JEFF CARTER VS. NEW JERSEY DEPARTMENT OF COMMUNITY AFFAIRS (GOVERNMENT RECORDS COUNCIL)

NOT FOR PUBLICATION WITHOUT THE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-0483-18T1

JEFF CARTER,

Petitioner-Appellant,

v.

NEW JERSEY DEPARTMENT

OF COMMUNITY AFFAIRS,

DIVISION OF LOCAL

GOVERNMENT SERVICES

CUSTODIAL AGENCY,

Defendant-Respondent.

______________________________

Argued November 4, 2019 – Decided December 10, 2019

Before Judges Fasciale and Moynihan.

On appeal from the New Jersey Department of

Community Affairs, Government Records Council,

GRC Complaint No. 2016-262.

Jeff Carter, Ph.D., appellant, argued the cause pro se.

Steven Michael Gleeson, Deputy Attorney General,

argued the cause for respondent New Jersey

Department of Community Affairs, Division of Local

Government Services (Gurbir S. Grewal, Attorney

General, attorney; Raymond R. Chance, III, Assistant

Attorney General, of counsel; Steven Michael Gleeson,

on the brief).

Debra A. Allen, Deputy Attorney General, argued the

cause for respondent Government Records Council

(Gurbir S. Grewal, Attorney General, attorney; Jane C.

Schuster, Assistant Attorney General, of counsel;

Debra A. Allen, on the brief).

PER CURIAM

Jeff Carter appeals from an August 28, 2018 final agency decision by the

Government Records Council (GRC) declaring that Carter's request for records

under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 through -13, was

invalid as overly broad. The Division of Local Government Services (the

Division) therefore did not exhaustively research or search for documents. We

affirm.

On August 9, 2016, Carter submitted his OPRA request seeking "complete

copies of any and all 'Notice of Docketing' records issued by the New Jersey

Superior Court, Appellate Division, resulting from an appeal (pursuant to

N.J.S.A. 40A:9-22.91) of any final [agency] decision of the Local Finance Board

[(LFB)] from August 9, 2011 through August 9, 2016." The custodian

1

N.J.S.A. 40A:9-22.9 permits final agency decisions pertaining to the New

Jersey Local Government Ethics Law, N.J.S.A. 40A:9-22.1 to -22.25, to be

appealed to the Appellate Division.

A-0483-18T1

2

responded on August 16, 2016, stating that "[t]he government records sought

are not records that are maintained by the [Division]. Therefore, we have no

government records that are responsive to your request." On August 18, 2016,

the custodian responded to Carter's request for clarification.

[The Division] and the Division of Law's databases do

not organize or list matters based on the description of

the record sought. Since [Carter] [has] not provided

any identifiers such as a case name, party name, or

docket number, the custodian would need to manually

identify matters, locate records in storage through

communication with the Division of Law, obtain those

records, and review the entire case file for each

potentially applicable case file to identify and compile

responsive records. Such an exercise would require the

custodian to exercise judgment and conduct research

which is beyond the ambit of OPRA.

Carter then filed a Denial of Access Complaint with the GRC, and the Division

filed a Statement of Information (SOI) with the GRC, explaining that it refused

the request because the records were not made, maintained, or received by the

Division, and therefore could not be identified without significant research by

the records custodian.

Carter rebutted the SOI, requested a summary and expedited adjudication,

and petitioned the GRC for a "contested case" determination, pursuant to

N.J.A.C. 1:1-4.1(a). Carter renewed his request seven more times through a

series of briefs filed with the GRC, and repeatedly petitioned the GRC for a

A-0483-18T1

3

"contested case" determination. 2 The GRC then issued its final agency decision

stating:

[Carter's] request seeking [n]otices for a five . . . year

period alleging a violation of N.J.S.A. 40A:9-22.9 is

invalid because it required research. The [c]ustodian

had no legal duty to research her files, or cause

research, to locate records potentially responsive to the

request.

....

