HUD 003888-18 12/28/2018 Pg 1 of 5 Trans ID: LCV20182250899

SUPERIOR COURT OF NEW JERSEY

HUDSON VICTN AGE
CHAMBERS OF WILLIAM J. BRENNAN COURTHOUSE
FRANCIS B. SCHULTZ 583 Newark Avenue
JUDGE

Jersey City, New Jersey 07306

 

December 28, 2018

Joseph B. Fiorenzo, Esq.

Sills Cummis Gross, PC John McKinney, Esq.
The Legal Center Jersey City Law Dept.
One Riverfront Plaza 280 Grove St.

Newark, NJ 07102 Jersey City, NJ 07302

Re: One Journal Square Partners Urban Renewal Co., LLC, et al v.
City of Jersey City et al - Docket No.: 

Dear Counsel:

Please allow this letter to serve as the ?ndings of the court in the above captioned OPRA
matter.

The plaintiffs submitted several requests to the Clerk of the City of Jersey City seeking
documents pursuant to the Open Public Records Act (OPRA), N.J.S.A. to -13. The
defendants did not comply with the request and an order to show cause followed. In its brief the
plaintiffs contend that the documents sought were easily identi?able, were not overbroad and
were not subject to any exception. The defendants contend that the document requests were
overbroad and would have substantially interfered with agency operations. The court felt that
based on the papers submitted it could not make a well grounded decision and therefore
requested testimony. All of the requests were for documents related to tax abatements and
similar accommodations.

The first witness was David Cook, an attorney and member of plaintiffs? law ?rm. He
along with Mr. Sullivan of the firm were the ones who actually made the OPRA requests
involved in this matter. He ?rst discussed the document marked P-2 which was the initial OPRA
request made by plaintiffs on June 26, 2018. He indicated that MEPT was a prior owner of One
Journal Square, the same property owned by the plaintiffs and that KRE refers to property near
One Journal Square, both entities being part of the same redevelopment area.

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He indicated that in response to the City requested that he narrow down the request
so it would be more speci?c as to the identity of the documents being sought. In response to that
request by the City he testi?ed that three separate requests were then made and they could be
foundinP- 3 P- 5 andP? 9.

P-3 was also known as OPRA request #1 and made August 6, 2018. It had four parts. It
referred to the property located at One Journal Square. It gave the block and lot number. It
limited the time frame from January 1, 2008, going forward. The documents requested in part
one are easily identi?able, do not require any research or discretion by the defendants and simply
put are limited to one particular developer, MEPT for the property located at One Journal
Square. Part two is limited to any other developer at that same location other than MEPT and
seeks the same readily identi?able documents and for the same period of time. Part three simply
asks for an already existing list and gives an example of the list that is being referred to. Part
four simply asks for executive orders indicating the criteria used to approve RABS, PILOTS and
other tax abatement and tax exemptions applicable to redevelopment areas in the City. It does
appear that the plaintiffs did significantly reduce, clarify and identify the documents being
sought in response to the defendants? initial request to do so.

also known as OPRA request #3 and sent on August 6, 2018 is similar to except
it refers to another location speci?cally identified by its street address, 615 Pavonia Avenue and
its block and lot number. It contains two parts. Once again, the court ?nds these documents to
be readily identi?able and not requiring any ?research? or discretion on the part of the custodian.
It should be noted that the City indicated that it was conducting its search and requested more
time in response to P-3 and 

P-4 also known as OPRA request #2 initially sent August 6, 2018, involved requests for
similar documents. It contained four parts. The first part was only in regard to the Journal
Square 2060 Redevelopment Area from January 1, 2008 going forward. The second part asked
for similar documents outside of the 2060 Redevelopment Area, but only if the project cost more
than twenty million dollars. It also attached as an Exhibit A, a copy of an already existing list
prepared by the City which included project costs. The third part asked for policies, procedures
and memorandum concerning criteria to approve RABS, PILOTS, etc. The fourth part asked for
ordinances and resolutions granting or denying the requests for those tax related
accOmmodations The City responded by asking for a narrower date range and narrower scope.

