NOT TO BE PUBLISHED WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS TOWNSHIP OF TEANECK and ISSA ABBASI, TEANECK’S CUSTODIAN OF RECORDS, Plaintiffs, v.

SUPERIOR COURT OF NEW JERSEY CHANCERY DIVISION BERGEN COUNTY DOCKET No. BER-C-14-17

ELIE C. JONES

CIVIL ACTION Defendant.

OPINION

Argued: March 1, 2017 Decided: March 9, 2017 Honorable Robert P. Contillo, P.J.Ch. William F. Rupp, Esq. appearing on behalf of the plaintiffs, Township of Teaneck and Issa Abbasi, Teaneck’s Custodian of Records (Winne, Banta, Basralian & Kahn, P.C.). Walter M. Leurs, Esq. appearing on behalf of the defendant, Elie C. Jones (Law Offices of Walter M. Luers, LLC). OPINION This matter is before the court by way of Order to Show Cause entered on January 17, 2017 at the request of the plaintiffs, the Township of Teaneck (the “Township”) and Issa Abbasi, Teaneck’s custodian of records (“Mr. Abbasi” or “the Custodian”). Plaintiffs seek the following relief on the return date of the Order to Show Cause: A. Issuance of a preliminary injunction enjoining and restraining the defendant Elie C. Jones (“Mr. Jones” or “defendant”) from making any further requests under the Open Public Records Act (“OPRA”), N.J.S.A. 47:1A-et seq.) pending further Order of the court; 1

B. Relieving the plaintiffs from having to respond to the OPRA requests filed by defendant since November 16, 2016; or C. In the alternative, directing defendant to pay to the plaintiff Township extraordinary handling fees with respect to the OPRA requests filed by the defendant since November 16, 2016. Defendant filed in opposition to the Order to Show Cause on February 2, 2017, and at the same time filed an Answer and Affirmative Defenses, together with a Counterclaim. In the Counterclaim, defendant seeks to compel the Township and the Custodian to provide copies of all documents responsive to thirty-one (31) of the three hundred eighty (380) separate OPRA requests filed by defendant between November 16, 2016 and January 17, 2017. Plaintiffs filed in reply on February 10, 2017. The February 17, 2017 return date of the Order to Show Cause was rescheduled at the request of counsel. The matter was argued March 1, 2017. The court reserved decision.

DECISION OF THE COURT The issue before the court is whether to issue a preliminary injunction against the defendant, preliminarily enjoining him from submitting any further OPRA requests to the Township of Teaneck pending further Order of the court; whether to declare defendant’s OPRA requests “abusive and excessive” so as to relieve the Township of Teaneck from responding thereto; and whether, in the alternative, to assess a special handling fee to be paid by the defendant to reimburse the Township for personnel costs in responding to defendant’s OPRA

2

requests. For the reasons set forth below, each of these requests for relief must be denied by the court. The Open Public Records Act (OPRA), N.J.S.A. 47:1A-1, et seq., embodies the public policy of the State of New Jersey that government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions, for the protection of the public interest, and any limitations on the right of access accorded by OPRA shall be construed in favor of the public’s right of access. N.J.S.A. 47:1A-1. Under OPRA the Legislature continued “the State’s longstanding public policy favoring ready access to most public records”. Serrano v. South Brunswick Tp., 358 N.J. Super. 352, 363, (App. Div. 2003).

