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In a unanimous decision that, in our opinion, broke new ground, on June 17, 2021 the New Jersey Supreme Court held that municipalities and their police departments must provide copies of complaints and summons issued by the police, even if the police must retrieve copies from the Judiciary. A copy of the decision is located here.
The case is Simmons v. Mercado. Simmons filed an OPRA request with the City of Millville in which he asked for arrest listings, and summons and complaints for driving while intoxicated/driving under the influence and possession of drugs or drug paraphernalia. Simmons’ request related to research regarding disparate enforcement of these offenses. Millville provided the arrest listings, but denied access to all of the requested summons and complaints. Millville took the position that had been becoming more common lately, which was that Millville did not possess copies of the summons and complaints, and referred Simmons to Millville’s municipal court. However, because municipal courts are part of the judiciary, OPRA (with its requirement that public agencies respond within seven-business-days and the right to challenge a denial of access in Superior Court) does not apply to municipal courts.
Baffis challenged the denial of access in Superior Court. Millville argued that the complaints were created when an arresting officer inputted data into a system maintained by the Judiciary, which in turn created a populated summons and complaint based on the entries made by the arresting officer. Although Millville had access to copies of the requested summons and complaints residing on the Judiciary’s system, Millville did not make or maintain copies of its own in any file or system maintained by Millville. Therefore, Millville argued, the summons and complaints were not public records maintained by Millville, rather they were maintained by the Judiciary. The trial court rejected this argument, and ordered Millville to produce the requested records.
On appeal, the Appellate Division reversed, holding that Millville was not the custodian of the summons and complaints. On certification to the Supreme Court, the Court reversed.
The Court held that Millville was required to retrieve copies of the summons and complaints from the Judiciary’s servers. The Court reasoned that the summons and complaints forms used by the Judiciary are “empty shells” that must be populated by Millville’s arresting officers. Because Millville’s officers populated the summons and complaints fields, Millville “created” that information and it was subject to OPRA. The Court gave no weight to Millville’s argument that the summons and complaints were judicial records; the Court held that a record can be both a judicial record and subject to OPRA.
The holding of Simmons is broad, and potentially affects any data entered into a system by public officials, even if that system is controlled by a third party. Certainly this holding applies to parking tickets, traffic tickets, municipal ordinance violations, and any offense where the police issue a summons and complaint. Requestors should use this new case to expand their ability to gain access to information that is “created” by records custodians. Public agencies should not fall into the trap of denying OPRA requests on the basis that they are requests for “information,” which is an exception that still has some traction in certain circumstances, but does not generally hold when a requestor seeks data that is stored electronically.