Simmons v. Mercado, ___ N.J. ___ (2021). Justice Pierre-Louis issued this unanimous opinion for the Supreme Court today. The issue was “whether a records request for complaint-summonses from a municipal police department is proper under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. The key question [was] whether the complaint-summonses –electronic records populated with information by local police officers but stored on Judiciary servers –are the police department’s government records under OPRA.”
In an opinion reported at 464 N.J. Super. 77 (App. Div. 2020), and discussed here, the Appellate Division held that those materials were not government records of Millville, the defendant municipality. Instead, that court said, the records needed to be sought from the judiciary. That ruling reversed a decision of the Law Division that had required the municipality to produce the records under OPRA.
The Supreme Court granted plaintiffs’ petition for certification. Today, in an opinion that applied de novo review (since “[d]eterminations about the applicability of OPRA and its exemptions are legal conclusions and are therefore subject to de novo review”), the Supreme Court reversed the Appellate Division and restored the Law Division’s ruling. Plaintiffs were aided by “the Legislature’s direction that OPRA shall be construed in favor of the public’s right of access and imposes on public agencies the burden of proving that the denial of access is authorized by law” (citations and internal quotation marks omitted).
Justice Pierre-Louis found that OPRA’s plain language was the Court’s “best guide.” She quoted N.J.S.A. 47:1A-1.1, which defines a “government record” as “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 in a similar device, or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business by any officer, commission, agency, or authority of the State or of any political subdivision thereof . . . .” (emphasis by Justice Pierre-Louis; other emphasis omitted).
The Millville Police Department (“MPD”) argued that because the Judiciary created the Forms CDR-1 on which the requested information appeared, the Judiciary, not police officers, “make” those forms. Justice Pierre-Louis did not agree. “[I]t is the substantive information regarding arrests used to populate the CDR-1s that is at issue here, and that information is inputted by MPD and only MPD. No judicial officer or judge plays a role in creating the document or inputting any information into the CDR-1s at the moment the law enforcement officer fills out the form and submits it to the Judiciary.”
The language of OPRA also defeated the MPD’s argument that because it did not “maintain” the CRD-1’s, they were not government records of the municipality. “The plain language of the statutory provision at issue here is clear: if a government official makes, maintains, or keeps on file electronic information in the course of his or her official business, it is a ‘government record’ subject to OPRA. See N.J.S.A. 47:1A-1.1. The use of ‘or’ plainly indicates that any of those three listed actions is sufficient to satisfy the statutory definition” (emphasis by Justice Pierre-Louis). Since the MPD “makes” those forms, they were government records of Millville, regardless of who “maintained” them.
Justice Pierre-Louis also rebuffed defendants’ argument that since the records were available elsewhere (that is, from the Judiciary), OPRA did not require defendants to produce them. “Were we to engraft upon OPRA an exception for when a government agency has created but no longer maintains a record, it would create a perverse incentive for officials to relinquish electronic records to a third party in order to prevent their public disclosure. That would conflict with OPRA’s policy of government transparency and would ignore the fact that modern-day technological advancements have, in many cases,resulted in the possibility for there to be multiple concurrent or simultaneous custodians of the same electronic information.”
Finally, the Court held that plaintiffs’ request was properly tailored and within the scope of OPRA, and that it did not require defendants to perform research. Justice Pierre-Louis distinguished MAG Entertainment, LLC v. Division of Alcoholic Beverage Control, 375 N.J. Super. 534 (App. Div. 2005), on which defendants relied. Instead, the request here was more comparable to that in Paff v. Galloway Tp., 229 N.J. 340 (2017), discussed here, where the Court rejected an argument that a request required research. The Court thus reversed the Appellate Division, reinstated the Law Division’s ruling in favor of plaintiffs, and ordered defendants to produce the requested records within five business days.