NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2810-13T2

IN THE MATTER OF THE NEW

JERSEY FIREMEN'S ASSOCIATION

OBLIGATION TO PROVIDE RELIEF

APPLICATIONS UNDER THE OPEN

PUBLIC RECORDS ACT

___________________________________

JEFF CARTER,

Third-Party 

Plaintiff-Appellant,

v.

JOHN DOE,

Third-Party Defendant.

___________________________________

Argued June 2, 2015 – Decided 

Before Judges Messano, Ostrer and Tassini.

On appeal from the Superior Court of New 

Jersey, Law Division, Union County, Docket 

No. L-2932-13.

Jeff Carter, appellant pro se.

John C. Gillespie argued the cause for 

respondent New Jersey State Firemen's 

Association (Parker McCay P.A., attorneys; 

George M. Morris, of counsel; Stacy L. 

Moore, Jr., on the brief).

Thomas J. Cafferty argued the cause for 

amicus curiae New Jersey Press Association 

(Gibbons P.C., attorneys; Mr. Cafferty, of 

December 18, 2015

APPROVED FOR PUBLICATION

December 18, 2015

APPELLATE DIVISION
2 A-2810-13T2

counsel and on the brief; Nomi I. Lowy and 

Lauren E. James-Weir, on the brief).

The opinion of the court was delivered by

OSTRER, J.A.D.

This appeal involves the Open Public Records Act (OPRA), 

N.J.S.A. 47:1A-1 to -13, the Declaratory Judgment Act (DJA), 

N.J.S.A. 2A:16-50 to -62, and records of the New Jersey State 

Firemen's Association (Association), a public agency under OPRA. 

See N.J.S.A. 47:1A-1.1. We must resolve two principal issues 

affecting the public's right to access government records. 

First, we must decide, as a procedural matter, whether a 

government records custodian — in this case, the Association —

may bring an action pursuant to the DJA to secure a declaratory 

judgment that it properly denied access to a record under OPRA 

and the common law right of access. With respect to OPRA, we 

conclude that a records custodian may not bring a declaratory 

judgment action against a record requestor to enforce its right 

to withhold records, because OPRA does not provide the records 

custodian an independent right of action. As to both OPRA and 

the common law, declaratory relief was inappropriate in this 

case because the declaratory judgment action was essentially an 

effort to preempt an imminent claim by the records requestor; 

and allowing a declaratory judgment action solely with respect 

to the common law would unnecessarily fragment claims. 
3 A-2810-13T2

Second, we are asked to determine, as a substantive matter, 

whether the requestor in this case, under OPRA or the common 

law, has a right to access records pertaining to a relief award 

made by the Association. We conclude that both OPRA and the 

common law require disclosure of documents containing the name 

of the applicant and the amount of the award. 

I.

This dispute arose out of the records request of defendant 

Jeff Carter.1 On July 15, 2013, Carter electronically filed a 

request, under OPRA and the common law, for records pertaining 

to an application for relief by John Doe,2 a man associated with 

the Millstone Valley Fire Department. Carter sought the

following documents: 

1. Copies of record(s) (including 

attachments) submitted by [John Doe], 

Local 501 agent(s), and/or NJSFA 

agent(s) seeking financial benefits 

described in the "BACKGROUND" section 

above from January 1, 2008 through July 

15, 2013.

 

1 The Association improperly captioned its verified complaint for 

declaratory judgment against Jeff Carter as "In the Matter of 

the New Jersey State Firemen's Association Obligation to Provide 

Relief Applications Under the Open Public Records Act." See R.

1:4-1 (stating that the title of a complaint shall include the 

names of all parties). 

2 Although the records request identified the person by name, the 

name is redacted in the public record on appeal. 
4 A-2810-13T2

2. Copies of record(s) (including 

attachments) sent to [John Doe], Local 

501 agent(s), and/or NJSFA agent(s) 

disbursing financial benefits described 

in the "BACKGROUND" section above from 

January 1, 2008 through July 15, 2013.

3. If no record(s) are responsive to Items 

No. 1 or 2 above, then copies of the 

front and back of every check providing 

relief and/or similar benefits, both 

State and Local, paid to [John Doe] 

between January 1, 2008 through July 

15, 2013. (Note that checks are not

required if responsive records are 

provided for Items No. 1 and 2 above.)

Association vice president Fred Gunson denied Carter's 

request in a July 22, 2013 email. Gunson stated that applicants 

for relief through a local firemen's relief association or the 

Association "have a reasonable expectation of privacy"; release 

would constitute an "unwarranted invasion" of those rights; and 

"[a]ccordingly, the New Jersey State Firemen's Association 

cannot release those documents." 

On August 3, 2013, Carter responded that he did "not seek 

any legitimately defined privileged or exempt information," but 

he insisted that "certain records regarding financial matters 

(e.g., payroll records) must be provided with appropriate 

redactions." He asked for an index of any withheld or redacted 

documents, with explanations. Carter also stated, "Because I 

was unable to respond sooner, I understand that the timeframe 
5 A-2810-13T2

for my original request will resume on the next business day 

(i.e. August 5, 2013)."

Carter included an additional document request. He sought 

"a copy of the policy and/or procedures governing how 'relief' 

applications/requests are processed by the State and local 

associations." 

On August 15, 2013, the Association filed its verified 

complaint for declaratory judgment, along with a proposed order 

to show cause, to compel Carter to show cause why the final 

relief sought in the verified complaint should not be entered. 

Although served only upon Carter, the Association sought an 

order:

a. Declaring that individual relief 

applications are of such a private 

nature that the New Jersey State 

Firemen's Association or the local 

relief association shall be prevented 

from acknowledging the existence of 

individual applications and prohibited 

from releasing the same under . . . the 

Open Public Records Act;

b. Declaring that a Requestor, in order to 

determine whether the New Jersey State 

Firemen's Association or the local 

relief association is performing its 

duties appropriately, may request a 

series or date range of applications, 

but said applications may only be 

released upon the redaction of all 

personal information including the 

requestors' names, addresses, account 

numbers.
6 A-2810-13T2

The Association sought identical relief with respect to the 

common law right of access. 

The Association argued that under OPRA the information 

Carter requested should not be subject to disclosure under OPRA 

because it would violate an applicant's reasonable expectation 

of privacy under N.J.S.A. 47:1A-1. The Association asserted 

that upon applying the factors in Doe v. Poritz, 142 N.J. 1, 88 

(1995), disclosure of applicant-specific documents should be 

denied. 

The Association disclosed documents entitled "Rules and 

Guidelines Governing Relief Form 101"; "Instruction for 

Investigation of Relief Applicants by Local Relief Boards"; 

"Application for Local Relief [-] New Jersey State Firemen's 

Association"; and "Instructions for the Board of Trustees and 

Board of Representatives for Review of Relief Application." 

Although there is no competent evidence before us authenticating 

or explaining the documents, we assume for the sake of the 

appeal that the Association uses these documents when reviewing 

applications for relief.3 

 

3 The documents were attached as exhibits to the Association's 

brief, contrary to R. 1:6-6. See Pressler & Verniero, Current 

N.J. Court Rules, comment 1 on R. 1:6-6 (2015); Sellers v. 

Schonfeld, 270 N.J. Super. 424, 427 (1993) ("[O]nly [an] 

affidavit together with properly certified depositions, answers 

(continued)
7 A-2810-13T2

The application forms generally require the submission of 

detailed personal financial information, and a personal 

statement of the applicant, to demonstrate the need for 

financial assistance from a local association or the 

Association. The "Rules and Guidelines" document, and the 

respective instructions to the apparent decision-makers, do not 

include detailed criteria for determining whether to award 

relief and for what amount. The "Rules and Guidelines" document 

describes the information applicants must submit. It states, 

"Relief Assistance is not automatic and will only be considered 

on merit, documentation and determination by the local 

association." The instructions to the local relief boards 

state:

The intended use of this form, is to provide 

the respective boards with information 

pertaining to the applicant's request for 

supplementary financial assistance, and in 

determining the "NEED."

WHAT IS "NEED"

"NEED" IS: Imperative Demand ***** Time of 

great difficulty ***** Crisis ***** Urgency

"NEED" is a state of circumstances requiring 

something!

