NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A- 0963

- 22 IN RE ADOPTION OF N.J.A.C. 5:105-1.6(a)(1).

_____________________

Argued January 24, 2024

– Decided August 12, 2024Before Judges Accurso, Vernoia and WalcottHenderson. 1 On appeal from the New Jersey Department of Community Affairs, Government Records Council. CJ Griffin argued the cause for appellant Libertari ans for Transparent Government (Pashman Stein Walder Hayden, PC, attorneys; CJ Griffin, on the briefs). Steven M. Gleeson, Deputy Attorney General, argued the cause for respondent Government Records Council (Matthew J. Platkin, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Steven M. Gleeson, on the brief). The opinion of the court was delivered by VERNOIA, J.A.D.

1 Judge Walcott-Henderson did not participate in th e oral argument but participated in rendering this decision with the consent of the parties. R. 2:13

- 2(b). APPROVED FOR PUBLICATION August 12 , 2024 APPELLATE DIVISIONA- 0963

- 22 2 In this appeal Libertarians for Transparent Governm ent (LFTG) challenge the validity of N.J.A.C. 5:105-1.6(a)(1), a regulation providing that all "submissions" made to the Government Records Co uncil (GRC) during its adjudication of a denial- of -access complaint under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, "shall not be considered government records subject to public access pursuant to" OPRA "during the pendency of [the] adjudication." 2 LFTG contends N.J.A.C. 5:105-1.6(a)(1) is arbitrary , capricious, and unreasonable because it is inconsis tent with OPRA and contravenes the statute's legislative purposes. We agree and find N.J.A.C. 5:105 -1.6(a)(1) invalid. To place our discussion of LFTG's challenge to the regulation in context, we first explain the process the GRC employs in adj udicating denial- of -access complaints and detail the "submissions" made during the adjudication of those complaints. We then explain the GRC's adoption of N.J.A.C. 5:105-1.6(a)(1) and its effect on a requestor's ability to obtain g overnment records from the GRC. Last, we address and decide LFTG's challenge to the regulation.

2 We decide the issues presented on appeal based on t he version of OPRA extant at the time of our decision. We recognize t he Legislature enacted amendments to OPRA following the filing of the part ies' briefs and the oral argument on this appeal, see L. 2024, c. 16, but the amendments are not effective until September 3, 2024, L. 2024, c. 16, § 12, and the parties have not asserted the amendments should govern in any manner the disposition of the issues raised on appeal.A- 0963

- 22 3 I. The Legislature enacted OPRA "'to maximize public knowledge about public affairs in order to ensure an informed citiz enry and to minimize the evils inherent in a secluded process.'" Simmons v. Mercado, 247 N.J. 24, 38 (2021) (quoting Mason v. City of Hoboken, 196 N.J. 51, 64 (2008)). "The law's core concern is to promote transparency in go vernment." Rivera v. Union Cnty. Prosecutor's Off., 250 N.J. 124, 141 (2 022). OPRA allows citizens of this State access to govern ment records, N.J.S.A. 47:1A-1, defines the government records a public agency must provide to a citizen requesting them, N.J.S.A. 47:1 A-1.1, and imposes strict time limits during which a public agency must provi de requested government records, N.J.S.A. 47:1A-5(i). OPRA's mission is "t o make government records 'readily accessible' to the state's citizens," by p roviding "that 'all government records shall be subject to public access unless ex empt.'" Simmons, 247 N.J. at 38 (citations omitted) (quoting Gilleran v. Twp. of Bloomfield, 227 N.J. 159, 170 (2016)). The GRC is a public agency established under OPRA. N.J.S.A. 47:1A7. As a public agency, the GRC is also subject to OPRA's requirements. See,
e.g. , Libertarians for Transparent Gov't v. Gov't Recs. Council, 453 N.J. Super. 83, 89

- 93 (App. Div. 2018) (analyzing under OPRA the GRC's denial of aA- 0963

- 22 4 request for government records). Thus, the GRC is obligated to comply with OPRA's requirements and provide government records in accordance with the
statute in the same manner as any other public agency. One of the GRC's core functions as a public agency is to "receive, hear, review, and adjudicate a complaint filed by any per son concerning a denial of access to a government record by a records custodia n." N.J.S.A. 47:1A-7(b). Complaints filed with the GRC challenging a public agency's denial of a request for government records under OPRA are refer red to as "denial- of

access" complaints. See, e.g. , Verry v. Franklin Fire Dist. No. 1, 230 N.J. 285, 290 (2017) (describing the complaint filed with the GRC challenging a public agency's denial of access to government records a " denial- of -access complaint"); Underwood Props., LLC v. City of Hacke nsack, 470 N.J. Super. 202, 210 (App. Div. 2022) (noting the GRC provides a "[d]enial[-]of[-][a]ccess complaint form" to indivi duals challenging a public agency's denial of access to government records und er OPRA). In the performance of its essential functions, the GRC is required to consider, resolve, and adjudicate denial- of -access complaints arising from disputes over whether a public agency has properly denied a reque st for government records under OPRA. N.J.S.A. 47:1A-7(e); see also N.J.A.C. 5:105-1.5(a)(1)A- 0963

- 22 5 (providing the GRC's powers and duties include "[a] djudicat[ing] complaints filed . . . regarding access to government records" ). Under OPRA parlance, a citizen who "delivers to a p ublic agency an OPRA request to copy, examine, or inspect a governm ent record pursuant to the" statute is defined as a "requestor." N.J.A.C. 5:105-1.3. Where a public agency denies an OPRA request for government record s, the requestor may challenge the denial in one of two available forums . A requestor claiming a public agency wrongfully denied access to a governm ent record under OPRA may "institute a proceeding . . . by filing an acti on in Superior Court" or, in "lieu of filing an action in Superior Court," may " file a complaint with the" GRC. N.J.S.A. 47:1A-6. The adjudication of a denial- of -access complaint filed with the GRC requires and involves various "submissions" made to the GRC during the adjudication process. And it is the GRC's adoption of N.J.A.C. 5:105- 1.6(a)(1), which provides that all such submissions are not government records subject to public access under OPRA during the pend ency of an adjudication before the GRC, that LFTG challenges on appeal. As such, we describe the "submissions" the GRC has determined, by its adopti on of N.J.A.C. 5:105- 1.6(a)(1), shall not be government records subject to disclosure under OPRA during the adjudication of a denial- of -access complaint.A- 0963

