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                           APPROVAL OF THE APPELLATE DIVISION
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                                                     SUPERIOR COURT OF NEW JERSEY
                                                     APPELLATE DIVISION
                                                     DOCKET NOS. A-4204-16T2
                                                                 A-4276-16T2

VAUGHN SIMMONS,

       Appellant,

v.

CITY OF NEWARK,

     Respondent.
_________________________________

                Submitted September 24, 2018 – Decided October 19, 2018

                Before Judges Messano and Rose.

                On appeal from the New Jersey Government Records
                Council, GRC Nos. 2015-343 and 2015-329.

                Vaughn Simmons, appellant pro se.

                Kenyatta K. Stewart, Acting Corporation Counsel, City
                of Newark, attorney for respondent City of Newark
                (Samora F. Noguera, Assistant Corporation Counsel, on
                the briefs).

                Gurbir S. Grewal, Attorney General, attorney for
                respondent Government Records Council (Cameryn J.
            Hinton, Deputy Attorney General, on the statements in
            lieu of briefs).

PER CURIAM

      In these matters, calendared back to back and consolidated for purposes

of this opinion, complainant Vaughn Simmons appeals from the January 31,

20171 and April 27, 2017 final agency decisions of the Government Records

Council (GRC), denying Simmons' requests for disclosure of certain records

pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. We

affirm.

      We provide a brief background, reciting the facts and procedural history

pertinent to these appeals. Following an investigation of two armed robberies

in December 2009, Newark Police Detective Angel Perez appeared before a

municipal court judge and obtained a warrant to arrest Simmons. It is unclear

whether Perez's testimony was recorded. In June 2010, Perez testified before a




1
  Simmons filed a request for reconsideration of the GRC's January 31 decision,
alleging criminal conduct by the City of Newark Police Department (NPD). On
April 25, 2017, the GRC issued a final decision, denying that request. However,
Simmons' notice of appeal does not designate the GRC's April 25 final decision
and, as such, we decline to address it. See R. 2:5-1(e)(3)(i); 1266 Apartment
Corp. v. New Horizon Deli, Inc., 368 N.J. Super. 456, 459 (App. Div. 2004)
(recognizing that we review "only the judgment or orders designated in the
notice of appeal").


                                                                       A-4204-16T2
                                      2
grand jury, which returned indictments charging Simmons with both robberies

and weapons-related offenses.      Simmons claims Perez fabricated evidence

against him resulting in his convictions and imprisonment for some of the

charges.

      Five years later, Simmons filed two separate OPRA requests with the City

of Newark for: (1) copies of "the complaint and [disciplinary] history of

Detective Angel Perez . . . [including] any promotions and demotions of this

same law enforcement agent" (the personnel records request); and (2) the "audio

C.D. recording of the probable cause testimony/transcript or the equivalent

communicat[ion before the municipal judge]" (the probable cause recording

request).   The City ultimately denied both requests, contending:          (1) the

personnel records request sought information from internal affairs files that are

privileged and confidential, although a "diligent search" of Perez's file reveale d

no records of demotions or promotions; and (2) the probable cause recording

request sought records that are not maintained by the City's OPRA department,

but might be maintained by the Newark Municipal Court, the Superior Court's

Essex Vicinage, or the Essex County Prosecutor's Office.

      Simmons filed a Denial of Access Complaint with the GRC for both

requests, because the City's response to each request was untimely. Regarding



                                                                           A-4204-16T2
                                        3
the personnel records request, the City's custodian of records initially responded

to Simmons, within the statutory seven-day period,2 but sought extensions to

conduct a search of the requested documents with assistance from the NPD.

Concerning the probable cause recording request, the custodian filed a statement

of information certifying his office was not made aware of Simmons' request

until the GRC contacted the custodian, due to "an administrative oversight."

        In separate final agency decisions, the GRC upheld the City's denials of

access to both of Simmons' requests. Common to both decisions, the GRC found

the City failed to respond timely, resulting in a "'deemed' denial." See N.J.S.A.

47:1A-5(i). However, in both instances, the GRC determined the City's denial

was not knowing or willful.

