.

The concurring opinion in Serrano similarly stressed that

because of the absence of a privacy objection "this case does not

provide the opportunity for a definitive ruling on the question

of whether 911 tapes are public records under OPRA," and that "the

court is not concluding that all 911 tapes are open to the public

10 A-2016-16T1

under OPRA." Id. at 371 (Coburn, J., concurring). Judge Coburn

pointed out that New Jersey's privacy provision was "patterned

after" and "almost identical to the provision in Kentucky," and

that a Kentucky court had held that provision exempted 911 calls

because "[r]eleasing the tapes of 911 calls seeking police

assistance, particularly in instances of domestic violence, would

have a chilling effect on those who might otherwise seek assistance

because they would become subject to . . . retaliation, harassment,

or public ridicule." Id. at 371-72 (quoting Bowling v.

Brandenburg, 37 S.W.3d 785, 788 (Ky. Ct. App. 2000)). Judge Coburn

concluded that 9-1-1 calls should be confidential and not disclosed

unless either the caller consents or "disclosure would not 'violate

the citizen's reasonable expectation of privacy.'" Id. at 373

(quoting N.J.S.A. 47:1A-1).

Based on the majority and concurring opinions in Serrano, the

Law Division denied access to a 9-1-1 tape under OPRA in Asbury

Park Press v. Ocean Cty. Prosecutor's Office, 374 N.J. Super. 312,

316-18 (Law Div. 2004). After a thorough review of OPRA's

legislative history, the court ruled "that the Legislature

intended to provide protection against disclosure in those

instances in which a person had a reasonable expectation of

privacy." Id. at 326-29, 331.

11 A-2016-16T1

Our Supreme Court has cited the discussion in Serrano and

Asbury Park Press about the protection of 9-1-1 calls by OPRA's

privacy provision, and has concluded it "imposes an obligation on

public agencies to protect against disclosure of personal

information which would run contrary to reasonable privacy

interests." Burnett v. Cty. of Bergen, 198 N.J. 408, 423-24

(2009). The Court found OPRA required balancing "ready access to

government documents while safeguarding the citizen's reasonable

expectation of privacy." Id. at 425-26. The Court endorsed "a

balancing test that weighs both the public's strong interest in

disclosure with the need to safeguard from public access personal

information that would violate a reasonable expectation of

privacy." Id. at 427. The factors to be considered are:

(1) the type of record requested; (2) the

information it does or might contain; (3) the

potential for harm in any subsequent

nonconsensual disclosure; (4) the injury from

disclosure to the relationship in which the

record was generated; (5) the adequacy of

safeguards to prevent unauthorized

disclosure; (6) the degree of need for access;

and (7) whether there is an express statutory

mandate, articulated public policy, or other

recognized public interest militating toward

access.

[Ibid. (quoting Doe v. Poritz, 142 N.J. 1, 88

(1995).]

The Burnett "balancing exercise requires a case-specific

analysis, and appellate review of the trial court's application

12 A-2016-16T1

of the factors is de novo." Paff v. Ocean Cty. Prosecutor's

Office, 446 N.J. Super. 163, 193 (App. Div.) (citation omitted),

rev'd on other grounds, ___ N.J. ___ (2018).

In denying plaintiff's request for the 9-1-1 Tape, defendants

argued OPRA provided protection against disclosure of 9-1-1 tapes

where a person has a reasonable expectation of privacy, citing

OPRA's privacy provision and Asbury Park Press. Defendants also

pointed out that the call involved a domestic violence incident

and contained information relating to medical, psychiatric, or

psychological history, diagnosis, or treatment.

Review of the now-revealed 9-1-1 Tape shows that the sister

reported she needed an ambulance and a police officer because her

brother has a psychiatric disorder, had not been taking his

medication, needed medical attention, sounded aggressive, and was

alone in the house with their mother. Particularly as the 9-1-1

call was soon followed by the brother wielding a knife, grabbing

the mother, and holding her hostage, disclosure would reveal that

the brother had mental health and medical issues, that the sister

had been the one calling the police, and that incipient crime was

between brother and mother and thus was domestic violence.