- 22 6 A requestor challenging in the GRC a public agency' s denial of access must first file a written "denial[-]of[-]access com plaint . . . on a form authorized by the [GRC] in which [the] requestor cl aims that a custodian has unlawfully denied the requestor access to a governm ent record." N.J.A.C. 5:105 -1.3; N.J.A.C. 5:105-2.1(a); N.J.A.C. 5:105-2.3(a). If the GRC determines any portion of the complaint falls outsi de its jurisdiction, or is otherwise frivolous or without a factual basis, it must "reduce its determinations to writing and transmit a copy there of to the complainant and to the [records] custodian against whom the complaint was filed pursuant to N.J.S.A. 47:1A-7(e)." N.J.A.C. 5:105-2.1(d). In addition to the denial- of -access complaint filed by the requestor, there are other submissions the GRC regulations permit or require during the adjudication of a denial- of -access complaint. The GRC may request that the parties

— the requestor, the records custodian, and any inter venors in the proceeding

— "produce documents and legal certifications to the facts and/or arguments presented with respect to [the] matters" before the GRC. N.J.A.C. 5:105 -2.1(f). The regulations further provide that "[d] iscovery" in a denial- of

access proceeding "shall be limited to the submissi ons of the parties submitted to the" GRC. N.J.A.C. 5:105-2.1(g).A- 0963

- 22 7 "All submissions" to the GRC during a denial- of -access proceeding "must be in writing." N.J.A.C. 5:105-2.3(b). The requestor is required to include in the "complaint or the attachments theret o any information, issues, and arguments the complainant wishes to bring to th e [GRC's] attention," and the "complaint may also include any attachments, af fidavits, certifications, or other documentation deemed relevant or supportive o f the allegations set forth in the complaint." N.J.A.C. 5:105-2.3(e). A complaint may also be amended in writing. N.J.A. C. 5:105-2.3(g). The complaint, any amended complaint, and the publi c agency's responses to a complaint must be served on the GRC and all parties . N.J.A.C. 5:105-2.3(g) to (h). And the GRC may require that the parties subm it additional information it deems necessary to adjudicate the complaint. N.J.A .C. 5:105-2.3(i). N.J.A.C. 5:105-2.4 details the submissions the cust odian of a government record

— that is, the public agency's records custodian

— must make to the GRC in a denial- of -access proceeding. The records custodian must fil e a response to the complaint by completing a stateme nt of information form prescribed by the GRC, and all the custodian's subm issions to the GRC during the proceeding shall be in writing. N.J.A.C. 5:105 -2.4 (a) , (b). The custodian must serve copies of all submissions to the requestor, N.J.A.C. 5:105-2.4(h), and the GRC is authorized to require that the custodianA- 0963

- 22 8 submit additional information the GRC deems necessa ry to adjudicate the denial- of -access complaint, N.J.A.C. 5:105-2.4(m). The requ estor is permitted to submit a reply to the custodian's response to th e complaint and the custodian is permitted to submit a sur-reply. N.J.A.C. 5:105 -2.4(n). The GRC regulations further provide that "[t]he com plainant and custodian" of the requested government records "sha ll always be parties to the complaint," and they "shall be notified of all deci sions or orders issued" by the GRC. N.J.A.C. 5:105-2.2(a). Others who are not "i nitially a party" to the denial- of -access proceeding, but who have "a statutory right to intervene or will be substantially, specifically, and directly a ffected by the outcome of a" contested case, may submit a motion to intervene in the proceeding, N.J.A.C. 5:105 -2.2(b)(1), and the parties may submit opposition t o a motion to intervene, N.J.A.C. 5:105-2.2(b)(2). Thus, during the adjudication of a denialof -access complaint, the requestor and records custod ian, as well as any intervenors, will be served with, and have access t o, all the submissions served or filed in the denial- of -access proceedings. Unless the denial- of -access complaint is resolved through mediation, se e N.J.A.C. 5:105-2.5, or otherwise, the GRC shall con sider the parties' submissions and adjudicate the claims made in the c omplaint. In rendering its decision, the GRC members "shall review the finding s and recommendationsA- 0963

- 22 9 of the Executive Director, as well as all party sub missions" and vote at an open public meeting. N.J.A.C. 5:105-2.6(a); N.J.A.C. 5: 105-2.1(j). The GRC is required to issue its decision to the parties and p ost its decision online. N.J.A.C. 5:105-2.6(d). If the GRC is unable to reach a decision on a denia l- of -access complaint based on the submissions, it may refer the matter t o another state agency, the Office of Administrative Law, for a hearing as a co ntested case under the Administrative Procedure Act, N.J.S.A. 52:14B-1 to -15, and the Uniform Administrative Procedure Rules, N.J.A.C. 1:1-1.1 to -21.6. N.J.A.C. 5:105-
2.7. In sum, the GRC's adjudication of a denial- of -access complaint constitutes one of its essential roles as a public agency and involves its consideration of numerous submissions by the reques tor, the records custodian of the public agency the requestor claims wrongfull y denied access to government records under OPRA, and any individual, entity, or public agency that is granted leave to intervene in the denial- of -access proceeding. As we explain, the challenged regulation, N.J.A.C. 5:105- 1.6(a)(1), provides that all such submissions made to the GRC during the perform ance of its essential adjudicatory function shall not be deemed governmen t records subject toA- 0963

- 22 10 public access under OPRA until the final dispositio n of the denial- of -access complaint.
II. On May 16, 2022, the GRC published in the New Jerse y Register a rule proposal for the readoption of rules, repeal of cer tain rules, and adoption of new rules. See 54 N.J.R. 809(a) (May 16, 2022). I ncluded was a proposed new regulation to be set forth at N.J.A.C. 5:105-1. 6, stating in pertinent part:

