NOT FOR PUBLICATION WITHOUT THE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-5001-16T2
JOHN PAFF,
Plaintiff-Appellant,
v.
TOWNSHIP OF MOORESTOWN and
PATRICIA L. HUNT in her
capacity as Records Custodian
for the Township of
Moorestown,
Defendants-Respondents.
_______________________________
Argued June 6, 2018 – Decided July 11, 2018
Before Judges Currier and Geiger.
On appeal from Superior Court of New Jersey,
Law Division, Burlington County, Docket No.
L-0340-16.
Michael J. Zoller argued the cause for
appellant (Pashman Stein Walder Hayden, PC,
attorneys; CJ Griffin, of counsel and on the
briefs; Michael J. Zoller, on the briefs).
Kelly A. Grant argued the cause for
respondents (Capehart Scatchard, PA,
attorneys; Anthony T. Drollas, Jr., of counsel
and on the brief; Kelly A. Grant, on the
brief).
PER CURIAM
Plaintiff John Paff appeals from the June 13, 2017 order
dismissing his claim under the Open Public Records Act (OPRA),
N.J.S.A. 47:1A-1 to -13. Pursuant to our recent determination in
Libertarians for Transparent Gov't v. Gov't Records Council, 453
N.J. Super. 83, 92 (App. Div.), certif. denied, ___ N.J. ___
(2018), holding draft meeting minutes are not subject to disclosure
under OPRA, we affirm.
In December 2015, plaintiff filed an OPRA request with
defendant Township of Moorestown for the minutes, agenda, and
notices regarding the Ethical Standards Board meeting of October
2012. In response, defendant Patricia Hunt, the Township's records
custodian, provided the Board's meeting notice and agenda but
advised that minutes from the October 2012 meeting were not yet
approved and, therefore, would not be released.
Plaintiff filed a complaint and order to show cause, alleging
defendants violated OPRA, the Open Public Meetings Act (OPMA),
N.J.S.A. 10:4-1 to -21, and the common law right to access public
records. The Board convened to approve the meeting minutes in
March 2016 and provided them to plaintiff after receiving the
complaint.
After considering the parties' oral arguments, the trial
judge issued a comprehensive twenty-five page written decision on
2 A-5001-16T2
May 26, 2017. He determined the unapproved, draft meeting minutes
did not constitute "government records" under OPRA and, therefore,
were not subject to disclosure. However, the judge did find
defendants violated OPMA by failing to make the meeting minutes
"promptly available." He directed defendants to approve all future
meeting minutes either at their annual reorganizational meeting
or within thirty days of an OPRA request. The judge declined to
award counsel fees, stating "[b]ecause injunctive relief is the
appropriate remedy and OPMA contains no provision concerning
counsel fees, the Court finds no basis to award Plaintiff fees."
On appeal, plaintiff argues unapproved meeting minutes are
government records subject to OPRA and, therefore, the trial court
erred in not requiring their disclosure. We review a trial court's
denial or approval of a request for access to public records under
OPRA de novo. Drinker Biddle & Reath LLP v. N.J. Dept. of Law &
Pub. Safety, 421 N.J. Super. 489, 497 (App. Div. 2011).
OPRA was created to promote government transparency and
public knowledge of public affairs by requiring public entities
to make government records available to the public. N.J.S.A.
47:1A-1; see also O'Boyle v. Borough of Longport, 218 N.J. 168,
183-84 (2014). Under the statute, all government records are
subject to disclosure unless they meet one of the defined
3 A-5001-16T2
exemptions. N.J.S.A. 47:1A-1; see also Brennan v. Bergen Cty.
Prosecutor's Office, ___ N.J. ___, (2018) (slip op. at 8).
We recently considered the issue of whether draft or
unapproved meeting minutes are subject to disclosure under OPRA
or considered "advisory, consultative, or deliberative" material
exempted from the definition of a government record. N.J.S.A.
47:1A-1.1. In Libertarians, we stated "the inherent nature of a
draft document as both advisory and requiring deliberation prior
to approval, compels the conclusion that draft minutes are
'advisory, consultative, deliberative material,' and are not
subject to disclosure under OPRA as a government record." 453
N.J. Super. at 92 (citing N.J.S.A. 47:1A-1.1).
Here, the draft minutes requested by plaintiff were not
subject to OPRA, and, therefore, defendants' non-production of
those records was not a violation of that statute. However, as
the trial judge determined, the failure to make those minutes
"promptly available" was a violation of OPMA.
Under OPMA, minutes from public meetings must be "promptly
available." N.J.S.A. 10:4-14. We previously have interpreted this
language as requiring government bodies to make the minutes from
a public meeting available prior to the next scheduled public
meeting. See Liebeskind v. Mayor & Mun. Council of Bayonne, 265
N.J. Super. 389, 394-95 (App. Div. 1993). The release of minutes
4 A-5001-16T2
more than three years after the meeting is unreasonable regardless
of the function of the particular Board. See Kean Fed'n of
Teachers v. Morell, 448 N.J. Super. 520, 531 (App. Div. 2017),
rev'd in part and aff'd as modified in part, ___ N.J. ___ (2018)
(cautioning "[r]easonableness must remain the touchstone when
assessing the promptness of a public entity's actions [under
OPMA]"). However, the violation of OPMA does not trigger a
statutory award of counsel fees.
Affirmed.
5 A-5001-16T2