[N]o factual causal nexus exists between [Carter's]

filing of a Denial of Access Complaint and the relief

ultimately achieved. . . . Carter's request was invalid

and no responsive records existed.

On appeal, Carter argues:

POINT I

CARTER'S OPRA REQUEST IS VALID.

A. The OPRA Request Contains More

Than Enough Qualifiers.

B. Burke Controls Here.

C. Burnett And O'Boyle Control Here.

D. Scheeler v. Gov. And Wronko Also

Control Here.

POINT II

THE GRC ERRED BY ERRONEOUSLY

CONFLATING THE OPRA REQUEST'S

PARENTHETICAL ELEMENT TO MEAN APPEALS

2

Carter filed approximately seven briefs between January 2017 and May 2018.

A-0483-18T1

4

RELATING TO "QUORUM VIOLATIONS,"

BECAUSE THE WORD "QUORUM" NEVER

APPEARS IN THE OPRA REQUEST, NOR IN THE

REQUEST FOR CLARIFICATION.

A. The GRC Erred By Misstating Facts In

The Record.

POINT III

THE CUSTODIAN CANNOT CLAIM IGNORANCE

IN CLAIMING THAT THE REQUEST WAS

OVERBROAD BASED ON HER EXTENSIVE

LEGAL CITATIONS IN HER CLARIFICATION.

POINT IV

[RESPONDENTS] REFUSED TO COMPROMISE

PURSUANT TO MASON, AND THE GRC NEVER

ADDRESSED THEIR FAILURE TO DO SO.

POINT V

THE CUSTODIAN HAD NO PERSONAL

KNOWLEDGE OF THE SEARCH FOR RECORDS;

THUS, HER CERTIFICATION WAS

INSUFFICIENT.

POINT VI

CARTER NEVER SAID THAT HE POSSESSED

BHALLA'S NOTICE OF DOCKETING RECORD;

THUS, THE GRC ERRED IN FAILING TO ORDER

ITS DISCLOSURE BECAUSE IT WAS

SPECIFICALLY IDENTIFIED AS BEING

RESPONSIVE.

POINT VII

THE GRC'S FAILURE TO ANSWER CARTER'S

WRITTEN PETITIONS FOR A "CONTESTED

CASE" DETERMINATION WITHIN THIRTY DAYS

A-0483-18T1

5

VIOLATED HIS RIGHT TO PROCEDURAL DUE

PROCESS OF LAW.

A. Carter Could Not Seek Interlocutory

Review.

B. Carter's Efforts To Prosecute His

Appeal In IMO FTEB Were Stymied By

The GRC's Failure To Adjudicate His

Complaint In A Summary, Expedited,

And/Or Expeditious Manner.

C. The GRC Acted In Bad Faith By

Holding That It Handles Complaints In The

Order They Are Received, Because The

Public Record Eviscerates This Erroneous

Holding.

POINT VIII

THE GRC IS COMPELLED TO HEED OPRA'S

SUMMARY/EXPEDITED ADJUDICATION

PROVISIONS; THUS, COURTS MUST ASCRIBE

MEANING TO THE LEGISLATURE'S CHOSEN

WORDS.

A. N.J.S.A. 47:1A-6 And -7(e) Must Be

Harmonized.

B. The GRC Failed To Heed And Execute

The Mandatory Imperative In The Law[']s

Use Of The Word "Shall," Which Is An

Imperative The GRC Previously Held It Is

Familiar With.

POINT IX

THE GRC'S INTERPRETATION OF JUDICIAL

PRECEDENT IS DUE NO DEFERENCE; THE GRC

IS CONSTRAINED TO FOLLOW JUDICIAL

A-0483-18T1

6

PRECEDENT INTERPRETING OPRA, BUT

IGNORED SAME.

A. This Court Is Not Bound By The GRC's

Erroneous Legal Opinions; Thus, The GRC

Is Due No Deference.

POINT X

REVIEW OF THIS GRC MATTER IS DE

NOVO.

