Paul B. Dalnoky v. the Pinelands Regional School District

NOT FOR PUBLICATION WITHOUT THE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-0217-22

PAUL B. DALNOKY,

Plaintiff-Appellant,

v.

PINELANDS REGIONAL
SCHOOL DISTRICT,

Defendant-Respondent.
________________________

Submitted October 12, 2023 – Decided December 8, 2023

Before Judges Gummer and Walcott-Henderson.

On appeal from the Superior Court of New Jersey,
Law Division, Atlantic County, Docket No.
L-0912-22.

Paul B. Dalnoky, appellant pro se.

Lenox, Socey, Formidoni, Giordano, Lang, Carrigg &
Casey, LLC, attorneys for Respondent. (Patrick F.
Carrigg, on the brief).

PER CURIAM
 Plaintiff Paul B. Dalnoky appeals from a June 15, 2022 order denying his

application for student records from defendant, Pinelands Regional School

District (District), pursuant to the Open Public Records Act (OPRA), N.J.S.A.

47:1A-1 to -13. Plaintiff argues the court incorrectly determined his claim was

time barred by OPRA's statute of limitations and that he was entitled to the

requested records. Because we agree plaintiff's complaint was untimely, we

affirm.

The essential facts here are undisputed. Plaintiff was employed as a

substitute teacher at Pinelands Regional High School from 2018 to 2020. During

his tenure, students recorded plaintiff sleeping in the classroom and raising his

voice at students. The District terminated his employment after viewing the cell

phone recordings provided by students.

On September 17, 2020, plaintiff filed an OPRA request seeking

"electronic copies of the three audio [or] video recordings surreptitiously made

of me at your high school by the students" and "all of the [metadata] associated

with the [requested] recordings."

On October 23, 2020, the District's custodian of records—responsible for

responding to OPRA requests—sent a written correspondence denying

plaintiff's request stating: "student records and student confidential

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information" are exempt from disclosure under OPRA. In that same

correspondence, the custodian of records acknowledged the existence of the

students' videos and offered plaintiff an opportunity to view the recordings in

person.

Following the October 23, 2020 denial of his initial OPRA request,

plaintiff filed six additional requests on the following dates: April 25, 2021,

May 6, 2021, May 9, 2021, November 15, 2021, February 20, 2022, and April

11, 2022. In each request, plaintiff sought the same audio and video recordings

and associated metadata.

Specifically, on April 25, 2021, plaintiff requested, "all of the metadata in

your possession" associated with " . . . audio and videotapes your students made

of me." On May 6, 2021, plaintiff requested, "any documents regarding your

students' surreptitious audio and videotaping of me." Two days later, on May 9,

2021, he requested, "[t]he metadata only, not the actual videotapes, made of

me . . . during my teaching duties at your high school." On November 15, 2021,

he requested, "[a]ll documents in whatever form, including electronic, with

respect to the surreptitious audio and videotapes made of me . . . including the

metadata." On February 20, 2022, he requested, "the metadata associated with

the three surreptitiously recorded audio and videotapes . . . [t]he email addresses

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associated with these three students," and "[a]ll of the emails sent by you to your

administrators, along with the associated metadata, which make reference to any

of the . . . audio and videotapes" and "[a]ll of the emails exchanged between

your administrators and present and former students, along with the associated

metadata, which make references to any of the . . . audio and videotapes." On

April 11, 2022, he requested, "[o]nly those portions of the metadata associated

with each of the three . . . audio and videotapes taken of me . . . ."

Plaintiff commenced suit against the District on December 6, 2021,

alleging breach of contract, invasion of privacy, emotional distress, and

violations under OPRA.

On December 23, 2021, the District moved to transfer venue to Ocean

County. On January 6, 2022, plaintiff filed "partial opposition" as to the OPRA

claim, pursuant to N.J.S.A 47:1A-6, arguing he was entitled to "institute a

proceeding to challenge the custodian's decision by filing an action in Superior

Court . . . ."

On February 22, 2022, after oral argument, the court issued an order and

accompanying memorandum of decision granting the District's motion to

transfer venue as to all claims except plaintiff's OPRA claim, which remained

pending in Atlantic County. On March 5, 2022, plaintiff amended his complaint

A-0217-22
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to reflect only the OPRA claim. After a conducting case management

conference, issuing a briefing schedule, and hearing argument, the court issued

an order and accompanying memorandum of decision on June 15, 2022, denying

plaintiff’s OPRA application.