These were legitimate privacy concerns. Defendants had to

consider "what the impact would be on [the victim,] the victim's

family and loved ones" if the recording was released to the news

13 A-2016-16T1

media. Asbury Park Press, 374 N.J. Super. at 330. "[I]s it

necessary for families to have their most tragic and personal

moments broadcast for all to hear? Does a personal tragedy become

a public spectacle simply because a person phones the police for

aid?" Id. at 320 (quoting Cincinnati Enquirer v. Hamilton Cty.,

662 N.E.2d 334, 339 (Ohio 1996) (Pfeifer, J., concurring)); accord

Serrano, 358 N.J. Super. at 372-73 (Coburn, J., concurring).

Unredacted disclosure of the 9-1-1 Tape would raise such

privacy concerns not only for this family but among future

potential 9-1-1 callers. The release of 9-1-1 information could

"create a chilling effect" among potential 9-1-1 callers "for fear

that the information may be subject to public scrutiny," and could

"discourage citizens" from calling 9-1-1. See N.J. Firemen's

Ass'n, 230 N.J. at 280, 282 (denying disclosure of relief payments

under the Burnett privacy test).

Moreover, there was "'an express statutory mandate,

articulated public policy, or other recognized public interest

militating [against] access.'" Burnett, 198 N.J. at 427 (citation

omitted); see id. at 435-37. The DV Act provides that "[a]ll

records maintained pursuant to this act shall be confidential and

shall not be made available to any individual or institution except

as otherwise provided by law and rule." N.J.S.A. 2C:25-33(a); see

R. 1:38-3(d)(9). Other provisions protect the names and addresses

14 A-2016-16T1

of victims of domestic violence. E.g., N.J.S.A. 2C:25-25(c);

N.J.S.A. 47:4-4; R. 1:38-3(c)(12), (d)(10). Even though the 9-1-

1 Tape was maintained pursuant to a different act, these provisions

articulated the public policy militating against disclosure of

information concerning domestic violence and its victims.

In addition, the 9-1-1 Tape contained "[i]nformation relating

to medical, psychiatric or psychological history, diagnosis,

treatment and/or evaluation." Exec. Order No. 26, ¶ 4(b)(1), 34

N.J.R. 3043(b) (Aug. 13, 2002). Such records "shall not be

considered to be government records subject to public access

pursuant to [OPRA]." Id. at ¶ 4. Thus, an "Executive Order of

the Governor" exempted at least that information from disclosure

under OPRA. N.J.S.A. 47:1A-1; see N.J.S.A. 47:1a-9(a); Michelson

v. Wyatt, 379 N.J. Super. 611, 619-20, 622, 624 (App. Div. 2005)

(citing this executive order to bar access to medical information).

Nevertheless, those privacy concerns could have been

addressed by redacting the name of the caller (no other persons

were named), the address of the victim, references to the brother's

psychiatric disorder, and the familial relationships that revealed

this was a domestic violence situation and would aid in identifying

the caller. The redactions could have been performed by redacting

the tape or, if that was unreasonable, by preparing a redacted

transcript of the tape, which was less than two minutes long. See

15 A-2016-16T1

Paff v. Ocean Cty. Prosecutor's Office, ___ N.J. ___, ___ (2018)

(slip op. at 34) (noting "a third party’s reasonable expectation

of privacy may warrant withholding a record from disclosure under

N.J.S.A. 47:1A-1," but "redaction prior to disclosure . . . may

resolve a privacy concern").

OPRA provides in N.J.S.A. 47:1A-5(g):

If the custodian of a government record

asserts that part of a particular record is

exempt from public access pursuant to

P.L.1963, c.73 (C.47:1A-1 et seq.) as amended

and supplemented, the custodian shall delete

or excise from a copy of the record that

portion which the custodian asserts is exempt

from access and shall promptly permit access

to the remainder of the record.

Although the statutory reference is to the former Right to

Know Law, L. 1963, c. 73, both we and our Supreme Court have cited

N.J.S.A. 47:1A-5(g) as authorizing redaction of any exempt

material. Paff v. Galloway Twp., 229 N.J. 340, 358 (2017) ("OPRA

also permits redaction of parts of government records that are not

subject to disclosure."); Commc'ns Workers of Am. v. Rousseau, 417

N.J. Super. 341, 368 (App. Div. 2010). Indeed, defendants redacted

the indictment to remove items exempted under the DV Act.