 

(continued)

to interrogatories, or admissions can supply facts outside the 

record that are not judicially noticeable.").
8 A-2810-13T2

It is important to remember, while a 

financial loss may be shown, there may not 

be the "NEED." "NEED" and financial loss do 

not necessarily go hand in hand. (Example: 

The person may have a financial loss, but 

have financial means and can afford to cover 

the financial loss without the use of local 

relief, thus no "NEED" would then exist.

Apparently, there are other rules or regulations not in the 

record before us, as the "Rules and Guidelines" document 

includes a paragraph authorizing and consenting to the release 

of financial documents to the local association and the 

Association "for the purpose of determining eligibility for 

relief benefits . . . in accordance with the requirements of 

N.J.S.A. 43:17-24 and Article VII of the General Relief Fund 

Rules." (emphasis added). 

The documents indicate that the application process is 

intended to be confidential. The instructions to local relief 

boards include the statement: "All information given must be 

held in strict confidence." The Rules and Guidelines Document 

states, "The New Jersey State Firemen's Association is required 

to protect the confidentiality of information. All Officers are 

required to comply with our policies."

The trial court entered the order to show cause, required 

Carter to file a response to the order by September 16, 2013, 

and set a return date of September 27, 2013. The order also 
9 A-2810-13T2

advised Carter that he was required to answer the verified 

complaint within thirty-five days.

Carter retained counsel and timely filed a verified answer 

and counterclaim, a third-party complaint against John Doe, and 

a letter brief in opposition to the Association's application 

for declaratory relief. Carter narrowed his document request, 

stating he only sought disclosure of the checks paid to John Doe 

and did not seek the applications Doe may have filed. He argued 

he was entitled to the checks under both OPRA and the common 

law. He sought dismissal of the Association's verified 

complaint and an award of attorney's fees.

In a supporting certification, Carter asserted that John 

Doe served as an elected fire commissioner and volunteer 

firefighter in Franklin Township. Carter stated that Doe was 

also a full-time municipal employee.4 Carter alleged that John 

Doe was found to have viewed pornographic images on a fire 

district computer. Although criminal charges were filed, a 

grand jury returned a no-bill, according to Carter. However, 

Doe was later discharged from his public employment for conduct 

unbecoming of a township employee. Carter attached newspaper 

articles to support his assertions. Carter also discussed a 

 

4 Carter apparently served as elected fire commissioner from 1987 

through 1997. 
10 A-2810-13T2

suit, filed by his sister and later settled, alleging a 

violation of the Law Against Discrimination by the fire district 

and Doe. Carter maintained that there was a public interest in 

learning whether a person who was discharged under the 

circumstances Carter described had received financial assistance 

through the Association. He disputed the Association's claim 

that Doe in particular had an expectation of privacy, given past 

publicity. 

In a responsive certification, Gunson explained that 

members are often eligible for financial assistance from local 

associations; and if this assistance "is not adequate to address 

that member's needs, the member can then approach the . . . 

Association, which can award up[] to three (3) times the amount 

of the local contribution." Gunson did not disclose the 

criteria utilized for the financial assistance decisions, nor 

did he disclose the rules or regulations governing the decision 

process. However, he stated that the Association and local 

associations have specific procedures to treat members' 

applications anonymously, eliminating the possibility of 

discrimination in responding to the request for financial 

relief. These procedures include converting the applicant's 

name to a control number. 
11 A-2810-13T2

In its answer to Carter's counterclaim, the Association 

asserted, among other defenses, that Carter's counterclaim was 

time-barred as it was filed more than forty-five days after the 

Association's denial of his document request. 

The trial court heard argument on the return date in 

September 2013. The court also reviewed in camera Doe's 

application for assistance, which apparently had been submitted 

to the court in August, but was later sealed. 

In an order filed January 15, 2014, the court denied 

Carter's requests for dismissal of the verified complaint, 

disclosure of the checks paid to Doe, and attorney's fees. The 

court did not enter a separate order granting declaratory relief 

to the Association. However, in an accompanying letter opinion, 

the court found that the names of relief recipients, the amounts 

paid through the Association's financial assistance programs, 

and their applications need not be released. 

The court addressed the subject of applications, 

notwithstanding that Carter had limited his request to checks 

paid to John Doe and expressly stated he was not seeking 

information in the relief applications. The court applied the 

seven factors outlined in Doe, supra:

(1) the type of record requested; (2) the 

information it does or might contain; (3) 

the potential for harm in any subsequent 

nonconsensual disclosure; (4) the injury 
12 A-2810-13T2

from disclosure to the relationship in which 

the record was generated; (5) the adequacy 

of safeguards to prevent unauthorized 

disclosure; (6) the degree of need for 

access; and (7) whether there is an express 

statutory mandate, articulated public 

policy, or other recognized public interest 

militating toward access.

[142 N.J. at 88 (internal quotation marks 

and citation omitted).]

Based on that analysis, the court held that OPRA's privacy 

clause, N.J.S.A. 47:1A-1, barred release:

Applying the Doe factors to the present 

case, the application is a public record as 

a document kept, made or maintained in the 

course of official business of the 

Association. The second factor weighs in 

favor of non-disclosure because the 

information is an individual's complete and 

personal financial history, including but 

not limited to tax returns, credit card 

bills, mortgage payments and, hospital 

bills. Applying the third factor, revealing 

this information has the potential to lead 

to great harm created by the release of said 

information because it has the potential to 

lead to identity theft and public 

embarrassment. Defendant's argument that 

John Doe has already sustained great public 

embarrassment is not without merit being 

that the incident for which he was fired was 

disclosed in the newspaper. A significant 

harm exists if individual relief 

applications are released. Applying the 

fourth factor, the release of the 

information may cause an applicant to 

hesitate before [he or she] seeks assistance 

and may chill the disclosure of critical 

information regarding the need for 

assistance for fear that the knowledge will 

be subject to public scrutiny. The fifth 

factor, speaks to the adequacy of safeguards 
13 A-2810-13T2

to prevent disclosure. The Association has 

established a system to convert the 

individual's name into a unique 

identification number for each applicant to 

ensure the confidentiality of the 

information and to protect the interests of 

the applicant. While the Association has 

not directed this Court towards a statute 

mandating non-disclosure the seventh factor 

weighs in favor of non-disclosure because 

there is no policy or statute which mandates 

access.

Citing Loigman v. Kimmelman, 102 N.J. 98, 113 (1986), the 

trial court concluded that the common law did not require 

disclosure. 

This appeal followed. Carter now represents himself pro 

se. He renews his argument that the Association should not have 

been permitted to seek a declaratory judgment. Although he 

limited his request before the trial court to the checks paid to 

John Doe, he now renews his request for John Doe's applications, 

redacted as appropriate. We subsequently granted permission to 

the New Jersey Press Association (NJPA) to appear as amicus 

curiae. NJPA participates solely to argue that a records 

custodian may not seek a declaratory judgment under OPRA. 

II.

We turn first to defendant's argument that the Association 

was not entitled to seek a declaratory judgment confirming its 

denial of access under both OPRA and the common law right of 
14 A-2810-13T2

access. We begin with an overview of the law on declaratory 

judgments. 

A.

The DJA is based on the 1922 Uniform Declaratory Judgments 

Act. 12 U.L.A. 331 (2008). The DJA provides that "a person 

. . . whose rights, status, or other legal relations are 

affected by a statute . . . may have determined any question of 

construction or validity arising under the . . . statute . . . 

and obtain a declaration of rights, status, or other legal 

relations thereunder." N.J.S.A. 2A:16-53. See Williams v. 

Borough of Clayton, ___ N.J. Super. ___, ___ (App. Div. 2015) 

(slip op. at 10-11) (approving resort to declaratory relief 

regarding interpretation of N.J.S.A. 40A:14-129 and -130). The 

purpose of the Act "is to settle and afford relief from 

uncertainty and insecurity with respect to rights, status and 

other legal relations." N.J.S.A. 2A:16-51; N.J. Ass'n for 

Retarded Citizens v. N.J. Dep't of Human Servs., 89 N.J. 234,

242 (1982) ("[The purpose of the Act] is to end uncertainty 

about the legal rights and duties of the parties to litigation 

in controversies which have not yet reached the stage at which 

the parties seek a coercive remedy.") 