(a) In addition to records designated as confidenti al pursuant to the provisions of [OPRA], . . . the following records shall not be considered governmen t records subject to public access pursuant to [OPRA] : 1. Denial[-]of[-]access complaint submissions, including, but not limited to, statements of information and sur-replies during the pendency of an adjudication by the [GRC]. . . . [Ibid.] The rule proposal provided for a sixty-day public c omment period. The GRC received four public comments in response to it s proposal, three of which opposed N.J.A.C. 5:105-1.6(a)(1). LFTG's counsel s ubmitted a comment "in [their] personal capacity" and objected to the prov ision as "contrary to the First Amendment right to access records of judicial and a dministrative proceedings, as well as the underlying purposes of OPRA to promo te a transparent government." They also stated complaints and submi ssions related to one'sA- 0963

- 22 11 request for government records in the Superior Cour t are "immediately visible . . . for anyone to see" and "[t]he public is ther eafter able to monitor the case through the e-Courts docket as it progresses a nd view the agency's response, the requestor's reply, submissions by thi rd parties, and decisions and orders by the court." They argued "[t]here is no r eason that a GRC proceeding should be any different" and allowing GRC submissio ns to be public enables "members of the public and reporters to track and u nderstand GRC proceedings better." Other commentors opposed the new regulation on sim ilar bases, asserting that by deeming denial- of -access complaint submissions to the GRC

are not government records under OPRA, the regulation unde rmines an "important public interest in knowing what argument s public agencies are making, in gaining access to source documents, and in seeing communications between GRC staff and parties" and that without kno wing "where cases are resolved, settled, or withdrawn," the records of th at information "could be sealed forever" from public access. Moreover, comm entors asserted that immediate access to the submissions made in a denia l- of -access process provides "invaluable guidance on how to navigate th e complaint process itself" and, if denial- of -access submissions are restricted from public acce ss, "the GRC is denying the public the ability to discern fo r themselves the errors inA- 0963

- 22 12 their requests" which may "create an ambiguity that leads to more denial[-] of [-]access complaint submissions and hinders the pub lic's right of access to government records." On November 7, 2022, the GRC published for final a doption the new regulation set forth at N.J.A.C. 5:105-1.6 and incl uded a summary of public comments and agency responses. See 54 N.J.R. 2081( a) (Nov. 7, 2022). In response to the comments made regarding N.J.A.C. 5: 105-1.6(a)(1), the GRC stated "the proposed [regulation] does not bar acce ss to complaint filings in perpetuity; requestors would be able to seek access to them pursuant to OPRA, following resolution of the complaint, including th ose 'resolved, settled, or withdrawn'" and clarified "no complaint file mainta ined by the GRC will be permanently excluded from public access." Ibid. The GRC claimed the regulation would allow complaints "to be adjudicate d to finality free from outside and unsolicited influence." Ibid. It also noted the "exemption" would "better serve[] complainants by eliminating their e xposure to unsolicited party involvement during an adjudication, especially wher e the complaints address complainants' sensitive personal matters." Ibid. The GRC stated the exemption would "ensure[] a smoother and more effec tive adjudication processA- 0963

- 22 13 beneficial to the parties . . . but especially to t he complainant." Ibid. The GRC adopted N.J.A.C. 5:105-1.6 without making any c hanges. 3 LFTG later filed this appeal challenging the validi ty of N.J.A.C. 5:105- 1.6(a)(1).
III. LFTG contends N.J.A.C. 5:105-1.6(a)(1) is invalid because it is arbitrary, capricious, and unreasonable, and does n ot serve the public interest. LFTG argues the regulation "significantly undermine s the public's interest" by "keeping the public from monitoring how the GRC adj udicates complaints" and "keeping the public from seeing how their own p ublic officials are being accused of violating OPRA and how those public offi cials respond to denial[- ]of[-]access complaints." LFTG further contends th at complaints and submissions filed in Superior Court challenging a p ublic agency's denial of access to government records under OPRA are subject to public access, and it is therefore irrational for the GRC to exempt from public access the submissions in a proceeding before it that involve challenges to a public agency's denial of access to government records under OPRA. The GRC claims the regulation comports with OPRA be cause it only temporarily shields from public access the submissi ons made in a denial- of

3 N.J.A.C. 5:105-1.6(a)(2) and (3) are not challenged on appeal.A- 0963

- 22 14 access proceeding. Moreover, the GRC claims the re gulation serves the public's interest because it insulates the proceedi ngs in a denial- of -access adjudication from unsolicited outside influence and reduces the exposure of complainants' sensitive personal information that m ay be implicated by their access requests and complaints. Agency regulations are presumed "'valid and reasona ble,' unless and until 'the party challenging a regulation . . . pro v[es] that the agency's action was "arbitrary, capricious or unreasonable."'" S.L .W. v N.J. Div. of Pensions & Benefits, 238 N.J. 385, 394 (2019) (quoting N.J. Ass'n of Sch. Adm'rs v. Schundler, 211 N.J. 535, 548 (2012)); see also In r e Adoption of N.J.A.C.
17:1 -6.4, 17:1-7.5 & 17:1-7.10, 454 N.J. Super. 386, 39 5 (App. Div. 2018). In determining whether a challenge to a regulation has met that burden, a court must evaluate:

(1) whether the agency's action violates the enabli ng act's express or implied legislative policies; (2) whether there is substantial evidence in the record to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts the agency clearly erred by reaching a conclusion that could not reasonably hav e been made upon a showing of the relevant factors. [S.L.W., 238 N.J. at 394 (quoting Schundler, 211 N. J. at 548) (internal quotation marks omitted) .]A- 0963

