                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-3381-12T1
AMERICAN CIVIL LIBERTIES UNION
OF NEW JERSEY, a non-profit
organization located in Newark,
New Jersey,
     Plaintiff-Appellant,
                                       APPROVED FOR PUBLICATION
v.
                                             May 13, 2014
NEW JERSEY DIVISION OF CRIMINAL
JUSTICE and BRUCE SOLOMON,               APPELLATE DIVISION
Custodian of Records for the
New Jersey Division of Criminal
Justice,
     Defendants-Respondents.
_____________________________________________

         Telephonically Argued January 23, 2014 –
         Decided May 13, 2014
         Before Judges Fuentes, Simonelli and Haas.
         On appeal from Superior Court of New Jersey,
         Law Division, Mercer County, Docket No.
         L-2562-12.
         Thomas W. MacLeod argued the cause for
         appellant (American Civil Liberties Union of
         New   Jersey   Foundation,  attorneys;   Mr.
         MacLeod, on the brief).

         Mary Beth Wood, Senior Deputy Attorney
         General, argued the cause for respondents
         (John J. Hoffman, Acting Attorney General,
         attorney; Lewis A. Scheindlin, Assistant
         Attorney General, of counsel; Ms. Wood, on
         the brief).

         The opinion of the court was delivered by
FUENTES, P.J.A.D.
      We are asked to determine whether, in response to a request

for government records brought under the Open Public Records Act

(OPRA), N.J.S.A. 47:1A-1 to 47:1A-13, and our common law right

of access, a government agency has the authority to redact an

admittedly      responsive           document       to    withhold        information       the

agency    deems      to    be   outside       the    scope       of    the    request.       In

defending the right to adopt such a policy, the public agency

concedes the information it withheld is not supported by any

claim of privilege or other recognized exemption to disclosure

in OPRA or under our State's common law right of access.

      The legal question raised here derives from an OPRA request

made by the American Civil Liberties Union of New Jersey (ACLU)

to the New Jersey Division of Criminal Justice (DCJ), seeking

records      "pertaining        to    all    forms       of   Automatic       License    Plate

Recognition (ALPR) technology."                      The DCJ responded by sending

the   ACLU    seventy-nine           pages   of     redacted      documents,         including

certain      pages    of    a    grant       application         that     were      completely

blacked-out.         In taking this action, the DCJ redacted from the

grant application information that, in the DCJ's opinion, did

not pertain to ALPR technology and thus was outside the scope of

the request.

      The     ACLU    filed      an     order       to    show        cause   and     verified

complaint      in     the       Law    Division          against        the    DCJ     seeking




                                               2                                      A-3381-12T1
declaratory and injunctive relief with respect to this redaction

policy, and an award of counsel fees under OPRA's fee-shifting

provision.   The matter came before the Law Division as a summary

action under N.J.S.A. 47:1A-6.         After considering the arguments

of counsel, the Law Division dismissed the ACLU's complaint,

finding the DCJ's actions were "an appropriate way to respond."

      As framed by the trial court, the policy adopted by the DCJ

presented two questions: (1) in responding to a request for a

public document "under either OPRA or the common law" can a

custodian determine to withhold information he or she believes

falls outside the scope of the request, without first seeking

consent or clarification from the requestor?          And if so, (2) is

it reasonable to impose the "onus" on the requestor to clarify

the request or attempt to obtain the voluntary release of the

redacted information before initiating legal action?            The court

ultimately decided to answer "yes" to both of these questions.

      It is important to emphasize that the decision of the trial

court to uphold the DCJ's redaction policy did not rest on how

the court characterized the ACLU's request.            The court viewed

the   documents   requested   by   the    ACLU   as   "public   records,"

unambiguously available to the public under both OPRA and the

common law right of access.        Analytically, the court did not

find, and the DCJ did not argue, that the redaction policy was




                                   3                             A-3381-12T1
in any way predicated on or supported by any claim of privilege

or statutorily recognized exemption to disclosure under either

OPRA or the common law right of access.

       In   the    trial    judge's      view,         the    action     taken    by     the

custodian constituted a reasonable, good faith determination by

the agency that the redacted records fell outside the scope of

the    request.        If    the    requestor          is    dissatisfied        with    the

government agency's response, it is "not unreasonable to ask the

requestor to make a follow[-]up request, which is what could

have    happened    here     and    would       have    resolved        this   particular

issue."

