NOT FOR PUBLICATION WITHOUT THE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-1204-18T1
LAWYERS COMMITTEE FOR
9/11 INQUIRY, a PA Nonprofit
Corporation,
Plaintiff-Appellant,
v.
NEW JERSEY STATE POLICE
and DSFC DAVID ROBBINS,
in his official capacity as
Custodian of Records,
Defendants-Respondents.
Argued December 17, 2019 – Decided January 8, 2020
Before Judges Fisher, Gilson and Rose.
On appeal from the Superior Court of New Jersey,
Law Division, Mercer County, Docket No. L-0405-18.
David R. Meiswinkle argued the cause for appellant.
Francis A. Raso, Deputy Attorney General, argued the
cause for respondents (Gurbir S. Grewal, Attorney
General, attorney; Jane C. Shuster, Assistant Attorney
General, of counsel; Francis A. Raso, on the brief).
PER CURIAM
Plaintiff Lawyers Committee for 9/11 Inquiry, appeals a Law Division
order dismissing its complaint that sought the production of documents from
defendant New Jersey State Police (NJSP) pursuant to the Open Public Records
Act (OPRA), N.J.S.A. 47:1A-1 to -13, and the common law right of public
access. Plaintiff also challenges that portion of the order, which memorializes
the NJSP's agreement to provide a redacted logbook entry under the common
law, and the court's consequential denial of counsel fees. Because the trial
court's decision is supported by credible evidence in the record, we affirm.
I.
This appeal has it genesis in a motor vehicle stop of a suspicious white
Chevrolet van during the afternoon of September 11, 2001 in East Rutherford.
Plaintiff claimed police stopped the van following a Union City resident's report
that three men "were dancing and high fiving" on the van's roof while filming
and photographing the World Trade Center terrorist attack. Plaintiff further
claimed a K-9 unit alerted for the presence of explosive residue recovered from
the van.
We describe in some detail the nature of plaintiff's requests and
defendants' searches for the responsive records to give context to the trial court's
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conclusion. In December 2017, plaintiff submitted to the NJSP two related
OPRA requests, each referencing and attaching screenshots of declassified
Federal Bureau of Investigation records. One request sought "seventy-six 8 x
10 black and white photographs along with the film negatives" pertaining to the
investigation of the van, and "all records related to the film roll, film type,
camera make/model, bag, and/or other sources of the originals, whether digital
or not." According to the September 13, 2001 record attached to plaintiff's
request, the FBI had received triplicate copies of those seventy-six photographs
from the NJSP Forensic Photography Unit in West Trenton.
Plaintiff's second request referenced another FBI record, which listed
property apparently recovered from the same van, including a fabric sample and
blanket samples "for explosive residue." Plaintiff requested "all records, in the
original, or better format and resolution, related to, or which reference[d]" those
samples, "including but not limited to laboratory analyses for explo sive
residue."
The NJSP, through its records custodian, defendant Detective Sergeant
First Class (DSFC) David Robbins, denied both requests, stating the NJSP "does
not maintain responsive records to [plaintiff's] request." One month later,
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plaintiff commenced this summary action against the NJSP and Robbins
pursuant to Rule 4:67-1.
Defendants filed an opposing brief supported by the certifications of
Robbins; DSFC Kenneth Wise, who was assigned to the Crime Scene
Investigation (CSI) North Unit; and retired Lieutenant Jim Molinaro, who had
been employed as a DSFC with the CSI Central Unit on 9/11. The certifications
explained the steps undertaken by Robbins to comply with plaintiff's requests.
In essence, Robbins contacted the lieutenant assigned to the NJSP
Forensic Photography Unit, who then contacted Wise and learned, "although the
CSI North, Central and South Units dispatched representatives to assist the . . .
[FBI] PENTBOMB Task Force in the wake of September 11, 2001, the NJSP
did not maintain any reports or photos from its time assisting the FBI Task
Force." Wise certified that he received that information from Molinaro who, in
turn, swore that he was the DSFC in charge of the CSI Central Unit on 9/11.
According to Molinaro, the CSI detectives assisted the FBI's Evidence Response
Team, but "[a]ny evidence obtained from scene processing, including
fingerprints or photographs, was taken by and documented by the FBI. No
copies of this evidence were retained by [the] NJSP, and no independent reports
were generated by [the] NJSP."
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Plaintiff argued the certifications of Robbins, Wise and Molinaro were
inaccurate, misleading and "not sufficiently explanatory" because they
referenced "the wrong set of events" or the "wrong set of resulting records." On
the return date of the order to show cause the trial court reserved decision,
ordering the NJSP to provide "enhanced certifications" to enable the court to
properly determine whether defendants conducted a reasonable search in
response to plaintiff's requests.1
Thereafter, defendant submitted certifications of two ranking officers
assigned to NJSP's Open Public Records Unit, detailing the efforts they made to
physically search for the records at issue, and "the methods of photographic and
evidence storage related to the September 11, 2001 investigation . . . ."
