                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-2810-13T2

IN THE MATTER OF THE NEW
JERSEY FIREMEN'S ASSOCIATION
OBLIGATION TO PROVIDE RELIEF                 APPROVED FOR PUBLICATION
APPLICATIONS UNDER THE OPEN
PUBLIC RECORDS ACT                              December 18, 2015
___________________________________
                                               APPELLATE DIVISION
JEFF CARTER,

     Third-Party
     Plaintiff-Appellant,

v.

JOHN DOE,

     Third-Party Defendant.
___________________________________

            Argued June 2, 2015 – Decided December 18, 2015

            Before Judges Messano, Ostrer and Tassini.

            On appeal from the Superior Court of New
            Jersey, Law Division, Union County, Docket
            No. L-2932-13.

            Jeff Carter, appellant pro se.

            John C. Gillespie argued the cause for
            respondent   New   Jersey  State Firemen's
            Association (Parker McCay P.A., attorneys;
            George M. Morris, of counsel; Stacy L.
            Moore, Jr., on the brief).

            Thomas J. Cafferty argued the cause for
            amicus curiae New Jersey Press Association
            (Gibbons P.C., attorneys; Mr. Cafferty, of
         counsel and on the brief; Nomi I. Lowy and
         Lauren E. James-Weir, on the brief).

    The opinion of the court was delivered by

OSTRER, J.A.D.

    This appeal involves the Open Public Records Act (OPRA),

N.J.S.A. 47:1A-1 to -13, the Declaratory Judgment Act (DJA),

N.J.S.A. 2A:16-50 to -62, and records of the New Jersey State

Firemen's Association (Association), a public agency under OPRA.

See N.J.S.A. 47:1A-1.1.   We must resolve two principal issues

affecting the public's right to access government records.

    First, we must decide, as a procedural matter, whether a

government records custodian — in this case, the Association —

may bring an action pursuant to the DJA to secure a declaratory

judgment that it properly denied access to a record under OPRA

and the common law right of access.    With respect to OPRA, we

conclude that a records custodian may not bring a declaratory

judgment action against a record requestor to enforce its right

to withhold records, because OPRA does not provide the records

custodian an independent right of action.   As to both OPRA and

the common law, declaratory relief was inappropriate in this

case because the declaratory judgment action was essentially an

effort to preempt an imminent claim by the records requestor;

and allowing a declaratory judgment action solely with respect

to the common law would unnecessarily fragment claims.



                               2                         A-2810-13T2
      Second, we are asked to determine, as a substantive matter,

whether the requestor in this case, under OPRA or the common

law, has a right to access records pertaining to a relief award

made by the Association.       We conclude that both OPRA and the

common law require disclosure of documents containing the name

of the applicant and the amount of the award.

                                    I.

      This dispute arose out of the records request of defendant

Jeff Carter.1     On July 15, 2013, Carter electronically filed a

request, under OPRA and the common law, for records pertaining

to an application for relief by John Doe,2 a man associated with

the   Millstone    Valley   Fire   Department.   Carter   sought    the

following documents:

          1.      Copies    of     record(s)     (including
                  attachments) submitted by [John Doe],
                  Local   501   agent(s),    and/or   NJSFA
                  agent(s)   seeking   financial   benefits
                  described in the "BACKGROUND" section
                  above from January 1, 2008 through July
                  15, 2013.




1
  The Association improperly captioned its verified complaint for
declaratory judgment against Jeff Carter as "In the Matter of
the New Jersey State Firemen's Association Obligation to Provide
Relief Applications Under the Open Public Records Act." See R.
1:4-1 (stating that the title of a complaint shall include the
names of all parties).
2
  Although the records request identified the person by name, the
name is redacted in the public record on appeal.



                                    3                         A-2810-13T2
          2.   Copies    of     record(s)    (including
               attachments) sent to [John Doe], Local
               501 agent(s), and/or NJSFA agent(s)
               disbursing financial benefits described
               in the "BACKGROUND" section above from
               January 1, 2008 through July 15, 2013.

          3.   If no record(s) are responsive to Items
               No. 1 or 2 above, then copies of the
               front and back of every check providing
               relief and/or similar benefits, both
               State and Local, paid to [John Doe]
               between January 1, 2008 through July
               15, 2013.    (Note that checks are not
               required if responsive records are
               provided for Items No. 1 and 2 above.)

    Association    vice    president        Fred        Gunson    denied   Carter's

request in a July 22, 2013 email.               Gunson stated that applicants

for relief through a local firemen's relief association or the

Association "have a reasonable expectation of privacy"; release

would constitute an "unwarranted invasion" of those rights; and

"[a]ccordingly,    the    New   Jersey          State    Firemen's      Association

cannot release those documents."

    On August 3, 2013, Carter responded that he did "not seek

any legitimately defined privileged or exempt information," but

he insisted that "certain records regarding financial matters

(e.g.,   payroll   records)     must       be     provided       with   appropriate

redactions."   He asked for an index of any withheld or redacted

documents, with explanations.          Carter also stated, "Because I

was unable to respond sooner, I understand that the timeframe




                                       4                                   A-2810-13T2
for my original request will resume on the next business day

(i.e. August 5, 2013)."

    Carter included an additional document request.                   He sought

"a copy of the policy and/or procedures governing how 'relief'

applications/requests        are    processed    by   the   State   and   local

associations."

    On     August    15,   2013,    the   Association   filed   its    verified

complaint for declaratory judgment, along with a proposed order

to show cause, to compel Carter to show cause why the final

relief sought in the verified complaint should not be entered.

Although    served    only   upon    Carter,    the   Association   sought    an

order:

            a.      Declaring     that   individual   relief
                    applications are of such a private
                    nature   that    the New   Jersey  State
                    Firemen's Association or the local
                    relief association shall be prevented
                    from acknowledging the existence of
                    individual applications and prohibited
                    from releasing the same under . . . the
                    Open Public Records Act;

            b.      Declaring that a Requestor, in order to
                    determine whether the New Jersey State
                    Firemen's Association or the local
                    relief association is performing its
                    duties appropriately, may request a
                    series or date range of applications,
                    but said applications may only be
                    released upon the redaction of all
                    personal   information  including   the
                    requestors' names, addresses, account
                    numbers.




                                          5                            A-2810-13T2
The    Association      sought    identical      relief    with     respect      to   the

common law right of access.

       The    Association       argued    that   under     OPRA    the    information

Carter requested should not be subject to disclosure under OPRA

because it would violate an applicant's reasonable expectation

of privacy under N.J.S.A. 47:1A-1.                   The Association asserted

that upon applying the factors in Doe v. Poritz, 142 N.J. 1, 88

(1995),      disclosure    of    applicant-specific         documents       should     be

denied.

       The    Association    disclosed         documents    entitled      "Rules      and

Guidelines      Governing        Relief     Form     101";        "Instruction        for

Investigation      of    Relief    Applicants      by     Local    Relief       Boards";

"Application for Local Relief [-] New Jersey State Firemen's

Association"; and "Instructions for the Board of Trustees and

Board    of   Representatives       for    Review    of    Relief       Application."

Although there is no competent evidence before us authenticating

or    explaining   the    documents,       we    assume    for    the    sake    of   the

appeal that the Association uses these documents when reviewing

applications for relief.3




3
  The documents were attached as exhibits to the Association's
brief, contrary to R. 1:6-6.   See Pressler & Verniero, Current
N.J.   Court Rules, comment 1 on R. 1:6-6 (2015); Sellers v.
Schonfeld, 270 N.J. Super. 424, 427 (1993) ("[O]nly [an]
affidavit together with properly certified depositions, answers
                                                    (continued)


                                           6                                    A-2810-13T2
     The application forms generally require the submission of

detailed      personal     financial          information,        and      a     personal

statement     of   the    applicant,          to    demonstrate       the       need       for

financial      assistance     from        a        local      association        or        the

Association.       The    "Rules    and        Guidelines"      document,        and       the

respective instructions to the apparent decision-makers, do not

include    detailed      criteria    for       determining       whether        to      award

relief and for what amount.          The "Rules and Guidelines" document

describes the information applicants must submit.                              It states,

"Relief Assistance is not automatic and will only be considered

on   merit,     documentation       and        determination          by       the      local

association."       The    instructions            to   the   local     relief        boards

state:

            The intended use of this form, is to provide
            the   respective  boards   with  information
            pertaining to the applicant's request for
            supplementary financial assistance, and in
            determining the "NEED."

                               WHAT IS "NEED"

            "NEED" IS: Imperative Demand ***** Time of
            great difficulty ***** Crisis ***** Urgency

            "NEED" is a state of circumstances requiring
            something!




