Rotimi A. Owoh, Esq. v. Maple Shade Police Department

NOT FOR PUBLICATION WITHOUT THE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-3643-21

ROTIMI A. OWOH, ESQ.
(O/B/O AFRICAN AMERICAN
DATA AND RESEARCH
INSTITUTE, and GRACE WOKO),

Appellant,

v.

MAPLE SHADE POLICE
DEPARTMENT
(BURLINGTON),

Respondent.
______________________________

Argued February 14, 2024 – Decided March 18, 2024

Before Judges Currier, Firko, and Vanek.

On appeal from the New Jersey Department of
Community Affairs, Government Records Council,
GRC Complaint No. 2021-64.

Rotimi A. Owoh argued the cause for appellant.

Donald Michael Doherty, Jr. argued the cause for
respondent Maple Shade Police Department.
 David Lawrence Disler argued the cause for amicus
curiae New Jersey State Association of Chiefs of Police
(Porzio, Bromberg & Newman, PC, attorneys; Vito
Anthony Gagliardi, Jr., of counsel and on the brief;
David Lawrence Disler and Weston J. Kulick, on the
brief).

Matthew J. Platkin, Attorney General, attorney for
respondent Government Records Council (George
Norman Cohen, Deputy Attorney General, on the
statement in lieu of brief).

PER CURIAM

Appellant Rotimi A. Owoh, who represents African American Data &

Research Institute and Grace Woko, appeals from the Government Records

Counsel's (GRC) final administrative determination denying his request for

certain records under the New Jersey Open Public Records Act (OPRA),

N.J.S.A. 47:1A-1 to -131, and the common law right of access. We affirm.

I.

In item number five, which is the subject of this appeal, appellant

requested respondent Maple Shade Police Department provide the "[n]ames,

date of hire, date of separation and reason for separation and salary of

individuals who either resigned or were terminated in the last [five] years from

[the] police department." In response to his request, respondent's custodian of

records sent a letter stating, "[t]he [T]ownship requests a clarification on your

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request and what records you are requesting. When you state individuals who

'resigned' are you requesting information on individuals who retired or those

who separated from the agency for other reasons[?]"

That day, appellant emailed the custodian with his clarification, which

stated: "Item 5: All separations—reasons for the separations (employment

terminations) in the last [five] years. Includes resigned, fired, retired, etc." To

accommodate appellant's request, the custodian reviewed respondent's files and

provided an Excel spreadsheet containing the requested information.

The spreadsheet was divided into headings, which included employee

identification, employee status, date of hire, date of termination, position title,

employment type, pay type, and pay rate, and included responses such as

"resigned," "terminated," or "retired" as the reasons why the police officers

separated from respondent.

Thereafter, appellant filed a denial of access complaint with the GRC

contending the words "terminated," "resigned," and "retired" do not disclose the

"real reasons" for each police officer's separation. Appellant asserted the non-

response violated OPRA, and he sought to have the custodian comply with his

request. In his complaint, appellant alleged the "real reason" for a police

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officer's separation may be the result of a plea agreement or sentence, which is

subject to disclosure under OPRA and Libertarians.1

According to appellant, respondent did not want to provide the "real

reasons" for separation "due to the pervasive culture and predisposition to

protect officers convicted of misconduct," and providing single word

descriptions was "only partially truthful" and did not "promote OPRA's goal of

transparency." Appellant also contended he should be granted access to the

records under the common law right of access. 2

The custodian filed a statement of information (SOI) in opposition to the

complaint. The custodian certified that (1) appellant's OPRA request was

received on December 16, 2020; (2) the custodian reached out to respondent's

finance officer for documents on file that contained the personnel information

requested and found the data within an electronic document entitled "Pivotal

Earnings Detail" that was used to prepare the spreadsheet; and (3) the custodian

responded to appellant's request in writing on February 10, 2021, providing the

1
Libertarians for Transparent Gov't v. Cumberland Cnty., 250 N.J. 46, 54
(2022).
2
The GRC did not consider this argument because the GRC has jurisdiction
only over OPRA requests, and not common law claims for public records.
N.J.S.A. 47:1A-7(b); A.A. v. Gramiccioni, 442 N.J. Super. 276, 282 n.4 (App.
Div. 2015).
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requested information in accordance with the OPRA statute and Libertarians.