In withholding the entire 9-1-1 Tape, defendants cited Asbury

Park Press. Plaintiff argues the 9-1-1 Tape is a far cry from the

"chilling [and] wrenching" 9-1-1 call in Asbury Park Press,

containing the last words of a man after he and a woman had been

16 A-2016-16T1

fatally shot by her son. 374 N.J. Super. at 314-15, 330. We have

listened to the 9-1-1 Tape and agree it lacks such emotional

content. The 9-1-1 call was calmly made by the sister before she

arrived on the scene, and before any acts of domestic violence

were known to have occurred. Revelation of a redacted 9-1-1 Tape

or transcript would not have posed the same risk of inflicting

emotional anguish. See Asbury Park Press, 374 N.J. Super. at 331

(finding that, even if redacted, disclosure of the 9-1-1 call

"would intrude on the reasonable expectation of privacy").

Weighing the Burnett factors convinces us that the privacy

concerns at the time of defendant's decision justified release of

a redacted 9-1-1 Tape, but not the release of the entire tape as

requested by plaintiff, or defendants' refusal to release any of

the tape. (1) The type of record requested, a 9-1-1 tape,

primarily records the caller's statement but can reflect on

government actions during and after the call. (2) The 9-1-1

contained some private and exempt information, but also other

relevant information. (3) Release of the private and exempt

information to the news media had the potential to cause harm.

(4) Disclosure of the private and exempt information could injure

the relationship between this caller and future 9-1-1 callers and

the police. (5) No safeguards against unauthorized disclosure

were offered or obvious once the private and exempt information

17 A-2016-16T1

was revealed to the news media. (6) The degree of need for access

was not so strong to override the need to protect the private and

exempt information. (7) There was an express statutory mandate

and an articulated public policy militating against the release

of the private and exempt information.

The need for access requires further comment. Burnett states:

when legitimate privacy concerns exist that

require a balancing of interests and

consideration of the need for access, it is

appropriate to ask whether unredacted

disclosure will further the core purposes of

OPRA: "to maximize public knowledge about

public affairs in order to ensure an informed

citizenry and to minimize the evils inherent

in a secluded process."

[198 N.J. at 435 (quoting Mason v. City of

Hoboken, 196 N.J. 51, 64 (2008) (quoting

Asbury Park Press, 374 N.J. Super. at 329)).]

Although plaintiff's OPRA request gave no reason for seeking

the twenty-month-old 9-1-1 Tape, the PCPO undoubtedly knew its

prosecutors were conducting the brother's ongoing trial when

plaintiff's request was made. Moreover, our Supreme Court has

recently instructed that "the need for transparency, which OPRA

is designed to foster, . . . weighs heavily, particularly when law

enforcement uses its most awesome authority — deadly force."

Lyndhurst, 229 N.J. at 574.

On the other hand, the 9-1-1 Tape has little bearing on the

officer's use of deadly force, and no relevance to the alleged

18 A-2016-16T1

delay in disclosing who was shot. The 9-1-1 call was made before

any acts of domestic violence were known. Moreover, the officer's

decision to shoot came after more than an hour of negotiating with

the brother and observing his actions in the armed hostage-taking.

By contrast, Lyndhurst involved disclosure of "Use of Force"

reports, which must be completed whenever an officer uses deadly

force. Id. at 553, 565. Such forms are directly relevant to the

use of deadly force. Thus, the "need for access" to the 9-1-1

Tape was limited and justified disclosure only of a redacted

version. See Burnett, 198 N.J. at 434-35.

Plaintiff argues the 9-1-1 Tape should have been released

because its details were already known. Plaintiff cites its two

May 2014 news articles and a police email to the press stating

there was "a 9-1-1 call seeking medical assistance" and "an

ambulance." Those documents also named the mother and gave her

address, said she was the mother of the brother and named him, and

described the domestic violence witnessed by the officers and the

alleged shooting of the brother. However, those documents did not

identify the 9-1-1 caller as the sister, or mention that the

brother had a psychiatric disorder or was off his medications.