(continued)
to interrogatories, or admissions can supply facts outside the
record that are not judicially noticeable.").



                                           7                                         A-2810-13T2
            It is important to remember, while a
            financial loss may be shown, there may not
            be the "NEED." "NEED" and financial loss do
            not necessarily go hand in hand.    (Example:
            The person may have a financial loss, but
            have financial means and can afford to cover
            the financial loss without the use of local
            relief, thus no "NEED" would then exist.

Apparently, there are other rules or regulations not in the

record     before   us,   as    the      "Rules   and    Guidelines"   document

includes a paragraph authorizing and consenting to the release

of   financial      documents     to     the   local     association   and     the

Association    "for    the     purpose    of   determining    eligibility      for

relief benefits . . . in accordance with the requirements of

N.J.S.A. 43:17-24 and Article VII of the General Relief Fund

Rules." (emphasis added).

     The    documents     indicate     that    the     application   process    is

intended to be confidential.              The instructions to local relief

boards include the statement: "All information given must be

held in strict confidence."              The Rules and Guidelines Document

states, "The New Jersey State Firemen's Association is required

to protect the confidentiality of information.                All Officers are

required to comply with our policies."

     The trial court entered the order to show cause, required

Carter to file a response to the order by September 16, 2013,

and set a return date of September 27, 2013.                   The order also




                                          8                             A-2810-13T2
advised      Carter    that    he   was   required        to   answer    the        verified

complaint within thirty-five days.

       Carter retained counsel and timely filed a verified answer

and counterclaim, a third-party complaint against John Doe, and

a letter brief in opposition to the Association's application

for declaratory relief.             Carter narrowed his document request,

stating he only sought disclosure of the checks paid to John Doe

and did not seek the applications Doe may have filed.                           He argued

he was entitled to the checks under both OPRA and the common

law.         He   sought      dismissal      of     the    Association's            verified

complaint and an award of attorney's fees.

       In a supporting certification, Carter asserted that John

Doe    served     as    an    elected     fire      commissioner        and     volunteer

firefighter in Franklin Township.                    Carter stated that Doe was

also a full-time municipal employee.4                     Carter alleged that John

Doe    was   found     to    have   viewed       pornographic    images        on    a   fire

district      computer.        Although      criminal      charges      were    filed,       a

grand jury returned a no-bill, according to Carter.                                 However,

Doe was later discharged from his public employment for conduct

unbecoming of a township employee.                    Carter attached newspaper

articles to support his assertions.                       Carter also discussed a


4
  Carter apparently served as elected fire commissioner from 1987
through 1997.



                                             9                                      A-2810-13T2
suit,      filed    by        his    sister    and    later     settled,         alleging     a

violation of the Law Against Discrimination by the fire district

and Doe.         Carter maintained that there was a public interest in

learning         whether       a    person     who    was     discharged         under      the

circumstances Carter described had received financial assistance

through the Association.                 He disputed the Association's claim

that Doe in particular had an expectation of privacy, given past

publicity.

      In     a     responsive         certification,         Gunson     explained        that

members are often eligible for financial assistance from local

associations; and if this assistance "is not adequate to address

that member's needs, the member can then approach the . . .

Association, which can award up[] to three (3) times the amount

of   the    local        contribution."             Gunson    did    not    disclose        the

criteria utilized for the financial assistance decisions, nor

did he disclose the rules or regulations governing the decision

process.         However, he stated that the Association and local

associations         have          specific     procedures      to      treat       members'

applications         anonymously,             eliminating      the      possibility          of

discrimination           in    responding       to    the     request      for     financial

relief.          These    procedures      include      converting       the      applicant's

name to a control number.




                                               10                                   A-2810-13T2
       In    its    answer    to     Carter's      counterclaim,          the   Association

asserted, among other defenses, that Carter's counterclaim was

time-barred as it was filed more than forty-five days after the

Association's denial of his document request.

       The    trial       court    heard     argument     on    the       return      date   in

September         2013.      The     court    also    reviewed        in    camera       Doe's

application for assistance, which apparently had been submitted

to the court in August, but was later sealed.

       In    an    order     filed    January      15,    2014,      the    court      denied

Carter's      requests       for     dismissal       of   the   verified         complaint,

disclosure of the checks paid to Doe, and attorney's fees.                                   The

court did not enter a separate order granting declaratory relief

to the Association.           However, in an accompanying letter opinion,

the court found that the names of relief recipients, the amounts

paid through the Association's financial assistance programs,

and their applications need not be released.

       The        court     addressed        the     subject         of     applications,

notwithstanding that Carter had limited his request to checks

paid   to     John    Doe    and     expressly       stated     he    was       not   seeking

information in the relief applications.                        The court applied the

seven factors outlined in Doe, supra:

              (1) the type of record requested; (2) the
              information it does or might contain; (3)
              the potential for harm in any subsequent
              nonconsensual disclosure; (4) the injury



                                             11                                       A-2810-13T2
         from disclosure to the relationship in which
         the record was generated; (5) the adequacy
         of   safeguards   to   prevent   unauthorized
         disclosure; (6) the degree of need for
         access; and (7) whether there is an express
         statutory    mandate,   articulated    public
         policy, or other recognized public interest
         militating toward access.

         [142 N.J. at 88 (internal quotation marks
         and citation omitted).]

    Based on that analysis, the court held that OPRA's privacy

clause, N.J.S.A. 47:1A-1, barred release:

              Applying the Doe factors to the present
         case, the application is a public record as
         a document kept, made or maintained in the
         course   of    official      business      of    the
         Association.     The second factor weighs in
         favor   of     non-disclosure       because      the
         information is an individual's complete and
         personal financial history, including but
         not limited to tax returns, credit card
         bills,   mortgage     payments     and,    hospital
         bills. Applying the third factor, revealing
         this information has the potential to lead
         to great harm created by the release of said
         information because it has the potential to
         lead   to    identity      theft      and     public
         embarrassment.      Defendant's argument that
         John Doe has already sustained great public
         embarrassment is not without merit being
         that the incident for which he was fired was
         disclosed in the newspaper.         A significant
         harm    exists       if     individual        relief
         applications are released.           Applying the
         fourth    factor,      the    release     of     the
         information   may     cause    an   applicant     to
         hesitate before [he or she] seeks assistance
         and may chill the disclosure of critical
         information     regarding       the     need     for
         assistance for fear that the knowledge will
         be subject to public scrutiny.           The fifth
         factor, speaks to the adequacy of safeguards



                                 12                             A-2810-13T2
            to prevent disclosure.   The Association has
            established   a   system   to   convert   the
            individual's    name     into     a    unique
            identification number for each applicant to
            ensure    the    confidentiality    of    the
            information and to protect the interests of
            the applicant.    While the Association has
            not directed this Court towards a statute
            mandating non-disclosure the seventh factor
            weighs in favor of non-disclosure because
            there is no policy or statute which mandates
            access.

      Citing Loigman v. Kimmelman, 102 N.J. 98, 113 (1986), the

trial    court   concluded   that   the   common   law     did   not   require

disclosure.

      This appeal followed.         Carter now represents himself pro

se.     He renews his argument that the Association should not have

been permitted to seek a declaratory judgment.                    Although he

limited his request before the trial court to the checks paid to

John Doe, he now renews his request for John Doe's applications,

redacted as appropriate.       We subsequently granted permission to

the New Jersey Press Association (NJPA) to appear as amicus

curiae.      NJPA   participates    solely   to    argue   that    a   records

custodian may not seek a declaratory judgment under OPRA.

                                    II.

      We turn first to defendant's argument that the Association

was not entitled to seek a declaratory judgment confirming its

denial of access under both OPRA and the common law right of




                                     13                                A-2810-13T2
access.       We begin with an overview of the law on declaratory

judgments.

                                             A.

       The DJA is based on the 1922 Uniform Declaratory Judgments

Act.     12 U.L.A. 331 (2008).               The DJA provides that "a person

. . .     whose        rights,   status,     or     other    legal     relations        are

affected by a statute . . . may have determined any question of

construction or validity arising under the . . . statute . . .

and    obtain      a    declaration     of   rights,    status,      or     other     legal

relations     thereunder."             N.J.S.A.    2A:16-53.        See     Williams     v.

Borough of Clayton, ___ N.J. Super. ___, ___ (App. Div. 2015)

(slip   op.       at    10-11)   (approving       resort    to    declaratory        relief

regarding interpretation of N.J.S.A. 40A:14-129 and -130).                              The

purpose      of    the     Act   "is    to   settle    and       afford     relief     from

uncertainty and insecurity with respect to rights, status and

other    legal         relations."       N.J.S.A.     2A:16-51;      N.J.     Ass'n     for

Retarded Citizens v. N.J. Dep't of Human Servs., 89 N.J. 234,

242 (1982) ("[The purpose of the Act] is to end uncertainty

about the legal rights and duties of the parties to litigation

in controversies which have not yet reached the stage at which

the parties seek a coercive remedy.")