POINT XI

CARTER IS ENTITLED TO REASONABLE

ATTORNEYS' FEES FOR THE LEGAL WORK

PERFORMED BELOW IF HE PREVAILS ON

APPEAL.3

Our review of the GRC's decision "is governed by the same standards as

review of a decision by any other state agency," Fisher v. Div. of Law, 400 N.J.

Super. 61, 70 (App. Div. 2008), and is therefore limited. In re Stallworth, 208

N.J. 182, 194 (2011). This court "will not overturn an agency's decision unless

it violates express or implied legislative policies, is based on factual findings

that are not supported by substantial credible evidence, or is arbitrary, capricious

or unreasonable." Fisher, 400 N.J. Super. at 70. This court's standard of review

is "plenary with respect to" the GRC's interpretation of OPRA. Asbury Park

Press v. Cty. of Monmouth, 406 N.J. Super. 1, 6 (App. Div. 2009).

3

We also considered the supplemental letter, pursuant to Rule 2:6-11(d),

submitted by defendant on November 6, 2019.

A-0483-18T1

7

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

conclusions . . . and are therefore subject to de novo review." Carter v. Doe (In

re N.J. Firemen's Ass'n Obligation), 230 N.J. 258, 273-74 (2017) (citations

omitted). But under this "deferential standard of review, [this court] give[s]

weight to the GRC's interpretation of OPRA." McGee v. Twp. of E. Amwell,

416 N.J. Super. 602, 616 (App. Div. 2010). We do not, however, "simply rubber

stamp the agency's decision." Bart v. City of Paterson Hous. Auth., 403 N.J.

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

The law on OPRA is settled. "Any analysis of OPRA must begin with the

recognition that the Legislature created OPRA intending to make government

records 'readily accessible' to the state's citizens 'with certain exceptions[] for

the protection of the public interest.'" Gilleran v. Twp. of Bloomfield, 227 N.J.

159, 170 (2016) (alteration in original) (quoting N.J.S.A. 47:1A-1); see also

Mason v. City of Hoboken, 196 N.J. 51, 65 (2008). Thus, OPRA establishes "a

comprehensive framework for access to public records." Mason, 196 N.J. at 57.

OPRA requires, among other things, prompt disclosure of records, and it

provides different procedures to challenge a custodian's decision denying

access. Ibid.

A-0483-18T1

8

OPRA does not "'authorize a party to make a blanket request for every

document' a public agency has on file. . . . Rather, a party requesting access to

a public record under OPRA must specifically describe the document sought."

Bent v. Twp. of Stafford Police Dep't, 381 N.J. Super. 30, 37 (App. Div. 2005)

(quoting Gannett N.J. Partners, LP v. Cty. of Middlesex, 379 N.J. Super. 205,

219 (App. Div. 2005)). "While OPRA provides [a] . . . 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." MAG Entm't, LLC v. Div. of Alcoholic Beverage

Control, 375 N.J. Super. 534, 546 (App. Div. 2005).

Blanket requests for unspecified documents are not proper under OPRA.

The request "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." Bent, 381 N.J. Super. at 37. "OPRA does not authorize

unbridled searches of an agency's property," ibid., that "would substantially

disrupt agency operations," N.J.S.A. 47:1A-5(g). "[T]he custodian may deny .

. . [a request] after attempting to reach a reasonable solution . . . that

accommodates the interests of the requestor and the agency." Ibid. A proper

OPRA request must state "a specific subject matter that [is] clearly and

A-0483-18T1

9

reasonably described with sufficient identifying information[.]" Burke v.

Brandes, 429 N.J. Super. 169, 176 (App. Div. 2012).

As the GRC has pointed out, "[a] valid OPRA request requires a search,

not research." Verry v. Borough of S. Bound Brook (Somerset), GRC Complaint

Nos. 2013-43 and 2013-53, interim order (dated Sept. 24, 2013). The GRC

explained in an opinion⸺finding an OPRA violation committed by the

Township of Union for failing to fulfill a request for "[a]ll motor vehicle

accident reports" for a ten-day period⸺that:

Pursuant to [MAG], the custodian is obligated to search

her files to find the identifiable government records

listed in the Complainant's OPRA request. . . .