Not receiving a response, Mr. Cook then called the clerk on or about August 17, 2018
and left a voice mail. He waited ?ve more days and got no return call and then eventually spoke
to a deputy clerk Irene McNulty on August 21, 2018. He told Ms. McNulty he was following up
regarding his OPRA requests. Ms. McNulty said in regard to OPRA request #2 she needed the
ordinance numbers and helped Mr. Cook determine how to ?nd, from the City?s web site, the
correct ordinance numbers. Ms. McNulty also indicated she would need the applicant?s names
and property addresses. Ms. McNulty asked for a shorter time frame, one that is less than ten
years going backwards. Mr. Cook testi?ed that a lot of what Ms. McNulty asked for was already
contained within P-4 (OPRA request especially regarding Exhibit A which shows the
properties that cost more than twenty million dollars and has the block and lot numbers. It
should be noted that Mr. Cook testi?ed Ms. McNulty did not complain at all about OPRA

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request #1 (regarding One Journal Square) and #3 (regarding 915 Pavonia Ave.). Mr. Cook
testi?ed that this was a good casual conversation with Ms. McNulty and that she never made any
sort of reference to a disruption of her of?ce. Mr. Cook then indicated that he revised OPRA
request #2 and it became P-9. It was sent on September 11, 2018. P-9 went from ten years to
only four years back in time. Mr. Cook referred to ?Exhibit and indicated how it was very
speci?c as it included the ordinance numbers, the street address and the name of the applicant.
The witness testi?ed that P-9 (the revised OPRA request gave Ms. McNulty everything she
wanted. He also testi?ed that it referred to twenty-seven speci?c projects.

Mr. Cook testi?ed that he did not get a response until P-10 sent September 12, 2018
which claimed that OPRA request even as revised, was disruptive to agency operations. He
testi?ed that Ms. McNulty did not call him back since their August 21, 2018, phone call to try
and resolve the matter or request more speci?c information. He said that nobody contacted his
of?ce regarding revised OPRA request #2 and all they received was a flat denial. He said
regarding OPRA request #1 and OPRA request #3 the City had asked for two week extensions
then an additional two weeks. He says he always agreed to the additional requests. He referred
to and P-8 both being sent by the City on August 15, 2018 in this regard. Regarding OPRA
request #1 he referred to P?ll sent August 29, 2018, which was the City?s third request for more
time to which he agreed. He got nothing in response until P?l3 which was a ?at denial. It was
dated September 26, 2018 and it pertained to OPRA request #1 and OPRA request He
claims there was no attempt by the City as per the statute (apparently referring to the last
sentence of NJ .S.A. 47: for a conference in order to reach a reasonable solution. He
claims that all three OPRA requests were denied after waiting ?fty?one days.

The next witness was Irene McNulty called by the defendants. She is a Deputy City
Clerk and has worked there for more than fourteen years. She is certi?ed as a municipal clerk by
the state and supervises the OPRA requests and oversees ordinances and changes to the city
code. She assists the public, maintains birth and death records and indicated that three quarters
of her day involves OPRA requests. She says that she works eight hours a day, skips lunch
sometimes, works late and this is usually due to OPRA. As of the day of testifying, December
13, 2018, there were 3,681 OPRA requests made to the city. She indicates that she gets minimal
help from other deputy clerks. She said there are two part time and two full time people who
also help respond to OPRA requests, but they do not do that exclusively. They work the counter
at the city clerk?s of?ce and much of their time involves marriage licenses and preparing the city
council agenda. .

She looked at the initial OPRA request made by the plaintiffs. She said that it asked
for ?all? documents and she said that request simply sought too much and therefore she sent an
email asking for more speci?c requests. She remembers that the next event was her conversation
with Mr. Cook on August 17, 2018. She acknowledged that he originally left a voice mail for
her.

During that conversation she told Mr. Cook to look at the city?s website where certain
information could be found to help make the request more speci?c. It did not appear that Ms.
McNulty recalled the conversation in great detail. She referred to P-7 sent August 15, 2018, in
which she asked the plaintiffs to narrow the scope and the dates. She indicated she did receive

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P-9 but it involved twenty-seven ordinances hence twenty-seven properties and that it asked for a
lot of material for each of the twenty-seven properties. She testi?ed she did not know how long
this request would take to ful?ll. She denied this request as overly burdensome. She testi?ed
that on average it takes between ?fteen and twenty minutes to go through each of these
ordinances and thus for twenty-seven ordinances it would take seven to eight hours to ful?ll
OPRA request She indicated that in addition to going through the ordinance ?les

themselves, there were requests for other matters such as emails and memorandums. She said
she could not get the emails without the names, date range and subject matter. She said that
regarding communications between the mayor and the JCRA it would be time consuming to
obtain those materials. She therefore, on September 12, 2018, denied OPRA request #2 as being
disruptive to agency operations. Regarding OPRA request #1 (One Journal Square) and OPRA
request #3 (915 Pavonia Ave.) she testi?ed that Lorraine Cecchini of the clerk?s of?ce handled
those matters. She testi?ed that she discussed those matters with Ms. Cecchini and how
burdensome it would be to ful?l those requests and so informed the plaintiffs.