- 22 15 In our consideration of the GRC's adoption of N.J.A .C. 5:105 -1.6(a)(1), we must "'look beyond the specific terms of the enabli ng act to the statutory policy sought to be achieved by examining the entir e statute in light of its surroundings and objectives.'" Ibid. (quoting Schu ndler, 211 N.J. at 548). Under our limited scope of review, we must recogniz e that "administrative rulemaking does not require finding s of fact to justify the regulations and facts sufficient to justify regulat ions are presumed." In re Adoption of Unif. Hous. , 390 N.J. Super. 89, 103-04 (App. Div. 2007) (citations omitted). Factual findings by an agency may rest on the agency's expertise without supporting evidence, "'especially '" where the findings are "'of a judgmental or predictive nature.'" Id. at 1 01 (quoting In re Regulation of Operator Serv. Providers, 343 N.J. Super. 282, 332 (App. Div. 2001)). Thus, an administrative regulation must be rationally rel ated to the public interest underlying the enabling statute. See, e.g. , Bally Mfg. Corp. v. N.J. Casino Control Comm'n., 85 N.J. 325, 335 (1981). As our S upreme Court has explained, "[t]he test is essentially one of ration al basis. 'Arbitrary and capricious action of administrative bodies means wi llful and unreasoning action, without consideration and in disregard of c ircumstances.'" Worthington v. Fauver, 88 N.J. 183, 204 (1982) (quo ting Bayshore Sewerage Co. v. Dep't of Env't Prot., 122 N.J. Super. 184, 1 99 (Ch. Div. 1973)); see alsoA- 0963

- 22 16 Bergen Pines Hosp. v. Dep't of Hum. Servs., 96 N.J. 456, 477 (1984) (explaining an agency's regulation is arbitrary and capricious where it is found "unreasonable or irrational"). A regulation is rationally related to the public's interest if it is "'within the fair contemplation of the delegation of the ena bling statute.'" In re Adoption of N.J.A.C. 17:1 -6.4, 17:1-7.5 & 17:1-7.10, 454 N.J. Super. at 395 (quoting N.J. Guild of Hearing Aid Dispensers v. Lo ng, 75 N.J. 544, 561-62 (1978)). Accordingly, "the application of 'substan tial deference' afforded to regulations is only available if they are 'consiste nt with the governing statutes' terms and objectives.'" Ibid. (quoting In re Adopt ion of Amends. to N.J.A.C. 6:28 -2.10, 3.6 & 4.3, 305 N.J. Super. 389, 401 (App. Di v. 1997)). Stated differently, "'a regulation can only be set aside i f it is proved to be arbitrary or capricious, plainly transgresses the statute it pur ports to effectuate, or alters the terms of the statute and frustrates the policy embodied in it.'" In re Agric., Aquacultural, and Horticultural Water Usage Certifi cation Rules, 410 N.J. Super. 209, 223 (App. Div. 2009) (quoting In re Ado pted Amends. to N.J.A.C.
7:7A -2.4, 365 N.J. Super. 255, 265 (App. Div. 2003)). To determine if the regulation is consistent with t he governing statute, we must "determine the intent of the Legislature," Med. Soc'y of N.J. v. N.J. Dep't of L. & Pub. Safety, 120 N.J. 18, 26 (1990), by first looking at theA- 0963

- 22 17 statutory language, DiProspero v. Penn, 183 N.J. 47 7, 492 (2005). This analysis may necessarily include consideration of " enabling legislation . . . to ascertain if there is in fact sufficient underlying authority [for the regulation]." In re Adoption of N.J.A.C. 17:1-6.4, 17:1-7.5 & 17: 1-7.10, 454 N.J. Super. at 396 (quoting In re N.J.A.C. 7:1B-1.1, 431 N.J. Supe r. 100, 119 (App. Div. 2013)) (internal quotation marks omitted). We also "'may look beyond the specific terms of the enabling act to the statutory policy sought to be achieved by examining the entire statute in light of its sur roundings and objectives.'" Ibid. (quoting Long , 75 N.J. at 562). We therefore "defer to the interpretation of legisl ation by the administrative agency to whom its enforcement is en trusted, but only if that interpretation 'is not plainly unreasonable.'" Ibi d. (quoting Merin v. Maglaki , 126 N.J. 430, 436-37 (1992)). Put differently, we "defer to [an administrative agency's] choice so long as the selection is respon sive to the purpose and function of the agency." Emmer v. Merin, 233 N.J. Super. 568, 581 (App. Div. 1989) (quoting Texter v. Hum. Servs. Dep't, 88 N.J. 376, 385-86 (1982)); see also In re Twp. of Warren, 132 N.J. 1, 26 (1993) (" Courts . . . act only in those rare circumstances when it is clear that the agency action is inconsistent with the legislative mandate." (quoting Williams v. Dep' t of Hum. Servs., 116 N.J. 102, 108 (1989)) ).A- 0963

- 22 18 Measured against these principles, we have no hesi tancy in declaring N.J.A.C. 5:105-1.6(a)(1) invalid. As we have noted , and for the reasons we explain, the regulation violates OPRA's plainly sta ted requirements, finds no basis in OPRA, and is inconsistent with the well-es tablished legislative mandate that the citizens of this state are entitle d to prompt and full public access to government records under OPRA. OPRA protects the public interest in transparency i n the operations of public agencies by requiring "the prompt disclosure of government records." Mason, 196 N.J. at 65. Indeed, we have explained t hat "OPRA's paramount principle [is] 'ready access to government records. '" Newark Morning Ledger Co. v. N.J. Sports & Exposition Auth., 423 N.J. Sup er. 140, 160 (App. Div. 2011) (quoting Burnett v. Cnty. of Bergen, 198 N.J. 408, 421 (2009)). And "OPRA's framework calls for quick action" by mandat ing that "[g]overnment bodies . . . respond promptly to requests for recor ds: immediately in the case of budgets, bills, vouchers, contracts, and public employee salary information, N.J.S.A. 47:1A-5(e); and 'as soon as possible, but not later than seven business days' for other government records, N.J.S.A. 47:1A- 5(i)." Mason, 196 N.J. at 69. The GRC argues N.J.A.C. 5:105-1.6(a)(1) "is not inc onsistent with OPRA, nor does it violate an express or implied pol icy of the Legislature."A- 0963

- 22 19 We disagree. N.J.S.A. 47:1A-5(i)(1) imposes a plai nly stated seven-businessday deadline for a custodian of a government record to provide access to government records requested under OPRA and allows for the setting of a "shorter time . . . by statute, regulation, or exec utive order." The statute, however, makes no provision for, and does not other wise allow, the provision of government records beyond the statutory seven-da y deadline under the circumstances extant here. 4 To the contrary, the statute provides that a failur e to provide a government record within the stated ti me limitation constitutes a "denial" of a request for a government record under OPRA. N.J.S.A. 47:1A5(i)(1). The challenged regulation, N.J.A.C. 5:105-1.6(a)(1) , does not permanently bar access to the submissions made as p art of the GRC's adjudication of a denial- of -access complaint. In fact, the GRC justifies its enactment of N.J.A.C. 5:105-1.6(a)(1) in part becau se it merely delays the GRC's production of the submissions

— which the GRC otherwise recognizes constitute government records subject to disclosure under OPRA

— until the adjudication or disposition of a denial- of -access complaint is completed.