The DJA constitutes "remedial legislation entitled to 

liberal construction and administration." N.J. Ass'n for 
15 A-2810-13T2

Retarded Citizens, supra, 89 N.J. at 241-42; N.J.S.A. 2A:16-51. 

The DJA must be "interpreted and construed as to effectuate its 

general purpose to make uniform the law of those states which 

enact it, and to harmonize, as far as possible, with federal 

laws, rules and regulations on the subject of declaratory 

judgments." N.J.S.A. 2A:16-51.

The decision to grant or deny declaratory relief lies 

within the court's discretion. See In re Resolution of State 

Comm. of Investigation, 108 N.J. 35, 46 (1987); see also State 

v. Eatontown Borough, 366 N.J. Super. 626, 637 (App. Div. 2004) 

("Generally, it rests in the sound discretion of the trial court 

whether declaratory relief under the Act should be granted."). 

"Declaratory relief is not to be denied simply because other 

relief is available." Nat'l – Ben Franklin Fire Ins. Co. v. 

Camden Trust Co., 21 N.J. 16, 22 (1956); see also R. 4:42-3 ("A 

judgment for declaratory relief, if appropriate, is not 

precluded by the existence of another appropriate remedy."). 

On the other hand, "a court might in the proper exercise of 

its discretion, deny such [declaratory] relief if it 

satisfactorily appeared that the other relief would be more

effective." Nat'l – Ben Franklin Fire Ins. Co., supra, 21 N.J.

at 22. For example, a court may decline to award relief "where 

only fragmentary redress will be awarded . . . ." Utility Blade 
16 A-2810-13T2

& Razor Co. v. Donovan, 33 N.J. Super. 566, 572 (App. Div. 

1955). "The court may refuse to render or enter a declaratory 

judgment, when, if rendered or entered, it would not terminate 

the uncertainty or controversy giving rise to the proceeding." 

N.J.S.A. 2A:16-61; see also Nat'l – Ben Franklin Fire Ins. Co., 

supra, 21 N.J. at 23. A court may also decline to render a 

declaratory judgment if "convinced that the public interest and 

an enlightened use of the judicial function" require restraint. 

The Proprietary Ass'n v. Bd. of Pharmacy, 16 N.J. 62, 71 (1954).

The right to relief under the DJA is procedural in nature; 

it does not create substantive rights to relief. "A declaratory 

judgment act merely provides a procedural device to accelerate 

the resolution of a dispute; the procedural right does not alter 

the substance of the dispute." Ciba-Geigy Corp. v. Liberty Mut. 

Ins. Co., 149 N.J. 278, 302 (1997) (O'Hern, J., dissenting); see

Labor Ready Northeast, Inc. v. Director, Div. of Taxation, 25 

N.J. Tax 607, 621 (2011). The United States Supreme Court has 

adopted a similar view of the federal Declaratory Judgment Act, 

26 U.S.C.A. § 2201. See Schilling v. Rogers, 363 U.S. 666, 677, 

80 S. Ct. 1288, 1296, 4 L. Ed. 2d 1478, 1485-86 (1960) (stating 

that the availability of relief under the federal Declaratory 

Judgment Act, 28 U.S.C.A. § 2201, "presupposes the existence of 

a judicially remediable right"); Skelly Oil Co. v. Phillips 
17 A-2810-13T2

Petroleum Co., 339 U.S. 667, 671, 70 S. Ct. 876, 879, 94 L. Ed.

1194, 1199 (1950) ("The operation of the Declaratory Judgment 

Act is procedural only. Congress enlarged the range of remedies 

available in the federal courts but did not extend their 

jurisdiction.") (citation omitted).

Put another way, if there is no private right of action 

under a particular statute, a party may not secure a declaration 

of its statutory rights by seeking relief under the DJA. This 

general principle is implied by the Court's decision in In re 

Resolution of State Comm. of Investigation, supra, 108 N.J. at

46. The Court declined to render a declaratory judgment on the 

question whether the State Commission on Investigation (SCI) 

unlawfully disclosed information about the plaintiffs. The 

Court held that plaintiffs lacked a private right of action to 

secure injunctive relief against the SCI arising out of the 

alleged disclosures. Ibid. ("[O]ur decision that the plaintiffs 

may not obtain the injunctive relief they sought undermines 

their need for a declaratory judgment."); see also In re A.N., 

430 N.J. Super. 235, 244-45 (App. Div. 2013) (holding that the 

Chancery Division lacked jurisdiction under N.J.S.A. 2A:16-55 to 

determine Medicaid eligibility, where the authority to do so was 

vested in the Division of Medical Assistance and Health 

Services); Med. Soc. of N.J. v. AmeriHealth HMO, Inc., 376 N.J. 
18 A-2810-13T2

Super. 48, 59 (App. Div. 2005) (denying Medical Society's claim 

for declaratory and injunctive relief under L. 1989, c. 154, as 

it lacked a private right of action).5

Courts in other jurisdictions applying comparable 

provisions of their declaratory judgment acts have clearly 

stated the principle that declaratory relief is unavailable when 

there is no private right of action. See Pono v. Molokai Ranch, 

Ltd., 194 P.3d 1126, 1148 (Haw. Ct. App. 2008) ("[I]n order for 

a private citizen to seek a declaratory judgment that a statute 

has been violated, the private citizen must, as a threshold 

matter, have a private right of action to enforce the 

statute."), certif. denied, 208 Haw. LEXIS 304 (2008); Gore v. 

Indiana Ins. Co., 876 N.E.2d 156, 165-66 (Ill. App. Ct. 2007) 

(finding plaintiff lacked standing to bring declaratory judgment 

action because statute at issue did not confer private right of 

action); Nichols v. Kansas PAC, 11 P.3d 1134, 1146-47 (Kan. 

2000) (refusing to grant declaratory relief under consumer fraud 

 

5 Bergen Cty. Improvement Auth. v. N. Jersey Media Group, Inc., 

370 N.J. Super. 504 (App. Div. 2004), cited by the Association, 

does not support the contrary view. Although the plaintiff in 

that case sought declaratory relief, the court did not address 

the issue of the plaintiff's right to do so. In Chamber of 

Commerce v. State, 89 N.J. 131 (1982), and N.L. Industries, 

Inc., v. New Jersey Department of Environmental Protection, 397 

N.J. Super. 127 (App. Div. 2007), certif. denied, 195 N.J. 418 

(2008), cited in the concurring opinion, infra, the parties did 

not raise, nor did the court address, the plaintiff's right of 

action, express or implied, under the statute at issue.
19 A-2810-13T2

statute because it contained no private right of action); 

Alliance for Metro. Stability v. Metro. Council, 671 N.W.2d 905, 

916 (Minn. Ct. App. 2003) (stating that where "there was no 

private right to enforce" the statute, the "Uniform Declaratory 

Judgments Act cannot create a cause of action that does not 

otherwise exist"); Delgado v. N.Y.C. Hous. Auth., 888 N.Y.S.2d 

19, 21 (App. Div. 2009) (holding that petitioners did not 

possess "a private right of action for injunctive and 

declaratory relief sought" because only the city's housing 

official could enforce the city's housing maintenance code). 

See also Boston Med. Ctr. v. Sec'y of the Exec. Office of HHS, 

974 N.E.2d 1114, 1134 (Mass. 2012) (where "the Legislature has 

declined to give the plaintiff providers any private right of 

action and what is at issue is the reasonableness . . . and the 

methodology" of payment rates, "[a] declaratory judgment cannot 

be used to circumvent a legislative judgment denying a provider 

the opportunity to seek administrative or judicial review of the 

reasonableness of payment rates.").6

 

6 Cf. Serv. Emp. Int'l. Union, Local 509 v. Dep't of Mental 

Health, 14 N.E.3d 216, 227 (Mass. 2014) (citing Boston Med. 