Plaintiff also cites the opinion in the brother's bench trial

and another news article, both issued on February 3, 2016, after

plaintiff's OPRA request but before defendants' response. Those

19 A-2016-16T1

documents: identified the mother, brother, sister, and their

relationship; described the brother's psychiatric disorder in

detail and said he was off his medications, resulting in the 9-1-

1 call; and described the domestic violence witnessed by the

officers and the officer shooting the mother. The bench opinion

also gave the mother's address and identified the sister as the

9-1-1 caller. The article added that family members repeatedly

told police he was mentally ill.

Those documents do not change our conclusion. First, there

is no evidence defendants were aware of the news articles when

making the decision. Plaintiff did not provide them to support

its request. Moreover, custodians should not be required to search

the media to determine whether private or exempt information in

government documents has been revealed.

The custodian normally has only seven days in which to locate,

review, and decide whether to release records under OPRA. N.J.S.A.

47:1A-5(i). The difficulties faced by a custodian in deciding in

a few days whether documents are government records or fall within

an exemption are already compounded when the custodian must apply

a balancing test, such as determining whether disclosure "would

violate the citizen’s reasonable expectation of privacy" under

N.J.S.A. 47:1A-1 and Burnett. We would greatly increase those

20 A-2016-16T1

difficulties if we require custodians to gather and consider

external information not presented to them.

Second, the custodian's obligations under OPRA are not lifted

by such revelation. OPRA places on the custodian "a responsibility

and an obligation to safeguard from public access a citizen’s

personal information with which it has been entrusted when

disclosure thereof would violate the citizen’s reasonable

expectation of privacy." N.J.S.A. 47:1A-1. OPRA also precludes

the custodian from releasing "a government record [that] is exempt

from public access," and requires the custodian "to delete or

excise from a copy of the record that portion which the custodian

asserts is exempt from access." N.J.S.A. 47:1A-5(a), (g). Nothing

in OPRA, the DV Act, or the executive order lifts those obligations

if the information has otherwise become public. Nor had any of

the persons thus protected explicitly waived that protection when

defendants responded to plaintiff's OPRA request.

Third, while revelation of the information by the news media

or in court proceedings may reduce the potential harm, it also

reduces the need for access. Thus, it does not necessarily change

the balancing of the Burnett factors. We do not preclude the

consideration of such revelation by a custodian or court performing

the Burnett balancing, or the balancing under the common-law right

of access. However, we will not overturn a custodian's Burnett

21 A-2016-16T1

balancing if the news articles were not brought to the custodian's

attention, and the protected parties had not agreed to revelation.

Plaintiff faults defendants for not contacting the family

members to ascertain their view about disclosure. However, nothing

in OPRA requires custodians during their brief period of review

to make such inquiries before enforcing OPRA's provisions. If

plaintiff wished to support its OPRA request with the consent of

the protected persons, plaintiff could have contacted them itself,

as it was aware of the identity of the family members from its

earlier news articles and from covering the ongoing trial.

Plaintiff argues the trial "court must have agreed that

releasing the 911 call would not have violated anyone's reasonable

expectation of privacy because it granted access to the full 911

call." However, the court only granted access after the lawyer

for the mother discussed the matter with her and the sister and

reported they joined the request to release the records.

The trial court found defendants "had a good faith basis to"

deny disclosure the 9-1-1 Tape because "there was no waiver yet.

Now that there's a waiver, [plaintiff] get[s] it." The court

explained that because "now they have a waiver which they didn't

have at the time of your request from [the sister] and her mother,"

it would "provide that [9-1-1 Tape] under the common law." The

court found "that there wasn't an OPRA violation because there

22 A-2016-16T1

were privileges asserted that . . . were waived subsequent to the

denial."