However, the [c]ustodian is not required to research her

files to figure out which records, if any, might be

responsive to a broad or unclear OPRA request. The

word search is defined as to go or look through

carefully in order to find something missing or lost.

The word research, on the other hand, means a close

and careful study to find new facts or information.

[Burnett v. Cty. of Gloucester, 415 N.J. Super. 506, 515

(App. Div. 2010) (alterations in original) (internal

quotations omitted) (quoting Donato v. Twp. of Union,

GRC Complaint No. 2005-182, interim order (Jan. 31,

2007)).]

In Bent, the requestor sought information and records from a criminal

investigation of his credit card activities conducted jointly by the township

police, the United States Attorney for New Jersey, and a special agent of the

A-0483-18T1

10

Internal Revenue Service. 381 N.J. Super. at 38. This court affirmed the GRC's

denial, stating that "to the extent Bent's request was for records that either did

not exist or were not in the custodian's possession, there was, of necessity, no

denial of access at all." Ibid. This court emphasized that the custodian was not

under any obligation to search beyond the township's files. Ibid.

Carter's request sought notices from the Appellate Division for LFB

decisions addressing violations of N.J.S.A. 40A:9-22.9 over a five-year period.

The custodian explained that the Division did not maintain "a database or list of

records organized pursuant to . . . the general description of records requested[.]"

The request did not identify a case name, party name, or docket number.

Therefore, the custodian needed to "exercise discretion, survey employees or

undertake research" to comply with the request. Specifically, the custodian had

to search through thousands of cases to identify documents relevant to the

request. The request required the custodian to "manually identify matters, locate

records in storage through communication with the Division of Law, obtain

those records, and review the entire case file for each potentially applicable case

file to identify and compile responsive records." Such an endeavor constituted

research, not a search, Burnett, 415 N.J. Super. at 515, which goes beyond what

OPRA requires.

A-0483-18T1

11

As we previously said, "[a] proper request [for information] 'must identify

with reasonable clarity those documents that are desired.'" Burke, 429 N.J.

Super. at 174 (quoting Bent, 381 N.J. Super. at 37). Requests for general

information—like here—that must be "analyzed, collated and compiled" by the

agency are outside the scope of OPRA. MAG, 375 N.J. Super. at 549. Requests

requiring the custodian to analyze and evaluate information to respond are

improper. See Burke, 429 N.J. Super. at 174; see also Bent, 381 N.J. Super. at

33-39 (denying a request for the "entire file" of the plaintiff's criminal

investigation because it "neither identifies nor describes with any specificity or

particularity of the records sought"); see also MAG, 375 N.J. Super. at 549

(holding the plaintiff's request invalid for failing to provide any identifiers other

than "a broad generic description of a brand or type of case prosecuted by the

agency in the past"); see also N.J. Builder's Ass'n v. N.J. Council on Affordable

Hous., 390 N.J. Super. 166, 172 (App. Div. 2007) (denying a request for "any

and all documents and data" for asking the agency to identify the documents

rather than specifically describing the documents sought).

As Carter emphasized during oral argument before us, he specified a

subject and the relevant timeframe, but he did not include a case name, party

name, or docket number. The failure to include these identifiers would have

A-0483-18T1

12

forced the custodian to research and manually identify the documents. Like in

N.J. Builder's, this request for "any and all" information placed the burden on

the custodian to locate germane documents, which is improper.

Carter asserts his request comports with Burke. In Burke, the plaintiff

requested government records in its possession or control regarding "EZ Pass

benefits afforded to retirees of the Port Authority, including all . . .

correspondence between the Office of the Governor . . . and the Port

Authority[.]" 429 N.J. Super. at 171-72 (alterations in original). This court

noted that the request was "confined to a specific subject matter that was clearly

and reasonably described with sufficient identifying information[.]" Id. at 176.