4 N.J.S.A. 47:1A-5(i)(2) provides that the seven-day deadline for the provision of a response to a government records request under N.J.S.A. 47:1A-5(i)(1) does not apply during a "period declared . . . as a state of emergency, public health emergency, or state of local disaster emerge ncy." The GRC does not argue such circumstances support its adoption of N. J.A.C. 5:105-1.6(a)(1).A- 0963

- 22 20 The GRC ignores that the singular effect of the reg ulation is to delay the GRC's delivery of government records in response to a citizen's request beyond the statutorily mandated seven-day period pr escribed by N.J.S.A.
47:1A -5(i)(1). When properly considered in that context , the regulation bypasses OPRA's mandatory temporal requirements und er the guise of a unilateral declaration that government records

— the denial- of -access complaint submissions

— are not government records until the GRC says so. The regulation permits the GRC to delay supplying its o wn government records under OPRA during whatever indefinite period it tak es to do its job by finally adjudicating, or otherwise obtaining the settlement or dismissal of, a denial- of

access complaint. 5

5 Based on the GRC's history, the practical effect of the regulation is anathema to one of OPRA's paramount purposes : the timely provision of government records requested by citizens. See Mason, 196 N.J. at 69; Newark Morning Ledger Co., 423 N.J. Super. at 160. A July 26, 202 2 report from the New Jersey Office of the State Comptroller observed tha t the "GRC has not processed complaints alleging an improper denial of access to" government "records in a timely manner and has accordingly fai led to consistently accomplish one of" OPRA's "most important goals"

— "receiv[ing], hear[ing], review[ing], and adjudicat[ing] disputes over acces s to public records 'as expeditiously as possible.'" See Off. of the State Comptroller, OSC Review: Has the Government Record Council Decided Public Re cords Complaints as Expeditiously as Possible? 1 (July 26, 2022), https://www.nj.gov/comptroller/news/docs/grc_final_report.pdf. The Office of the State Comptroller also reported t hat "[f]or fiscal year 2012 through 2020, the average complaint took [the] GRC twenty-one months toA- 0963

- 22 21 The regulation therefore directly contravenes N.J.S .A. 47:1A-5(i)(1)'s express requirement that government records be prov ided within the time deadline determined and enacted by the Legislature and is otherwise inconsistent with OPRA's paramount principle of pro viding citizens with prompt and ready access to government records. Mas on, 196 N.J. at 65. Through its adoption of the regulation, the GRC has provided for itself an extension of the time within which it may respond t o each and every request for government records

— the submissions

— beyond the deadline for the provision of such government records established by the Legislature and embodied in N.J.S.A. 47:1A-5(i)(1)'s plain and uneq uivocal terms. "When a statute is 'silent or ambiguous' about an issue, we may not replace an agency's 'permissible interpretation of that statute with our own view,'" In re N.J.A.C. 17:2-6.5, 468 N.J. Super. 22 9, 233 (App. Div. 2021) (quoting Kasper v. Bd. of Trs. of the Tchrs.' Pensi on & Annuity Fund, 164 N.J. 564, 581 (2000)), but that is not what has happened here. N.J.S.A. 47:1Aprocess from receipt to adjudication," and the "GRC regularly maintains a backlog of 300 to 500 open complaints." Ibid. It further explained that from 2017 to 2021, the "GRC took two to three times long er than the courts to close OPRA complaints" and observed the GRC's "failure to expeditiously adjudicate these disputes hinders the public's acce ss to government records." Ibid. Thus, if past is prologue, the regulation's bar to the disclosure of the submissions in a denial- of -access case would permit the GRC to flout in an extraordinary manner the statutory seven-day deadli ne for the provision of government records in response to an OPRA request. N.J.S.A. 47:1A-5(i)(1).A- 0963

- 22 22 5(i)(1) unambiguously requires that a public agency provide government records within seven business days of its receipt o f a request, and where a statute is "'clear and unambiguous, a regulation ca nnot amend, alter, enlarge, or limit the terms of the legislative enactment.'" In re N.J.A.C. 12:17-9.6, 395 N.J. Super. 394, 406 (App. Div. 2007) (quoting N.J. Chamber of Com. v. N.J. Election L. Enforcement Comm'n, 82 N.J. 57, 82 (198 0)). Where, as here, a regulation "is inconsistent with the legislative ma ndate," id. at 407, "flout[s] the statutory language and undermine[s] the intent of the Legislature," ibid. (quoting In re Adoption of N.J.A.C. 7:2B, 128 N.J. 442, 450 (1992)), or "'violate[s] the enabling act's express or implied legislative policies,'" In re N.J.A.C. 17:2-6.5, 468 N.J. Super. at 234 (quoting Williams, 116 N.J. at 108), we must invalidate and set it aside. For that reas on alone, we invalidate N.J.A.C. 5:105-1.6(a)(1). See In re Freshwater Wet lands Prot. Act Rules, 180 N.J. 478, 489 (2004) ("[I]f the regulation is plain ly at odds with the statute, [the court will] set it aside."). There are, however, separate but equally dispositi ve reasons requiring the invalidation of the regulation. The Legislatur e defined both government records that must be provided pursuant to OPRA and records that are not subject to disclosure under OPRA because they are d eemed by the Legislature to be "confidential." See N.J.S.A. 47:1A-1.1 (defi ning government recordsA- 0963

