North Jersey Media Group Inc. v. State of N.J., Office of the Governor, 451 N.J. Super. 282 (App. Div. 2017)
Pashman Stein Walder Hayden P.C. represented The Record—the state’s second-largest newspaper—in a case against the Office of the Governor for records relating to the “Bridgegate” scandal. The Record sought emails relating to Bridgegate, but was told that there were no responsive records. The Record, however, was aware of responsive emails that contradicted the state’s response.
The Record filed suit and alleged that the state had willfully violated the Open Public Records Act (“OPRA”) by failing to produce the responsive emails. OPRA contains a provision that imposes a civil penalty on any public official or employee who knowingly and willfully violates OPRA, and that fine must be personally paid by the employee or official. The threat of this personal penalty ensures that public employees and officials do not simply ignore their obligations under OPRA.
The trial court ruled that the state had violated OPRA and ordered it to conduct a search for responsive emails. It also ruled, however, that trial courts do not have jurisdiction to impose a willful violation penalty. Instead, the court concluded that only the Government Records Council (GRC), an administrative agency that hears OPRA appeals, have jurisdiction to impose such penalties.
Pashman Stein filed an appeal on The Record’s behalf and argued that both trial courts and the GRC have jurisdiction to impose a penalty. Among other things, we argued that the GRC was not a viable forum for most newspapers because the GRC takes years to issue a decision and newspapers need timely access to records in order to keep the public informed. In contrast, an OPRA lawsuit filed in court will be adjudicated within weeks. Thus, if the Appellate Division held that trial courts lacked jurisdiction to impose a civil penalty, newspapers would effectively be denied the right to ever pursue that remedy.
The Appellate Division agreed with our attorney’s argument and reversed the lower court’s decision and remanded the matter for a fact-finding determination as to whether there was a willful violation of the statute. The case received considerable news coverage because the public officials who could have been potentially fined included Governor Christie’s press secretary, Michael Drewniak.
Pashman Stein collected a legal fee for this case.
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