Ctr., supra, 974 N.E.2d at 1134) (confirming principle that 

declaratory relief shall be denied in the absence of a private 

right of action where Legislature intended to "foreclose certain 

remedies," but awarding declaratory relief where a party 

"suffered a cognizable injury," lacked other means to assure 

agency's compliance with statute, "[n]o other party [was] 

(continued)
20 A-2810-13T2

Federal courts applying the federal Declaratory Judgment 

Act, 28 U.S.C.A. § 2201, likewise have determined that the 

federal act does not provide a right to declaratory relief where 

no private right of action exists. See, e.g., Mylan Pharm., 

Inc. v. Thompson, 268 F.3d 1323, 1332 (Fed. Cir. 2001) (barring 

declaratory relief because the Federal Food, Drug, and Cosmetic 

Act did not provide plaintiff a private cause of action), cert. 

denied, 537 U.S. 941, 123 S. Ct. 340, 154 L. Ed. 2d 248 (2002); 

Dallas Cty. v. MERSCORP, Inc., 2 F. Supp. 3d 938, 947 (N.D.Tex. 

2014) ("[A] plaintiff may not obtain a declaratory judgment 

under a statute . . . that provides no private right of 

action."); Reid v. Aransas Cty., 805 F. Supp. 2d 322, 339 

(S.D.Tex. 2011) (noting that because the federal act does not 

create a substantive cause of action, but can only be invoked to 

address a controversy arising under other substantive law, 

plaintiff could not seek relief to which he would otherwise not 

be entitled); Jones v. Hobbs, 745 F. Supp. 2d 886, 893 (E.D.Ark. 

2010) ("[T]he Declaratory Judgment Act does not authorize 

actions to decide whether federal statutes have been or will be 

violated when no private right of action to enforce the statutes 

 

(continued)

entitled to challenge the alleged violation," and denial of 

declaratory relief would "contravene the Legislature's 

intent."). 
21 A-2810-13T2

has been created by Congress."); Glen v. Club Mediterranee S.A., 

365 F. Supp. 2d 1263 (S.D.Fla. 2005) ("[J]udicial review is 

unavailable where no express provision for judicial relief 

exists . . . . For this Court to create a private right of 

action for declaratory relief [where none exists] would be 

contrary to legislative intent."), aff’d, 450 F.3d 1251 (11th 

Cir. 2006). We construe our DJA in harmony with the foregoing 

state and federal decisions. See N.J.S.A. 2A:16-51.

As the federal court in Jones observed, where enforcement 

of a law is vested solely in the executive branch, allowing 

declaratory relief "would circumvent the discretion entrusted to 

the executive branch in deciding how and when to enforce those 

statutes." Jones, supra, 745 F. Supp. 2d at 893. Likewise, 

where no private right of action exists, allowing parties to 

obtain declaratory relief would "evade the intent of Congress 

not to create private rights of action." Ibid.

A related principle of the law of declaratory judgments is 

that "where a special statutory procedure has been provided as 

an exclusive remedy for a particular type of case in hand . . . 

that specific recourse must be followed," to the exclusion of 

declaratory relief. Edwin Borchard, Declaratory Judgments (2d 

ed. 1941) at 342. "So, when the statute provides that an appeal 

from an administrative determination may be taken only in a 
22 A-2810-13T2

certain way and to a certain court . . . it would have been 

wrong for another court . . . to interfere and entertain a suit 

for a declaration . . . ." Id. at 343-44. 

We adopt the same reasoning here. To do otherwise would 

allow records custodians to evade the Legislature's intent with 

respect to enforcement of rights under OPRA, which we discuss 

below. We recognize that the phrase "private right of action" 

may appear to be a misnomer when used to define the rights of 

the Association, which is a public agency under OPRA. Yet, the 

governing principle is the same. A party that lacks a statutory 

right of action under OPRA may not obtain declaratory relief 

regarding its rights or obligations under OPRA. 

B.

We conclude that 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.

OPRA expressly grants a right of action exclusively to 

requestors. A requestor may elect to bring an action in 

Superior Court, or before the GRC, to challenge a denial of 

access:
23 A-2810-13T2

A person who is denied access to a 

government record by the custodian of the 

record, at the option of the requestor, may:

institute a proceeding to challenge the 

custodian's decision by filing an action in 

Superior Court which shall be heard in the 

vicinage where it is filed by a Superior 

Court Judge who has been designated to hear 

such cases because of that judge's knowledge 

and expertise in matters relating to access 

to government records; or

in lieu of filing an action in Superior 

Court, file a complaint with the Government 

Records Council established pursuant to 

section 8 of P.L. 2001, c. 404 (C. 47:1A-7).

The right to institute any proceeding under 

this section shall be solely that of the 

requestor. Any such proceeding shall 

proceed in a summary or expedited manner. 

The public agency shall have the burden of 

proving that the denial of access is 

authorized by law. If it is determined that 

access has been improperly denied, the court 

or agency head shall order that access be 

allowed. A requestor who prevails in any 

proceeding shall be entitled to a reasonable 

attorney's fee.

[N.J.S.A. 47:1A-6 (emphasis added).]

Even assuming for argument's sake that N.J.S.A. 47:1A-6 

does not grant a right of action exclusively to a requestor,7 

any other party's right of action would have to be inferred, 

given the absence of an explicit grant. However, our courts 

 

7 The Association argues that the right "solely" granted the 

requestor is the right to commence "proceedings under this 

section," which the Association contends is limited to 

challenges by a requestor denied access. 
24 A-2810-13T2

"have been reluctant to infer a statutory private right of 

action where the Legislature has not expressly provided for such 

action." R.J. Gaydos Ins. Agency, Inc. v. Nat'l Consumer Ins. 

Co., 168 N.J. 255, 271 (2001). The Court has adopted a threepart test for determining whether a statute implies a private 

right of action:

To determine if a statute confers an implied 

private right of action, courts consider 

whether: (1) plaintiff is a member of the 

class for whose special benefit the statute 

was enacted; (2) there is any evidence that 

the Legislature intended to create a private 

right of action under the statute; and (3) 

it is consistent with the underlying 

purposes of the legislative scheme to infer 

the existence of such a remedy.

[Id. at 272.]

A court's primary mission is to determine legislative intent. 

Id. at 272-73.

Applying this test, we conclude the Legislature did not 

intend for records custodians to bring actions against record 

requestors to enforce their asserted right to withhold records. 

OPRA was enacted to promote the public's right of access to 

government records, and to enable the public to monitor the 

activities of government. See, e.g., Educ. Law Ctr. v. N.J.

Dep't of Educ., 198 N.J. 274, 284 (2009) ("OPRA's clear purpose 

. . . is 'to maximize public knowledge about public affairs in 

order to ensure an informed citizenry and to minimize the evils 
25 A-2810-13T2

inherent in a secluded process.'") (quoting Mason v. City of 

Hoboken, 196 N.J. 51, 64 (2008)). Having reviewed OPRA's 

legislative history, we find no evidence of legislative intent 

to grant a right of action to records custodians. OPRA provides 

a broad right of access to government records. The statute 

"shall be construed in favor of the public's right of access." 

N.J.S.A. 47:1A-1.

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. 

C.

Although the foregoing analysis does not address the right 

to declaratory relief regarding the Association's obligations 

under the common law right of access, we conclude that such 
26 A-2810-13T2

relief would have been inappropriate in this case. We do so for 

two reasons.