- 22 23 and listing records that are confidential). Here, the GRC recognizes that submissions made during a denial- of -access proceeding fall within the Legislature's definition of government records as s et forth in OPRA. See ibid. It argues, however, that the regulation properly de clares the submissions are not government records under OPRA because they are "confidential." The GRC's argument fails to consider that the Legi slature has expressly defined those government records that are not subje ct to OPRA's disclosure requirements because the Legislature has deemed the m to be confidential, see N.J.S.A. 47:1A-1.1, and the submissions to the GRC during a denial- of -access proceeding are not among them. Indeed, the GRC doe s not argue that the submissions during a denial- of -access proceeding fall within any of the thirty categories of government records the Legislature ha s defined as confidential in N.J.S.A. 47:1A-1.1, and the GRC ignores that those thirty categories of government records do not include submissions to th e GRC during a denial- of

access proceeding. Where, as here, the Legislature provided in N.J.S. A. 47:1A-1.1 a detailed list of government records it deemed confi dential such that those records are excluded from the government records th at must be provided under OPRA, it may be concluded the Legislature

— by omission

— intended to exclude all other records from those records it exp ressly designated asA- 0963

- 22 24 confidential in the statute. See L.C. v. Bd. of Re v., Dep't of Lab., 439 N.J. Super. 581, 599 (App. Div. 2015) ("[G]enerally, 'wh en the Legislature creates an exhaustive list, it is assumed to intend to excl ude what is not enumerated unless it indicates by its language that the list o r section is not meant to be exhaustive or exclusive.'" (quoting Borough of E. R utherford v. E. Rutherford PBA Loc. 275, 213 N.J. 190, 215 (2013))). Thus, in our view, by failing to include submissions made during a GRC denial- of -access proceeding among those deemed confidential and not subject to disclo sure under OPRA, the Legislature made clear such submissions are not con fidential and therefore constitute government records subject to disclosure in accordance with OPRA's requirements. See ibid. Moreover, in enacting the list of government record s deemed confidential and not subject to disclosure under OP RA, the Legislature was fully aware there would be denial- of -access proceedings before the GRC during which submissions to the GRC would be made. That is because OPRA itself otherwise provides for the adjudication of d enial- of -access complaints by the GRC. N.J.S.A. 47:1A-6. Yet, the Legislature d id not include the submissions made to the GRC during the adjudication of such complaints among those government records it defined as confid ential in N.J.S.A. 47:1A1.1. By failing to do so while expressly defining thirty other categories ofA- 0963

- 22 25 government records as confidential, the Legislature made clear its decision that submissions to the GRC during a denial- of -access proceeding do not constitute confidential records that are exempt from disclosur e under OPRA. N.J.A.C. 5:105-1.6(a)(1) therefore represents an a ttempt to redefine and supplement what constitutes a confidential governme nt record under N.J.S.A.
47:1A -1.1 in a manner wholly inconsistent with the Legis lature's plainly stated determination of the government records that qualif y as such. See generally L.C., 439 N.J. Super. at 599. We find no statutory authority permitting the GRC to do so, and the GRC points to none. 6 Because the effect of N.J.A.C. 5:105 -1.6(a)(1) is to "amend, alter, [and] enlarge . . . the terms of" N.J.S.A.
47:1A -1.1, and the regulation otherwise "flout[s] the st atutory language" by ignoring the definitions of confidential records in N.J.S.A. 47:1A-1.1, the GRC exceeded its authority in adopting the regulation a nd, for that reason, the

6 We recognize that N.J.S.A. 47:1A-1 provides in part that "all government records shall be public to access unless exempt fro m such access by" OPRA and any "regulation[s] promulgated under the author ity of any statute or Executive Order of the Governor," but, the GRC does not cite to any statute or Executive Order authorizing it to exempt from publi c access the submissions made during a denial- of -access proceeding, we have found none, and, as we have explained, N.J.A.C. 5:105 -1.6(a)(1) is inconsistent with OPRA's plain terms. We also note that the GRC does not claim th e regulation embodies any "grant of confidentiality" established prior to the enactment of OPRA that was "established or recognized by the constitution of t his State, statute, court rule or judicial case law, which privilege or grant of c onfidentiality may duly be claimed to restrict public access to a public recor d or government record." N.J.S.A. 47:1A-9.A- 0963

- 22 26 regulation is invalid. In re N.J.A.C. 12:17-9.6, 3 95 N.J. Super. at 406; see also N.J. Soc'y for Prevention of Cruelty to Animals v. N.J. Dep't of Agric., 196 N.J. 366, 385-86 (2008) (explaining "an agency 'may not under the guise of interpretation . . . give the statute any greater e ffect than its language allows' " (quoting Kingsley v. Hawthorne Fabrics, Inc., 41 N. J. 521, 528 (1964))). Although N.J.A.C. 5:105 -1.6(a)(1) is invalid for the reasons we have explained

— it directly contradicts OPRA's plain requirements

— for purpose of completeness, we also find the regulation is invali d because it is inconsistent with OPRA's terms and objectives, In re Adoption of N.J.A.C. 17:1-6.4, 17:1- 7.5 & 17:1-7.10, 454 N.J. Super. at 395, frustrates and fails to comport with the policies OPRA embodies, McGee v. Twp. of E. Amw ell, 416 N.J. Super. 602, 612 (App. Div. 2010); In re Agric., Aquacultur al, and Horticultural Water Usage Certification Rules, 410 N.J. Super. at 223, and is arbitrary and capricious, Bergen Pines Hosp., 96 N.J. at 477. The GRC argues the regulation is supported by a nee d to "allow complaints to be adjudicated to finality free from outside and unsolicited influence" and "eliminate [complainants'] exposure to unsolicited party involvement during an adjudication." The GRC furth er claims the regulation "will reduce exposure of 'complainants' sensitive p ersonal matters' that may be implicated in their request or complaint." The GRC contends those protectionsA- 0963

- 22 27 will result in "a smoother and more effective adjud ication process beneficial to the parties engaged therein, but especially to the complainant." Thus, the GRC claims the regulation is necessary "for the protect ion of the public interest" and is therefore supported under N.J.S.A. 47:1A-1. We reject the GRC's arguments because the regulatio n's broad declaration that any and all submissions made durin g a denial- of -access proceeding do not constitute government records unt il the proceeding is concluded is, on its face, inconsistent with the pl ainly stated legislative policy that "all government records shall be subject to pu blic access unless exempt" under OPRA. N.J.S.A. 47:1A-1 (emphasis added). An d, again, the GRC fails to point to an OPRA provision exempting the submiss ions from disclosure or authorizing a regulation establishing such an exemp tion. Further, as we have discussed, the regulation is inconsistent with, and violative of, certain OPRA provisions. The regulation therefore is inconsiste nt with OPRA's plainly stated legislative policies and invalid as a result. In r e Adoption of N.J.A.C. 17:1- 6.4, 17:1-7.5 & 17:1-7.10, 454 N.J. Super. at 395. The regulation imposes a broad and general prohibit ion against the disclosure of what the GRC recognizes are governmen t records under OPRA based on a purported need to protect complainants f rom outside and undue influence and exposure of sensitive personal inform ation. The regulation isA- 0963