We agree that a custodian's proper decision to deny an OPRA

request does not become an OPRA violation because protected persons

join in the request for disclosure more than four months after the

custodian's decision. OPRA provides that "[a] person who is denied

access to a government record by the custodian of the record . . .

may[] institute a proceeding to challenge the custodian’s decision

by filing an action in Superior Court." N.J.S.A. 47:1A-6. Thus,

the proceeding challenges the "custodian's decision" to deny

access, and the proceeding challenging that decision must be

adjudicated based on the facts known to the custodian at the time,

not based on subsequent developments. As the trial court stated,

the consent of the mother and sister was "after the denial" and

thus "after the fact," and properly refused to find an OPRA

violation based on "hindsight."

Such consent by the protected parties can be considered

thereafter. A new OPRA request based on the consent can be filed.

A court adjudicating the proceeding challenging the earlier

decision can take the consent into account under the common law,

as here. A court that has found an OPRA violation can take the

consent into account in shaping its remedy. See Serrano, 358 N.J.

23 A-2016-16T1

Super. at 368-69. But such developments cannot turn a custodian's

proper OPRA decision into an OPRA violation after the fact.

In sum, we agree with the trial court that defendants could

properly refuse to reveal the private and exempt information in

the 9-1-1 Tape, and thus did not have to disclose the entire tape.

However, we find defendants erred by not providing a redacted

version of the tape as required by N.J.S.A. 47:1A-5(g). To that

extent only, defendants violated OPRA.

B.

Similar privacy concerns arise concerning the DVO Report.

However, we need not analyze whether the DVO Report was protected

under OPRA's privacy provision because it was made confidential

and exempted from disclosure by the DV Act, and thus by OPRA.

The DVO Report is "required by law to be made, maintained or

kept on file," and thus is not a "[c]riminal investigatory record."

N.J.S.A. 47:1A-1.1. The DV Act provides in N.J.S.A. 2C:25-24(a):

It shall be the duty of a law enforcement

officer who responds to a domestic violence

call to complete a domestic violence offense

report. All information contained in the

domestic violence offense report shall be

forwarded to the appropriate county bureau of

identification and to the State bureau of

records and identification in the Division of

State Police in the Department of Law and

Public Safety. A copy of the domestic

violence offense report shall be forwarded to

the municipal court where the offense was

24 A-2016-16T1

committed unless the case has been transferred

to the Superior Court.

The State Police with the Department of Law and Public Safety must

"compile and report annually to the Governor, the Legislature and

the Advisory Council on Domestic Violence on the tabulated data

from the domestic violence offense reports[.]" N.J.S.A. 2C:25-

24(c).

Because the DV Act requires the making and maintaining of the

DVO Report, it is covered by the confidentiality provision of the

DV Act of 1991: "All records maintained pursuant to this act shall

be confidential and shall not be made available to any individual

or institution except as otherwise provided by law." N.J.S.A.

2C:25-33(a). The Rules of Court since at least 2009 have similarly

required the courts to "exclude[] from public access" all

"[d]omestic violence records and reports pursuant to N.J.S.A.

2C:25-33." R. 1:38-3(d), (d)(9).

In enacting OPRA in 2002, the Legislature explicitly

preserved and incorporated such provisions exempting confidential

records from public access. "The provisions of this act shall not

abrogate any exemption of a public record or government record

from public access heretofore made pursuant to . . . any other

25 A-2016-16T1

statute." N.J.S.A. 47:1A-9(a).4 OPRA states "all government

records shall be subject to public access unless exempt from such

access by . . . any other statute . . . [or] Rules of Court."

N.J.S.A. 47:1A-1.

Thus, "N.J.S.A. 47:1A-1 explicitly recognizes that records

may be exempt from public access based upon authorities other than

the exemptions enumerated within OPRA." Bergen Cty. Prosecutor's

Office, 447 N.J. Super. at 202. For example, our Supreme Court

recently noted "OPRA also exempts from disclosure any information

that is protected by any other state or federal statute,

regulation, or executive order. As a result, the home address of

a victim of domestic violence cannot be obtained through OPRA."

Brennan, 233 N.J. at 338 (citing N.J.S.A. 47:1A-9(a) and N.J.S.A.

47:4-2 to -4).