The plaintiff made it clear that he was specifically seeking written or electronic

correspondence between two offices. Id. at 176-77. The request involved no

research or analysis, but rather a search for and production of "readily

identifiable records[.]" Id. at 178. But Carter's request required research of

thousands of records.

Relying on Burnett and O'Boyle, Carter contends that the "government

should not be able to shield its transactions from public scrutiny by the expedient

of entrusting sole possession of relevant documents to third parties ." See

O'Boyle v. Borough of Longport, 426 N.J. Super. 1, 14 (App. Div. 2012). In

A-0483-18T1

13

Burnett, we evaluated a request for "[a]ny and all settlements, releases or similar

documents entered into, approved, or accepted" in the preceding two-year period

from the County of Gloucester. 415 N.J. Super. at 508 (alteration in original).

We determined that the request was not overly broad because it sought a specific

type of document. Id. at 516. As noted in O'Boyle, the central holding in Burnett

is that "documents accessible to the public which are generated on behalf of a

public agency in the course of its official business are subject to disclosure no

matter where they are located, even if they were never in the possession of the

governmental entity." O'Boyle, 426 N.J. Super. at 14 (citing Burnett, 415 N.J.

Super. at 517).

Although Burnett establishes that requested documents not in the

respective agency's possession does not excuse the agency from its OPRA

obligations to produce the documents, Carter's request is distinguishable. See

415 N.J. Super. at 516-17. In Burnett, the requested records were created by the

respective agency in its official course of business, which is not the case here.

Id. at 516. The Notices of Docketing sought here were records created by the

court, only received by the Division in connection with each individual appeal.

Because the records did not originate with the Division, the requested documents

A-0483-18T1

14

are not classified separately in its files, thus requiring the custodian to conduct

research to locate them.

Moreover, Carter's reliance on Scheeler v. Office of the Governor, 448

N.J. Super. 333 (App. Div. 2017) is misplaced. The plaintiff in Scheeler sought

third-party OPRA requests submitted over a period of time. 448 N.J. Super. at

338-39. This court found that the requests were made with sufficient clarity,

but we emphasized that the request did not require the agency to do research to

identify the records. Id. at 344. In Scheeler, the requested documents were

maintained by the agency and were reasonably identifiable without the need for

research. Id. at 344.

Carter argues that the GRC incorrectly noted "[t]he request at issue here

sought Notices from the Appellate Division for L[FB] decisions addressing

violations of N.J.S.A. 40A:9-22.9 for a five[-]year period." (emphasis added).

Carter asserts that this is factually inaccurate because he actually sought Notices

"resulting from an appeal (pursuant to N.J.S.A. 40A:9-22.9) of any [LFB] final

decision." (emphasis added). It can hardly be said that the GRC decision here

was so mistaken as to demand "intervention and correction" on behalf of the

interests of justice, therefore Carter's reliance on Clowes v. Terminix Intern.,

Inc., 109 N.J. 575, 588-89 (1988) is misplaced. Although the GRC may have

A-0483-18T1

15

confused "pursuant to" and "violation of," Carter's request remains invalid as it

required research, therefore falling outside the scope of the Division's OPRA

obligations. It is the resulting process imposed on the custodian that makes the

request impermissible.

Carter alleges that the custodian failed to work with him to try to resolve

the matter before he filed a complaint. N.J.S.A. 47:1A-5(g) states that "the

custodian may deny access to the [requested] record after attempting to reach a

reasonable solution with the requestor that accommodates the interests of the

requestor and the agency." An agency and a requestor compromise and work

through problematic requests. Mason, 196 N.J. at 76. Carter urges that in

accordance with Mason, the custodian should have made an effort to work

through the issue⸺the overly broad request⸺with Carter. But the custodian

responded to Carter's request with a denial seven days later. When Carter asked

why his request was denied, the custodian provided her rationale two days later.