New Jersey has a history of commitment to public participation in

government and to the corresponding need for an informed citizenry. Ibid. (quoting South Jersey Pub. Co. v. New Jersey Expwy. Auth., 134 N.J. 478, 486–87 (1991)). Thus, N.J.S.A. 47:1A-1 specifically provides that “all government records shall be subject to public access unless exempt”. Furthermore, the custodian of the government record has the burden of proving that the denial of access is authorized by law. N.J.S.A. 47:1A-6. OPRA enshrines a requestor’s right to compel the records custodian to make non-exempt, identifiable government records “readily accessible for inspection, copying and examination”. N.J.S.A. 47:1A-1. Inspection is subject to reasonable controls, and courts have inherent power to prevent abuse and protect the public officials involved. MAG v. Division of ABC, 375 N.J. Super. 534, 546 (App. Div. 2005). See DeLia v. Kierman, 119 N.J. Super. 581, 585 (App. Div.), certif. denied, 62 N.J. 74 (1972). If complying with a request would substantially disrupt agency operations, the records custodian may deny it after unsuccessfully attempting to reach a

3

reasonable solution that accommodates the interests of the requestor and the agency. N.J.S.A. 47:1A-5(g). In addition, OPRA authorizes public agencies to request a “special service charge”. Under OPRA, any special service charge sought to be imposed by a custodian must be “reasonable”. N.J.S.A. 47:1A-5(c). “‘All fees charged ‘must be reasonable, and cannot be used as a tool to discourage access.’” Livecchia v. Borough of Mount Arlington, 421 N.J. Super. 24, 40 (App. Div. 2011) (citing and quoting Higg-A-Rella, Inc. v. County of Essex, 141 N.J. 45, 53 (1995)). The requestor must be provided the opportunity to review and object to the charge prior to it being incurred. N.J.S.A. 47:1A-5(c). Specifically, OPRA provides that whenever responding to a document request “involves an extraordinary expenditure of time and effort to accommodate the request, the public agency may charge, in addition to the actual cost of duplicating the record, a special service charge that shall be reasonable and shall be based on the actual direct cost of providing the copy or copies….”. N.J.S.A. 47:1A-5(c). In the instant case, the Township, faced with an onslaught of OPRA filings it has concluded are unreasonable, excessive, abusive, retaliatory and specifically designed to coerce a financial settlement with public funds of a separate litigation commenced by defendant, has filed a Verified Complaint asking the court to declare that the requests are abusive and excessive, to relieve it of any duty to respond to the requests, and to preliminary enjoin defendant from submitting any further OPRA requests pending further Order of the court. Alternatively, the Township asks the court to assess a special handling fee against the defendant to reimburse the Township for the personnel costs incurred in responding to defendant’s OPRA requests.

4

It is easy to understand the Township’s frustration.

As set forth in detail in the

unrebutted certification of the Township’s Acting Township Clerk and Custodian of Records, Mr. Issa Abbasi, the Township Council of the Township of Teaneck had rejected defendant’s $10,000 settlement demand in an action brought by defendant against a Teaneck law enforcement officer. This rejection occurred on the evening of November 14, 2016. The defendant was advised by the attorneys for the Township of Teaneck of such rejection and that the Township of Teaneck would proceed to defend against the complaint. That rejection was immediately followed by an avalanche of OPRA filings by defendant. As set forth in Mr. Abbasi’s certification of January 16, 2017 and as not contested by the defendant: 6. Almost immediately after being advised of the Council’s decision, commencing November 16, 2016 and continuing to the filing of the within Complaint, Defendant, Elie C. Jones has unleashed a deluge of requests under the Open Public Records Act (OPRA) (N.J.S.A. 47-1A-1 et seq.) the Office of the Township Clerk. 7. In a span of just four (4) business days, between November 16, 2016 and November 21, 2016, Defendant submitted 95 separate OPRA requests. 8. Between November 21 and December 13, 2016, Defendant submitted an additional 181 OPRA requests for a total of 276. 9. request. 10.

Thereafter, on December 14, 2016, Defendant submitted an additional OPRA

On December 16, 2016, Defendant submitted an additional 2 OPRA requests.