       The    DJA       constitutes      "remedial     legislation          entitled    to

liberal      construction        and     administration."            N.J.     Ass'n     for




                                             14                                 A-2810-13T2
Retarded Citizens, supra, 89 N.J. at 241-42; N.J.S.A. 2A:16-51.

The DJA must be "interpreted and construed as to effectuate its

general purpose to make uniform the law of those states which

enact it, and to harmonize, as far as possible, with federal

laws,    rules     and   regulations    on     the        subject   of   declaratory

judgments."      N.J.S.A. 2A:16-51.

      The    decision    to   grant    or     deny    declaratory        relief    lies

within the court's discretion.               See In re Resolution of State

Comm. of Investigation, 108 N.J. 35, 46 (1987); see also State

v. Eatontown Borough, 366 N.J. Super. 626, 637 (App. Div. 2004)

("Generally, it rests in the sound discretion of the trial court

whether declaratory relief under the Act should be granted.").

"Declaratory relief is not to be denied simply because other

relief is available."           Nat'l – Ben Franklin Fire Ins. Co. v.

Camden Trust Co., 21 N.J. 16, 22 (1956); see also R. 4:42-3 ("A

judgment     for    declaratory       relief,        if     appropriate,     is    not

precluded by the existence of another appropriate remedy.").

      On the other hand, "a court might in the proper exercise of

its     discretion,      deny    such       [declaratory]           relief    if    it

satisfactorily      appeared    that    the    other       relief    would   be    more

effective."      Nat'l – Ben Franklin Fire Ins. Co., supra, 21 N.J.

at 22.      For example, a court may decline to award relief "where

only fragmentary redress will be awarded . . . ."                     Utility Blade




                                        15                                   A-2810-13T2
& Razor Co. v. Donovan, 33 N.J. Super. 566, 572 (App. Div.

1955).   "The court may refuse to render or enter a declaratory

judgment, when, if rendered or entered, it would not terminate

the uncertainty or controversy giving rise to the proceeding."

N.J.S.A. 2A:16-61; see also Nat'l – Ben Franklin Fire Ins. Co.,

supra, 21 N.J. at 23.         A court may also decline to render a

declaratory judgment if "convinced that the public interest and

an enlightened use of the judicial function" require restraint.

The Proprietary Ass'n v. Bd. of Pharmacy, 16 N.J. 62, 71 (1954).

      The right to relief under the DJA is procedural in nature;

it does not create substantive rights to relief.          "A declaratory

judgment act merely provides a procedural device to accelerate

the resolution of a dispute; the procedural right does not alter

the substance of the dispute."      Ciba-Geigy Corp. v. Liberty Mut.

Ins. Co., 149 N.J. 278, 302 (1997) (O'Hern, J., dissenting); see

Labor Ready Northeast, Inc. v. Director, Div. of Taxation, 25

N.J. Tax 607, 621 (2011).       The United States Supreme Court has

adopted a similar view of the federal Declaratory Judgment Act,

26 U.S.C.A. § 2201.    See Schilling v. Rogers, 363 U.S. 666, 677,

80 S. Ct. 1288, 1296, 4 L. Ed. 2d 1478, 1485-86 (1960) (stating

that the availability of relief under the federal Declaratory

Judgment Act, 28 U.S.C.A. § 2201, "presupposes the existence of

a   judicially   remediable   right");   Skelly   Oil   Co.   v.   Phillips




                                   16                              A-2810-13T2
Petroleum Co., 339 U.S. 667, 671, 70 S. Ct. 876, 879, 94 L. Ed.

1194, 1199 (1950) ("The operation of the Declaratory Judgment

Act is procedural only.              Congress enlarged the range of remedies

available        in   the    federal       courts    but    did    not   extend      their

jurisdiction.") (citation omitted).

      Put another way, if there is no private right of action

under a particular statute, a party may not secure a declaration

of its statutory rights by seeking relief under the DJA.                              This

general principle is implied by the Court's decision in In re

Resolution of State Comm. of Investigation, supra, 108 N.J. at

46.   The Court declined to render a declaratory judgment on the

question     whether        the    State   Commission       on    Investigation      (SCI)

unlawfully       disclosed        information       about   the     plaintiffs.         The

Court held that plaintiffs lacked a private right of action to

secure injunctive relief against the SCI arising out of the

alleged disclosures.              Ibid. ("[O]ur decision that the plaintiffs

may   not    obtain     the       injunctive      relief    they   sought    undermines

their need for a declaratory judgment."); see also In re A.N.,

430 N.J. Super. 235, 244-45 (App. Div. 2013) (holding that the

Chancery Division lacked jurisdiction under N.J.S.A. 2A:16-55 to

determine Medicaid eligibility, where the authority to do so was

vested      in    the   Division       of      Medical      Assistance      and    Health

Services); Med. Soc. of N.J. v. AmeriHealth HMO, Inc., 376 N.J.




                                             17                                   A-2810-13T2
Super. 48, 59 (App. Div. 2005) (denying Medical Society's claim

for declaratory and injunctive relief under L. 1989, c. 154, as

it lacked a private right of action).5

     Courts        in   other     jurisdictions     applying     comparable

provisions    of    their   declaratory   judgment    acts     have   clearly

stated the principle that declaratory relief is unavailable when

there is no private right of action.           See Pono v. Molokai Ranch,

Ltd., 194 P.3d 1126, 1148 (Haw. Ct. App. 2008) ("[I]n order for

a private citizen to seek a declaratory judgment that a statute

has been violated, the private citizen must, as a threshold

matter,   have      a   private   right   of    action   to    enforce      the

statute."), certif. denied, 208 Haw. LEXIS 304 (2008); Gore v.

Indiana Ins. Co., 876 N.E.2d 156, 165-66 (Ill. App. Ct. 2007)

(finding plaintiff lacked standing to bring declaratory judgment

action because statute at issue did not confer private right of

action); Nichols        v. Kansas PAC, 11 P.3d 1134, 1146-47 (Kan.

2000) (refusing to grant declaratory relief under consumer fraud

5
  Bergen Cty. Improvement Auth. v. N. Jersey Media Group, Inc.,
370 N.J. Super. 504 (App. Div. 2004), cited by the Association,
does not support the contrary view.    Although the plaintiff in
that case sought declaratory relief, the court did not address
the issue of the plaintiff's right to do so.       In Chamber of
Commerce v. State, 89 N.J. 131 (1982), and N.L. Industries,
Inc., v. New Jersey Department of Environmental Protection, 397
N.J. Super. 127 (App. Div. 2007), certif. denied, 195 N.J. 418
(2008), cited in the concurring opinion, infra, the parties did
not raise, nor did the court address, the plaintiff's right of
action, express or implied, under the statute at issue.



                                     18                               A-2810-13T2
statute    because     it    contained        no    private    right    of    action);

Alliance for Metro. Stability v. Metro. Council, 671 N.W.2d 905,

916 (Minn. Ct. App. 2003) (stating that where "there was no

private right to enforce" the statute, the "Uniform Declaratory

Judgments Act cannot create a cause of action that does not

otherwise exist"); Delgado v. N.Y.C. Hous. Auth., 888 N.Y.S.2d

19,   21   (App.    Div.     2009)     (holding      that     petitioners     did   not

possess    "a      private     right     of        action    for     injunctive     and

declaratory     relief       sought"    because       only     the   city's   housing

official   could     enforce     the    city's       housing    maintenance    code).

See also Boston Med. Ctr. v. Sec'y of the Exec. Office of HHS,

974 N.E.2d 1114, 1134 (Mass. 2012) (where "the Legislature has

declined to give the plaintiff providers any private right of

action and what is at issue is the reasonableness . . . and the

methodology" of payment rates, "[a] declaratory judgment cannot

be used to circumvent a legislative judgment denying a provider

the opportunity to seek administrative or judicial review of the

reasonableness of payment rates.").6


6
  Cf. Serv. Emp. Int'l. Union, Local 509 v. Dep't of Mental
Health, 14 N.E.3d 216, 227 (Mass. 2014) (citing Boston Med.
Ctr., supra, 974 N.E.2d at 1134) (confirming principle that
declaratory relief shall be denied in the absence of a private
right of action where Legislature intended to "foreclose certain
remedies," but awarding declaratory relief where a party
"suffered a cognizable injury," lacked other means to assure
agency's compliance with statute, "[n]o other party [was]
                                                     (continued)


                                          19                                  A-2810-13T2
       Federal courts applying the federal Declaratory Judgment

Act,    28   U.S.C.A.      §   2201,      likewise       have       determined        that    the

federal act does not provide a right to declaratory relief where

no private right of action exists.                           See, e.g., Mylan Pharm.,

Inc. v. Thompson, 268 F.3d 1323, 1332 (Fed. Cir. 2001) (barring

declaratory relief because the Federal Food, Drug, and Cosmetic

Act did not provide plaintiff a private cause of action), cert.

denied, 537 U.S. 941, 123 S. Ct. 340, 154 L. Ed. 2d 248 (2002);

Dallas Cty. v. MERSCORP, Inc., 2 F. Supp. 3d 938, 947 (N.D.Tex.