Plaintiff argues N.J.S.A. 2C:25-33(a) does not provide an

absolute privilege. However, its language is absolute - "All

records maintained pursuant to this act shall be confidential and

shall not be made available to any individual or institution except

as otherwise provided by law," ibid. - unless another law provides

4

Moreover, N.J.S.A. 47:1A-9(b) provides that OPRA "shall not

abrogate or erode any . . . grant of confidentiality heretofore

established or recognized by . . . statute, . . . , which privilege

or grant of confidentiality may duly be claimed to restrict public

access to a public record or government record."

26 A-2016-16T1

otherwise. OPRA does not provide otherwise, because "N.J.S.A.

47:1A-9 codifies the Legislature's unambiguous intent that OPRA

not abrogate or erode existing exemptions to public access."

Bergen Cty. Prosecutor's Office, 447 N.J. Super. at 202.

Plaintiff relies on a Chancery Division decision, Pepe v.

Pepe, 258 N.J. Super. 157 (Ch. Div. 1992). There, the judge faced

a constitutional challenge to the sealing of court records, relied

on cases about the public's right to attend court proceedings, and

found "that the confidentiality provision under N.J.S.A. 2C:25-33

is not absolute and that under certain circumstances the court may

permit access to that which has been designated confidential by

statute." Id. at 163-64. However, no constitutional challenge

was raised here. Nor does this case involve a request to access

court records, let alone attend court proceedings. Under the

circumstances, we will not address a constitutional issue, or

consider the validity of Pepe.

Plaintiff argues the Legislature has acquiesced in Pepe

because it did not amend the DV Act to overrule Pepe. However,

"[l]egislative inaction is a thin reed generally on which to base

an interpretive argument." State v. Hudson, 209 N.J. 513, 536

(2012). It is a particularly untenable argument here, because

Pepe is a trial court opinion that may never have come to the

Legislature's attention, and which was non-binding on any court.

27 A-2016-16T1

See State v. Haliski, 140 N.J. 1, 15-16 (1995) (noting legislative

inaction is unreliable as it may be attributable to the

Legislature's "'unawareness'" or "'indifference'" to a judicial

decision).

In any event, Pepe's three factors for consideration included

whether "the release of the court documents be detrimental or

potentially harmful to the victim." Id. at 165. Disclosure and

publication of the DV Form would have been potentially harmful by

drawing attention to the details of the domestic violence.

Moreover, the only published decision to consider Pepe's test

"add[ed] one additional factor that ought to be considered in its

analysis: whether this court's decision will deter others

similarly situated from filing actions under the Act for fear of

possible disclosure of their records in the future." Taub v.

Cullen, 373 N.J. Super. 435, 439 (Ch. Div. 2004). Allowing

disclosure of the news media of the DVO Reports prepared in every

domestic violence case could discourage victims from coming

forward, as attested to in on of the certifications defendants

presented to the trial court. See id. at 440; see also Pepe, 258

N.J. Super. at 162. This was not "one of those rare exceptions

where the public interest and the press's right to know outweigh

28 A-2016-16T1

the general expectation of privacy accorded to victims of domestic

violence." Taub, 373 N.J. Super. at 441.5

Thus, defendants properly enforced the DV Act's prohibition

of the disclosure of the confidential DVO Report by denying

plaintiff's OPRA request. Indeed, Pepe only released court records

after the parties named in the DVO "advised the court that they

have no objection to the [media]'s application." 258 N.J. Super.

at 165. Here, it was not until four months later that the mother

and sister indicated they had no objection to release of the

record, and the trial court similarly relied on their consent in

its decision to disclose the DVO Report under the common law. As

set forth above, that subsequent development did not convert a

proper decision into an OPRA violation ex post facto.

Therefore, the custodian's decision not to disclose the DVO

Report was not a violation of OPRA. Redaction was not required

under N.J.S.A. 47:1A-5(g) because "that section of the statute

cannot apply" where "the entire document is privileged and exempt."

Libertarians for Transparent Gov't v. Gov't Records Council, 453

N.J. Super. 83, 93 (App. Div.), certif. denied, __ N.J. __ (2018).

IV.

5

The judge found Taub was such a rare case because the defendant

was a "serial killer," and "[t]he front page of the newspaper on

a regular basis contains stories of" his crimes. Id. at 440-42.

