Decision of Interest - Owoh v. Borough of Norwood

On January 10, 2023, the Appellate Division decided Owoh v. Borough of Norwood, (“Norwood”), which is an unpublished case that, for purposes of issuing the opinion, consolidated appeals from three decisions of the Government Records Council (“GRC”). (The GRC, along with Superior Court, has jurisdiction to handle OPRA complaints). Although unpublished cases are not generally binding on other courts, they are binding on the agency involved in the appeal.

In each of the three appeals, the requestor had asked for copies of summons and complaints. In each case, the records custodians asserted that they did not retain copies of those summons and complaints. Although not explicitly discussed in the opinion, the issue underlying these three cases was whether municipalities were required to retrieve summons and complaints and municipal law enforcement officers had created but filed with the Judiciary. In each of these three cases, because the municipalities did not maintain copies of the summons and complaints, they had nothing to provide the requestor. The GRC’s decisions were consistent with and based on a published Appellate Division case decided on June 11, 2020, Simmons v. Mercado, 464 N.J. Super. 77 (App. Div. 2020).

Shortly after the GRC issued decisions in the three Owoh cases, the Supreme Court issued its decision in Simmons v. Mercado, 247 N.J. 24 (2021), which reversed the Appellate Division’s holding in that case from 2020. Probably because the Supreme Court’s decision in Simmons was perceived as being favorable to Owoh, Owoh appealed all three GRC decisions and argued that the 2021 Simmons decision should be applied to their three GRC appeals.

On appeal, the Appellate Division affirmed the GRC’s Owoh decisions. The Appellate Division held that the GRC’s decisions were “reasonable” because it correctly applied the law as it existed at the time of the decisions. The Appellate Division also declined to give the 2021 Simmons case retroactive effect, holding that the 2021 Simmons case did not announce a new rule of law. To the extent that the requestors were denied access to records on the basis of a decision (the 2020 Simmons decision) that was no longer good law, the Appellate Division stated that Owoh could simply file new records requests.

While reasonable minds might disagree over how the Appellate Division applied the law in these three appeals that were consolidated, the opinion highlights how the Appellate Division’s standard of review over decisions of the GRC is much narrower and more stringent than its review of Superior Court decisions. Because aspects of GRC decisions are reviewed under the deferential “arbitrary, capricious or unreasonable” standard, it can be more difficult to persuade a reviewing court to reverse a GRC decision.

In addition, this appeal shows the risks that requestors and their lawyers take when they file multiple denial of access complaints that implicate a single legal issue. Even though Owoh (who also represented the plaintiff in Simmons) secured an excellent result in the 2021 Simmons decision, their efforts in the three cases that were consolidated in Owoh did not yield reversals.

Ultimately, requestors and practitioners must carefully weight the risks and benefits of filing multiple Superior Court or GRC cases that implicate the same or similar legal issues, which includes consideration of the different standards of review that might be applied to those cases.