11. Defendant has submitted an additional 4 OPRA requests on December 22, 2016, purportedly in the name of his mother, Litty S. Jones, at his same address, with his own e-mail address and in what appears to be his own handwriting. 12. On December 23, 2016, Defendant submitted 1 OPRA request in his own name, as well as, one OPRA purportedly on behalf of Cerise M. Gibbs, at his same address, with his own e-mail address and in what appears to be his own handwriting. 13. On December 23, 2016, Defendant mailed an OPRA request purported in his mother’s name, Litty S. Jones, at his same address, with his own e-mail address and in what appears to be his own handwriting, which was received on December 29, 2016. He also submitted an OPRA request, purportedly in the name of Cerise M. Gibbs, at his same address, 5

with his own e-mail address and in what appears to be his own handwriting, which was also received on December 29,2 016. When I advised the purported OPRA requestors that their OPRA’s would be added to Mr. Jones OPRAs and answered within the extended time period, Mr. Jones sent e-mails from his server claiming he was the other requestors and objecting to the extension. (see Exhibit G). 14. In addition, Defendant mailed an additional 5 OPRA requests which were received on December 29, 2016. 15. Accordingly, between November 16, 2016 and December 29, 2016, Defendant submitted 292 multiple part OPRA requests to Teaneck’s Custodian of Records. 16. Subsequent to December 29, 2016, Defendant has submitted the following additional OPRA requests on the dates indicated:

January 3, 2017 January 4, 2017 January 5, 2017 January 9, 2017 January 10, 2017 January 11, 2017 January 13, 2017

20 OPRA requests 12 OPRA requests 10 OPRA requests 10 OPRA requests 2 OPRA requests 11 OPRA requests 7 OPRA requests

On January 17, 2017, the day the instant Verified Complaint was filed by the Township, but before it was served upon Defendant, an additional twenty-two (22) requests were filed, bringing the total to three hundred eighty (380).1 Virtually all of these OPRA requests are multi-part. The accumulated volume of the requests is the size and heft of a phone book. A perusal of the requests shows that nearly every

Nor is this the first time the Township has been subject to what it considers this defendant’s coercive activities. According to the custodian’s unrebutted certification, in or about 2010, this defendant filed a complaint in the Superior Court of New Jersey, Bergen County Law Division, Docket No. BER-L-075910 against the Township of Teaneck and the Teaneck Public Library, alleging civil rights violations. “Despite believing such complaint to be frivolous, the Township of Teaneck resolved said complaint by entering into a settlement agreement whereby, in consideration of the nominal sum of $1,000.00, the complaint was dismissed with prejudice and Elie C. Jones irrevocably and unconditionally released the Township of Teaneck from any and all claims, agreed not to patronize the Teaneck Library for a period of 5 years and agreed not to institute any litigation against the released parties in the future without first submitting said claims to arbitration to determine whether there is sufficient evidence to support the claim.” Abbasi Cert. of January 16, 2017 at paragraph # 5. 1

6

category of municipal record or information that might exist has been requested by defendant of the Township. According to the unrebutted certification of Mr. Abbasi, he and his staff have expended approximately fifty (50) hours as of January 17, 2017, simply receiving and processing this Defendant’s OPRA requests under review in this case. The custodian details the burden he and his staff have faced: “To date, time constraints have resulted in my being able to respond to only 15 of Defendants 364 OPRA requests filed as of January 13, 2017. I have had to request extensions of up to 130 days. I estimate that in order to obtain the requested documents, review same respecting possible redactions, reproduce same and submit responses to all of Defendant’s OPRA request, I and my staff would have to expend at least 1,250 hours, not including legal review of redactions. My salary rate per hour is $42.03 based on my current salary, exclusive of benefits.” (Abbasi cert. of January 16, 2017, para. # 19). “By way of comparison, there was a total of 546 OPRA requests completely processed throughout the year from all requestors and a total of 509 completely processed OPRA requests from persons other than the Defendant in 2016. Thus, Defendant’s OPRA requests, alone, equal more than 50% of the total OPRA requests from all other persons throughout the year.” (Abbasi cert. of January 16, 2017, para. # 20) For purposes of determining the request for declarative and preliminary injunctive relief, in which the party requesting preliminary injunctive relief must demonstrate a reasonable probability of ultimate success on the merits, it is sufficient to note that there does not appear to be a right vested in records custodians to seek affirmative relief against a requestor under OPRA. The failure to demonstrate a reasonable likelihood or probability of ultimate success on the merits has long counted heavily against the issuance of injunctive relief. Ideal Laundry Co. v.

