A state appellate panel reversed a trial judge and ruled that the burden of searching for records maintained by others should not be on local authorities—such as police departments—but on the individuals seeking the records.

The case before the Appellate Division involved plaintiffs who sought a number of documents from the Millville Police Department in 2018  through an Open Public Records Act request. The  panel ultimately determined that the documents were maintained not by the police department but by the judiciary.

Appellate Division Judge Clarkson Fisher Jr., who delivered the June 11 opinion, said it was a Millville police officer that entered the requested complaint-summons into a computer, but the document was completed via the state's Electronic Complaint Disposition Record (eCDR) system, "and the finished product is maintained by the municipal court or, in a larger sense, the judiciary."

"We conclude that it is to the judiciary that plaintiffs must direct their request for the production of such records," said Fisher in the case, heard on May 12, with Judges Allison Accurso and Lisa Rose. It was on appeal from the Cumberland County Law Division.

Solo practitioner Brock Russell in Millville represented defendants Millville, the Millville Police Department and Wendy Mercado.

"I lost at the trial level but the Millville governing body had enough faith in me to move forward with an appeal," Russell said in a phone call on Friday. "The Appellate Division made the correct decision."

Russell said Millville is run by five commissioners and it was Commissioner Joseph Pepitone, the director of public safety, who allowed him to move forward with an appeal.

Solo Rotimi Owoh of Princeton represented plaintiffs Baffi Simmons and the African American Data and Research Institute, a company Owoh created. Owoh was not available for comment. Court affidavits show Owoh has sued multiple municipalities over OPRA requests and won.

The appellate panel considered an order holding that the defendants were required to provide Simmons and the African American Data and Research Institute with records pursuant to the OPRA request, which sought summonses issued by the Millville Police Department from January 2017 to the date of the OPRA request.

Specifically, the plaintiffs sought copies of DWI/DUI complaints and summonses; drug possession complaints and summonses; the police department's "arrest listings"; and drug paraphernalia complaints and summonses during that time span.

Redacted arrest listings were the only documents the police department came up with, according to the decision. The defendants told the plaintiffs "there are no records responsive to your request" and advised that "[c]ourt documents can be requested through the NJ Judiciary website," the decision said.

Judge Benjamin Telsey summarily ruled in the plaintiffs' favor and under OPRA's fee-shifting provision awarded plaintiffs attorney fees of $5,424 on Oct. 22, 2018. Telsey said "whether or not [defendants] maintain [the records] … [is] not a standard under OPRA," but did allow more time to supplement the record with proof about whether the defendants were able to access the state's eCDR system, according to the decision.

Telsey entered an order on Jan. 3, 2019, and later rejected the defendants' motion for reconsideration on Feb. 18, 2019. On March 22, 2019, Telsey ordered the defendants to pay the attorney fees, but stayed the order pending appeal.

The city appealed, arguing that Telsey erred in classifying the requested documents as "government records within their possession," and maintained that Millville police officers merely converted the information into electronic forms. The court, not the municipality, is charged with placing those records under the judiciary, the defendants argued, and once those documents are electronically filed through the eCDR system, the municipalities no longer have access or possession of them.

The defendants also contended that, even if they had access to the eCDR system in order to procure the other documents in the plaintiffs' OPRA request, they would not have been able to because the system doesn't allow for the use of a particular charge or complaint type as a search parameter.

The defendants, according to the decision, argued: "(1) the complaints and summonses requested by Simmons and the Data Center 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 in possession of—exceeds OPRA's intended reach."

The Appellate Division panel agreed.

"The Legislature's purpose in enacting OPRA was 'to promote transparency in the operation of government," wrote Fisher in an 11-page opinion. "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.' OPRA instead operates to make identifiable government records 'readily accessible for inspection, copying, or examination.'"

Accordingly, Fisher said, an OPRA request requires the requesting party to get access to a public record to specifically describe the record sought, and that OPRA only allows "requests for access to records—not requests for information."

"OPRA also imposes on public agencies 'the burden of proving that the denial of access is authorized by law,'" Fisher said.

Fisher said, in this case, a local law enforcement officer began the process, but it was a judicial officer who retains final authority over the finished product.

"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," said Fisher.

"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."