No such pervasive coverage was shown here.

29 A-2016-16T1

Defendant ultimately challenges the trial court's denial of

counsel fees. OPRA provides in N.J.S.A. 47:1A-6:

A person who is denied access to a government

record by the custodian of the record . . .

may[] institute a proceeding to challenge the

custodian’s decision by filing an action in

Superior Court . . . . If it is determined

that access has been improperly denied, the

court or agency head shall order that access

be allowed. A requestor who prevails in any

proceeding shall be entitled to a reasonable

attorney’s fee.

A requestor prevails in an OPRA proceeding

(1) [when] records are disclosed "after the

entry of some form of court order or

enforceable settlement" granting access, or

(2) "when a government agency voluntarily

discloses records after a lawsuit is filed"

and under the catalyst theory the plaintiff

"can establish a 'causal nexus' between the

litigation and the production of requested

records" and "'that the relief ultimately

secured by plaintiffs had a basis in law.'"

[Stop & Shop Supermarket Co. v. Cty. of

Bergen, 450 N.J. Super. 286, 292 (App. Div.

2017) (quoting Mason, 196 N.J. at 57, 76-77,

79).]

Both the 9-1-1 Tape and the DVO Report were disclosed in the

trial court's September 2, 2016 order, but under the common-law

right of access rather than OPRA. Plaintiff contends that the

court erred in relying on the common law in granting disclosure.

However, in our de novo review, we have found that defendants'

decisions not to disclose the DVO Tape or the unredacted 9-1-1

30 A-2016-16T1

Tape were proper under OPRA, and that defendants violated OPRA

only by not providing a redacted version of the 9-1-1 Tape.

Therefore, defendant is entitled to counsel fees under OPRA only

to the extent they are attributable to that OPRA violation. We

remand to the trial court to determine the reasonable counsel fees

attributable to that violation.

Plaintiff does not argue that obtaining a judgment under the

common law entitled it to counsel fees under OPRA. Rather,

plaintiff argues its OPRA lawsuit was the catalyst for its receipt

of the DVO Report and the unredacted 9-1-1 Tape. However,

plaintiff failed to show defendants violated OPRA by not providing

those documents in its response to plaintiff's OPRA request.

Moreover, the trial court released those documents under the common

law only because, more than four months later, the mother and

sister waived their privacy interests in those documents. Thus,

as to those documents, plaintiff failed to show that its OPRA

lawsuit had "some basis in law" when it was filed, or that their

OPRA lawsuit "was causally related to securing the relief

obtained." Mason, 196 N.J. at 57.

To rule plaintiff was entitled to fees under OPRA for those

documents would reward plaintiff for filing an OPRA lawsuit the

court properly found lacked merit, and penalize defendants for

making a correct decision under OPRA to withhold those documents.

31 A-2016-16T1

As to those documents, plaintiff "is not entitled to attorney's

fees because its OPRA request was improper and the [PCPO's]

response was reasonable" and correct. Spectraserv, Inc. v.

Middlesex Cty. Utils. Auth., 416 N.J. Super. 565, 583 (App. Div.

2010). Moreover, there was no "causal connection" because the

trial court ordered those documents produced under the common law

after the mother and sister "withdrew [any] objection" to the

production of documents "deemed privileged and confidential." See

id. at 584 (finding no causal connection where the custodian

produced confidential documents after a licensor withdrew its

objection).

"A requestor . . . is not a prevailing party simply because

the agency produced documents after an OPRA suit was filed." Id.

at 583. "Our Supreme Court in Mason refused to presume OPRA

litigants are entitled to counsel fees even when records are

produced after suit is filed." Stop & Shop, 450 N.J. Super. at

292 (citing Mason, 196 N.J. at 78-79). "A plaintiff is considered

a prevailing party 'when actual relief on the merits of [the OPRA]

claim materially alters the relationship between the parties by

modifying the defendant's behavior in a way that directly benefits

the plaintiff.'" Teeters v. Div. of Youth & Family Servs., 387

N.J. Super. 423, 432 (App. Div. 2006) (citation omitted).