Following his consultation with the commanding officer of NJSP's Forensic and
Technical Services Section, Lieutenant Thomas J. Cavallo learned that if
responsive photographs or reports existed, they would be housed in the NJSP's
Totowa or Hamilton headquarters.
1
The order states the court's reasons were placed on the record that date; the
parties did not provide a transcript of the hearing on appeal.
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Cavallo searched "the entire Photography Unit" of the Hamilton
headquarters, but did not find any photographs or reports related to the 9/11
investigation.2 But Cavallo located "a handwritten logbook for the year 2001
. . . in the Archive room." According to Cavallo, the logbook stated:
• "Senior Forensic Photographer Theodore Wack
reported to [NJSP] Headquarters September 12,
2001 to process 35 millimeter film canisters
provide by two FBI Special Agents[]";
• "the film was developed on September 12, 2001,
and contact sheets and prints were completed on
September 13, 2001[]";
• "part of the job was received by two FBI Special
Agents on September 12, 2001, and additional
material [was received] on September 13,
2001[]"; and
• "[t]he logbook did not specify the subject matter,
only '4 sealed confiscated (envelopes) and 10
rolls.'"
Plaintiff argued, at the very least, the logbook was relevant and responsive
to plaintiff's OPRA request and should have been located and produced to
2
Defendants also provided the certification of Sergeant Kristina Pados, who
searched three records storage areas, including the CSI North Office in the
Totowa headquarters. Her search did not reveal any records prior to 2006.
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plaintiff before litigation was commenced. Plaintiff sought attorney's fees under
the OPRA.
Following a case management conference, the trial court again reserved
decision, pending further submissions by defendants. 3 The court ordered
defendants to ask Wack whether he recalled the procedure employed when
working with the FBI and to determine "whether some or all of the [logbook]
entries on the page with relevant information may be produced to [p]laintiff."
Defendants submitted for in-camera review an unredacted version of the
logbook page, including the entry at issue. The page contains about fifty
handwritten entries, with fields for: case number and date, case name, crime,
requestor name and unit, evidence description, type of request, processed by,
and processing date. Entry #1766 lists "WTC Bombing" as the case name;
"Terrorism" as the crime; the FBI as the requestor; and "4 sealed confiscated
10" as the type of request. Wack's initials and that of an unknown person, T.P.,
were listed in the "processed by" column. Wack's initials are affixed to the
majority of the logbook entries; T.P.'s initials only appear in a few other entries.
Entry #1766 also indicated FBI agents, Secca and Kane, ultimately received the
evidence.
3
The parties did not produce a transcript of the telephonic conference.
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Wack certified that as Senior Forensic Photographer, he had processed
forensic evidence for investigations conducted by the NJSP and other law
enforcement agencies. Wack assisted the FBI following 9/11, but he had no
personal interaction with the agents listed in entry #1766. Wack explained the
logbook entry, verifying that his unit received "four 'sealed, confiscated' rolls of
film" from the FBI and processed the film at the FBI's request. For each roll of
film processed, Wack created a "contact sheet," which he described as a
"positive print of all the negative images from a single roll of film." Wack did
not enlarge any of the images.
According to Wack, "the Forensic Photography Unit . . . does not maintain
copies of the images or film it processes upon request from an outside agency."
Wack confirmed neither the originals nor copies of the contact sheets or film
rolls identified in entry #1766 were maintained by the NJSP. Wack also noted
the logbook entry did not specify the subject matter of the contact sheets and, as
such, he had "no way of knowing whether the images contained therein
pertain[ed] to the white Chevrolet van described in [p]laintiff's [v]erified
[c]omplaint and/or OPRA requests." Wack had no knowledge of the requested
fabric and blanket samples.
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Plaintiff disputed the certifications of Wack and Cavallo, claiming they
and the logbook entry were vague and confusing. Prior to the court's ultimate
decision, defendants offered to provide a redacted copy of the logbook page
containing entry #1766 under the common law right of access.
Following argument, the trial court issued a cogent oral decision, denying
plaintiff's application under the OPRA. Referencing the multiple certifications
submitted by the NJSP, the court determined the agency "made a reasonable
search for the records sought by plaintiff[,]" having "looked in the most logical
places where anything related to the 911 inquiry would be." Accordingly, the
court denied plaintiff's application under the OPRA.
Although the court determined logbook entry #1766 was "not clearly
responsive to plaintiff's request[,]" the court acknowledged defendants agreed
to provide the redacted pages containing that entry. According to the court, that
"concession" was "appropriate under the common law . . . ." Because plaintiff
did not prevail under the OPRA, the judge denied plaintiff's request for counsel
fees. This appeal followed.
On appeal, plaintiff raises nine overlapping arguments, primarily
contending defendants failed to perform a reasonable search under the OPRA,
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and the logbook entry was a responsive document to its first request, entitling it
to counsel fees. We are unpersuaded by any of plaintiff's contentions.
II.
We commence our analysis with well-established principles, recognizing
our review of the trial court's legal conclusions concerning access to public
records under the OPRA and the common-law right of access is de novo.