Thereafter, Carter failed to modify his request, choosing instead to file a

complaint with the GRC. Thus, the custodian worked with Carter.

Carter argues that the custodian's certification contained in the Statement

of Information (SOI) filed with the GRC is insufficient because the custodian

did not personally search for the records. Carter insists that the Executive

A-0483-18T1

16

Assistant to the LFB, who conducted the search, should have submitted a

certification to substantiate the SOI. In accordance with Paff v. New Jersey

Department of Labor, agency personnel must produce sworn statements by

agency personnel detailing the following information:

(1) the search undertaken to satisfy the request;

(2) the documents found that are responsive to the

request;

(3) the determination of whether the document or any

part thereof is confidential and the source of the

confidential information;

(4) a statement of the agency's document

retention/destruction policy and the last date on which

documents that may have been responsive to the request

were destroyed.

[392 N.J. Super. 334, 341 (App. Div. 2007) (emphasis

omitted).]

The GRC has discretionary authority to require additional certifications from

any party where needed for appropriate adjudication of a complaint. N.J.A.C.

5:105-2.3(k), -2.4(j)(l). Sworn statements must be "made on personal

knowledge, setting forth only facts which are admissible in evidence to which

the [custodian] is competent to testify[.]" R. 1:6-6; see N. Jersey Media Grp.

Inc. v. Office of the Governor, 451 N.J. Super. 282, 300 (App. Div. 2017).

A-0483-18T1

17

The custodian completed its search of records responsive to Carter's

request by delegating the search of records to a LFB employee. An additional

certification was unnecessary because the documents submitted with the

custodian's SOI sufficiently detail the scope and process of the records search.

The documents and emails exchanged between the custodian and the executive

assistant demonstrate that the request was properly handled. Because the GRC

is granted the discretionary authority to require supplemental certifications, its

decision not to require an additional certification is not arbitrary, capricious or

unreasonable.

Carter asserted in his complaint, dated September 14, 2016, that he was

aware of three records that he sought. After identifying these records, Carter

stated that "[b]ecause [Carter] is already in possession of these particular

responsive records as the matter's appellant, there is no need for [the GRC] to

order disclosure." The GRC misunderstood this to mean that Carter possessed

all three Notices, therefore it did not provide him with any. Because the GRC

did not provide Carter with the identified Notices, he argues that the GRC failed

to disclose this record.

As previously mentioned, N.J.S.A. 47:1A-5(g) notes that a custodian may

deny access to the record after attempting to reach a reasonable solution with

A-0483-18T1

18

the requestor. The agency and requestor are encouraged to compromise and

work through problematic requests. Mason, 196 N.J. at 76. Again, Carter did

not make another request upon the custodian, specifically mentioning this

requested record by name. In fact, the name of the requested record was not

mentioned until Carter filed a complaint with the GRC. Carter made no effort

to work with the custodian to clarify his request by either modifying it or

submitting a new request with the sufficient identifying information.

Accordingly, the GRC's misunderstanding that Carter already possessed the

record is immaterial.

Carter argues that because his case contains "contested facts," he is

entitled to a determination from the agency within thirty-days of receipt of his

petition, pursuant to N.J.A.C. 1:1-4.1. Carter filed for a "contested case" status

on October 12, 2016, but he ultimately did not receive a decision from the GRC

until August 28, 2018. Carter points to the alleged LFB quorum issues and their

failure to maintain certain records with the agency as "contested facts." Carter

asserts that this delay was in bad faith, as the agency was aware that Carter

sought these documents for another appeal he had pending against the LFB.

Under N.J.A.C. 1:1-2.1, a contested case is defined as:

[A]n adversary proceeding . . . in which the legal rights,

duties, obligations, privileges, benefits or other legal

A-0483-18T1

19

relations of specific parties are required by

constitutional right or by statute to be determined by an

agency by decisions, determinations, or orders,

addressed to them or disposing of their interests, after

opportunity for an agency hearing[.]