Respondent contended that personnel records were not government records and

have been afforded greater protection from public access than other public

records, citing N.J.S.A. 47:1A-10.

Respondent also asserted that agencies are only required to disclose

"identifiable records" under the controlling case law, and appellant was asking

the custodian to perform research to ascertain whether any of the officers'

separations were "compelled by" a plea bargain or conviction. Respondent

contended its custodian was not required to "correlate data amongst various

government records."

On July 19, 2022, GRC's Executive Director issued findings and

recommendations relative to appellant's denial of access complaint. The

Executive Director found the facts in this matter were distinguishable from

Libertarians because there, the plaintiffs expressly requested the settlement

agreement, which contained the basis for the employee's resignation. In

contrast, the Executive Director noted that here, appellant requested "the reasons

for separation," but did not request any settlement or plea agreements or any

other record that may relate to an officers' separation. Accordingly, the

Executive Director concluded respondent's custodian did not unlawfully deny

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appellant's OPRA request and was not obligated to provide records that were not

requested.

At the GRC's July 26, 2022 public meeting, after reviewing the Executive

Director's findings and recommendations, and documentation submitted by the

parties, the GRC issued its final decision stating:

The custodian did not unlawfully deny access to
[appellant's] OPRA request seeking the "[n]ames, date
of hire, date of separation and reason for separation and
salary of individuals who either resigned or were
terminated in the last [five] years from your police
department." N.J.S.A. 47:1A-6. The custodian provided
[appellant] with the "reason[s] for separation" in
accordance with N.J.S.A. 47:1A-10 and Libertarians,
and was not obligated to provide records that were not
requested by [appellant].

On appeal, appellant contends that in light of our Court's holding in

Libertarians, he does not have to accept the Excel spreadsheet stating "resigned,"

"retired," or "terminated" as the reasons for separation, and under OPRA, he has

the right to inspect redacted copies of the actual records, specifically plea

agreements and criminal convictions. Appellant also argues he is entitled to the

real reasons for separation under the common law right of access even if the

misconduct did not result in a criminal conviction or a plea agreement.

Respondent counters there was no OPRA violation because appellant not

only failed to request a record, but he also failed to provide a description of what

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record would be responsive. Amicus curiae New Jersey Association of the

Chiefs of Police contends OPRA does not require custodians to determine the

"real reasons" for why government action was taken, and that custodians are not

required to conduct a subjective analysis in response to an OPRA request, but

only retrieve specifically maintained records.

II.

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

review of a decision by any other state agency." In re Stallworth, 208 N.J. 182,

194 (2011) (quoting Fisher v. Div. of Law, 400 N.J. Super. 61, 70 (App. Div.

2008)). We "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 of Monmouth,

406 N.J. Super. 1, 6 (App. Div. 2009).

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 apply the same standard of review "to

the court's legal conclusions with respect to whether access to public records is

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appropriate under the common law right of access." Drinker Biddle & Reath,

LLP v. N.J. Dep't of Law and Pub. Safety, 421 N.J. Super. 489, 497 (App. Div.

2011).

OPRA was enacted "to promote transparency in the operation of

government." Sussex Commons Assocs., LLC v. Rutgers, 210 N.J. 531, 541

(2012). In passing OPRA,

the [l]egislature declared it public policy 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 that any limitation of the right
of action accorded by OPRA "shall be construed in
favor of the public's right[-]of[-] access."

[Paff v. Ocean Cnty. Prosecutor's Off., 235 N.J. 1, 17-
18 (2018) (quoting N.J.S.A. 47:1A-1).]

"A [g]overnment record" has been broadly defined by OPRA to include

any record "made, maintained or kept on file in the course of . . . its official

business by any officer, commission, agency or authority of the State or of any

political subdivision thereof," or any record "received in the course of . . . its

official business by any such officer, commission, agency, or authority of the

State or of any political subdivision thereof." N.J.S.A. 47:1A-1.1. "As further

expansion of the public's right of access, OPRA places the burden of proof on

the government to show that a requested record may be withheld under an

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exemption or exclusion from the disclosure requirement." Asbury Park Press,

406 N.J. Super. at 7 (citing N.J.S.A. 47:1A-6).

Although "[t]he statute broadly defines the term 'government record,'" it

"also calls for a careful balancing of competing interests—the right of access to

government records versus the need to protect personal information."