First, the Association's evident intent was to preempt an 

action by Carter. We long ago held that judicial discretion to 

grant relief under the declaratory judgment statute should be 

withheld from a party whose clear purpose was "to have the court 

adjudicate in advance the validity of its possible defense to 

defendants' imminent law suit." Rego Indus., Inc. v. Am. Modern 

Metals Corp., 91 N.J. Super. 447, 453 (App. Div. 1966); see also

Donadio v. Cunningham, 58 N.J. 309, 325 (1971) (stating that 

"relief by way of a declaratory judgment should be withheld, 

when the request is in effect an attempt to have the court 

adjudicate in advance the validity of a possible defense in some 

expected future law suit"); Utility Blade & Razor, supra, 31 

N.J. Super. at 572-73 ("In the usual case where an action by one 

party is imminent, it would serve no sensible purpose to permit

his adversary to sue first for a declaration that he has a good 

defense to the action.").8

 

8 We recognize that where a lawsuit is not imminent, but the 

parties' rights and responsibilities in an ongoing relationship 

are subject to uncertainty, declaratory relief may be 

appropriate, as was found in Utility Blade & Razor, supra, 33 

N.J. Super. at 573 ("On the other hand, under some 

circumstances, if the suit is not imminent and the declaratory 

proceeding will relieve a party of a burden and would seem -- in 

any event, through the interposition of a counterclaim -- to 

(continued)
27 A-2810-13T2

Second, allowing a declaratory judgment action to proceed 

to clarify duties under the common law right of access, when 

relief under OPRA is precluded, would result in "fragmentary 

redress." Id. at 571. As noted above, a court is empowered to 

refuse declaratory relief when it "would not terminate the 

uncertainty or controversy giving rise to the proceeding." 

N.J.S.A. 2A:16-61.9

In sum, we conclude that the court erred in granting the 

Association declaratory relief.

III.

We turn to the issue whether Carter was entitled under OPRA 

to obtain access to records of relief payments to John Doe.10 

 

(continued)

settle the entire controversy, it may be unjust not to permit 

him to sue immediately to free himself of liability."). 

9 We also note that the Association's request for declaratory 

relief, and the court's declaration, were overly broad. The 

relief sought and granted pertained not just to Carter, but any 

prospective requestor of relief applications and payments. Yet, 

only Carter was named and served. "When declaratory relief is 

sought, all persons having . . . any interest which would be 

affected by the declaration shall be made parties to the 

proceeding." N.J.S.A. 2A:16-56. "The court cannot adjudicate 

the rights of parties who are not before the court." Gotlib v. 

Gotlib, 399 N.J. Super. 295, 313 (App. Div. 2008).

10 We decline to address Carter's additional requests because he 

abandoned those in his brief to the trial court. "[O]ur 

appellate courts will decline to consider questions or issues 

not properly presented to the trial court when an opportunity 

for such a presentation is available 'unless the questions so 

(continued)
28 A-2810-13T2

Before doing so, we review briefly the role of the Association 

and local relief associations. 

A.

We have previously discussed at some length the history of 

the Association, the local relief associations, and their 

statutory authority to grant relief payments and burial benefits 

to their members and members' families. Paff v. N.J. State 

Firemen's Ass'n, 431 N.J. Super. 278 (App. Div. 2013). Among 

their purposes, local relief associations shall

maintain a fund for the relief, support or 

burial of:

 (1) needy firefighters and their families;

 (2) any persons and the families of any 

persons who are injured or die in the course 

of doing public fire duty, or who may become 

needy or disabled or die as the result of 

doing such duty or be prevented by the 

injury or by illness arising from doing such 

duty, from attending to their usual 

occupation or calling; and

 

(continued)

raised on appeal go to the jurisdiction of the trial court or

concern matters of great public interest.'" Nieder v. Royal 

Indem. Ins. Co., 62 N.J. 229, 234 (1973) (internal quotation 

marks and citation omitted). However, we note that Executive 

Order 26 (McGreevey), issued pursuant to N.J.S.A. 47:1A-1, 

exempts from disclosure under OPRA "[i]nformation describing a 

natural person's finances, income, assets, liabilities, net 

worth, bank balances, financial history or activities, or 

creditworthiness, except as otherwise required by law to be 

disclosed." Ibid. The Order also exempts "information related 

to medical, psychiatric or psychological history, diagnosis, 

treatment or evaluation . . . ." Ibid. 
29 A-2810-13T2

 (3) the families of any persons doing 

public fire duty who die as the result of an 

act of terrorism committed against the 

United States of America while such persons 

were serving as federal, State or local law 

enforcement officers.

[N.J.S.A. 43:17-3.]

The Association "shall have the same rights, powers and 

privileges as the local firemen's relief associations, including 

providing for the distribution of any fund for the relief of 

disabled or needy firefighters and their families." N.J.S.A.

43:17-41.

Awards of relief shall be made pursuant to rules and 

regulations adopted by the Association. N.J.S.A. 43:17-3(c) 

("The relief, support or burial benefit shall be granted in 

accordance with the rules and regulations adopted by the New 

Jersey State Firemen's Association."); see also N.J.S.A. 43:17-

24, -35. However, the Association's rules and regulations have 

not been promulgated with notice and allowing comment. See N.J. 

Const., Art. V, § 4, para. 6; N.J.S.A. 52:14B-4.

The statute also authorizes consideration of why a person 

is in need. 

No person shall be given assistance if the 

cause of the need or the reason for the 

disability or the nature or cause of the 

injury or sickness is not in the opinion of 

the board of representatives such as to 

entitle the applicant to assistance, or if 
30 A-2810-13T2

the applicant is deemed financially unworthy 

of assistance.

[N.J.S.A. 43:17-24.]

The Department of Banking and Insurance (DOBI) requires 

local relief associations to file annual reports including the 

names of relief beneficiaries and the amounts paid.11 The 

applicable regulations provide:

 (a) All local relief associations shall 

file with the Commissioner, the Secretary of 

State, and the secretary of the State 

Association, no later than April 1 of each 

year, a sworn statement, which shall contain 

the following information:

1. The names of its representatives, 

visitors or trustees and other officers, 

with the amount of their respective fees or 

salaries, if any;

2. The names of its beneficiaries during or 

within the year next preceding the 

statement;

3. The amount of money paid to each 

beneficiary; . . . .

[N.J.A.C. 11:1-38.3.]

The regulations do not expressly require a similar report 

by the Association, notwithstanding that it has the power, 

comparable to the local associations, to award relief benefits.

 

11 The Association and local associations are funded through a 

tax on fire insurance premiums of insurers not organized under 

New Jersey law, N.J.S.A. 54:18-1, -2; and fire insurance 

premiums of surplus lines fire insurers, N.J.S.A. 17:22-6.59. 
31 A-2810-13T2

B.

The issue presented is whether the payment records are 

shielded by OPRA's "privacy clause," which states: "[A] public 

agency has a responsibility and an obligation to safeguard from 

public access a citizen's personal information with which it has 

been entrusted when disclosure thereof would violate the 

citizen's reasonable expectation of privacy . . . ." N.J.S.A.

47:1A-1. We have previously determined that the Association is 

a public agency subject to OPRA. Paff, supra, 431 N.J. Super.

at 279. Also, it is undisputed that relief payment records are 

government records. N.J.S.A. 47:1A-1.1. Although numerous 

categories of documents are exempt from the definition of 

government records, see Educ. Law Ctr., supra, 198 N.J. at 284 

("OPRA excludes twenty-one categories of information, making the 

public right of access not absolute.") (citation omitted), none 

of the exemptions apply here. Furthermore, the Association does 

not invoke any regulation or executive order that arguably 

removes the payment records from the scope of its disclosure 

obligations under OPRA.12

 

12 In particular, we note that an agency may exempt certain 

documents by regulation authorized by law. N.J.S.A. 47:1A-1 

(stating that public agencies may exempt documents from 

disclosure by "regulation promulgated under the authority of any 

statute or Executive Order of the Governor"). The exemption 

power is not "unlimited" and must "be exercised only when 

(continued)
32 A-2810-13T2

The privacy clause is a substantive counterweight to the 

right to access under OPRA. Burnett v. Cty. of Bergen, 198 N.J.

408, 422-23 (2009). Courts must balance OPRA's mandate of 

disclosure with its protection of privacy. Id. at 425-26. To 

do so, the Court determined it was appropriate to consider the 

seven factors identified in Doe, supra:

(1) the type of record requested; (2) the 

information it does or might contain; (3) 

the potential for harm in any subsequent 

nonconsensual disclosure; (4) the injury 

from disclosure to the relationship in which 

the record was generated; (5) the adequacy 

of safeguards to prevent unauthorized 

disclosure; (6) the degree of need for 

access; and (7) whether there is an express 

statutory mandate, articulated public 

policy, or other recognized public interest 

militating toward access.

[Id. at 427 (quoting Doe, supra, 142 N.J. at 

88).]