2014)   ("[A]     plaintiff        may    not        obtain   a     declaratory       judgment

under    a   statute      .    .   .     that    provides          no    private      right   of

action.");       Reid    v.    Aransas     Cty.,        805    F.       Supp.    2d   322,    339

(S.D.Tex. 2011) (noting that because the federal act does not

create a substantive cause of action, but can only be invoked to

address      a   controversy       arising           under    other       substantive        law,

plaintiff could not seek relief to which he would otherwise not

be entitled); Jones v. Hobbs, 745 F. Supp. 2d 886, 893 (E.D.Ark.

2010)     ("[T]he       Declaratory        Judgment          Act    does        not   authorize

actions to decide whether federal statutes have been or will be

violated when no private right of action to enforce the statutes



(continued)
entitled to       challenge the alleged violation,"                         and denial of
declaratory        relief   would  "contravene  the                          Legislature's
intent.").



                                                20                                     A-2810-13T2
has been created by Congress."); Glen v. Club Mediterranee S.A.,

365 F. Supp. 2d 1263 (S.D.Fla. 2005) ("[J]udicial review is

unavailable    where    no    express    provision    for     judicial    relief

exists . . . .         For this Court to create a private right of

action   for   declaratory      relief   [where   none       exists]   would    be

contrary to legislative intent."), aff’d, 450 F.3d 1251 (11th

Cir. 2006).     We construe our DJA in harmony with the foregoing

state and federal decisions.        See N.J.S.A. 2A:16-51.

    As the federal court in Jones observed, where enforcement

of a law is vested solely in the executive branch, allowing

declaratory relief "would circumvent the discretion entrusted to

the executive branch in deciding how and when to enforce those

statutes."     Jones, supra, 745 F. Supp. 2d at 893.                   Likewise,

where no private right of action exists, allowing parties to

obtain declaratory relief would "evade the intent of Congress

not to create private rights of action."             Ibid.

    A related principle of the law of declaratory judgments is

that "where a special statutory procedure has been provided as

an exclusive remedy for a particular type of case in hand . . .

that specific recourse must be followed," to the exclusion of

declaratory relief.          Edwin Borchard, Declaratory Judgments (2d

ed. 1941) at 342.      "So, when the statute provides that an appeal

from an administrative determination may be taken only in a




                                        21                               A-2810-13T2
certain way and to a certain court . . . it would have been

wrong for another court . . . to interfere and entertain a suit

for a declaration . . . ."       Id. at 343-44.

    We adopt the same reasoning here.                 To do otherwise would

allow records custodians to evade the Legislature's intent with

respect to enforcement of rights under OPRA, which we discuss

below.    We recognize that the phrase "private right of action"

may appear to be a misnomer when used to define the rights of

the Association, which is a public agency under OPRA.                 Yet, the

governing principle is the same.           A party that lacks a statutory

right of action under OPRA may not obtain declaratory relief

regarding its rights or obligations under OPRA.

                                      B.

    We conclude that OPRA does not vest a right of action in a

records custodian.      Consequently, a records custodian has no

right to declaratory relief.           Put another way, the Legislature

intended that only requestors may seek review of OPRA decisions,

by resort to the Government Records Council (GRC) or the court.

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

    OPRA    expressly   grants    a    right    of    action   exclusively    to

requestors.     A   requestor    may    elect    to    bring    an   action   in

Superior Court, or before the GRC, to challenge a denial of

access:




                                      22                               A-2810-13T2
           A   person  who   is  denied   access  to   a
           government record by the custodian of the
           record, at the option of the requestor, may:

           institute a proceeding to challenge the
           custodian's decision by filing an action in
           Superior Court which shall be heard in the
           vicinage where it is filed by a Superior
           Court Judge who has been designated to hear
           such cases because of that judge's knowledge
           and expertise in matters relating to access
           to government records; or

           in lieu of filing an action in Superior
           Court, file a complaint with the Government
           Records Council established pursuant to
           section 8 of P.L. 2001, c. 404 (C. 47:1A-7).

           The right to institute any proceeding under
           this section shall be solely that of the
           requestor.      Any such   proceeding  shall
           proceed in a summary or expedited manner.
           The public agency shall have the burden of
           proving that the denial of access is
           authorized by law. If it is determined that
           access has been improperly denied, the court
           or agency head shall order that access be
           allowed.   A requestor who prevails in any
           proceeding shall be entitled to a reasonable
           attorney's fee.

           [N.J.S.A. 47:1A-6 (emphasis added).]

    Even   assuming   for   argument's   sake   that   N.J.S.A.   47:1A-6

does not grant a right of action exclusively to a requestor,7

any other party's right of action would have to be inferred,

given the absence of an explicit grant.           However, our courts

7
  The Association argues that the right "solely" granted the
requestor is the right to commence "proceedings under this
section,"   which  the   Association  contends is limited to
challenges by a requestor denied access.



                                  23                              A-2810-13T2
"have   been   reluctant   to   infer    a   statutory   private   right   of

action where the Legislature has not expressly provided for such

action."   R.J. Gaydos Ins. Agency, Inc. v. Nat'l Consumer Ins.

Co., 168 N.J. 255, 271 (2001).           The Court has adopted a three-

part test for determining whether a statute implies a private

right of action:

           To determine if a statute confers an implied
           private right of action, courts consider
           whether: (1) plaintiff is a member of the
           class for whose special benefit the statute
           was enacted; (2) there is any evidence that
           the Legislature intended to create a private
           right of action under the statute; and (3)
           it   is   consistent  with   the  underlying
           purposes of the legislative scheme to infer
           the existence of such a remedy.

           [Id. at 272.]

A court's primary mission is to determine legislative intent.

Id. at 272-73.

    Applying this test, we conclude the Legislature did not

intend for records custodians to bring actions against record

requestors to enforce their asserted right to withhold records.

OPRA was enacted to promote the public's right of access to

government records, and to enable the public to monitor the

activities of government.        See, e.g., Educ. Law Ctr. v. N.J.

Dep't of Educ., 198 N.J. 274, 284 (2009) ("OPRA's clear purpose

. . . is 'to maximize public knowledge about public affairs in

order to ensure an informed citizenry and to minimize the evils



                                    24                              A-2810-13T2
inherent in a secluded process.'") (quoting Mason v. City of

Hoboken,    196     N.J.    51,    64    (2008)).        Having     reviewed     OPRA's

legislative history, we find no evidence of legislative intent

to grant a right of action to records custodians.                      OPRA provides

a   broad   right    of     access      to   government     records.     The    statute

"shall be construed in favor of the public's right of access."

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

      Recognizing such a right of action would be contrary to

legislative design.              A right of action would enable records

custodians to hale into court requestors who have no interest in

pursuing any review of a records custodian's denial, subjecting

requestors to the emotional turmoil and burdens attendant to

being   sued.       Such     a    right      of   action    would    also   undermine

requestors'       express    right       under    OPRA     to   choose   whether       to

challenge the denial of access before the GRC or in court, by

empowering records custodians to choose the forum.                             Just the

threat of suit may deter some citizens from exercising their

rights under OPRA.

                                             C.

      Although the foregoing analysis does not address the right

to declaratory relief regarding the Association's obligations

under the common law right of access, we conclude that such




                                             25                                 A-2810-13T2
relief would have been inappropriate in this case.    We do so for

two reasons.