        Specifically, the GRC found the City's denial of access to Perez's

personnel records was not contrary to OPRA's requirements because those


2
    N.J.S.A. 47:1A-5(i), which requires, in pertinent part, that

              a custodian of a government record shall grant access
              to a government record or deny a request for access to
              a government record as soon as possible, but not later
              than seven business days after receiving the request,
              provided that the record is currently available and not
              in storage or archived. In the event a custodian fails to
              respond within seven business days after receiving a
              request, the failure to respond shall be deemed a denial
              of the request[.]
                                                                          A-4204-16T2
                                          4
records are confidential and exempt from public access.         Further, the City

ultimately responded to Simmons after receiving a response from the NPD

regarding its search efforts. Based on the totality of the circumstances, the GRC

determined "the [c]ustodian's actions [did] not rise to the level of a knowing and

willful violation of OPRA [or an] unreasonable denial of access."

      Concerning the probable cause recording request, the GRC found

persuasive the custodian's certification that his office does not maintain those

records, and Simmons "failed to submit any competent, credible evidence to

refute the [c]ustodian's certification." Again, the GRC found the totality of the

circumstances did not warrant a finding that the custodian knowingly and

willfully violated OPRA. This appeal followed.

      On appeal, Simmons raises the following points for our consideration

regarding the personnel records request:

            POINT I

            [SIMMONS'] RECORD REQUEST FOR [PEREZ'S]
            INTERNAL AFFAIRS FILE LIMITED TO
            COMPLAINTS AGAINST THE OFFICER AND ANY
            DISCIPLINARY ACTION TAKEN SHOULD HAVE
            BEEN GRANTED BECAUSE THE DETECTIVE
            FABRICATED EVIDENCE IN A CASE AGAINST
            [SIMMONS] AND THE EXCEPTION TO THE RULE
            GRANTS [SIMMONS] ACCESS TO THE FILES.



                                                                          A-4204-16T2
                                        5
            POINT II

            THE . . . GRC ERRED AND DID NOT CONSIDER
            ADDITIONAL SUBMISSIONS IN [SIMMONS']
            REQUEST FOR RECONSIDERATION WHICH IF
            CONSIDERED      WOULD   HAVE    REVERSED
            CUSTODIAN[']S DENIAL.

            POINT III

            THE . . . GRC ERRED IN NOT REVERSING . . .
            [THE] CUSTODIAN[']S DENIAL BECAUSE
            [SIMMONS'] RECORD REQUEST IN-PART FOR
            PROMOTIONAL AND DEMOTIONAL RECORD
            SHOULD HAVE BEEN GRANTED BECAUSE
            DETECTIVE HAD TO BE PROMOTED TO THAT
            RANK.

     Further, Simmons raises the following arguments regarding the probable

cause recording request:

            POINT I

            [A.] THE . . . CUSTODIAN ERRED IN DENYING
            [SIMMONS'] RECORD REQUEST BECAUSE
            [SIMMONS] TIMELY SOUGHT THE REQUESTED
            RECORDS FROM ALL [OF] THE APPROPRIATE
            DEPARTMENTS BUT WAS DENIED.

            B. [SIMMONS] ARGUES THE . . . CUSTODIAN
            ERRED IN STATING THE CITY OF NEWARK
            DOES NOT MAINTAIN OR HAVE CONTROL
            OVER [SIMMONS'] REQUEST.

            C. THE . . . CUSTODIAN['S] ACTIONS WERE
            KNOWING AND WILLFUL.


                                                                    A-4204-16T2
                                    6
            POINT II

            THE . . . GRC ERRED IN DENYING [SIMMONS']
            RECORD REQUEST BECAUSE THE . . .
            CUSTODIAN ADMITTED MISTAKE AND RELIED
            ON A RULE FOR DENIAL . . . WHICH [SIMMONS]
            ARGUES HAS NO MERIT.

            POINT III

            THE . . . GRC ERRED IN NOT REVERSING
            [SIMMONS'] RECORD REQUEST BECAUSE [IT]
            DID     NOT    CONSIDER    ADDITIONAL
            INFORMATION.

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

review of a decision by any other state agency." Fisher v. Div. of Law, 400 N.J.

Super. 61, 70 (App. Div. 2008) (citation omitted), and is therefore limited. In

re Stallworth, 208 N.J. 182, 194 (2011). 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.

      Whether an agency's decision is arbitrary, capricious, or unreasonable

requires a reviewing court to determine,

            (1) whether the agency's action violates express or
            implied legislative policies, that is, did the agency
            follow the law; (2) whether the record contains
            substantial evidence to support the findings on which
            the agency based its action; and (3) whether in applying

                                                                         A-4204-16T2
                                       7
            the legislative policies to the facts, the agency clearly
            erred in reaching a conclusion that could not reasonably
            have been made on a showing of the relevant factors.