 

(continued)

necessary for the protection of the public interest." Irval 

Realty, Inc. v. Bd. of Public Util. Commrs., 61 N.J. 366, 374 

(1972) (applying identical language in pre-OPRA Right to Know 

Law). We express no opinion as to whether the Association, 

pursuant to its power to adopt rules or regulations governing 

the grant of relief, may exempt documents from OPRA. The 

regulations are not before us, and have not been adopted 

pursuant to public notice and comment under the Administrative 

Procedure Act (APA), N.J.S.A. 52:14B-4; nor are they available 

for public viewing in accord with the APA. N.J.S.A. 52:14B3(3).
33 A-2810-13T2

A court must engage in a case-specific analysis. Id. at 437 

("This balancing of interests must be applied case by case, and 

under different facts, another result might be proper.").

Although the trial court applied the Doe factors, we 

consider them de novo. See K.L. v. Evesham Twp. Bd. of Educ., 

423 N.J. Super. 337, 349 (App. Div. 2011) (stating that an 

appellate court exercises de novo review of a trial court 

decision regarding whether OPRA requires disclosure of publicly 

held records), certif. denied, 210 N.J. 108 (2012). In so 

doing, we part company with the trial court, given its

determination that the privacy clause shields relief payment 

records.

We consider together the first two factors — the record 

type and information contained. Carter seeks copies of checks, 

which would confirm the identity of a relief applicant, state 

the amounts of relief received, and state when they were 

received from a public agency empowered to make discretionary 

relief decisions. However, if Carter is able to confirm that 

Doe received relief, additional information may be inferred; 

even without his application documents, Carter may infer that 

Doe was in financial distress, although cause and extent were 

not disclosed. 
34 A-2810-13T2

Personal financial information in the possession of public 

agencies — which is what Carter seeks — has not been treated 

uniformly under OPRA and implementing regulations and executive 

orders. OPRA exempts "the pension or personnel records of any 

individual in the possession of a public agency" from the 

definition of government records, but does not exempt a public 

employee's "name, title, position, salary, payroll record,13

length of service, date of separation and the reason therefor, 

and the amount and type of any pension received." N.J.S.A.

47:1A-10. Also, Executive Order No. 26 (McGreevey), ¶ 4(b)(3) 

(2002) exempts "[i]nformation describing a natural person's 

finances, income, assets, liabilities, net worth, bank balances, 

financial history or activities, or creditworthiness, except as 

otherwise required by law to be disclosed."14 

 

13 Although "payroll record" is not defined in OPRA, it elsewhere 

has been defined to include more than salary. For example, to 

comply with The Unemployment Compensation Law, N.J.S.A. 43:21-1 

to -24, and the Temporary Disability Benefits Law, N.J.S.A.

43:21-25 to -71, among others, employers must maintain "payroll 

records" that include: "[t]otal remuneration paid in each pay 

period showing separately cash, including commissions and 

bonuses . . . gratuities received regularly . . . [and] special 

payments, such as bonuses and gifts . . . ." N.J.A.C. 12:2 

Appx. A; see also N.J.A.C. 12:16-2.1.

14 Also exempt is "[i]nformation relating to medical, psychiatric 

or psychological history, diagnosis, treatment or evaluation." 

Id. at ¶ 4(b)(1).
35 A-2810-13T2

None of these sources directly address Association relief 

payments, although both parties seek support from N.J.S.A. 47:1-

10. The payments are not salary or remuneration for employment, 

although they are a benefit for qualified firefighters —

including, notably, volunteer firefighters — in return for 

service. Relief payments are discretionary, like bonuses and 

gifts that are reported on payroll records, but relief 

recipients are not on the Association's payroll. The 

Association argues the payments should be withheld as a "pension 

record" exempt under N.J.S.A. 47:1A-10, and Carter argues the 

payments should be disclosed as "the amount and type of any 

pension received," which are not exempt under N.J.S.A. 47:1A-10. 

In our view, neither interpretation is correct. 

Although one might argue that a relief award is 

"information describing a natural person's . . . income" under 

Executive Order No. 26,15 the Order was apparently intended to 

address personal financial information that a citizen entrusts 

to the government. See Executive Order No. 21 (McGreevey) ¶ 4 

(which Executive Order No. 26 was intended to clarify). It was 

not intended to bar release of records pertaining to outlays by 

a public agency to a citizen. Further, any ambiguity in the 

Executive Order should be resolved in favor of disclosure. See

 

15 We note that the Association has not presented this argument.
36 A-2810-13T2

N.J.S.A. 47:1A-1 ("[L]imitations on the right of access accorded 

by [OPRA] . . . shall be construed in favor of the public's 

right of access."). 

Although the relief payments do not fall neatly into the 

statutory categories found in N.J.S.A. 47:1-10, their similarity 

to forms of payment that are subject to disclosure arguably 

strengthens the case for access. However, there is an important 

difference between relief awards and salary, pension payments, 

or even bonuses and gifts reported in payroll records. Bonuses 

are awarded generally for a job well done — which is unlikely to 

embarrass the recipient. Relief benefits are awarded upon proof 

that someone is in financial distress, which may subject the 

recipient to embarrassment. A similar distinction can be drawn 

between disability insurance payments, which the GRC has found 

to be disclosable, see, e.g., Gordon v. City of Orange, GRC 

Complaint No. 2013-255 (2014), and relief benefits. We conclude 

factors one and two weigh slightly in favor of non-disclosure 

based on this distinction between relief awards and other forms 

of remuneration or compensation that are subject to disclosure 

under N.J.S.A. 47:1A-10.

Doe factors three and four relate to the potential for 

harm. The Association's vice president asserts that John Doe, 

and other beneficiaries whose records would be released, will 
37 A-2810-13T2

suffer public embarrassment. The Association also speculates 

that future applicants for relief would be deterred from seeking 

benefits to avoid public embarrassment.16 We note that release 

would also arguably have the effect of upsetting the reasonable 

expectations of applicants, inasmuch as the application forms 

state that the "Association is required to protect the 

confidentiality of information." While that may be read to 

refer only to an applicant's submission, it would be reasonable 

for an applicant to expect that any benefits received would also 

be confidential. Upsetting these expectations may affect "the 

relationship in which the record was generated." On the other 

hand, disclosure may empower Association members to assess the 

Association's process for deciding such applications, thereby 

ultimately enhancing their relationship with the organization. 

We conclude factors three and four slightly favor nondisclosure.

Factor five refers to "the adequacy of safeguards to 

prevent unauthorized disclosure." This concerns the extent to 

which the requested documents are otherwise protected from 

disclosure. The Association's vice president asserted that 

 

16 The Association also discusses the harm that would result from 

the release of the personal financial information included in 

the applications. As noted, we deem Carter's request for that 

information to have been abandoned in the trial court. 
38 A-2810-13T2

consideration of applications is performed without attaching the 

applicant's name, to assure unbiased consideration. On the 

other hand, Carter maintained that existing safeguards were 

inadequate, because he learned through some unnamed source that 

Doe had received benefits. Given the apparent leak, this factor 

neither favors nor disfavors disclosure.

It is also reasonable to discuss factors six and seven 

together. Carter's need for access is based on an interest in 

the Association's exercise of its authority to grant relief in 

Doe's case. Carter questions whether it is appropriate to award 

benefits to a person who was charged with crimes and allegedly 

terminated for conduct related to those charges. We need not 

take a position on whether the circumstances of Doe's 

termination should be a factor in the Association's decisionmaking to conclude that Carter's expressed interest relates to 

the Association's governance. For example, Carter does not seek 

disclosure for financial gain, as a finance company might, in 

seeking the names of beneficiaries because they are in financial 

distress and may be worth soliciting. Carter's request is 

instead grounded in an interest in the Association's authority 

to grant Doe a relief award given the allegations of impropriety

that led to Doe's termination from public employment.
39 A-2810-13T2

We noted above that the statute authorizes consideration of 

the cause of a person's financial need. N.J.S.A. 43:17-24. The 

relief decisions must be made according to the Association's 

rules and regulations. N.J.S.A. 43:17-3(c). However, the lack 

of transparency in the Association's decision-making process, 

including the lack of publicly available rules and regulations 

adopted after notice and comment, heightens the need for 

disclosure of documents related to individual cases. Cf. Mason, 

supra, 196 N.J. at 64 (stating that OPRA is designed "to 

maximize public knowledge about public affairs in order to 

ensure an informed citizenry and to minimize the evils inherent 

in a secluded process.") (internal quotation marks and citation 

omitted). The need for disclosure is also heightened by the 

fact that, apparently, only local relief associations' 

beneficiaries and amounts of grants are subject to DOBI's 

outside review. N.J.A.C. 11:1-38.3. We conclude that factors 

six and seven weigh heavily in favor of disclosure.