She was cross-examined. She testi?ed that the number of OPRA requests goes up each
year and the number of clerk?s of?ce employees has gone down. She admits the mayor?s of?ce
was not contacted regarding subpart of OPRA request She testi?ed that the law
department was also involved in the decision to deny these requests. Regarding revised OPRA
request #1 which pertained to only one speci?c piece of property and only regarded materials
related to tax credits or similar accommodations, she could not recall if anyone at her of?ce told
her more time was needed to respond to OPRA request She was not aware of anyone talking
to the plaintiffs regarding OPRA request #1 before the ?at denial, apparently made by Lorraine
Cecchini.

Regarding OPRA request #2 she was not sure exactly of the conversation with Mr. Cook.
She did indicate that in writing she requested the plaintiffs to narrow the date range from its
original ten years. She?s not sure if she asked Mr. Cook for the block and lot number but 
probably asked for the street address. She did agree that she asked for more speci?c information.
Regarding the revised OPRA request #2 (P-9) she acknowledged that it went back only four
years now and that it gave the addresses and ordinances numbers and it was limited only to
twenty-seven speci?c properties. She acknowledged that dated September 12, 2018, which
was a ?at denial was sent out only the day after P-9 (the revised OPRA request was received.
She did not recall speaking to anyone in the mayor?s of?ce and admits not deciding how much
time it would take to ful?ll She acknowledged that she could have spent ?fteen minutes a
day for twenty?seven days and probably could have ful?lled the request in P-9. The court
inquired of Ms. McNulty if she actually looked into any of those twenty-seven ?les to see if the
documents requested in subparts A-G, may have been contained within those ?les, thus making
the job much easier. She indicated she apparently did not look into any of those ?les.

The court is well satis?ed that the documents requested in OPRA request #1 were
readily identi?able records subject to disclosure under OPRA. No one contended that any of the
exceptions applied. There was a time limitation going back only for the last ten years and it
applied only to one particular piece of property (block and lot number were given) and it related
only to tax abatements and similar speci?cally identi?ed matters. The same applies to OPRA
request #3 (P6). While P-9 was somewhat different in that it included twenty-seven separate

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properties that request involved a shorter time frame (last four years) and readily identi?able
documents. None of the three requests required discretion or ?research? on the part of the
defendants and these are not the type of documents which would have required a search that
would have interrupted the agency Operations. Even if they did (which they did not) the
defendants did not attempt to reach a reasonable solution that would accommodate the interests
of the requester and the agency. MAG v. Division of ABC, 375 NJ. Super. 534, 546 (App. Div.
2005) citing N.J.S.A. 47:1A-5t2l.

 

The court agrees with the plaintiffs that no real effort was made by the defendants to
locate the requested documents. Ms. McNulty?s testimony, while essentially credible, re?ected
an unwillingness to attempt to retrieve those documents because it required too much time in her
opinion. She did testify ?my understanding of an OPRA request is something brief and concise?.
There is nothing in the OPRA Statute or the developing case law that coincides with her opinion
of an OPRA request. The request need not be brief and need not be concise, it is suf?cient that it
be a document that is readily identi?able, not subject to an exception, ?t within the de?nition of
government records and not be so expansive that it would disrupt agency operations.

The court is satis?ed that the plaintiffs are entitled to all of the documents requested and
should be considered the ?prevailing party?.

The following should be added however. It is clear from Ms. McNulty?s credible
testimony that she puts in a full day?s work at her of?ce, often skips lunch and works overtime.
The problem is that Jersey City is not providing enough staff to accommodate the OPRA
requests that it receives. It is for this reason that under the ?totality of the circumstances? portion
of NJ .S.A. 47:1A-l 1, no action should be taken against any of the clerks directly involved in
this matter.

The City will provide the documents requested in and P-9 within twenty days.
An order accompanies this letter opinion.

4 
.. a N4

Francis B. Schultz, J.S.C.