       We   disagree    with       the   Law     Division        and     reverse.        The

redaction protocol adopted by the DCJ here cannot stand because

it     is   not   grounded     on    any    of     the        statutorily      recognized

exemptions to disclosure in OPRA, N.J.S.A. 47:1A-1.1, or on a

claim of confidentiality under the common law.                          Absent a legally

recognized exception to disclosure, a citizen's right of access

to public information is unfettered.                    Courier News v. Hunterdon

Cty. Prosecutor's Office, 358 N.J. Super. 373, 383 (App. Div.

2003).

       The redaction policy adopted by DCJ is based entirely on

the    unilateral    determination         by    the        custodian    of    records    of

what, in his or her opinion, is relevant to the ACLU's request.




                                            4                                     A-3381-12T1
This approach confers upon the custodian of government records

quasi-judicial powers to determine what information contained

within a "government record," as defined in N.J.S.A. 47:1A-1.1,

is relevant to a request and therefore subject to disclosure

and,    conversely,     what        information       contained       in    this    same

document will be withheld from the public, based only on the

custodian's notion of relevancy.                 We discern no legal support

for such a policy in OPRA.

       Equally    troubling    is     the    court's       decision    to   place    the

"onus" on the requestor to clarify or engage in negotiations

with    the      custodian     as     a     jurisdictional        prerequisite        to

instituting legal action to enforce his or her rights to access

public information.          This extra hurdle the requestor must clear

before getting to the courthouse doors is not only untethered to

any provision in OPRA, but contravenes the clear public policy

expressed by the Legislature in OPRA, directing the courts to

construe "any limitations on the right of access . . . in favor

of the public's right of access."               N.J.S.A. 47:1A-1.

                                            I

       These facts are not disputed.                 On July 30, 2012, the ACLU

filed    a    formal   OPRA    request1         to   the    DCJ   seeking      records


1
  The ACLU transmitted the request                    using    the    State    of    New
Jersey's electronic request form.



                                            5                                 A-3381-12T1
"pertaining to all forms of Automatic License Plate Recognition

(ALPR) technology."   The ACLU specifically requested:

         1.   Records of all federal funds sought,
         received, or managed by your agency in
         connection with procurement and use of ALPR
         technology;

         2.   Records of all police departments and
         other agencies that received or purchased
         ALPR technology using funds from grants
         managed, arranged, or assisted by your
         agency;

         3.   All policies, procedures, and other
         general guidelines set for your agency by
         federal   grant-making  agencies,   and   for
         police departments and other agencies by
         your agency, with respect to procurement and
         use of ALPR technology, and to storage,
         access and sharing of data scanned with ALPR
         technology, including but not limited to
         those governing use of, access to, and
         auditing of databases, data mining programs,
         and other computerized management systems
         into which data from two or more police
         departments or other agencies is deposited;

         4.   All training materials relating to
         procurement and use of ALPR technology, and
         to storage, access, and sharing of data
         scanned with ALPR technology;

         5.   All records of the purchase, sale, or
         other   transfer   of  ALPR data   to  any
         individual or entity; and

         6.   All ALPR data sharing agreements with
         any   agency  of   the  federal   government,
         including but not limited to memoranda of
         understanding/agreement between your agency
         and any division or department of the U.S.
         Department of Justice, U.S. Department of
         Homeland   Security,   U.S.   Department   of




                                6                        A-3381-12T1
             Transportation,       Federal        Aviation
             Administration, and Department of Defense.

      In a transmittal letter submitted simultaneously with the

OPRA request, the attorney representing the ACLU apprised the

"OPRA custodian of government records" that if "any portions of

the   requested       materials          are    exempt       from       disclosure,         please

redact      only    what     you       believe        is     exempt       and       provide     the

remaining, non-exempt portions."

      The     DCJ    confirmed         receipt        of      the       ACLU's        request    on

September     14,    2012,       and     sent    an    ostensible         response         to   the

request that included "electronic copies of 79 pages of redacted

records[.]"         As     described      by    the        ACLU    in    its    brief,     "[t]he

redactions were made line-by-line in some cases; on other pages,

particular pieces of data within the record were blacked out."