     First, the Association's evident intent was to preempt an

action by Carter.   We long ago held that judicial discretion to

grant relief under the declaratory judgment statute should be

withheld from a party whose clear purpose was "to have the court

adjudicate in advance the validity of its possible defense to

defendants' imminent law suit."    Rego Indus., Inc. v. Am. Modern

Metals Corp., 91 N.J. Super. 447, 453 (App. Div. 1966); see also

Donadio v. Cunningham, 58 N.J. 309, 325 (1971) (stating that

"relief by way of a declaratory judgment should be withheld,

when the request is in effect an attempt to have the court

adjudicate in advance the validity of a possible defense in some

expected future law suit"); Utility Blade & Razor, supra, 31

N.J. Super. at 572-73 ("In the usual case where an action by one

party is imminent, it would serve no sensible purpose to permit

his adversary to sue first for a declaration that he has a good

defense to the action.").8


8
  We recognize that where a lawsuit is not imminent, but the
parties' rights and responsibilities in an ongoing relationship
are   subject  to   uncertainty,    declaratory   relief   may   be
appropriate, as was found in Utility Blade & Razor, supra, 33
N.J.   Super.  at   573   ("On   the   other   hand,   under   some
circumstances, if the suit is not imminent and the declaratory
proceeding will relieve a party of a burden and would seem -- in
any event, through the interposition of a counterclaim -- to
                                                        (continued)


                                  26                       A-2810-13T2
     Second, allowing a declaratory judgment action to proceed

to clarify duties under the common law right of access, when

relief under OPRA is precluded, would result in "fragmentary

redress."     Id. at 571.   As noted above, a court is empowered to

refuse   declaratory   relief     when   it   "would      not    terminate   the

uncertainty    or   controversy    giving     rise   to    the    proceeding."

N.J.S.A. 2A:16-61.9

     In sum, we conclude that the court erred in granting the

Association declaratory relief.

                                   III.

     We turn to the issue whether Carter was entitled under OPRA

to obtain access to records of relief payments to John Doe. 10



(continued)
settle the entire controversy, it may be unjust not to permit
him to sue immediately to free himself of liability.").
9
  We also note that the Association's request for declaratory
relief, and the court's declaration, were overly broad.      The
relief sought and granted pertained not just to Carter, but any
prospective requestor of relief applications and payments. Yet,
only Carter was named and served.    "When declaratory relief is
sought, all persons having . . . any interest which would be
affected by the declaration shall be made parties to the
proceeding."   N.J.S.A. 2A:16-56.   "The court cannot adjudicate
the rights of parties who are not before the court." Gotlib v.
Gotlib, 399 N.J. Super. 295, 313 (App. Div. 2008).
10
  We decline to address Carter's additional requests because he
abandoned those in his brief to the trial court.         "[O]ur
appellate courts will decline to consider questions or issues
not properly presented to the trial court when an opportunity
for such a presentation is available 'unless the questions so
                                                    (continued)


                                    27                                 A-2810-13T2
Before doing so, we review briefly the role of the Association

and local relief associations.

                                   A.

      We have previously discussed at some length the history of

the   Association,   the   local   relief   associations,   and   their

statutory authority to grant relief payments and burial benefits

to their members and members' families.          Paff v. N.J. State

Firemen's Ass'n, 431 N.J. Super. 278 (App. Div. 2013).            Among

their purposes, local relief associations shall

          maintain a fund for the relief, support or
          burial of:

             (1) needy firefighters and their families;

             (2) any persons and the families of any
          persons who are injured or die in the course
          of doing public fire duty, or who may become
          needy or disabled or die as the result of
          doing such duty or be prevented by the
          injury or by illness arising from doing such
          duty,   from   attending   to  their   usual
          occupation or calling; and


(continued)
raised on appeal go to the jurisdiction of the trial court or
concern matters of great public interest.'"     Nieder v. Royal
Indem. Ins. Co., 62 N.J. 229, 234 (1973) (internal quotation
marks and citation omitted).    However, we note that Executive
Order 26 (McGreevey), issued pursuant to N.J.S.A. 47:1A-1,
exempts from disclosure under OPRA "[i]nformation describing a
natural person's finances, income, assets, liabilities, net
worth, bank balances, financial history or activities, or
creditworthiness, except as otherwise required by law to be
disclosed." Ibid. The Order also exempts "information related
to medical, psychiatric or psychological history, diagnosis,
treatment or evaluation . . . ." Ibid.



                                   28                         A-2810-13T2
               (3) the families of any persons doing
            public fire duty who die as the result of an
            act of terrorism committed against the
            United States of America while such persons
            were serving as federal, State or local law
            enforcement officers.

            [N.J.S.A. 43:17-3.]

The   Association    "shall     have     the   same   rights,      powers   and

privileges as the local firemen's relief associations, including

providing for the distribution of any fund for the relief of

disabled or needy firefighters and their families."                   N.J.S.A.

43:17-41.

      Awards   of   relief    shall    be   made   pursuant   to    rules   and

regulations    adopted   by   the     Association.    N.J.S.A.      43:17-3(c)

("The relief, support or burial benefit shall be granted in

accordance with the rules and regulations adopted by the New

Jersey State Firemen's Association."); see also N.J.S.A. 43:17-

24, -35.    However, the Association's rules and regulations have

not been promulgated with notice and allowing comment.                See N.J.

Const., Art. V, § 4, para. 6; N.J.S.A. 52:14B-4.

      The statute also authorizes consideration of why a person

is in need.

            No person shall be given assistance if the
            cause of the need or the reason for the
            disability or the nature or cause of the
            injury or sickness is not in the opinion of
            the board of representatives such as to
            entitle the applicant to assistance, or if




                                       29                             A-2810-13T2
             the applicant is deemed financially unworthy
             of assistance.

             [N.J.S.A. 43:17-24.]

      The    Department    of   Banking    and    Insurance     (DOBI)   requires

local relief associations to file annual reports including the

names   of    relief   beneficiaries      and     the   amounts    paid.11        The

applicable regulations provide:

                (a) All local relief associations shall
             file with the Commissioner, the Secretary of
             State, and the secretary of the State
             Association, no later than April 1 of each
             year, a sworn statement, which shall contain
             the following information:

             1.   The     names   of  its   representatives,
             visitors    or trustees and other officers,
             with the    amount of their respective fees or
             salaries,   if any;

             2. The names of its beneficiaries during or
             within   the   year  next   preceding   the
             statement;

             3. The amount of             money    paid    to     each
             beneficiary; . . . .

             [N.J.A.C. 11:1-38.3.]

      The regulations do not expressly require a similar report

by   the    Association,    notwithstanding        that   it    has   the    power,

comparable to the local associations, to award relief benefits.


11
   The Association and local associations are funded through a
tax on fire insurance premiums of insurers not organized under
New Jersey law, N.J.S.A. 54:18-1, -2; and fire insurance
premiums of surplus lines fire insurers, N.J.S.A. 17:22-6.59.



                                      30                                    A-2810-13T2
                                            B.

       The   issue    presented   is    whether      the    payment    records    are

shielded by OPRA's "privacy clause," which states: "[A] public

agency has a responsibility and an obligation to safeguard from

public access a citizen's personal information with which it has

been    entrusted      when   disclosure         thereof     would    violate     the

citizen's reasonable expectation of privacy . . . ."                        N.J.S.A.

47:1A-1.     We have previously determined that the Association is

a public agency subject to OPRA.                 Paff, supra, 431 N.J. Super.

at 279.      Also, it is undisputed that relief payment records are

government      records.      N.J.S.A.       47:1A-1.1.       Although      numerous

categories      of    documents   are       exempt   from    the     definition    of

government records, see Educ. Law Ctr., supra, 198 N.J. at 284

("OPRA excludes twenty-one categories of information, making the

public right of access not absolute.") (citation omitted), none

of the exemptions apply here.               Furthermore, the Association does

not    invoke   any    regulation      or    executive      order    that   arguably

removes the payment records from the scope of its disclosure

obligations under OPRA.12


12
   In particular, we note that an agency may exempt certain
documents by regulation authorized by law.      N.J.S.A. 47:1A-1
(stating that public agencies may exempt documents from
disclosure by "regulation promulgated under the authority of any
statute or Executive Order of the Governor").      The exemption
power is not "unlimited" and must "be exercised only when
                                                      (continued)


                                            31                              A-2810-13T2
       The privacy clause is a substantive counterweight to the

right to access under OPRA.    Burnett v. Cty. of Bergen, 198 N.J.

408,   422-23   (2009).   Courts   must   balance   OPRA's   mandate    of

disclosure with its protection of privacy.          Id. at 425-26.      To

do so, the Court determined it was appropriate to consider the

seven factors identified in Doe, supra:

           (1) the type of record requested; (2) the
           information it does or might contain; (3)
           the potential for harm in any subsequent
           nonconsensual disclosure; (4) the injury
           from disclosure to the relationship in which
           the record was generated; (5) the adequacy
           of   safeguards   to   prevent   unauthorized
           disclosure; (6) the degree of need for
           access; and (7) whether there is an express
           statutory    mandate,   articulated    public
           policy, or other recognized public interest
           militating toward access.

