NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0044-20 UNDERWOOD PROPERTIES, LLC, Plaintiff-Appellant/ Cross-Respondent, v. APPROVED FOR PUBLICATION January 24, 2022 CITY OF HACKENSACK and DEBORAH KARLSSON, in APPELLATE DIVISION her professional capacity as Records Custodian for the City of Hackensack, Defendants-Respondents/ Cross-Appellants. Argued January 6, 2022 – Decided January 24, 2022 Before Judges Alvarez, Mawla, and Mitterhoff. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-7980-19. Leonard E. Seaman argued the cause for appellant/cross-respondent (Law Offices of Richard Malagiere, PC, attorneys; Richard Malagiere, of counsel; Leonard E. Seaman, of counsel and on the briefs). Steven W. Kleinman argued the cause for respondents/cross-appellants (Cleary, Giacobbe, Alfieri, Jacobs, LLC, attorneys; Steven W. Kleinman, of counsel and on the briefs). The opinion of the court was delivered by MAWLA, J.A.D. Plaintiff Underwood Properties, LLC appeals from a July 24, 2020 order, denying its application under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, to compel defendants City of Hackensack and its records custodian Deborah Karlsson to produce privileged documents, and awarding plaintiff counsel fees. Defendants cross-appeal and also challenge the counsel fee award. We affirm in all respects. The dispute underlying the OPRA litigation regards the Hackensack Planning Board's zoning determinations and ordinances adopted in the City's redevelopment plan, which are the subject of two separate lawsuits involving these parties. On August 12, 2019, plaintiff's counsel submitted two OPRA requests "from Richard Malagiere." The first sought "[a]ny and all [emails] relating to official business of the City of Hackensack, such as to constitute a government record, to or from [the deputy mayor's personal email address] from November 2017 through present[.]" The second sought "[t]ext messages, [emails], and any other . . . correspondence" involving nine city officials and the deputy mayor, about a particular planning board application and subsequent A-0044-20 2 resolution and ordinance for a two-year time period. Karlsson denied the first, calling it invalid because it failed "to identify the content and/or subject of the" emails and would require the City to undertake an open-ended search. She requested an extension to respond to the second. On August 28, 2019, plaintiff's counsel submitted a third request seeking communications to and from the deputy mayor's personal email account, narrowing the search terms to specific words. Karlsson provided seventeen pages of records in response to the second request and thirteen pages for the third. She also submitted a Vaughn index1 explaining why certain records were withheld or redacted as privileged. However, Karlsson declined to produce records responsive to seven search terms generating over 400 emails, asserting "it is the City's position that any of the above search terms producing more than 400 [emails] are too general for the City to review" and would constitute an open-ended records search. 1 "[A] Vaughn index . . . is a detailed affidavit [submitted by the withholding government entity] correlating the withheld documents with the claimed exemptions. …
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