- 22 28 arbitrary and capricious because it is wholly unnec essary to achieve that result; OPRA and the GRC's regulations otherwise provide st andards for protecting the disclosure of information pertaining to a compl ainant. OPRA provides that a "public agency has a responsib ility and an obligation to safeguard from public access a citize n's personal information with which it has been entrusted when disclosure th ereof would violate the citizen's reasonable expectation of privacy." N.J. S.A. 47:1A-1. However, we have held that "a citizen submitting an OPRA reques t ordinarily would not have a reasonable expectation that the request will not be disclosed to others." Scheeler v. Off. of the Governor, 448 N.J. Super. 3 33, 348 (App. Div. 2017). We discern no basis to conclude that a citizen woul d have any greater reasonable expectation of privacy during the GRC's adjudication of a complaint challenging a denial of access to the gov ernment records he or she had requested. The GRC does not cite to any legal authority establ ishing that citizens filing a denial- of -access complaint with the GRC have a reasonable expectation of privacy in the submissions made duri ng the adjudicatory proceeding such that there are grounds to conclude the regulation's broad prohibition against disclosure of submissions to th e GRC is required to protect any purported reasonable expectation of privacy. A decision to withholdA- 0963

- 22 29 government records based on a citizen's reasonable expectation of privacy requires "a balancing test that weighs both the pub lic's strong interest in disclosure with the need to safeguard from public a ccess personal information that would violate a reasonable expectation of priv acy." Burnett, 198 N.J. at 427. That weighing process necessarily requires pu blic access here because the record is devoid of any evidence a citizen fili ng a denial- of -access complaint has a reasonable expectation of privacy i n all the submissions made to the GRC such that those expectations outweigh th e public's right of access to the submissions that the GRC recognizes constitu te government records under OPRA. See, e.g. , Scheeler, 448 N.J. Super. at 349 (explaining "there is no justification for denying the public access to a ll third-party OPRA requests merely because of the possibility that a requestor might have an interest in preserving the confidentiality of a particular requ est"). We also reject any notion that a citizen filing a d enial- of -access complaint may have a reasonable expectation of priv acy in the submissions made to the GRC. Under the GRC's regulations, all submissions must be in writing, see N.J.A.C. 5:105-2.3(b), and must be ser ved on all other parties to the proceeding, see N.J.A.C. 5:105-2.3(g) to (h), including the public agency that denied the OPRA request and any intervenors. Therefore, a citizen filing a denial- of -access complaint knows that the submissions before the GRC willA- 0963

- 22 30 be distributed to the parties and intervenors in th e proceeding who, as acknowledged by the GRC, may distribute the submiss ions to others in accordance with OPRA, the common-law right of acces s applicable to public agencies, and as they otherwise deem appropriate. Given those circumstances, we discern no basis to conclude requestors have a r easonable expectation of privacy that outweighs the presumption government r ecords shall be produced in accordance with OPRA such that N.J.A.C. 5:105-1. 6(a)(1) is consistent with the legislative policies underlying OPRA. OPRA otherwise provides individual citizens with pr otections against the disclosure of private information for which a r easonable expectation of privacy may be properly weighed against a right of access under OPRA. For example, OPRA describes government records that are deemed confidential and not subject to public access, N.J.S.A. 47:1A-1. 1, and prohibits disclosure of records concerning biotechnology trade secrets, N.J.S.A. 47:1A-1.2, personal information concerning a victim of a crime , N.J.S.A. 47:1A-2.2, records concerning "investigation[s] in progress by any public agency," and certain personnel and pension records in the posses sion of a public agency, N.J.S.A. 47:1A-10. OPRA also requires the redactio n of certain personal identifying information from government records, N. J.S.A. 47:1A-5(a), including handgun and firearms purchaser identifica tion cards, N.J.S.A.A- 0963

- 22 31 47:1A -1.3. And, "[t]he GRC has authority to review requ ested documents in camera in order to determine whether they were prop erly withheld" by a public agency. McGee, 416 N.J. Super. at 613 (citing N.J. S.A. 47:1A-7(f)). Other existing GRC regulations further protect citi zens filing denial- of

access complaints from any undue or outside influen ce by permitting a complainant to remain anonymous throughout the adju dicatory process based on the presentation of evidence satisfying one of f our criteria. See N.J.A.C. 5:105 -2.3(j) and (k). 7 To qualify to proceed anonymously, a requestor must establish by clear and convincing evidence that com pelling circumstances exist such that: (1) There is a genuine risk of physical harm;

(2) The complaint will entail revelation of highly personal and private information; (3) The very relief sought would be defeated by revealing the complainant's identity; or (4) Other substantial reasons why identification of the party would be improper. [N.J.A.C. 5:105-2.3(j).] In its adoption of N.J.A.C. 5:105-2.3(j), the GRC e xplained that it did so to confirm that "anonymous complaints are allowed" and to "adopt[] a good cause standard . . . for requestors wishing to proc eed anonymously." 54 N.J.R. 2081(a) (Nov. 7, 2022). Incongruously, however, th e GRC also adopted

7 LFTG does not challenge the validity of N.J.A.C. 5: 105-2.3(j) or (k).A- 0963

- 22 32 N.J.A.C. 5:105-1.6(a)(1), which in effect renders e very requestor anonymous during the pendency of a denial- of -access proceeding

— without any requisite showing of good cause or satisfaction of the criteria

— by making the denial- of

access complaint and all other submissions in the p roceeding unavailable as government records until the adjudication is comple te. Under N.J.A.C. 5:105- 1.6(a), a requestor filing a denial- of -access complaint remains anonymous