Plaintiff failed to show that here.

32 A-2016-16T1

Plaintiff cites comments in the trial court's oral opinion

which allegedly represented a misunderstanding of OPRA and its

counsel fee provision. As we have reviewed the OPRA issue de

novo, such alleged misunderstandings are irrelevant to our

decision. We comment briefly to avoid any confusion on remand.

OPRA's fee-shifting provision serves "[t]o ensure that the

average citizen is not deterred from challenging an agency's

decision due to the financial risk involved." N.J. Firemen's

Ass'n, 230 N.J. at 276. Nonetheless, any requestor who prevails

is entitled to counsel fees, including media companies. See,

e.g., Courier News v. Hunterdon Cty. Prosecutor's Office, 378 N.J.

Super. 539, 540, 548 (App. Div. 2005). Where a requestor prevails

in obtaining a document withheld in violation of OPRA, the award

of fees is "mandatory," with the amount "subject to a rule of

reasonableness with no expressed monetary limitation." Teeters,

387 N.J. Super. at 433; see Mason, 196 N.J. at 75.

If the requestor prevails in an OPRA proceeding, the requestor

is entitled to counsel fees even if the custodian acted in good

faith, did not willfully violate OPRA, applied a reasonable if

erroneous interpretation of the statute, or faced conflicting

judicial decisions. See, e.g., Am. Civil Liberties Union of N.J.

v. N.J. Div. of Criminal Justice, 435 N.J. Super. 533, 536 (App.

Div. 2014); Smith v. Hudson Cty. Register, 422 N.J. Super. 387,

33 A-2016-16T1

397-98 (App. Div. 2011). Custodians must apply OPRA, its

exemptions, and its balancing test to the best of their ability.

If the custodian correctly applies the exemption or balancing

test, there is no OPRA violation and counsel fees are

inappropriate. If the custodian incorrectly applies the exemption

or balancing test, there is an OPRA violation and counsel fees are

appropriate.

The trial court recognized this standard, but noted its

harshness for custodians. The court expressed concern that the

balancing test is too analytical for custodians, but that concern

is lessened here where the custodian was the chief assistant

prosecutor. The court was also concerned public agencies might

open themselves to suit if they released information that was

potentially private under N.J.S.A. 47:1A-1 without the consent of

the persons whose privacy was being protected. We understand

those concerns, but under current law courts must review de novo

the decisions of custodians, even where they applied a balancing

test.6

6

It has not been argued here that courts should review custodians'

application of a balancing test under a deferential standard, such

as the standard we apply to review decisions of the Government

Record Council, created by OPRA as an alternate body in which to

challenge a custodian's actions. N.J.S.A. 47:1A-7. In reviewing

the Council's decisions, we "accord deference to final agency

actions, reversing those actions if they are 'arbitrary,

34 A-2016-16T1

Affirmed in part, reversed in part, and remanded to determine

the reasonable counsel fees attributable to the failure to provide

a redacted version of the 9-1-1 Tape.7 We do not retain

jurisdiction.

capricious or unreasonable or [if the action] is not supported by

substantial credible evidence in the record as a whole.'" E.g.,

McGee v. Twp. of E. Amwell, 416 N.J. Super. 602, 612 (App. Div.

2010) (quoting N.J. Soc'y for the Prevention of Cruelty to Animals

v. N.J. Dep't of Agric., 196 N.J. 366, 384-85 (2008) (alteration

in original) (quoting Henry v. Rahway State Prison, 81 N.J. 571,

579-80 (1980)); Bart v. City of Paterson Hous. Auth., 403 N.J.

Super. 609, 618 (App. Div. 2008).

7

The counsel fees should be assessed against PCPO, not Verlardi.

Courier News, 378 N.J. Super. at 541. "Individuals, such as public

officials, officers, employees or custodians, are only personally

liable if they 'knowingly and willfully' violate the provisions

of OPRA, and are 'found to have unreasonably denied access [to the

government records] under the totality of the circumstances.'"

Id. at 546 (quoting N.J.S.A. 47:1A-11(a)). That has not been

claimed or shown here.

35 A-2016-16T1