Libertarians, 250 N.J. at 54 (citing Burnett v. Cnty. of Bergen, 198 N.J. 408, 414

(2009)). OPRA provides specific exclusions from the disclosure requirement.

In particular, N.J.S.A. 47:1A-10 specifies that "the personnel or pension records

of any individual in the possession of a public agency, including but not limited

to records relating to any grievance filed by or against an individual, shall not

be considered a government record and shall not be made available for public

access."

However, N.J.S.A. 47:1A-10 includes the following exceptions:

(1) an individual's name, title, position, salary, payroll
record, length of service, date of separation and the
reason therefor, and the amount and type of any pension
received shall be a government record;

(2) personnel or pension records of any individual shall
be accessible when required to be disclosed by another
law, when disclosure is essential to the performance of
official duties of a person duly authorized by this State
or the United States, or when authorized by an
individual in interest; and

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 (3) data contained in information which disclose
conformity with specific experiential, educational or
medical qualifications required for government
employment or for receipt of a public pension, but not
including any detailed medical or psychological
information, shall be a government record.

Although OPRA "does not define precisely what information is covered

by the phrase 'personnel record,' . . . courts have tended to favor the protection

of employee confidentiality." McGee, 416 N.J. Super. at 615; but see Asbury

Park Press, 406 N.J. Super at 9 (holding that OPRA grants the public the right

to access settlement agreements that resolve civil litigation between a

government agency and its employee).

We note "agencies are only obligated to disclose identifiable government

records." Burke v. Brandes, 429 N.J. Super. 169, 174 (App. Div. 2012). "A

proper request 'must identify with reasonable clarity those documents that are

desired.'" Ibid. (quoting Bent v. Twp. of Stafford Police Dep't, 381 N.J. Super.

30, 37 (App. Div. 2005)).

"'Wholesale requests for general information to be analyzed, collated[,]

and compiled' by the agency are outside OPRA's scope." Ibid. (quoting MAG

Entm't, LLC v. Div. of Alcoholic Beverage Control, 375 N.J. Super. 534, 549

(App. Div. 2005)). "OPRA does not countenance open-ended searches of an

agency's files" and is not "intended as a research tool litigants may use to force

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government officials to identify and siphon useful information." MAG Entm't,

375 N.J. Super. at 546, 549.

As such, requests for "any and all documents" on a specific subject are

deemed "overly broad." Spectraserv, Inc. v. Middlesex Cnty. Utils. Auth., 416

N.J. Super. 565, 577, 578 (App. Div. 2010). To properly decide if a request

would be considered research, the court must determine whether it demands the

agency engage in analysis or "'the exercise of judgment in identifying responsive

records.'" Simmons v. Mercado, 247 N.J. 24, 44 (quoting Burke, 429 N.J. Super.

at 177).

OPRA permits requests for documents already created or on file with a

public entity. N.J.S.A. 47:1A-1.1. But, OPRA does not require a public agency

to create documents not already in existence. Sussex Commons Assocs., 210

N.J. at 544. "[I]f a request 'would substantially disrupt agency operations, the

custodian may deny access to the record after attempting to reach a reasonable

solution with the requestor that accommodates the interests of the requestor and

the agency.'" Burke, 429 N.J. Super. at 174 (quoting N.J.S.A. 47:1A-5(g)).

Here, appellant contends that he is entitled to the "real reasons" behind

the officers' separations based on precedent set forth in Libertarians. In

Libertarians, the plaintiff submitted an OPRA request that primarily sought

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copies of a Preliminary Notice of Disciplinary Action (PNDA), a settlement

agreement, and a correction officer's "name, title, position, salary, length of

service, date of separation, and the reasons therefore in accordance with N.J.S.A.

47:1A-10." 250 N.J. at 48, 50. The defendants declined the plaintiff's request,

claiming that it was a personnel record exempt from access. Id. at 49. Instead,

the defendants provided the plaintiff with other details and stated that the officer

was "charged with a disciplinary action and was terminated." Ibid.