Drinker Biddle & Reath LLP v. N.J. Dep't of Law and Pub. Safety, 421 N.J.
Super. 489, 497 (App. Div. 2011).
New Jersey has traditionally maintained a strong public policy that
"government records shall be readily accessible for inspection, copying, or
examination by the citizens of this State . . . ." N.J.S.A. 47:1A-1. The OPRA
statute ensures, with exceptions, that "all government records shall be subject to
public access." Ibid. Where an OPRA access to a government record is denied,
the complainant may challenge the denial in Superior Court. N.J.S.A. 47:1A -6.
In OPRA cases, the records custodian has the burden to demonstrate its
denial of access was authorized by law. N.J.S.A. 47:1A-6; Asbury Park Press
v. Monmouth Cty., 406 N.J. Super. 1, 7 (App. Div. 2009). Generally, the records
custodian is expected to perform a routine search for any available responsive
records. See Lagerkvist v. Office of Governor of State, 443 N.J. Super. 230,
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237 (App. Div. 2015). But, when a party requests records that are "not in the
custodian's possession," no unlawful denial of access occurs under the OPRA.
Bent v. Twp. of Stafford Police Dep't, Custodian of Records, 381 N.J. Super.
30, 38 (App. Div. 2005). A custodian's certification may serve as the basis for
a court's determination that a reasonable OPRA search was conducted, provided
that the certification is based on personal knowledge. See North Jersey Media
Grp., Inc. v. State Office of the Governor, 451 N.J. Super. 282, 300-01 (App.
Div. 2017).
In the present matter, the NJSP submitted six certifications, attesting to
the measures undertaken by several NJSP past and present employees to locate
records responsive to plaintiff's requests, all to no avail. Plaintiff offers no proof
to refute defendants' certifications. Instead plaintiff speculates, for example,
that "[s]urely Officer Wack remembers the contact sheet images that most
certainly sprung to life before him." Even if that were true, Wack confirmed
that the NJSP did not "maintain[] copies or originals of the film rolls or contact
sheet identified in logbook entry #1766." Plaintiff's contention that the NJSP's
months-long search for responsive records was conducted in bad faith lacks
sufficient merit to warrant any further discussion in our written opinion. R.
2:11-3(e)(1)(E).
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We turn to plaintiff's claim that the logbook entry was responsive to its
request, thereby entitling it to counsel fees. Plaintiff's OPRA request for
photographs was narrowly and appropriately tailored. See Burke v. Brandes,
429 N.J. Super. 169, 176 (App. Div. 2012) (recognizing a request must state a
"specific subject matter that [is] clearly and reasonably described with sufficient
identifying information").
Plaintiff requested copies of, and records related to, "seventy-six 8 x 10
black and white photographs along with film negatives" as described in the
accompanying FBI record. The requested photographs specifically pertained to
the investigation of the white van stopped by law enforcement on
9/11. Conversely, logbook entry #1766 referenced undescribed film developed
by the NJSP for the FBI; the entry did not specify the subject matter of the film
rolls, other than terse references to "WTC bombing" and "Terrorism." Nor do
the apparent quantities of film stated in the logbook entry match the number of
photographs requested by plaintiff. Wack certified he performed the task
referenced in entry #1766, converting four rolls of film into contact sheets; he
did not print 8 x 10 photographs.
We conclude the credible evidence in the record supports the trial court's
conclusion that the logbook entry was "not clearly responsive to plaintiff's
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request." See North Jersey Media Grp., Inc. v. Twp. of Lyndhurst, 441 N.J.
Super. 70, 89 (App. Div. 2015), aff'd in relevant part and rev'd in part, 229 N.J.
541 (2017); see also Toll Bros., Inc. v. Twp. of W. Windsor, 173 N.J. 502, 549
(2002). Because plaintiff did not request the information stated in logbook entry
#1766, we are satisfied plaintiff is not entitled to counsel fees. See N.J.S.A.
47:1A-6 ("A requestor who prevails in any [OPRA] proceeding shall be entitled
to a reasonable attorney's fee."); see also Mason v. City of Hoboken, 196 N.J.
51, 76 (2008).
In Mason, our Supreme Court applied the "catalyst theory" to OPRA
actions, recognizing requestors are entitled to attorney's fees "when they can
demonstrate: (1) a factual causal nexus between plaintiff's litigation and the
relief ultimately achieved; and (2) that the relief ultimately secured by plaintiffs
had a basis in law." 196 N.J. at 76 (internal quotation marks omitted). There
exists no basis in law to require NJSP to produce a document that was never
requested. And there was no causal nexus between the production of the
nonresponsive logbook entry and the requested photographs and records that
were never located.
In reaching our conclusion, we part company with the trial court's
determination that the common law does not provide for attorney's fees.
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Relevant here, the Court in Mason recognized "the catalyst theory applies to
common law suits as well." 196 N.J. at 79.
To the extent not addressed, plaintiff's remaining arguments lack
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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