Upon balancing the Doe factors, in view of the 

circumstances presented in this case, we conclude that the 

privacy clause does not bar plaintiff's right under OPRA to the 

records of the relief payments made to Doe. 

We briefly address the Association's contention that a 

contrary result is compelled by Michelson v. Watt, 379 N.J. 
40 A-2810-13T2

Super. 611 (App. Div. 2005). We disagree. In Michelson, supra, 

plaintiff sought disclosure of documents and information 

pertaining to the health insurance benefits enjoyed by public 

employees of the city in which he lived. Id. at 614. The court 

held that plaintiff's request was "not subject to access and 

disclosure pursuant to OPRA." Id. at 623. The court deemed the 

detailed health insurance information requested to be personnel 

records that fell outside of government records as defined in 

N.J.S.A. 47:1A-10. Also, disclosure was barred by Executive 

Order No. 26, which established that "information regarding an 

individual's health history is not a government record subject 

to public access." Id. at 619-20; Executive Order No. 26 

(McGreevey), ¶ 4(b)(1) (2002). Finally, disclosure was barred 

by N.J.A.C. 17:9-1.2(b), which "treats all personal health 

information as confidential information in accordance with 

HIPAA." Michelson, supra, 379 N.J. Super. at 620.

Michelson does not compel non-disclosure in this case. 

Relief payments are not personnel records under N.J.S.A. 47:1A10. Furthermore, disclosure is not shielded by Executive Order 

No. 26 or any duly adopted regulation.

In sum, plaintiff is entitled to the limited disclosure of 

Doe's relief payment checks under OPRA.
41 A-2810-13T2

IV.

We also conclude that Carter is entitled to Doe's payment 

records under the common law right of access. See Mason, supra,

196 N.J. at 67 (noting that OPRA does not limit the common law 

right of access) (citing N.J.S.A. 47:1A-8). There is no 

question that Carter seeks a public record, subject to the 

common law right of access. See Nero v. Hyland, 76 N.J. 213, 

222 (1978) ("The elements essential to constitute a public 

record are . . . that it be a written memorial, that it be made 

by a public officer, and that the officer be authorized by law 

to make it.") (internal quotation marks and citation omitted). 

There also is no question that Carter has standing; he is an 

Association member interested in the criteria applied to relief 

decisions. See Irval, supra, 61 N.J. at 372 (stating that some 

showing of interest is required to enforce the common law right 

to inspect). 

An access request under the common law is subject to an 

"exquisite weighing process" that balances the requestor's 

interest in disclosure and the government's interest in 

confidentiality. Loigman v. Kimmelman, 102 N.J. 98, 108 (1986). 

The balancing process must be "concretely focused upon the 

relative interests of the parties in relation to the specific 

materials in question." Piniero v. N.J. Div. of State Police, 
42 A-2810-13T2

404 N.J. Super. 194, 206-07 (App. Div. 2008) (citing McClain v. 

Coll. Hosp., 99 N.J. 346, 361 (1985)). The Court has identified 

several factors that may be considered:

(1) the extent to which disclosure will 

impede agency functions by discouraging 

citizens from providing information to the 

government; (2) the effect disclosure may 

have upon persons who have given such 

information, and whether they did so in 

reliance that their identities would not be 

disclosed; (3) the extent to which agency 

self-evaluation, program improvement, or 

other decisionmaking will be chilled by 

disclosure; (4) the degree to which the 

information sought includes factual data as 

opposed to evaluative reports of 

policymakers; (5) whether any findings of 

public misconduct have been insufficiently 

corrected by remedial measures instituted by 

the investigative agency; and (6) whether 

any agency disciplinary or investigatory 

proceedings have arisen that may 

circumscribe the individual's asserted need 

for the materials. Against these and any 

other relevant factors should be balanced 

the importance of the information sought to 

the plaintiff's vindication of the public 

interest.

[Loigman, supra, 102 N.J. at 113 (citation 

omitted).]

The requestor's motivation is also a relevant consideration. 

Loigman, supra, 102 N.J. at 104 ("Somewhat different but related 

considerations arise when the citizen seeks access to 

information to further a public good" as opposed to a private 

interest.). 
43 A-2810-13T2

Loigman factors one and two slightly favor confidentiality. 

As discussed above, the Association contends disclosure of Doe's 

records may discourage members from applying for benefits in the 

future; however, this fear is speculative. In any event, 

Carter's request is confined to a single recipient, limiting any 

chilling effect of disclosure. However, as noted above, an 

applicant may reasonably have relied on the reference to 

confidentiality in the application form. 

Turning to factor three, we discern no threat that 

disclosure would chill the ability of the Association or local 

associations to render their decisions, or to engage in selfevaluation and improvement. If anything, disclosure may 

encourage self-criticism and internal oversight. Carter seeks 

factual data, not evaluative reports (factor four). Moreover, 

there is no evidence that alternative remedial measures or 

outside oversight have addressed the issue of concern to Carter 

— that is, whether benefits are granted to persons whose 

financial distress is allegedly the result of their misconduct. 

As Loigman provides, other relevant factors may be 

considered. In this case, weight may be given to the fact that 

Doe has already been placed in the public eye. His arrest and 

his termination received publicity in the local newspapers. 

Thus, to some extent, his personal travails are already in the 
44 A-2810-13T2

public domain. What is not disclosed is whether he has received 

assistance from a local association or the Association. This 

distinguishes Carter's request from a request for payments made 

to any and all beneficiaries. 

Carter's professed need is not based on personal curiosity, 

or personal financial interest. Rather, it is based on his 

interest in determining the criteria for relief awards, 

specifically, whether the local association or Association deems 

it appropriate to consider the cause of a person's financial 

need. The lack of transparency in the Association's decisionmaking, the lack of rules adopted pursuant to the APA, and the 

lack of oversight by DOBI of Association awards, heightens the 

interest in disclosure.

In sum, we conclude that the public interest in disclosure 

in this case outweighs the interest in confidentiality.

V.

We briefly address the Association's argument that Carter's 

counterclaim for disclosure was time-barred, as it was filed 

more than forty-five days after the denial. OPRA actions have a 

forty-five-day statute of limitations, as do actions in lieu of 

prerogative writs. Mason, supra, 196 N.J. at 57. However, that 

time frame may be enlarged "in the interest of justice." Id. at 

70. The time period should be enlarged here because the 
45 A-2810-13T2

Association's declaratory judgment action effectively preempted 

Carter's option to resort to the GRC, which has no specified 

limitations period. Id. at 70. Carter was compelled to respond 

to a lawsuit that, as discussed above, the Association was not 

entitled to bring in the first place.

We also note that because Carter has prevailed, in that he 

has secured access to Doe's relief payment records, he is 

entitled to a reasonable attorney's fee. N.J.S.A. 47:1A-6. We 

remand for the trial court's fee determination.

Reversed and remanded. We do not retain jurisdiction. 
MESSANO, P.J.A.D, concurring.

For the reasons compellingly presented by Judge Ostrer in 

Parts III and IV of his opinion, I agree that Carter was 

entitled to obtain copies of the relief payments made by the 

Association to John Doe under both OPRA and the common law right 

of access to public records. I further agree with the 

conclusions that OPRA "grants a right of action exclusively to 

requestors," and that "the Legislature did not intend for 

records custodians to bring actions against record requestors to 

enforce their asserted right to withhold records." Ante at 22, 

24. 