            [Stallworth, 208 N.J. at 194.]

The burden of demonstrating that the agency's decision was arbitrary,

unreasonable, or capricious rests with the appellant. See Barone v. Dep't of

Human Servs., Div. of Med. Assistance & Health Servs., 210 N.J. Super. 276,

285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).

      The GRC is authorized to interpret OPRA. See N.J.S.A. 47:1A-7(b).

Although the agency's determination regarding the applicability of OPRA is a

legal conclusion subject to plenary review, see O'Shea v. Township of West

Milford, 410 N.J. Super. 371, 379 (App. Div. 2009), "under our deferential

standard of review, we give weight to the GRC's interpretation of OPRA."

McGee v. Twp. of E. Amwell, 416 N.J. Super. 602, 616 (App. Div. 2010). "We

do not, however, simply rubber stamp the agency's decision." Bart v. City of

Paterson Hous. Auth., 403 N.J. Super. 609, 618 (App. Div. 2008) (citation

omitted).

      "OPRA's purpose is 'to maximize public knowledge about public affairs

in order to ensure an informed citizenry and to minimize the evils inherent in a

secluded process.'" Mason v. City of Hoboken, 196 N.J. 51, 64-65 (2008)


                                                                        A-4204-16T2
                                       8
(quoting Asbury Park Press v. Ocean Cty. Prosecutor's Office, 374 N.J. Super.

312, 329 (Law Div. 2004)). However, OPRA does not "'authorize a party to

make a blanket request for every document' a public agency has on file." Bent

v. Stafford Police Dep't, Custodian of Records, 381 N.J. Super. 30, 37 (App.

Div. 2005) (quoting Gannett N.J. Partners, LP v. Cty. of Middlesex, 379 N.J.

Super. 205, 213 (App. Div. 2005)).       "OPRA does not authorize unbridled

searches of an agency's property." Ibid. "Not every paper prepared by a public

employee fits within the definition of a government record for purposes of

OPRA." Bart, 403 N.J. Super. at 617.

      To achieve its purpose, OPRA provides that "government records shall be

readily accessible for inspection, copying, or examination by the citizens of this

State, [subject to] certain exceptions[․]" N.J.S.A. 47:1A-1.

      OPRA broadly defines the term "government record" to include:

               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 or in a similar device, or any
               copy thereof, that has been made, maintained or kept
               on file in the course of his[, her,] or its official
               business by any officer, commission, agency or
               authority of the State or of any political subdivision
               thereof, including subordinate boards thereof, or that
               has been received in the ordinary course of his[, her,]
               or its official business by any such officer,

                                                                          A-4204-16T2
                                        9
               commission, agency, or authority of the State or of
               any political subdivision thereof, including
               subordinate boards thereof.

               [N.J.S.A. 47:1A-1.1.]

      Certain government records, including personnel records, however, are

exempt from public access under OPRA. See N.J.S.A. 47:1A-10. Pertinent to

this appeal, OPRA's personnel record exemption "begins with a presumption of

non-disclosure and proceeds with a few narrow exceptions . . . ." Kovalcik v.

Somerset Cty. Prosecutor's Office, 206 N.J. 581, 594 (2011). When interpreting

this exemption's scope, "courts have tended to favor the protection of employee

confidentiality." McGee, 416 N.J. Super. at 615.

      Having reviewed the record, and applying our highly deferential standard

of review, we find no basis to disturb the GRC's final decisions. Rather, there

is sufficient credible evidence in the record as a whole supporting the GRC's

decision. R. 2:11-3(e)(1)(D).

      In sum, Perez's disciplinary history, including any promotions or

demotions, even if they did exist, clearly are personnel records, which are

exempt from public disclosure pursuant to N.J.S.A. 47:1A-10. Secondly, the

probable cause recording, assuming it exists, is not in the City's custody. It

follows, therefore, that the City cannot produce records that either do not exist

                                                                         A-4204-16T2
                                       10
or are not in its custody. Accordingly, Simmons has not met his burden of

demonstrating the GRC's decisions were arbitrary, capricious or unreasonable.

See Barone, 210 N.J. Super. at 285.

      To the extent we have not addressed Simmons' remaining contentions, we

find they are without sufficient merit to warrant discussion in a written opinion.

R. 2:11-3(e)(1)(E).

      Affirmed.




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                                       11