The quorum issue is controlled by OPRA. See N.J.S.A. 10:4-6 to 10:4-21.

Therefore, quorum issues falling under this Act are not within the GRC's

authority to adjudicate.

The GRC has no authority to regulate or adjudicate the manner in which

an agency maintains its files or records. 4 Because these issues are not under the

authority of the GRC to adjudicate, and they were not pertinent to the GRC's

determination of this case, they are not considered "contested facts." Since

Carter's case is not considered a "contested case," he was not entitled to the

thirty-day determination timeframe enumerated in N.J.A.C. 1:1-4.1.

In turning to Carter's bad faith argument, he asserts that the agency

purposely delayed his case (1) so that he could not seek interlocutory review,

and (2) to stymy his efforts to argue another appeal he had pending against the

LFB. See In re Appeal of the Dec. of the Franklin Twp. Ethics Bd. (Somerset

4

See e.g., Toscano v. N.J. Dep't of Labor, Div. of Vocational Rehab. Serv.,

GRC Complaint No. 2010-58 (June 28, 2011); Kvederas v. Town of Morristown

(Morris), GRC Complaint No. 2009-70 (Apr. 8, 2010); Gillespie v. Newark Pub.

Sch., GRC Complaint No. 2004-105 (Nov. 9, 2004); Katinsky v. River Value

Twp., GRC Complaint No. 200-68 (Nov. 13, 2003).

A-0483-18T1

20

Cty.) in FTEB Complaint #11-01, No. A-2561-15 (App. Div. Nov. 14, 2017).

As to Carter's interlocutory review argument, he relies on the time it took the

GRC to issue its decision. Carter accuses the GRC of colluding with the

Division.

The GRC noted in its final decision that its "established policy does not

provide a process for complainants to request an expedited adjudication. The

GRC instead adjudicates complaints in the order that they are received." Carter

contends that this is not true because he reviewed their website and manually

counted the subsequently filed complaints that were adjudicated before his. But

Carter did not produce any evidence as to this assertion, though he offered to do

so if required. We conclude the GRC's final decision was not arbitrary,

capricious or unreasonable.

Carter argues that the GRC did not conduct its analysis of his complaint

in a "summary or expedited manner" in accordance with N.J.S.A. 47:1A-6. He

further urges that the GRC failed to abide by the temporal limits set in N.J.S.A.

47:1A-6 and -7(e). Under N.J.S.A. 47:1A-6, a person who is denied access to a

government record by the custodian may either institute a proceeding to

challenge the custodian's decision by either filing an action in the Superior Court

or by filing a complaint with the GRC. "Any such proceeding shall proceed in

A-0483-18T1

21

a summary or expedited manner." N.J.S.A. 47:1A-6. N.J.S.A. 47:1A-7(e) states

that "[a]ll proceedings of the council . . . shall be conducted as expeditiously as

possible." "[C]itizens are entitled to swift access to public records, and both the

public and governmental bodies are logically entitled to have any disputes

brought and addressed in the same, rapid manner." Mason, 196 N.J. at 69.

As the GRC noted in its final decision, it has an established procedure of

addressing complaints in the order that they are received. The GRC merely

addressed Carter's complaint when it was his turn. Because the GRC has an

established, reasonable procedure in addressing complaints, the GRC's delay in

response was not arbitrary, capricious, or unreasonable.

Carter contends that he is entitled to attorney's fees should he prevail in

this appeal. Under OPRA, a requestor who prevails in any proceeding is entitled

to reasonable attorney's fees. N.J.S.A. 47:1A-6. Because Carter has not

prevailed in this proceeding, he is not entitled to attorney's fees.

To the extent that we have not specifically addressed Carter's remaining

arguments, we conclude that they are without merit to warrant attention in a

written opinion. R. 2:11-3(e)(1)(E). We otherwise affirm for the reasons

expressed by the GRC.

Affirmed.

A-0483-18T1

22