Tailoring Required: The Appellate Division Reins in Overbroad OPRA Requests

This is a guest post by Jeffrey A. Shooman, my colleague at Lite DePalma Greenberg, LLC.

Shipyard Associates, L.P. v. City of Hoboken, 2015 N.J. Super. Unpub. LEXIS 2117 (App. Div. Sept. 1, 2015).  The Appellate Division yesterday reaffirmed the principle that requests made under the state’s Open Public Records Act (“OPRA”) must be specific and particular.  [Disclosure: Along with Victor Afanador of my firm, I represented Hoboken in this case].  This case involved three OPRA requests made by Shipyard, all of which were denied by Hoboken for being overbroad.

Shipyard sought documents related to two pieces of legislation passed by Hoboken in December of 2013.  Shipyard contended that the ordinances adversely affected its ability to move forward with a construction project.

In January of 2014, Shipyard made the following OPRA request:

Copies of any and all documents, including but not limited to, correspondence (including e-mails), transcripts, reports, memos, notes and/or minutes of Hoboken employees, Hoboken’s agents, members of Hoboken City Council and others concerning Ordinance Z-264 and Z0263 [sic]. This request includes, but is not limited to, any and all such documents related to the development, passage and/or adoption of Ordinance Z-264 and Ordinance Z-263. This request includes, but is not limited to, documents concerning Hoboken City Council meetings held on October 17, 2013, November 16, 2013, and December 18, 2013.

The City Clerk denied the request as “unclear, overly broad, and vague.”  The very same day, Shipyard purported to narrow its request, and sought:

Copies of all correspondence (including e-mails), transcripts, reports, memos, notes, minutes prepared by and received by Hoboken employees, Hoboken’s agents, members of Hoboken City Council concerning Ordinance Z-264 and Z-263.

The City Clerk again denied the request as “unclear, overly broad and vague.”

Three days later, Shipyard submitted a third request for “[c]opies of all documents in the City of Hoboken’s Clerk’s office’s files concerning Ordinance Z-264 and Z-263.”  That same day, the City clerk denied the request as “unclear, overly broad and vague.”

In February of 2014, Shipyard filed an order to show cause and verified complaint against Hoboken seeking redress under OPRA.  Hoboken moved to dismiss the complaint.  Finding the requests to be overbroad and thus impermissible, the Law Division dismissed the complaint and denied the order to show cause.  The Appellate Division affirmed in its entirety on the OPRA claim, but remanded the case to the Law Division on Shipyard’s common law right of access claim.

The panel held that Shipyard’s first request was a “blanket” one, and specifically disapproved of the “not limited to” parlance that many lawyers use in drafting myriad documents such as discovery demands.  The first request was a “broad application [which] lacks specificity and would require the clerk to conduct research to uncover ‘any and all’ documents ‘concerning’ the ordinances.”  The Appellate Division then turned to the third request and also found that it was overly broad, lacking the requisite specificity under OPRA.

The panel said that Shipyard’s second request was the most specific and narrow one, as it identified particular documents it sought.  However, the Appellate Division still found the request lacking, as it failed to provide the names of any Hoboken “employees” or “agents,” and also was nothing other than a “broad generic description of all ‘reports,’ ‘transcripts,’ ‘memos,’ and ‘notes’ concerning the ordinance.  Accordingly, the panel affirmed the Law Division’s dismissal of the OPRA complaint.

As noted earlier, the Appellate Division ordered a limited remand on the common law right of access claim.  The panel noted that Shipyard carried a heavier burden to access documents under the common law, but the Law Division had not addressed this claim below.

This case is a cautionary tale for lawyers who submit OPRA requests.  It is all too tempting to dress up an OPRA request with legalese and the jargon of our profession, trying to ensure that the universe of documents sought is captured within the request, while not hewing to the principles set forth by the Appellate Division in numerous prior cases, that OPRA requests be tailored in such a way that they seek readily identifiable documents.  As this case shows, general, overbroad requests “concerning” certain topics will not fly with the courts.