BAFFI SIMMONS VS. WENDY MERCADO (L-0712-18, CUMBERLAND COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3460-18T1

BAFFI SIMMONS and
AFRICAN AMERICAN DATA
AND RESEARCH INSTITUTE
(AADARI),
APPROVED FOR PUBLICATION
Plaintiffs-Respondents, June 11, 2020

v. APPELLATE DIVISION

WENDY MERCADO, CITY OF
MILLVILLE, and CITY OF
MILLVILLE POLICE DEPARTMENT,

Defendants-Appellants.
_________________________________

Submitted May 12, 2020 – Decided June 11, 2020

Before Judges Fisher, Accurso and Rose.

On appeal from the Superior Court of New Jersey,
Law Division, Cumberland County, Docket No. L-
0712-18.

Brock D. Russell, attorney for appellants.

Rotimi A. Owoh, attorney for respondents.

The opinion of the court was delivered by

FISHER, P.J.A.D.
 In this appeal, we consider an order that held defendants City of

Millville, City of Millville Police Department, and Wendy Mercado, were

required to provide plaintiffs Baffi Simmons and the African American Data

and Research Institute records pursuant to plaintiffs' OPRA1 request.

Specifically, plaintiffs sought copies of the following that were issued by the

Millville Police Department from January 2017 to the date of the request:

 "DWI/DUI complaints and summonses";

 "drug possession complaints and summonses";

 the department's "[a]rrest [l]istings"; and

 "drug paraphernalia complaints and summons."

Defendants produced redacted records that allegedly satisfied the request for

the arrest listings, but as for the other three categories, defendants asserted

"there are no records responsive to your request" and advised that "[c]ourt

documents can be requested through the NJ Judiciary website."

The trial judge summarily ruled in plaintiffs' favor and, because

plaintiffs prevailed, awarded attorney's fees. Defendants appeal, primarily

arguing the judge erred in finding these documents to be government records

within their possession because Millville police officers merely input

1
Open Public Records Act, N.J.S.A. 47:1A-1 to -13.

A-3460-18T1
2
information into electronic forms created by others and maintained by the

judiciary. We agree with defendants and reverse.

The record reveals that after receiving a response from defendants that

the records sought were maintained by the judiciary and not Millville or its

police department, plaintiffs filed in October 2018 a verified complaint. They

also applied for an order, which, when entered, required defendants to show

cause why they did not violate OPRA by denying plaintiffs access to the

requested DWI/DUI, drug possession, and drug paraphernalia complaints and

summonses. In responding to the order to show cause, defendants submitted

the affidavit of a Millville police lieutenant who asserted the department does

not maintain DWI/DUI, drug possession, and drug paraphernalia complaints

and summons records because they are in the possession of the Millville

Municipal Court, which places those records under the aegis of the judiciary.

That is, according to defendants, once those documents are electronically filed

through the State's Electronic Complaint Disposition Record (eCDR) system,

defendants no longer have access to those records and are no longer their

custodian. Defendants also argued that even if they had access to eCDR, they

would be unable to produce the requested records because the system does not

A-3460-18T1
3
allow for the usage of a particular charge or complaint type as a search

parameter.2

The judge found plaintiffs were entitled to the requested records from

defendants. In rejecting defendants' argument that they no longer

"maintained" the records, the judge observed that "whether or not [defendants]

maintain [the records] . . . [is] not a standard under OPRA." The judge did,

however, provide defendants with additional time to both ascertain and

supplement the record with proof about whether they were able to access

eCDR for the complaints and summonses requested.

Defendants thereafter filed a supplemental brief, conceding "the

Millville Police Department has access to eCDR." Notwithstanding,

defendants argued: (1) the complaints and summonses requested by plaintiffs

are not records required by law to be maintained by Millville for any period of

time; and (2) requiring defendants to search and provide the requested records

from eCDR – of which defendants are not the custodian – exceeds OPRA's

intended reach. Defendants argued they would have to review nearly 5,000

arrest card files from the time period in question, identify those that included a

drug possession or drug paraphernalia charge, obtain the information necessary

2
Despite this position, plaintiffs were provided with redacted records
responsive to the request for DWI/DUI complaints and summonses.