The court determined that plaintiff's seven requests all sought essentially

the same records: cell phone recordings and associated metadata recorded by

his former students. Thus, the court found the October 23, 2020 denial of

plaintiff's first request to be the accrual date under OPRA for filing a challenge

to the denial of the OPRA request. Because plaintiff’s complaint was filed on

December 6, 2021, the court held it was time-barred by the applicable statute of

limitations, finding:

the [p]laintiff submitted seven (7) OPRA requests
seeking the same videotapes and associated metadata,
but phrased the requests differently. The [p]laintiff was
specifically focused on the audio [and] visual
recordings that were surreptitiously made of him at the
[d]efendant’s high school, as well as the associated
metadata. The [c]ourt finds [p]laintiff made continued
requests for the same recordings on each occasion
beginning on September 17, 2020. The [c]ourt further
finds the [District] denied the request on October 23,
2020. Accordingly, the [p]laintiff was required to file
this [c]omplaint in Superior Court by Monday,
December 7, 2020. Since the [p]laintiff did not file
within the required time period, the [c]ourt finds the
[p]laintiff is time barred by the statute of limitations.

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Ultimately, the court found plaintiff's complaint, filed on December 6, 2021,

was untimely, having been filed more than forty-five days following the

District's denial of plaintiff's first OPRA request.

On appeal, plaintiff argues the dismissal of his complaint based on statute-

of-limitations grounds was premature and deprived him of due process. Further,

he argues that the court erred by relying upon the District's October 23, 2020

denial letter as the accrual date for the applicable forty-five-day statute of

limitations.

Our review of a Rule 4:6-2(e) motion to dismiss for failure to state a claim

upon which relief can be granted is de novo. Baskin v. P.C. Richard & Son,

LLC, 246 N.J. 157, 171 (2021) (citing Dimitrakopoulos v. Borrus, Goldin,

Foley, Vignuolo, Hyman & Stahl, P.C., 237 N.J. 91, 108 (2019)). We "apply[]

the same standard under Rule 4:6-2(e) that governed the motion [judge,]"

Wreden v. Township of Lafayette, 436 N.J. Super. 117, 124 (App. Div. 2014),

that is, whether the pleadings even "suggest[]" a basis for the requested relie f,

Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989)

(quoting Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988)).

We "must examine 'the legal sufficiency of the facts alleged on the face

of the complaint,' giving the plaintiff the benefit of 'every reasonable inference

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of fact.'" Dimitrakopoulos, 237 N.J. at 108 (quoting Printing Mart-Morristown,

116 N.J. at 746). "A complaint should be dismissed for failure to state a claim

pursuant to Rule 4:6-2(e) only if 'the factual allegations are palpably insufficient

to support a claim upon which relief can be granted.'" Frederick v. Smith, 416

N.J. Super. 594, 597 (App. Div. 2010) (quoting Rieder v. State Dep't of Transp.,

221 N.J. Super. 547, 552 (App. Div. 1987)). Where a complaint raises statutory

and regulatory legal issues, we afford no special deference to the trial court's

interpretation of the law and the legal consequences that flow from established

facts. L.R. v. Camden City Pub. Sch. Dist., 452 N.J. Super. 56, 82 (App. Div.

2017).

As an initial matter, it is undisputed that plaintiff filed the first OPRA

request on September 17, 2020, seeking: "electronic copies of the three audio

[and] video recordings surreptitiously made of me at your high school by the

students" and "all of the metadata associated with the above recordings." By

way of letter dated October 23, 2020, the District denied this request stating that

the records were not public records subject to OPRA disclosure and that "[i]n

this instance you are seeking three audio/video recordings made by students in

a high school class, which show you. These would not be public records subject

to OPRA . . . ."

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 Following the District's denial of his September 17, 2020 request, plaintiff

filed six additional OPRA requests seeking essentially the same records; with

the final request on April 11, 2022, for "[o]nly those portions of the metadata

associated with each of the three . . . audio and videotapes taken of me . . . ."