— at least until the case ends

— because the complaint and all other submissions made in the proceeding are not subject to public di sclosure until the adjudication is concluded. 8 N.J.A.C. 5:105-1.6(a)(1) also runs afoul of the rig hts of any putative person or entity that might seek to intervene in a denial- of -access proceeding as expressly permitted under N.J.A.C. 5:105-2.2(b)( 1). Because N.J.A.C. 5:105 -1.6(a)(1) drapes all pending denial- of -access cases in a cloak of secrecy until final disposition, a putative intervenor has no means to learn about

8 In finding N.J.A.C. 5:105-1.6(a)(1) invalid, we do not hold that submissions made during a denial- of -access proceeding are subject to public access und er OPRA if they are otherwise exempt from disclosure u nder OPRA or the GRC's other regulations. We find invalid only the GRC's broad declaration

— embodied in N.J.A.C. 5:105-1.6(a)(1)

— that all submissions are not government records during the pendency of a denial- of -access proceeding. The GRC may otherwise withhold from public access u nder OPRA submissions made during a denial- of -access proceeding that are exempt from public access under OPRA or the GRC's other regulat ions that are not the subject of the challenge here.A- 0963

- 22 33 pending GRC cases through an examination of denial- of -access complaints and other submissions presented to the GRC. Without ac cess to the denial- of

access submissions based on N.J.A.C. 5:105-1.6(a)(1 )'s declaration they are not government records, eligible intervenors are de prived of the knowledge of pending cases in which they are entitled to interve ne until it is too late

— when the case is fully adjudicated or otherwise conclude s. The regulation is also inconsistent with OPRA becau se, as acknowledged by the GRC, the submissions may be pro perly obtained under OPRA from the public agency involved in the denial- of -access complaint. As we have noted, all submissions made by the parties and any intervenors in a denial- of -access proceeding must be served on all the partie s, one of which will always be the public agency that denied the re quest for its government records in the first instance. There is nothing in OPRA or the GRC's regulations t hat bars another public agency that serves or is served with submiss ions to the GRC in a denialof -access proceeding from providing the submissions i n response to an OPRA request served upon it. And, more importantly, the public agency is required under OPRA to provide the submissions as government records in response to a citizen's request because the GRC's adoption of N .J.A.C. 5:105-1.6(a)(1)A- 0963

- 22 34 only putatively exempts the submissions from the de finition of government records when they are in the GRC's hands. Thus, N.J.A.C. 5:105-1.6(a)(1) does not provide a r equestor with protection from undue or unsolicited influence duri ng the pendency of a denial- of -access complaint before the GRC because the submis sions, by the GRC's own admission, may be obtained under OPRA dir ectly from the public agency that is a party to the proceeding. Viewed a s such, the regulation incongruously declares the submissions in a denial- of -access case are not government records under OPRA in the GRC's possessi on but simultaneously are government records in the hands of the public a gency that is a party to the proceeding before the GRC. We find no support in the law or logic for such a r esult and conclude the regulation is manifestly inconsistent with the legi slative policies

— full and prompt disclosure of government records

— underlying OPRA. The regulation does nothing more than hide from public view the pe rformance of the GRC's essential function of adjudicating denial- of -access complaints, rendering it impossible for the citizens of New Jersey to determ ine until cases are concluded what complaints have been filed and by wh om, what public agencies have denied OPRA requests, the bases for t he requests and the denials, and whether the GRC and the public agencie s that have denied OPRAA- 0963

- 22 35 requests are properly doing their jobs. See Burnet t, 198 N.J. at 414 ("[G]overnment works best when its activities are w ell-known to the public it serves."). We are unpersuaded by the GRC's argument that N.J.A .C. 5:105- 1.6(a)(1) is valid because other agencies have adop ted regulations exempting records from disclosure under OPRA during indetermi nate periods. See, e.g. , N.J.A.C. 19:33-2.2(a)(11), (12) (New Jersey Schools Development Authority keeps bid submissions and evaluative documents asso ciated with procurement confidential prior to a "Notice of Award for such p rocurement" and property acquisition documents confidential until title has been closed); N.J.A.C. 4A:1- 2.2(c) (appeal records from the Civil Service Commi ssion and Division of Equal Employment Opportunity are not subject to pub lic access); N.J.A.C. 3:3- 2.1(a)(3) (New Jersey Department of Banking and Ins urance's complaint files are confidential). The argument is founded on the premise that N.J.A.C. 5:105 -1.6(a)(1) should be deemed valid because those reg ulations similarly impose only temporary restrictions on the disclosur e of government records. Our determination N.J.A.C. 5:105-1.6(a)(1) is inval id, however, is not founded exclusively on the temporary and undetermin ed length of the GRC's exclusion of the submissions from the definition of government records under OPRA. Instead, as we have explained, the regulatio n is otherwise inconsistentA- 0963

- 22 36 with OPRA's express terms and violates the legislat ive policies underlying the statute. The GRC makes no showing the regulations on which it relies suffer from similarly fatal infirmities. Moreover, unlike N.J.A.C. 5:105-1.6(a)(1), the regu lations cited by the GRC, which protect from disclosure under OPRA biddi ng and related deliberative or property acquisition records, N.J.A .C. 19:33-2.2(a)(11), (12), personnel related records, N.J.A.C. 4A:1-2.2(c), an d investigative and financial records, N.J.A.C. 3:3-2.1(a)(3), appear s upported by provisions in OPRA. See, e.g., N.J.S.A. 47:1A-1.1 (defining as c onfidential under OPRA "proprietary . . . financial information" and "info rmation which, if disclosed, would give an advantage to competitors or bidders") ; N.J.S.A. 47:1A- 3 (defining as confidential under OPRA government rec ords "pertain[ing] to an investigation in progress by any public agency"); N .J.S.A. 47:1A-10 (excluding from government records under OPRA "the personnel . . . records of any individual in the possession of a public age ncy"). The GRC does not point to any such authority in OPRA supporting N.J. A.C. 5:105-1.6(a)(1). 9 For those reasons, we declare N.J.A.C. 5:105-1.6(a) (1) invalid.

9 We do not offer any opinion on the validity of the regulations cited by the GRC. They are not before us.