A-3460-18T1
4
to conduct a search of eCDR, and then locate the corresponding records in

eCDR.

The trial judge found that because the Millville Police Department has

access to the system that contains the records requested by plaintiffs,

defendants violated OPRA by not turning the records over. The judge entered

a conforming order on January 3, 2019, and invited plaintiffs to submit a

certification of services in support of their request for counsel fees. Later, the

judge denied defendants' reconsideration motion, which emphasized

defendants' arguments that the requested documents are not government

records but are court records maintained by the judiciary and that their ability

to access the records does not mean they are the custodian of those records

obligated to comply with an OPRA request. The judge rejected these

arguments and denied reconsideration by order entered on February 18, 2019.

The following month, the judge considered the parties' submissions on

plaintiffs' request for counsel fees, and, on March 22, 2019, ordered defendants

to pay plaintiffs $5424 in fees. The judge also stayed the order pending

appeal.

In appealing, defendants reprise their arguments that the complaints and

summonses sought by plaintiffs exist in electronic form, are maintained by the

judiciary, and in its custody, not their custody. We agree. To explain, we first

A-3460-18T1
5
briefly review OPRA's requirements and how OPRA has been applied in

similar settings.

The Legislature's purpose in enacting OPRA was "to promote

transparency in the operation of government." Sussex Commons Assocs., LLC

v. Rutgers, 210 N.J. 531, 541 (2012). To fulfill that purpose, OPRA requires

that "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, and any limitations on the right of acces s . . .

shall be construed in favor of the public's right of access." N.J.S.A. 47:1A-1;

see also N. Jersey Media Grp., Inc. v. Twp. of Lyndhurst, 229 N.J. 541, 555

(2017).

The statute defines "government record" broadly, but also excludes

twenty-one categories of items from the definition. See N.J.S.A. 47:1A-1.1;

Mason v. City of Hoboken, 196 N.J. 51, 65 (2008). A "government record" is

defined to include "any paper, written or printed book, document, drawing,

map, plan, photograph, microfilm, data processed or image processed

document, information stored or maintained electronically or by sound-

recording or in a similar device, or any copy thereof[.]" N.J.S.A. 47:1A-1.1.

To be considered a "government record," the item must be made, maintained,

kept on file, or received "in the course of his or its official business by any

A-3460-18T1
6
officer, commission, agency or authority of the State or of any political

subdivision thereof, including subordinate boards thereof." Ibid.

Despite this strong interest in transparency, OPRA is "not intended [to

be] a research tool [that] 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).

OPRA instead operates to make identifiable government records "readily

accessible for inspection, copying, or examination." N.J.S.A. 47:1A-1.

Accordingly, OPRA requires a party requesting access to a public record to

specifically describe the record sought. Gannett N.J. Partners, LP v. Cty. of

Middlesex, 379 N.J. Super. 205, 212 (App. Div. 2005); N.J.S.A. 47:1A-5(f). A

proper OPRA request must identify with reasonable clarity the desired

documents, and a party cannot satisfy this requirement by simply requesting all

of an agency's documents. Bent v. Twp. of Stafford Police Dep't, Custodian of

Records, 381 N.J. Super. 30, 37 (App. Div. 2005). And OPRA only allows

requests for access to records – not requests for information. MAG Entm't,

375 N.J. Super. at 546-47.

OPRA does not require a records custodian "to conduct research among

its records . . . and correlate data from various government records in the

custodian's possession." Ibid. OPRA also imposes on public agencies "the

A-3460-18T1
7
burden of proving that the denial of access is authorized by law," N.J.S.A.

47:1A-6, which is not satisfied by reliance on "conclusory and generalized

allegations of exemptions[,]" but requires instead the specific basis for

withholding the requested documents, Newark Morning Ledger Co. v. N.J.

Sports & Exposition Auth., 423 N.J. Super. 140, 162 (App. Div. 2011). Under

this framework, a "government record" is subject to disclosure unless a public

agency can make a "clear showing" that one of the statute's listed exemptions

is applicable. N. Jersey Media Grp., 229 N.J. at 555. That presupposes, of

course, that the requested record is a "government record." And all we have

said presupposes that the party to whom the request was sent is the custodian

of the government record sought.