Our Court conducted an interpretive analysis of "the plain language of

Section 10," which addresses personnel records. According to Section 10,

personnel or pension records "shall not be considered a government record and

shall not be made available for public access." Ibid. One exception to Section

10 is that "an individual's name, title, position, salary, payroll record, length of

service, date of separation and the reason therefor, and the amount and type of

any pension received shall be a government record." Ibid.

Based on those principles, our Court ultimately found that the plaintiff

was entitled to the settlement agreement because "[u]nder Section 10, the

reasons [the individual] separated from government qualify as a 'government

record.' [And], [a] settlement agreement that includes those details must be

therefore made available to the public once it is redacted." Id. at 58.

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 But, here appellant did not ask for specific documents. He only requested

general information. Although appellant's request referred to "All separations—

reasons for the separations" in the last five years, his original and revised

clarified request never identified any government records and never clearly and

reasonably described with sufficient identifying information what records he

was seeking. In fact, appellant first mentioned specific documents—plea

agreements and criminal convictions—in his cover letter attached to the denial

of access complaint he filed with the GRC. The record is clear that appellant

did not request specific government records when he made his OPRA request or

when he clarified his request. And, as stated in amicus's brief, appellant

continues to have the ability to request the government records he now claims

he wants.

Under OPRA, a requester is obligated to describe the government record

sought in fairly specific terms. See Gannett N.J. Partners v. Middlesex, 379 N.J.

Super. 205, 212 (App. Div. 2005); Johnson & Connell, New Jersey Open Public

Records & Meetings, § 13.6 (2023). The fundamental reason OPRA contains

this specificity requirement is to enable custodians to comply with their

obligations under the statute. See N.J. Bldrs. Ass'n v. COAH, 390 N.J. Super.

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166, 177-78 (App. Div. 2007). As our Court elaborated in Paff v. Galloway

Twp., 229 N.J. 340, 355-56 (2017):

A records request must be well defined so that the
custodian knows precisely what records are sought.
The request should not require the records custodian to
undertake a subjective analysis to understand the nature
of the request. Seeking particular information from the
custodian is permissible; expecting the custodian to do
research is not.

See also Conley v. Dept. of Corrections, 452 N.J. Super. 605, 612 (App. Div.

2018) (stating also that custodians are not obligated to conduct research in

response to a vague or poorly described request).

Indeed, the fact that the custodian of records in this case actually

performed a search and prepared a spreadsheet in an effort to respond to

appellant's request belies any assertion that OPRA was violated. Appellant did

not request any records at all. Absent that request, the custodian provided

appellant what he asked for—the reasons for separation.

Lacking any direction from appellant in his request as to specific records

being sought, the custodian would have to research and analyze a data base. As

stated, it is not the custodian's burden to do so. Upon receiving the request,

respondent's custodian asked for clarification and prepared a spreadsheet,

providing the information it had. We are satisfied the GRC did not abuse its

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discretion when it found the custodian provided appellant with the "reasons for

separation" in accordance with N.J.S.A. 47:1A-10 and Libertarians.

III.

Alternatively, appellant contends the "real reasons" for each one of the

listed separations is subject to disclosure under the common law right of access.

According to appellant, he has a strong interest in making sure that "the few bad

police officers do not keep moving from one police department to another police

department since Black folks like GEORGE FLOYD of Minnesota are the

NORMAL victims of the few bad police officers." (Emphasis in original).

As noted by the GRC, its jurisdiction is limited to interpreting the OPRA

statute. The GRC has no jurisdiction over claims of common law right of access.

See L.R. v. Camden City Sch. Dist., 452 N.J. Super. 56, 94 (App. Div. 2017);

John & Connell, New Jersey Open Public Records & Meetings § 15:3-1 (2023).

Jurisdiction under the common law right of access lies in the Law

Division, not the GRC. Serrano v. S. Brunswick Twp., 358 N.J. Super. 352, 373

(App. Div. 2003) (Coburn, J., concurring). Thus, the GRC correctly concluded

it did not have authority to address appellant's common law right of access

claim.

Affirmed.

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