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Sanctions Upheld by New Jersey Appellate Division for Failure to Withdraw Complaint Re: Open Public

On May 2, 2018, Judge George Leone of the Appellate Division of the Superior Court of New Jersey issued a decision, Valentin v. Borough of Penns Grove, No. A-0834-15T2, 2018 N.J. Super. Unpub. LEXIS 1033 (N.J. Super. Ct. App. Div. May 2, 2018), affirming an order denying reconsideration of an order awarding sanctions.

The defendant in the case compiled all documents responsive to the plaintiff's Open Public Records Act request, and sent an email to the plaintiff's counsel stating that since they were too voluminous to scan or email, they could be picked up at any time from the Penns Grove Clerk's Office. The plaintiff did not see the email and filed a complaint citing a failure to respond to its OPRA request. Defense counsel then sent a letter to the plaintiff noting that the documents were available. The plaintiff immediately picked up the documents, but refused to withdraw its complaint. The plaintiff contended that the response was inadequate. Plaintiff's counsel failed to appear in person at court hearing (asking to appear 5 minutes beforehand via telephone) and also submitted a reply brief shortly before the hearing that had been due three days prior.

The trial court dismissed the complaint and granted the defendants' motion for sanctions, in the amount of $1725, because the plaintiff should have realized that he no longer had a claim. Judge Leone found that plaintiff violated Civil Court Rule 1:48(b)(1) (which concerns frivolous litigations) because the complaint was submitted for an improper purpose and the factual allegations did not have evidentiary support.

The court noted that OPRA only requires the release of existing records, not the creation of new records. It distinguished this case from Pfaff v. Galloway, 229 N.J. 340 (2017), in which the Supreme Court of New Jersey held, that, ""By OPRA's [plain] language, information in electronic form, even if part of a larger document, is itself a government record. Thus, electronically stored information extracted from an email is not the creation of a new record or new information; it is a government record." Id. 353, 356. The documents responsive to the plaintiff's OPRA request where either in hard copy or image processed.

The requests failed to state with specificity and particularity the requested government records because, "plaintiff's requests 1 and 2 asked for 'open ended searches' in which the Borough's files would be 'analyzed' to calculate a rate, and 'compiled' into a list." Valentin, 2018 N.J. Super. Unpub. LEXIS 1033 at *26.

Judge Leone also concluded that the plaintiff did not show an objective, reasonable belief that despite a certification by a records custodian, documents existed for requests for which no response was received.

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