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NJ Open Government Notes

Bergen judge: Edgewater Borough’s response to records request was “too elusive.”

In an August 18, 2017 opinion, Bergen County Assignment Judge Bonnie J. Mizdol took Edgewater Borough officials to task for being “too elusive” about the search they undertook to find records sought by an Open Public Records Act (OPRA) requestor.  She ordered the Borough to undertake an additional search, have each person involved in the search provide his or her own detailed certification and to pay the requestor’s court costs and attorney fees.

The requestor sought various paper and electronic records pertaining to a development project.  In its first response, Edgewater granted a few responsive records and denied access to the rest “without any reason or justification for the denial.”  At a July 23, 2017 hearing, Judge Mizdol ordered Edgewater to submit certification describing its records search method (called a Paff Certification) and an index showing the documents the search turned up (called a Vaughan Index). In response the Borough produced a two-page certification and a two-page index.

Edgewater’s election to provide three partial responses to the request caused Judge Mizdol to remark that the Borough’s “piecemeal production of documents is telling and indicative of a less than adequate search.”  Regarding the Borough’s two-page Paff certification, Mizdol found thatit was “simply too elusive to ascertain that a proper search was performed . . . [and] the Court does not know what defendants did or did not do to search for the requested records to satisfy their obligations.”  Judge Mizdol ordered Borough officials to

undertake an additional search for records . . . and provide an exhaustive Paff Certification attesting to the comprehensiveness of the search. If the task of searching has been delegated, then each and every party tasked with such delegation shall also provide a Paff Certification. The Custodian shall, likewise, provide to the plaintiff any additional documents discovered during the search, or, as appropriate, a Vaughn Index (privilege log) outlining with specificity the privilege claimed.

The court’s opinion noted that the requestor, 65 River Road Partners, LLC, “is involved in several pieces of contentious litigation with the Borough of Edgewater regarding approximately 18.73 acres of vacant land along the Hudson River which [it] seeks to develop as multi–family housing units with a set aside for low and moderate income households in compliance with the Fair Housing Act, Council on Affordable Housing (COAH).”

By John Paff

Chairman of the New Jersey Libertarian Party's Open Government Advocacy Project