7

Gugliemone, 107 N.J. Eq. 108, 115–16 (E. & A. 1930). “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”. IMO New Jersey Firemen’s Ass’n Obligation to Provide Relief Applications Under Open Public Records Act, 443 N.J. Super. 238 (App. Div.), certif. granted, 224 N.J. 528 (2016). In New Jersey Firemen’s, the Appellate Division explained why a custodian is barred from bringing an action against a requestor to enforce custodian’s asserted right to withhold records: 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. In re New Jersey Firemen’s Ass’n., supra, 443 N.J. Super. at 259. The Township points out that New Jersey Firemen’s involved a custodian’s request that a court declare it had properly withheld a particular record, whereas the Township is seeking a declaration that the avalanche of requests by the Defendant is unreasonable and abusive and need not be responded to, irrespective of the content of the requests. That is a distinction without a difference, as the gravamen of the decision is that disputes between public officials and requestors involving OPRA requests are to be decided under OPRA, and that there is no right to affirmative declaratory relief vested in public officials confronted with OPRA requests they believe they ought not be required to respond to or process. Based upon a concurring opinion in New Jersey Firemen’s by Presiding Judge of the Appellate Division Carmen Messano, the New Jersey Supreme Court has granted certification on 8

two issues, one of which is germane to this discussion: “Can a government records custodian bring an action pursuant to the Declaratory Judgment Act, N.J.S.A. 2A:16-50 to – 62, to secure a declaratory judgment that it properly denied access to a record under the Open Public Records Act, N.J.S.A. 47:1A-1 to – 13, and the common law right of access.” That issue remains pending before the Supreme Court. But the current state of the law is such that the custodian does not appear to have that affirmative right. The Township is not powerless when faced with abusive, unreasonable, coercive, OPRA requests. It can deny such requests.

In response, the requestor may abandon his requests, or

may seek relief before the GRC or in court. The requestor may abandon or withdraw some requests, and press on as to others, as defendant herein has done. Served with suit papers in this case, the Defendant, through counsel, abandoned two-hundred ninety (290) of his 380 OPRA requests, leaving ninety (90) to be addressed by the Township, strong evidence of an acknowledgement of the unreasonableness of the defendant’s mass-filing of OPRA requests.2 In response to requestor-initiated litigation, the custodian retains the defense that, faced with requests that would “substantially disrupt agency operations”, it attempted “to reach a reasonable solution that accommodates the requestor and the agency”, but requestor refused reasonable solutions and it therefore properly denied the requests. N.J.S.A. 47:1A-5(g). In addition, a custodian may, in defense of any such requestor-initiated action, demonstrate that it fashioned a reasonable “special service charge” which Defendant refused to tender. N.J.S.A. 47:1A-5(c). These are defenses available to be raised defensively under OPRA but not, as

2

In his counterclaim, defendant seeks to enforce his right to receive responses to thirty-one (31) of his OPRA requests; the other fifty-nine (59) he has reserved for possible submission to the Government Records Council, the other venue requestors may choose to press OPRA demands not addressed to their satisfaction by records custodians.