N.J.S.A. 47:1A-6 sets forth the procedure for requestors challenging a

decision of an OPRA custodian:

A person who is denied access to a government record
by the custodian of the record, at the option of the
requestor, may:

institute a proceeding to challenge the custodian’s
decision by filing an action in Superior Court which
shall be heard in the vicinage where it is filed by a
Superior Court Judge who has been designated to hear
such cases because of that judge’s knowledge and
expertise in matters relating to access to government
records; or in lieu of filing an action in Superior Court,
file a complaint with the Government Records Council
established pursuant to [L. 2001, c. 404, § 8.]

The right to institute any proceeding under this section
shall be solely that of the requestor. Any such
proceeding shall proceed in a summary or expedited
manner. The public agency shall have the burden of
proving that the denial of access is authorized by law.
If it is determined that access has been improperly
denied, the court or agency head shall order that access
be allowed.

[N.J.S.A. 47:1A-6.]

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"Beyond that, the Legislature specifically deferred to the Supreme Court of New

Jersey to adopt court rules 'necessary to effectuate the purposes of this act.'"

Mason v. City of Hoboken, 196 N.J. 51, 68 (2008) (quoting N.J.S.A. 47:1A-12).

In Mason, our Supreme Court established the appropriate statute of

limitations for filing an action in Superior Court challenging the decision of an

OPRA custodian. Id. at 70. In this seminal case, the Court determined that "[i]n

light of the statute's history and purpose, as well as longstanding New Jersey

precedent, we find that OPRA actions have a [forty-five] day statute of

limitations, consistent with actions in lieu of prerogative writs," id. at 57, and

that "if the requestor elects to file an action in Superior Court, the application

must be brought within forty-five days of the denial," id. at 70 (quoting N.J.S.A.

47:1A-6). The Court explained that "[j]ust as OPRA calls for the rapid response

of an agency to any record request, a requestor should also be required to make

a prompt decision whether to file suit." Id. at 69.

Applying the forty-five-day timeline to this case, plaintiff would have had

to file his complaint in Superior Court by December 7, 2020, forty-five days

from October 23, 2020, when he first received the denial letter from the

custodian of records. However, he did not file his complaint until December 6,

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2021, almost one year later, prompting the court to dismiss his complaint as

untimely.

Plaintiff disputes that the October 23, 2020 date is correct for purposes of

the statute of limitations. Focusing on one of his requests, plaintiff asserts that

his "OPRA request was made on November 15, 2021" and argues that the court

should have found the subsequent denial that "was either made on that, or a

subsequent, date," relevant to determining the applicable limitations period,

though the only denial in the record is the District's custodian of records'

response to plaintiff's first OPRA request and neither party provided any

additional denials related to plaintiff's six subsequent requests.

Even so, Dalnoky cannot pick and choose denial dates in order to make

his complaint timely. As the requests between September 17, 2020, and

November 15, 2021, sought identical materials with only slight grammatical

variation to the requests after the initial denial, 1 the forty-five-day statute of

limitations began with defendant's written denial of plaintiff's first request, dated

1
Compare "electronic copies of the three audio [and] video recordings
surreptitiously made of me at your high school by the students" and "all of the
metadata associated with the above recordings," with "[a]ll documents in
whatever form, including electronic, with respect to the surreptitious audio and
videotapes made of me . . . including the metadata."
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October 23, 2020. Plaintiff references this date in his complaint and does not

dispute his knowledge of the denial on that date.

Accordingly, we are not persuaded by plaintiff's argument that a later date

is applicable because of his subsequent OPRA requests seeking the same

information he sought in his first request, or that the court was otherwise

required to use the November 15, 2021 date for statute-of-limitations purposes.

To allow plaintiff to start a new forty-five-day period by simply making an

identical request would frustrate the purpose of the statute of limitations.

Mason, 196 N.J. at 70 (stating that "[a] 45-day time frame also provides certainty

and repose to public bodies faced with numerous OPRA requests. At the same

time, it offers the public ample opportunity to challenge a denial of access.").

We therefore conclude that the statute of limitations began to run on

October 23, 2020, with the denial letter from the District's custodian of records

and plaintiff's complaint was untimely, having been filed over one year later on

December 6, 2021. Having missed the forty-five-day deadline to file a

complaint challenging the District's initial October 23, 2020 denial of his OPRA

request, plaintiff's subsequent six requests for all or portions of the identical

purported government records under OPRA did not restart the limitations period

clock.

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 Plaintiff's remaining arguments are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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