I also agree that the Legislature did not intend to permit 

any "public agency," like the Association, to commence an action 

under OPRA seeking to pre-emptively establish a defense that is 

expressly provided by the statute. See N.J.S.A. 47:1A-5(g) 

(permitting the custodian of a government record to "assert[] 

that part of a particular record is exempt from public access"). 

Finally, I agree that permitting a public agency to initiate a 

lawsuit asserting a defense to the production of particular 

public records under the common law would result in "fragmentary 

redress," ante at 27, and should be avoided in furtherance of 

the salutary goal of judicial economy. 
2 A-2810-13T2

I write separately, however, to state my respectful 

disagreement with my colleagues' expansive conclusion in Part 

II-A of their opinion that "if there is no private right of 

action under a particular statute, a party may not secure a 

declaration of its statutory rights by seeking relief under the 

DJA." Ante at 17. In my opinion, that conclusion is not 

supported by the clear and unambiguous language of the DJA, 

which is the clearest indication of the Legislature's intent. 

Town of Kearny v. Brandt, 214 N.J. 76, 98 (2013). 

As noted by my colleagues, the DJA is remedial in nature 

and entitled to liberal interpretation. Ante at 14-15. The DJA 

provides that "[a]ll courts of record . . . shall . . . have 

power to declare rights, status and other legal relations, 

whether or not further relief is or could be claimed." N.J.S.A.

2A:16-52 (emphasis added). Seemingly, the Legislature did not 

intend to foreclose a party from seeking relief under the DJA 

even if "further relief" could not be claimed by that party. 

Id.

N.J.S.A. 2A:16-53, in turn, provides that "[a] person . . . 

whose rights, status or other legal relations are affected by a 

statute, . . . may have determined any question of construction 

or validity arising under the . . . statute . . . and obtain a 

declaration of rights, status or other legal relations 
3 A-2810-13T2

thereunder." (Emphasis added). As noted, I agree that a public 

agency cannot initiate a lawsuit under OPRA to determine whether 

a specific record is exempt from production under OPRA. In my 

mind, the highly discretionary remedy of declaratory relief 

cannot be invoked to settle such a dispute, because that issue 

has little to do with the "rights, status or other legal 

relation[]" of and between, in this case, the Association and 

Carter. 

However, the Association is undoubtedly a person "whose 

rights, status and other legal relations are affected" by OPRA. 

N.J.S.A. 2A:16-53 (emphasis added). In a different context, I 

believe the Association could initiate a lawsuit seeking relief 

under the DJA. For example, in Paff, supra, 431 N.J. Super. at 

285, the trial court dismissed the plaintiff's complaint, 

finding the Association was not a public agency subject to OPRA. 

After thoroughly reviewing the Association's "formation, 

structure, and function," we concluded that it was a public 

agency under OPRA and reversed. Id. at 289-90. 

In Paff, the issue arose in the context of an OPRA suit 

already initiated by a "requestor." Given the Association's 

unusual status, however, I doubt that we would have dismissed an 

action initiated by the Association pursuant to the DJA seeking 

a declaration as to whether or not it was public agency. Even 
4 A-2810-13T2

though OPRA provides no right of action to a public agency, I 

believe the Association's complaint in that context — whether 

the association was subject to OPRA — would have been cognizable 

under the DJA.1 

I find support for this conclusion not only through 

application of the plain language of the DJA, but also in cases 

that have long-recognized the appropriateness of such relief 

under the DJA. See, e.g., N.J. Ass'n for Retarded Citizens, 

supra, 89 N.J. at 242 (resort to the DJA is appropriate "to end 

uncertainty about the legal rights and duties of the parties 

. . . in controversies which have not yet reached the stage at 

which the parties seek a coercive remedy," and where "there is 

an actual controversy . . . which involves differing views on 

the meaning of applicable statutory provisions").2

 

1 In Paff, we cited three other cases that involved public 

agencies that, given their unusual circumstances, challenged 

whether they were subject to OPRA. Id. at 287 (citing Sussex 

Commons Assocs., LLC v. Rutgers, the State Univ., 210 N.J. 531

(2012); Fair Share Hous. Ctr., Inc. v. N.J. State League of 

Municipalities, 207 N.J. 489 (2011); The Times of Trenton Publ'g

Corp. v. Lafayette Yard Cmty. Dev. Corp., 183 N.J. 519 (2005)). 

Although in those cases the issue arose in the context of a 

pending prerogative writ lawsuit brought by a requestor, I 

believe the Court would have resolved the issue had the public 

agency initiated the suit for declaratory relief. 

 

2 I recognize that there must be an "actual controversy" before 

the DJA can be invoked. Finkel v. Twp. of Hopewell, 434 N.J. 

Super. 303, 318 (App. Div. 2013). However, that predicate could 

(continued)
5 A-2810-13T2

In this regard, while the out-of-state and federal cases 

cited by my colleagues provide support for their conclusion —

"if there is no private right of action under a particular 

statute, a party may not secure a declaration of its statutory 

rights" — I do not believe any of the cited New Jersey cases do. 

Moreover, it strikes me as anomalous that a statute like OPRA 

that provides a specific unilateral cause of action to a 

requestor could nonetheless provide the rationale for barring a 

clearly "affected" party — here, the Association — from seeking 

relief under the DJA.

Moreover, our courts have considered requests for 

declaratory relief under the DJA even though the particular 

statute at issue provided no right of action to a litigant. For 

example, in Chamber of Commerce v. State, 89 N.J. 131, 138-39 

(1982), the Court considered whether the plaintiff trade 

association was entitled to relief under the DJA declaring the 

Strikebreakers Act, N.J.S.A. 34:13C-1 to -6, unconstitutional. 

The Court ultimately concluded that portions of the statute were 

preempted by federal labor law, but other sections were not. 

Id. at 163. The Court did not predicate the relief upon the 

plaintiff, or for that matter, any person, having a private 

 

(continued)

be easily satisfied, for example, if a request has been made, 

but the litigation has not commenced, as was the case here.
6 A-2810-13T2

right of action under the Strikebreakers Act. Indeed, the 

statute was essentially penal in nature, and presumably could 

not be invoked by anyone other than the State. See N.J.S.A.

34:13C-5 (making any violation of the act a misdemeanor).

In NL Indus., Inc. v. New Jersey Dept. of Envtl.

Protection, 397 N.J. Super. 127, 133 (App. Div. 2007), certif. 

denied, 195 N.J. 418 (2008), we considered the "rights and 

responsibilities" of the parties under N.J.S.A. 58:10B-3.1, 

which permitted a local government unit that condemned property 

to replace – with the Department's approval – a person 

performing remediation at the contaminated site. Before 

considering the merits, we concluded that the plaintiff's 

complaint was cognizable under the DJA, specifically rejecting 

the Department's argument that jurisdiction lay in the Appellate 

Division and not the trial court. Id. at 131-32. Notably, 

neither the statute at issue, nor the legislation of which it 

was a part, provided the remediating party with a specific cause 

of action by which to challenge the Department's or the public 

entity's decision.

Finally, although I agree with much of my colleagues' 

opinion, I believe it unnecessary to paint with such a broad 

brush. Whether the DJA means what it says, or, whether its 

remedies are available only to those whom the Legislature has 
7 A-2810-13T2

provided a specific cause of action, is an issue of some import. 

Resolving that issue in a manner that I believe departs from 

existing precedent is more appropriately the province of our 

Supreme Court. See, e.g., Riley v. Keenan, 406 N.J. Super. 281, 

297 (App. Div.) (noting that an appellate court "should normally 

defer to the Supreme Court with respect to the creation of a new 

cause of action") (citing Tynan v. Curzi, 332 N.J. Super. 267, 

277 (App. Div. 2000)), certif. denied, 200 N.J. 207 (2009); 

Proske v. St. Barnabas Med. Ctr., 313 N.J. Super. 311, 316 (App. 

Div. 1998) (declining to find damages for personal injuries 

based on a failure to perform a contractual term "'in the 

absence of [any] precedent, or . . . clear direction by dictum 

from our Supreme Court'" authorizing such action) (quoting Coyle 

v. Englander's, 199 N.J. Super. 212, 226 (App. Div. 1985)), 

certif. denied, 158 N.J. 685 (1999).

I therefore respectfully concur in the judgment.