9

OPRA is currently constituted, invocable by custodians who seek to initiate affirmative litigation declaring their chosen course of conduct to be a valid one, entitled to judicial sanction. The court further finds that the request for preliminary injunctive relief is unjustified under standard injunction jurisprudence, on this record, at this juncture. The Township seeks to preliminary ban defendant from filing any further OPRA requests, pending further order of the court, and to be exempted from having to respond to any of the remaining, unabandoned OPRA requests. OPRA requests—even those designed and timed to bludgeon a municipality into a financial settlement—cause no immediate and irreparable harm, a sine qua non of entitlement to injunctive relief. Crowe v. DeGioia, 90 N.J. 126, 132 (1982). If responding to requests would substantially disrupt agency operations, as the custodian’s certification plainly demonstrates would be the case here, the statutory remedy is for the custodian to deny the request after unsuccessfully attempting to reach a reasonable solution with the requestor that accommodates the interests of the requestor and the agency.3 N.J.S.A. 47:1A-5(g). The custodian may also fashion an assessment against a requestor of a reasonable special service charge in view of the unrefuted extraordinary expenditure of time and effort that would be needed to respond to defendant’s requests. N.J.S.A. 47:1A-5(c). It is true that the Township faces a possibility that its refusal to produce records (or its special assessment or its defense of unsuccessful effort at reasonable accommodation) will not be sustained by the court, and that it will therefore be compelled to reimburse the prevailing requestor his or her reasonable costs and attorney’s fees under N.J.S.A. 47:A-6. But the possibility or eventuality of an attorney fee assessment does not constitute irreparable harm, and provides no basis for preliminary injunctive relief.

3

A reasonable accommodation might seek, for example, to cull the requests or have the requestor prioritize them.

10

The finding of lack of immediate, irreparable harm is also supported by the observation that defendant has not filed any additional requests since suit was filed, and has, through counsel, abandoned two hundred ninety (290) of his three hundred eighty (380) requests. The voluntary withdrawal and the voluntary suspension of further OPRA filings may be strategic on defendant’s part, but it is supportive of the conclusion that the court need not enter a preliminary injunction against additional filings to prevent irreparable harm during the balance of this litigation. The lack of demonstrated imminent, irreparable harm is fatal to the request for preliminary injunctive relief. Crowe, supra, 90 N.J. at 132. The court further finds that there is no well settled legal right to a total ban on OPRA requests, preliminarily or by way of permanent injunction, no matter how excessive in number the requests may be, and no matter how transparently designed the OPRA requests may be to coerce a settlement with public funds of a requestor’s unrelated lawsuit. Even litigants notorious for the serial filing a frivolous lawsuits are not entirely barred from the courthouse; rather, they may be required to submit all proposed complaints for pre-filing approval by the vicinage Assignment Judge. Rosenblum v. Borough of Closter, 333 N.J. Super. 385 (App. Div. 2000). In Rosenblum, the target of the judicial restraints had a fully documented, extensive pattern of filing frivolous pleadings. The record before this court does not reveal that the requestor confronting Teaneck has a comparable history of filing abusive or unreasonable OPRA requests — aside from the particular filing campaign that prompted this lawsuit. Likewise, there is no well settled legal right of a custodian to be affirmatively excused from responding to OPRA requests considered burdensomely voluminous.

11

In the absence of a well-settled legal right to a total ban on OPRA filings, no preliminary injunctive relief may issue. Moreover, there is no reasonable prospect of ultimate success on the merits of the Township’s request to bar all future OPRA filings by the defendant. The absence of a well-settled legal right to the relief sought, coupled with a lack of any reasonable prospect of ultimate success on the request for a permanent ban, weighs heavily against the request for preliminary injunctive relief. Crowe, supra, 90 N.J. at 133–34. An injunction typically will not issue when the material facts are in dispute. Citizens Coach Co. v. Camden Horse R.R. Co., 29 N.J. Eq. 299, 304–05 (E. & A. 1878). Here, the material facts in the case are actually not in dispute. Defendant’s assertion that his OPRA requests are motivated by his public spirited concerns for good government is obviously a disputed fact raised by the submissions, but it is not a material dispute because the motivations of a requestor are irrelevant to OPRA analysis.