           [Id. at 427 (quoting Doe, supra, 142 N.J. at
           88).]




(continued)
necessary for the protection of the public interest."    Irval
Realty, Inc. v. Bd. of Public Util. Commrs., 61 N.J. 366, 374
(1972) (applying identical language in pre-OPRA Right to Know
Law).   We express no opinion as to whether the Association,
pursuant to its power to adopt rules or regulations governing
the grant of relief, may exempt documents from OPRA.       The
regulations are not before us, and have not been adopted
pursuant to public notice and comment under the Administrative
Procedure Act (APA), N.J.S.A. 52:14B-4; nor are they available
for public viewing in accord with the APA.    N.J.S.A. 52:14B-
3(3).



                                   32                           A-2810-13T2
A court must engage in a case-specific analysis.                                     Id. at 437

("This balancing of interests must be applied case by case, and

under different facts, another result might be proper.").

       Although     the     trial        court      applied       the    Doe      factors,         we

consider them de novo.              See K.L. v. Evesham Twp. Bd. of Educ.,

423    N.J.     Super.    337,     349    (App.      Div.       2011)    (stating        that      an

appellate       court     exercises       de     novo      review       of    a     trial      court

decision regarding whether OPRA requires disclosure of publicly

held   records),         certif.    denied,         210    N.J.    108       (2012).          In   so

doing,     we     part     company       with       the     trial       court,         given       its

determination       that    the     privacy         clause      shields       relief      payment

records.

       We consider together the first two factors — the record

type and information contained.                     Carter seeks copies of checks,

which would confirm the identity of a relief applicant, state

the    amounts     of     relief     received,            and    state       when      they     were

received from a public agency empowered to make discretionary

relief decisions.           However, if Carter is able to confirm that

Doe    received    relief,       additional         information          may      be    inferred;

even without his application documents, Carter may infer that

Doe was in financial distress, although cause and extent were

not disclosed.




                                               33                                        A-2810-13T2
     Personal financial information in the possession of public

agencies — which is what Carter seeks — has not been treated

uniformly under OPRA and implementing regulations and executive

orders.     OPRA exempts "the pension or personnel records of any

individual    in    the   possession    of   a   public    agency"   from   the

definition of government records, but does not exempt a public

employee's    "name,      title,   position,     salary,   payroll   record,13

length of service, date of separation and the reason therefor,

and the amount and type of any pension received."                    N.J.S.A.

47:1A-10.    Also, Executive Order No. 26 (McGreevey), ¶ 4(b)(3)

(2002)    exempts    "[i]nformation     describing     a   natural   person's

finances, income, assets, liabilities, net worth, bank balances,

financial history or activities, or creditworthiness, except as

otherwise required by law to be disclosed."14




13
  Although "payroll record" is not defined in OPRA, it elsewhere
has been defined to include more than salary.    For example, to
comply with The Unemployment Compensation Law, N.J.S.A. 43:21-1
to -24, and the Temporary Disability Benefits Law, N.J.S.A.
43:21-25 to -71, among others, employers must maintain "payroll
records" that include: "[t]otal remuneration paid in each pay
period showing separately cash, including commissions and
bonuses . . . gratuities received regularly . . . [and] special
payments, such as bonuses and gifts . . . ."       N.J.A.C. 12:2
Appx. A; see also N.J.A.C. 12:16-2.1.
14
  Also exempt is "[i]nformation relating to medical, psychiatric
or psychological history, diagnosis, treatment or evaluation."
Id. at ¶ 4(b)(1).



                                       34                             A-2810-13T2
       None of these sources directly address Association relief

payments, although both parties seek support from N.J.S.A. 47:1-

10.     The payments are not salary or remuneration for employment,

although     they      are     a   benefit         for   qualified   firefighters         —

including,       notably,      volunteer       firefighters      —    in   return      for

service.     Relief payments are discretionary, like bonuses and

gifts     that    are        reported    on        payroll   records,      but    relief

recipients       are     not       on   the    Association's         payroll.          The

Association argues the payments should be withheld as a "pension

record" exempt under N.J.S.A. 47:1A-10, and Carter argues the

payments should be disclosed as "the amount and type of any

pension received," which are not exempt under N.J.S.A. 47:1A-10.

In our view, neither interpretation is correct.

       Although        one     might    argue        that    a   relief     award       is

"information describing a natural person's . . . income" under

Executive Order No. 26,15 the Order was apparently intended to

address personal financial information that a citizen entrusts

to the government.             See Executive Order No. 21 (McGreevey) ¶ 4

(which Executive Order No. 26 was intended to clarify).                           It was

not intended to bar release of records pertaining to outlays by

a public agency to a citizen.                      Further, any ambiguity in the

Executive Order should be resolved in favor of disclosure.                             See

15
     We note that the Association has not presented this argument.



                                              35                                 A-2810-13T2
N.J.S.A. 47:1A-1 ("[L]imitations on the right of access accorded

by [OPRA] . . . shall be construed in favor of the public's

right of access.").

    Although the relief payments do not fall neatly into the

statutory categories found in N.J.S.A. 47:1-10, their similarity

to forms of payment that are subject to disclosure arguably

strengthens the case for access.     However, there is an important

difference between relief awards and salary, pension payments,

or even bonuses and gifts reported in payroll records.      Bonuses

are awarded generally for a job well done — which is unlikely to

embarrass the recipient.   Relief benefits are awarded upon proof

that someone is in financial distress, which may subject the

recipient to embarrassment.   A similar distinction can be drawn

between disability insurance payments, which the GRC has found

to be disclosable, see, e.g., Gordon v. City of Orange, GRC

Complaint No. 2013-255 (2014), and relief benefits.     We conclude

factors one and two weigh slightly in favor of non-disclosure

based on this distinction between relief awards and other forms

of remuneration or compensation that are subject to disclosure

under N.J.S.A. 47:1A-10.

    Doe factors three and four relate to the potential for

harm.   The Association's vice president asserts that John Doe,

and other beneficiaries whose records would be released, will




                                36                         A-2810-13T2
suffer public embarrassment.           The Association also speculates

that future applicants for relief would be deterred from seeking

benefits to avoid public embarrassment.16              We note that release

would also arguably have the effect of upsetting the reasonable

expectations of applicants, inasmuch as the application forms

state   that    the    "Association     is       required     to    protect     the

confidentiality of information."             While that may be read to

refer only to an applicant's submission, it would be reasonable

for an applicant to expect that any benefits received would also

be confidential.       Upsetting these expectations may affect "the

relationship in which the record was generated."                    On the other

hand, disclosure may empower Association members to assess the

Association's process for deciding such applications, thereby

ultimately enhancing their relationship with the organization.

We   conclude    factors    three     and    four     slightly       favor    non-

disclosure.

     Factor     five   refers   to   "the    adequacy       of     safeguards   to

prevent unauthorized disclosure."            This concerns the extent to

which   the    requested   documents       are    otherwise      protected    from

disclosure.      The   Association's       vice    president       asserted   that


16
  The Association also discusses the harm that would result from
the release of the personal financial information included in
the applications.   As noted, we deem Carter's request for that
information to have been abandoned in the trial court.



                                      37                                 A-2810-13T2
consideration of applications is performed without attaching the

applicant's     name,    to     assure    unbiased    consideration.        On    the

other   hand,     Carter      maintained    that     existing   safeguards       were

inadequate, because he learned through some unnamed source that

Doe had received benefits.              Given the apparent leak, this factor

neither favors nor disfavors disclosure.

       It is also reasonable to discuss factors six and seven

together.     Carter's need for access is based on an interest in

the Association's exercise of its authority to grant relief in

Doe's case.       Carter questions whether it is appropriate to award

benefits to a person who was charged with crimes and allegedly

terminated for conduct related to those charges.                     We need not

take    a   position       on    whether       the   circumstances     of      Doe's

termination should be a factor in the Association's decision-

making to conclude that Carter's expressed interest relates to

the Association's governance.             For example, Carter does not seek

disclosure for financial gain, as a finance company might, in

seeking the names of beneficiaries because they are in financial

distress    and    may   be     worth    soliciting.      Carter's   request        is

instead grounded in an interest in the Association's authority

to grant Doe a relief award given the allegations of impropriety

that led to Doe's termination from public employment.