The   only     explanation          or     justification            the        OPRA     custodian

provided for taking this action consisted of the following curt

statement:     "redacted          information         not     relevant         to       request."

(Emphasis added).

      On November 2, 2012, the ACLU filed a verified complaint

in the Law Division alleging the redacted documents sent by the

custodian violated the disclosure provisions under OPRA and the

common   law       right    of    access.           The     ACLU    alleged         the    records

requested     fell       within    the    definition          of    "government           records"

under N.J.S.A. 47:1A-1.1.                 As such, the DCJ did not have the



                                                7                                         A-3381-12T1
legal    authority      to     redact     a    government          record      and      withhold

information from it based on the DCJ's unilateral determination

of what may or may not have been relevant to the requestor's

purpose.

    By      way    of    relief,        the        ACLU    sought:       (1)      a     judicial

declaration that the DCJ's redaction policy violated OPRA and

the common law right of access; (2) an order enjoining the DCJ

from denying access to nonexempt portions of government records

"based on claims that they are not relevant to the request" and

compelling    the       DCJ    to   issue          a    clear     policy     statement        and

training    protocol         to   avoid       similar       violations         of      the    laws

governing    the    public's        right      to       inspect    and     copy       government

records;    and    (3)    an      award       of       counsel    of   fees     pursuant       to

N.J.S.A. 47:1A-6.

    The     following         colloquy    between          the     trial     judge      and   the

Deputy     Attorney      General      representing               the   DCJ     captured       the

essence of the dilemma created by the public agency's position

here.

            [DEPUTY ATTORNEY GENERAL]: . . . [The ACLU]
            asked   for   a   very   limited  piece   of
            information and we gave it to them.      Had
            they come back and said, wait, I want the
            grant application or even what they're
            arguing   now,   I   want   grant  materials
            concerning the law enforcement initiatives,
            we would have given them that. But they've
            never asked for it. . . . [T]heir request
            was very, very specific. . . . It said very,



                                               8                                        A-3381-12T1
         very clearly and in a very limited way, I
         want   the    grant   materials   for    ALPR
         technology, and that's what we gave them.

         THE COURT:    But, . . . they're concerned
         that you are exercising judgment and that
         they can't trust the judgment of a defendant
         to determine what is responsive and what's
         not and that the better rule is to provide
         it all.   And there's something appealing to
         that because then you take any sort of
         judgment out of the mix.

         [DEPUTY ATTORNEY GENERAL]:     . . . [Y]our
         Honor, it's not judgment. . . . [I]f you
         look at the records, . . . the custodian
         here made clear that he was redacting    - -
         he left the headings in for everything. So,
         for example, at PA-14, . . . he left open D
         reentry and redacted underneath it.   So you
         can see that it had nothing to do with ALPR
         technology. The redacted portion had to do
         with reentry. And in . . . subcategory (c),
         the heading is prevention. It has nothing
         to do with ALPR technology.         And the
         custodian was really very careful in doing
         that so that they could see that it had
         nothing to do with their request.

         THE COURT: But, . . . they believe they
         don't have to accept the limitation because
         it's   a  public  record  and   there's  no
         exemption that prevents them from - - that
         should prevent them from getting access to
         the material.

    After a thorough review of the ACLU's request, the trial

judge found the State's grant application attached to the ACLU's

verified complaint noted that only a certain amount of the funds

of the total grant would be committed to purchasing "license

plate readers for strategic deployment throughout the state."




                               9                         A-3381-12T1
Other sections of the grant application focused on different law

enforcement initiatives, such as reducing recidivism, discharge

planning      for    juvenile    delinquents,           and   establishing        a    pilot

program for defendants with mental health needs.

      After carefully scrutinizing the ACLU's request for ALPR-

related records and the DCJ's responsive documents, the judge

found "it was reasonable to conclude that prevention . . . and

reentry aspects of the grant have nothing to do with automatic

license      plate   readers."        The    judge      noted    that     the    ACLU    had

conceded      that    its   initial     request         did   not   seek    information

pertaining to other projects that were included in the grant

application.         Against these findings, the court agreed with the

DCJ and concluded "[t]his case is not about an exemption and it

is   about    the    reasonable    scope      of    a    request    and    whether      the

records provided by the agency were responsive to that request."