“Simply put, the right to inspect and copy

governmental records under OPRA is without limitation as to the reasons for which the access is undertaken.” MAG v. Division of ABC, supra, 375 N.J. Super. at 545. The court acknowledges that a requestor’s right to access to inspect and copy public records is not unlimited or absolute. It is subject to reasonable controls, and courts have inherent power to prevent abuse and to protect the public officials involved. MAG v. Division of ABC, supra, 375 N.J. Super. at 546. See DeLia v. Kierman, 119 N.J. Super. 581, 585 (App. Div.), certif. denied, 62 N.J. 75 (1972). There is no readily apparent reason why the court’s inherent power to prevent abuse and to protect the public officials involved in handling and responding to OPRA requests can only be invoked by custodians defensively. The court is not convinced, however, at this stage of the litigation, that is it reasonable or necessary to impose either the remedy of a preliminary injunction relieving the Township of any duty to respond to any of the

12

remaining, un-abandoned OPRA requests, or to preliminarily enjoin the defendant from any further OPRA filings, for the reasons set forth at length above. Accordingly, the request for preliminary declaratory relief and preliminary injunctive relief must be denied. The court must also deny the Township’s alternate request to “assess a special handling fee”. The Township has put forth evidence of what it would cost to process all of the challenged requests, but it did not seek to access any specific fee against the defendant prior to this litigation. It is not for the court to assess the fee. It is the statutory duty of the Township to fashion and access the fee. N.J.S.A. 47:1A-5(c). If a requestor accepts the assessment, he or she can pre-pay it (pay it prior to the work being undertaken) and get the requested documents. Or the requestor may abandon the request. Or the requestor can challenge the assessment. But the court is not empowered to ascertain in the first instance what a fair and reasonable assessment would be. If a requestor fails to pay a fair and reasonable assessment, OPRA provides that the requests can be denied. According to the Verified Complaint and supporting certifications, the defendant has “bullied and annoyed” the custodian and his staff. (Verified Complaint, paragraph # 24). He has attempted to “intimidate, harass, and retaliate” against the Township of Teaneck and its employees, filing multiple Notices of Claims under the Tort Claims Act, filing personnel complaints and filing criminal complaints. (Abbasi cert. of January 16, 2017 at para. 24). A person who engages in harassing, conduct against another may be made to answer for that conduct under the civil law and under the criminal code (N.J.S.A. 2C:33-4).

If this

defendant has engaged or does engage in harassing conduct, such harassment can be remedied under the civil law via a damage award, or by injunctive relief, or through prosecution, or

13

through a combination of these avenues of relief. By way of example only, a requestor who, in the course of enforcing rights under OPRA, threatens a public official with harm, or causes a breach of the peace, could be enjoined from such conduct under the court’s inherent power to prevent abuse and protect members of the public, including public officials, or under basic tort law principles. To the extent the conduct of this defendant is believed to transgress the civil law of harassment or nuisance owing to the abusive manner in which he interacts with Township employees, that relief can be affirmatively sought by plaintiffs in this action. I simply have before me an insufficient factual record upon which to issue preliminary injunctive relief on that basis. Lastly, the court finds no basis for declaratory or preliminary injunction relief to the Township based upon the second count of the Verified Complaint (Abuse of Process). The defendants’ OPRA filings may well be “abusive”, but abuse of process requires that the defendant be abusive within the “judicial process”. Bajlini v. Lauletta, 338 N.J. Super. 282, 294 (App. Div. 2011). The ‘judicial process’ is not invoked by an OPRA request to a municipality. SUMMARY In sum, the Plaintiffs’ request for preliminary injunctive and declarative relief is denied. A Case Management Conference to address such further proceedings as may be necessary is hereby scheduled for March 29, 2017 at 11:00 a.m. An Order accompanies this Decision.

___________________________ ROBERT P. CONTILLO, P.J.CH.

14