                                          38                                A-2810-13T2
       We noted above that the statute authorizes consideration of

the cause of a person's financial need.                       N.J.S.A. 43:17-24.               The

relief decisions must be made according to the Association's

rules and regulations.                N.J.S.A. 43:17-3(c).           However, the lack

of transparency in the Association's decision-making process,

including the lack of publicly available rules and regulations

adopted       after    notice     and       comment,       heightens         the    need       for

disclosure of documents related to individual cases.                                Cf. Mason,

supra,      196    N.J.     at   64    (stating       that    OPRA      is    designed         "to

maximize      public      knowledge        about     public     affairs       in     order      to

ensure an informed citizenry and to minimize the evils inherent

in a secluded process.") (internal quotation marks and citation

omitted).         The need for disclosure is also heightened by the

fact     that,        apparently,          only      local      relief        associations'

beneficiaries         and    amounts       of     grants     are   subject          to    DOBI's

outside review.           N.J.A.C. 11:1-38.3.              We conclude that factors

six and seven weigh heavily in favor of disclosure.

       Upon       balancing      the       Doe       factors,      in        view        of    the

circumstances         presented       in     this    case,    we   conclude          that      the

privacy clause does not bar plaintiff's right under OPRA to the

records of the relief payments made to Doe.

       We   briefly       address      the      Association's      contention            that     a

contrary result is compelled by Michelson v. Watt, 379 N.J.




                                                39                                       A-2810-13T2
Super. 611 (App. Div. 2005).                We disagree.      In Michelson, supra,

plaintiff      sought        disclosure      of     documents      and    information

pertaining to the health insurance benefits enjoyed by public

employees of the city in which he lived.                    Id. at 614.     The court

held that plaintiff's request was "not subject to access and

disclosure pursuant to OPRA."               Id. at 623.       The court deemed the

detailed health insurance information requested to be personnel

records that fell outside of government records as defined in

N.J.S.A. 47:1A-10.            Also, disclosure was barred by Executive

Order No. 26, which established that "information regarding an

individual's health history is not a government record subject

to    public   access."         Id.    at    619-20;   Executive     Order       No.   26

(McGreevey), ¶ 4(b)(1) (2002).                   Finally, disclosure was barred

by    N.J.A.C.   17:9-1.2(b),          which      "treats    all   personal      health

information      as    confidential         information      in    accordance      with

HIPAA."    Michelson, supra, 379 N.J. Super. at 620.

       Michelson      does    not     compel     non-disclosure     in    this    case.

Relief payments are not personnel records under N.J.S.A. 47:1A-

10.    Furthermore, disclosure is not shielded by Executive Order

No. 26 or any duly adopted regulation.

       In sum, plaintiff is entitled to the limited disclosure of

Doe's relief payment checks under OPRA.




                                            40                                A-2810-13T2
                                           IV.

      We also conclude that Carter is entitled to Doe's payment

records under the common law right of access.                       See Mason, supra,

196 N.J. at 67 (noting that OPRA does not limit the common law

right   of     access)     (citing     N.J.S.A.          47:1A-8).         There     is    no

question     that   Carter     seeks    a       public    record,    subject       to     the

common law right of access.                See Nero v. Hyland, 76 N.J. 213,

222   (1978)      ("The    elements    essential          to   constitute      a    public

record are . . . that it be a written memorial, that it be made

by a public officer, and that the officer be authorized by law

to make it.") (internal quotation marks and citation omitted).

There also is no question that Carter has standing; he is an

Association member interested in the criteria applied to relief

decisions.      See Irval, supra, 61 N.J. at 372 (stating that some

showing of interest is required to enforce the common law right

to inspect).

      An access request under the common law is subject to an

"exquisite      weighing      process"          that   balances      the    requestor's

interest     in     disclosure       and        the    government's        interest       in

confidentiality.          Loigman v. Kimmelman, 102 N.J. 98, 108 (1986).

The   balancing     process     must       be    "concretely      focused      upon       the

relative interests of the parties in relation to the specific

materials in question."          Piniero v. N.J. Div. of State Police,




                                            41                                     A-2810-13T2
404 N.J. Super. 194, 206-07 (App. Div. 2008) (citing McClain v.

Coll. Hosp., 99 N.J. 346, 361 (1985)).               The Court has identified

several factors that may be considered:

           (1) the extent to which disclosure will
           impede agency functions by discouraging
           citizens from providing information to the
           government; (2) the effect disclosure may
           have upon persons who have given such
           information, and whether they did so in
           reliance that their identities would not be
           disclosed; (3) the extent to which agency
           self-evaluation,  program   improvement,  or
           other decisionmaking will be chilled by
           disclosure; (4) the degree to which the
           information sought includes factual data as
           opposed     to   evaluative    reports    of
           policymakers; (5) whether any findings of
           public misconduct have been insufficiently
           corrected by remedial measures instituted by
           the investigative agency; and (6) whether
           any agency disciplinary or investigatory
           proceedings    have    arisen    that    may
           circumscribe the individual's asserted need
           for the materials.    Against these and any
           other relevant factors should be balanced
           the importance of the information sought to
           the plaintiff's vindication of the public
           interest.

           [Loigman, supra, 102 N.J. at 113 (citation
           omitted).]

The   requestor's   motivation     is    also    a   relevant   consideration.

Loigman, supra, 102 N.J. at 104 ("Somewhat different but related

considerations      arise   when    the         citizen   seeks    access    to

information to further a public good" as opposed to a private

interest.).




                                        42                            A-2810-13T2
      Loigman factors one and two slightly favor confidentiality.

As discussed above, the Association contends disclosure of Doe's

records may discourage members from applying for benefits in the

future;      however,      this     fear   is     speculative.          In    any     event,

Carter's request is confined to a single recipient, limiting any

chilling effect of disclosure.                     However, as noted above, an

applicant      may       reasonably    have       relied    on    the    reference         to

confidentiality in the application form.

      Turning        to    factor     three,      we    discern    no        threat       that

disclosure would chill the ability of the Association or local

associations to render their decisions, or to engage in self-

evaluation         and    improvement.            If   anything,       disclosure          may

encourage self-criticism and internal oversight.                             Carter seeks

factual data, not evaluative reports (factor four).                             Moreover,

there   is    no     evidence      that    alternative      remedial         measures      or

outside oversight have addressed the issue of concern to Carter

—   that     is,    whether       benefits      are    granted    to    persons        whose

financial distress is allegedly the result of their misconduct.

      As     Loigman       provides,       other       relevant    factors          may    be

considered.         In this case, weight may be given to the fact that

Doe has already been placed in the public eye.                          His arrest and

his   termination         received    publicity        in   the   local       newspapers.

Thus, to some extent, his personal travails are already in the




                                             43                                     A-2810-13T2
public domain.        What is not disclosed is whether he has received

assistance from a local association or the Association.                          This

distinguishes Carter's request from a request for payments made

to any and all beneficiaries.

      Carter's professed need is not based on personal curiosity,

or personal financial interest.                 Rather, it is based on his

interest      in   determining    the         criteria   for     relief     awards,

specifically, whether the local association or Association deems

it appropriate to consider the cause of a person's financial

need.   The lack of transparency in the Association's decision-

making, the lack of rules adopted pursuant to the APA, and the

lack of oversight by DOBI of Association awards, heightens the

interest in disclosure.

      In sum, we conclude that the public interest in disclosure

in this case outweighs the interest in confidentiality.

                                         V.

      We briefly address the Association's argument that Carter's

counterclaim for disclosure was time-barred, as it was filed

more than forty-five days after the denial.                 OPRA actions have a

forty-five-day statute of limitations, as do actions in lieu of

prerogative writs.       Mason, supra, 196 N.J. at 57.                However, that

time frame may be enlarged "in the interest of justice."                    Id. at

70.     The    time    period   should    be     enlarged      here    because    the




                                         44                                A-2810-13T2
Association's declaratory judgment action effectively preempted

Carter's option to resort to the GRC, which has no specified

limitations period.      Id. at 70.        Carter was compelled to respond

to a lawsuit that, as discussed above, the Association was not

entitled to bring in the first place.

      We also note that because Carter has prevailed, in that he

has   secured   access   to   Doe's   relief     payment   records,     he   is

entitled to a reasonable attorney's fee.            N.J.S.A. 47:1A-6.        We

remand for the trial court's fee determination.

      Reversed and remanded.     We do not retain jurisdiction.




                                      45                              A-2810-13T2
MESSANO, P.J.A.D, concurring.

      For the reasons compellingly presented by Judge Ostrer in

Parts   III    and   IV    of    his   opinion,     I    agree      that    Carter   was

entitled to obtain copies of the relief payments made by the

Association to John Doe under both OPRA and the common law right

of    access    to   public      records.      I    further         agree    with    the

conclusions that OPRA "grants a right of action exclusively to

requestors,"      and     that   "the    Legislature          did   not     intend   for

records custodians to bring actions against record requestors to

enforce their asserted right to withhold records." Ante at 22,

24.