      Despite       these   findings,       the    judge      acknowledged       what    she

characterized        as   the   ACLU's      "underlying         concerns"       that    this

approach left the door ajar for less scrupulous custodians to

              redact more information than would be proper
              when they were responding to a request and
              that you don't want to put the custodian in
              that situation.   And I think, sure, that's
              something that would need to be carefully
              looked at in any particular case and I
              surely accept that that's something that
              could happen. But that particular danger to
              me is not at all supported by this record
              where their request was very specific and



                                            10                                    A-3381-12T1
         they were provided with documents that
         responded to their request. And I think if
         there were - - if they determined after they
         viewed the documents that they received with
         portions deleted that they wanted the entire
         document, I think it was reasonable to
         require any requestor to make a follow[-]up
         request.    Now they want the additional
         document that they did not ask for the first
         time.

                               II

    The Legislature has carefully described the responsibility

of the custodian in responding to a request for a government

record under OPRA:

         A request for access to a government record
         shall be in writing and hand-delivered,
         mailed,    transmitted    electronically,    or
         otherwise    conveyed   to   the    appropriate
         custodian.      A custodian shall promptly
         comply with a request to inspect, examine,
         copy, or provide a copy of a government
         record.     If the custodian is unable to
         comply with a request for access, the
         custodian shall indicate the specific basis
         therefor on the request form and promptly
         return it to the requestor.      The custodian
         shall sign and date the form and provide the
         requestor with a copy thereof. If the
         custodian of a government record asserts
         that part of a particular record is exempt
         from public access pursuant to P.L.1963,
         c.73 (C.47:1A-1 et seq.) as amended and
         supplemented, the custodian shall delete or
         excise from a copy of the record that
         portion which the custodian asserts is
         exempt from access and shall promptly permit
         access to the remainder of the record. If
         the    government     record    requested    is
         temporarily unavailable because it is in use
         or in storage, the custodian shall so advise
         the requestor and shall make arrangements to



                               11                          A-3381-12T1
              promptly make available a copy of the
              record. If a request for access to a
              government    record   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.

              [N.J.S.A. 47:1A-5(g) (emphasis added).]

       In our view, the fact-sensitive approach employed by the

trial    court     here    authorizes      the    custodian     to    unilaterally

determine what sections of an indisputably public document falls

within the scope of a request, and thereafter deny access to

that record without "attempting to reach a reasonable solution

with    the    requestor    that    accommodates        the    interests   of     the

requestor and the agency."              Ibid.    We discern no legal basis to

expand       the   custodian's     role        beyond   what    the    Legislature

specifically described in N.J.S.A. 47:1A-5(g).

       The    public's    right    of    access    is   further      undermined    by

shifting the burden to the requestor to explain or justify with

greater specificity than the law requires the need to copy and

examine a public record.           Shifting the burden to the requestor

to make a follow-up request, as suggested by the trial court

here, imposes a bureaucratic hurdle that runs counter to our

State's strong public policy favoring "the prompt disclosure of

government records."         Mason v. City of Hoboken, 196 N.J. 51, 65

(2008); N.J.S.A. 47:1A-1.



                                          12                               A-3381-12T1
       The DCJ does not dispute that the documents requested by

the ACLU are "government records" as defined in N.J.S.A. 47:1A-

1.1.     A government agency's policy to restrict the public's

right   of    access     to    "government    records"    under   OPRA     must   be

supported     by   one    or    more    of    the    twenty-one   categories       of

information recognized in N.J.S.A. 47:1A-1, or by establishing,

under   the   common     law    balancing     test    established     in   Nero    v.

Hyland, 76 N.J. 213, 223-24 (1978), that the public interest for

confidentiality outweighs the private right of access.                     N.J.S.A.

47:1A-9; Bergen Cty. Improvement Auth. v. N. Jersey Media Group,

Inc., 370 N.J. Super. 504, 517 (App. Div.), certif. denied, 182

N.J.    143   (2004).          Absent   establishing      such    a   showing,      a

citizen's right of access is unfettered.                  Courier News, supra,

358 N.J. Super. at 383.2

       Reversed.




2
   Because we have decided this case based exclusively on
statutory grounds under OPRA, we need not and specifically do
not reach the ACLU's alternative arguments based on the common
law right of access.



                                         13                                A-3381-12T1