We agree with defendants that the manner in which the requested

complaint-summonses were created demonstrates they are not government

records in their possession but are records in the custody of the judiciary.

While it may be local police who input the information that triggers the

process, the final product is governed by other forces and the resulting product

is maintained by others.

The production of a complaint-summons comes about through use of an

electronic form created by the Administrative Office of the Courts. This

process generates and lodges the complaint in the judiciary's computerized

A-3460-18T1
8
case management system. Rules 3:2-2 and 3:2-3 require the use of certain

forms to generate a criminal complaint on either a summons, known as the

CDR-1, or on a warrant, known as the CDR-2.

When intending to generate a criminal complaint, a law enforcement

officer must utilize the judiciary's computerized case management system and

enter information into certain designated fields. Other sections of the CDR

forms are designated for completion by a judge or judicial officer. In short,

while a local law enforcement officer begins the process, it is a judicial officer

who retains the final authority as to whether the system will generate a CDR-1

or CDR-2. We agree with defendants that the manner in which the document

is produced demonstrates that it is, in reality, not a government record

maintained by the municipality but a record maintained by the judiciary.

Plaintiffs place too much emphasis on how the process that creates the

document commences without sufficient consideration for how it ends and

where the document ends up. Rule 3:4-1(a)(1),3 upon which plaintiffs rely,

does not require a different result; the Rule in fact reveals the importance of

3
Rule 3:4-1(a)(1) provides that "[a] law enforcement officer shall take a
person who was arrested without a warrant to a police station where a
complaint shall be prepared immediately," and further requires that when
"issuance of a warrant is authorized by Rule 3:3-1(d) . . ., the complaint may
be prepared on a Complaint-Warrant (CDR-2) form," or "[o]therwise, the
complaint shall be prepared on a Complaint-Summons (CDR-1) form."

A-3460-18T1
9
generating a complaint-summons upon an arrest, not whether it constitutes a

municipal record or a judiciary record.

To review, when a law enforcement officer makes an arrest without a

warrant, the person arrested must be taken to a police station where the

arresting officer is to immediately prepare a complaint. R. 3:4-1(a)(1). The

Attorney General has directed all law enforcement agencies operating under

the authority of the laws of this State to utilize a particular electronic interface

system when preparing a complaint. Attorney General Law Enforcement

Directive No. 2016-06 (Oct. 11, 2016). Pursuant to the directive:

The State Police and AOC have established an
interface between the Live Scan fingerprint system
and eCDR. The interface transmits confirmed Live
Scan records to the eCDR system so that when police
generate a complaint, Live Scan record data
automatically will populate many of the required
fields on the eCDR. The interface in this way reduces
the time needed to enter data, enhances data quality,
and ensures positive identification of defendants.

....

When a defendant is arrested and fingerprinted
at the time of complaint processing, the Live Scan
fingerprinting must be completed before beginning an
eCDR complaint. Once the Live Scan confirmation is
received, the law enforcement officer or agency shall
proceed to the eCDR system to begin generating a
complaint.

A-3460-18T1
10
 The Supreme Court has recognized that as the State's chief law

enforcement officer, the Attorney General retains the authority to adopt

guidelines, directives, and policies that bind police departments statewide .

Paff v. Ocean Cty. Prosecutor's Office, 235 N.J. 1, 19 (2018). While a

Millville police officer commences preparation of a complaint-summons

through use of the electronic interface system described in the Attorney

General's directive, the document is completed by eCDR and the finished

product is maintained by the municipal court or, in a larger sense, the

judiciary.

We also observe that it may be true that the Millville Police Department

has access to the electronic interface system, but that does not alter the fact

that the record is maintained by the judiciary. We conclude that it is to the

judiciary that plaintiffs must direct their request for the production of such

records. The burden should not be placed on local authorities to search for

records maintained by others for those records that fall into plaintiffs' broad

requests. See MAG Entm't, 375 N.J. Super. at 546-47.

Reversed.

A-3460-18T1
11