      I also agree that the Legislature did not intend to permit

any "public agency," like the Association, to commence an action

under OPRA seeking to pre-emptively establish a defense that is

expressly      provided    by    the   statute.         See    N.J.S.A.     47:1A-5(g)

(permitting the custodian of a government record to "assert[]

that part of a particular record is exempt from public access").

Finally, I agree that permitting a public agency to initiate a

lawsuit   asserting       a   defense    to   the   production        of    particular

public records under the common law would result in "fragmentary

redress," ante at 27, and should be avoided in furtherance of

the salutary goal of judicial economy.
      I    write    separately,      however,     to     state   my    respectful

disagreement with my colleagues' expansive conclusion in Part

II-A of their opinion that "if there is no private right of

action under a particular statute, a party may not secure a

declaration of its statutory rights by seeking relief under the

DJA."      Ante at 17.        In my opinion, that conclusion is not

supported by the clear and unambiguous language of the DJA,

which is the clearest indication of the Legislature's intent.

Town of Kearny v. Brandt, 214 N.J. 76, 98 (2013).

      As noted by my colleagues, the DJA is remedial in nature

and entitled to liberal interpretation.                Ante at 14-15.    The DJA

provides that "[a]ll courts of record . . . shall . . . have

power     to   declare    rights,   status   and       other   legal   relations,

whether or not further relief is or could be claimed."                   N.J.S.A.

2A:16-52 (emphasis added).           Seemingly, the Legislature did not

intend to foreclose a party from seeking relief under the DJA

even if "further relief" could not be claimed by that party.

Id.

      N.J.S.A. 2A:16-53, in turn, provides that "[a] person . . .

whose rights, status or other legal relations are affected by a

statute,       . . . may have determined any question of construction

or validity arising under the . . . statute . . . and obtain a

declaration        of    rights,    status   or    other       legal    relations




                                        2                                A-2810-13T2
thereunder."      (Emphasis added).            As noted, I agree that a public

agency cannot initiate a lawsuit under OPRA to determine whether

a specific record is exempt from production under OPRA.                            In my

mind,   the     highly       discretionary      remedy    of   declaratory       relief

cannot be invoked to settle such a dispute, because that issue

has    little    to     do    with   the   "rights,      status   or    other      legal

relation[]" of and between, in this case, the Association and

Carter.

       However,    the       Association   is    undoubtedly      a    person    "whose

rights, status and other legal relations are affected" by OPRA.

N.J.S.A. 2A:16-53 (emphasis added).                 In a different context, I

believe the Association could initiate a lawsuit seeking relief

under the DJA.          For example, in Paff, supra, 431 N.J. Super. at

285,    the     trial    court       dismissed    the     plaintiff's     complaint,

finding the Association was not a public agency subject to OPRA.

After     thoroughly          reviewing    the      Association's        "formation,

structure, and function," we concluded that it was a public

agency under OPRA and reversed.                Id. at 289-90.

       In Paff, the issue arose in the context of an OPRA suit

already initiated by a "requestor."                      Given the Association's

unusual status, however, I doubt that we would have dismissed an

action initiated by the Association pursuant to the DJA seeking

a declaration as to whether or not it was public agency.                            Even




                                           3                                    A-2810-13T2
though OPRA provides no right of action to a public agency, I

believe the Association's complaint in that context — whether

the association was subject to OPRA — would have been cognizable

under the DJA.1

       I   find   support   for   this      conclusion   not    only    through

application of the plain language of the DJA, but also in cases

that   have   long-recognized     the    appropriateness   of    such    relief

under the DJA.       See, e.g., N.J. Ass'n for Retarded Citizens,

supra, 89 N.J. at 242 (resort to the DJA is appropriate "to end

uncertainty about the legal rights and duties of the parties

. . . in controversies which have not yet reached the stage at

which the parties seek a coercive remedy," and where "there is

an actual controversy . . . which involves differing views on

the meaning of applicable statutory provisions").2




1
  In Paff, we cited three other cases that involved public
agencies that, given their unusual circumstances, challenged
whether they were subject to OPRA.    Id. at 287 (citing Sussex
Commons Assocs., LLC v. Rutgers, the State Univ., 210 N.J. 531
(2012); Fair Share Hous. Ctr., Inc. v. N.J. State League of
Municipalities, 207 N.J. 489 (2011); The Times of Trenton Publ'g
Corp. v. Lafayette Yard Cmty. Dev. Corp., 183 N.J. 519 (2005)).
Although in those cases the issue arose in the context of a
pending prerogative writ lawsuit brought by a requestor, I
believe the Court would have resolved the issue had the public
agency initiated the suit for declaratory relief.
2
  I recognize that there must be an "actual controversy" before
the DJA can be invoked.    Finkel v. Twp. of Hopewell, 434 N.J.
Super. 303, 318 (App. Div. 2013). However, that predicate could
                                                     (continued)


                                        4                               A-2810-13T2
       In this regard, while the out-of-state and federal cases

cited by my colleagues provide support for their conclusion —

"if    there   is   no   private     right     of    action    under      a   particular

statute, a party may not secure a declaration of its statutory

rights" — I do not believe any of the cited New Jersey cases do.

Moreover, it strikes me as anomalous that a statute like OPRA

that    provides     a    specific     unilateral          cause   of    action    to    a

requestor could nonetheless provide the rationale for barring a

clearly "affected" party — here, the Association — from seeking

relief under the DJA.

       Moreover,      our     courts       have      considered         requests      for

declaratory      relief     under    the   DJA      even    though      the   particular

statute at issue provided no right of action to a litigant.                           For

example, in Chamber of Commerce v. State, 89 N.J. 131, 138-39

(1982),    the      Court    considered        whether       the     plaintiff     trade

association was entitled to relief under the DJA declaring the

Strikebreakers Act, N.J.S.A. 34:13C-1 to -6, unconstitutional.

The Court ultimately concluded that portions of the statute were

preempted by federal labor law, but other sections were not.

Id. at 163.         The Court did not predicate the relief upon the

plaintiff, or for that matter, any person, having a private


(continued)
be easily satisfied, for example, if a request has been made,
but the litigation has not commenced, as was the case here.



                                           5                                    A-2810-13T2
right    of    action      under     the       Strikebreakers         Act.        Indeed,        the

statute was essentially penal in nature, and presumably could

not be invoked by anyone other than the State.                                    See N.J.S.A.

34:13C-5 (making any violation of the act a misdemeanor).

     In       NL    Indus.,        Inc.    v.        New     Jersey       Dept.       of    Envtl.

Protection, 397 N.J. Super. 127, 133 (App. Div. 2007), certif.

denied,   195       N.J.    418     (2008),          we    considered      the    "rights        and

responsibilities"           of     the    parties          under    N.J.S.A.          58:10B-3.1,

which permitted a local government unit that condemned property

to   replace        –    with     the     Department's             approval       –    a     person

performing         remediation       at        the        contaminated      site.            Before

considering        the     merits,        we    concluded          that    the        plaintiff's

complaint was cognizable under the DJA, specifically rejecting

the Department's argument that jurisdiction lay in the Appellate

Division and not the trial court.                            Id. at 131-32.                Notably,

neither the statute at issue, nor the legislation of which it

was a part, provided the remediating party with a specific cause

of action by which to challenge the Department's or the public

entity's decision.

     Finally,           although    I     agree       with     much   of     my       colleagues'

opinion, I believe it unnecessary to paint with such a broad

brush.        Whether the DJA means what it says, or, whether its

remedies are available only to those whom the Legislature has




                                                 6                                         A-2810-13T2
provided a specific cause of action, is an issue of some import.

Resolving that issue in a manner that I believe departs from

existing precedent is more appropriately the province of our

Supreme Court.       See, e.g., Riley v. Keenan, 406 N.J. Super. 281,

297 (App. Div.) (noting that an appellate court "should normally

defer to the Supreme Court with respect to the creation of a new

cause of action") (citing Tynan v. Curzi, 332 N.J. Super. 267,

277 (App. Div. 2000)),            certif. denied, 200 N.J. 207 (2009);

Proske v. St. Barnabas Med. Ctr., 313 N.J. Super. 311, 316 (App.

Div.    1998)     (declining     to   find       damages   for   personal   injuries

based    on   a   failure   to    perform         a   contractual   term    "'in   the

absence of [any] precedent, or . . . clear direction by dictum

from our Supreme Court'" authorizing such action) (quoting Coyle

v. Englander's, 199 N.J. Super. 212, 226 (App. Div. 1985)),

certif. denied, 158 N.J. 685 (1999).

       I therefore respectfully concur in the judgment.




                                             7                               A-2810-13T2
