NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3947-14T3
A-3948-14T3
NORTH JERSEY MEDIA GROUP INC.,
d/b/a THE RECORD,
Plaintiff-Appellant,
APPROVED FOR PUBLICATION
v. August 3, 2017
STATE OF NEW JERSEY OFFICE OF APPELLATE DIVISION
THE GOVERNOR,
Defendant-Respondent,
and
NED NURICK, ASSISTANT COUNSEL
AND A CUSTODIAN OF PUBLIC RECORDS
FOR THE OFFICE OF THE GOVERNOR,
Defendant.
____________________________________
Argued January 24, 2017 – Decided August 3, 2017
Before Judges Fisher, Leone and Vernoia.
On appeal from the Superior Court of New
Jersey, Law Division, Mercer County, Docket
Nos. L-1059-14 and L-0248-14.
Samuel J. Samaro argued the cause for
appellant (Pashman Stein, attorneys; Mr.
Samaro and Jennifer A. Borg, of counsel and
on the briefs; CJ Griffin and James W.
Boyan, III, on the briefs).
Raymond R. Chance, III, Assistant Attorney
General, argued the cause for respondent
(Christopher S. Porrino, Attorney General,
attorney; Michael C. Walters, Assistant
Attorney General, of counsel; Jeffrey S.
Jacobson, Counsel to the Attorney General,
on the brief).
The opinion of the court was delivered by
VERNOIA, J.A.D.
In these consolidated appeals arising out of two complaints
seeking production of public records under the Open Public
Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and the common law
right of access to public records, we consider whether the
Superior Court has the authority under N.J.S.A. 47:1A-11 to
impose civil penalties for knowing and willful violations of
OPRA, and whether the court erred in denying plaintiff's request
for relief in aid of litigants' rights under Rule 1:10-3. We
conclude the court erred in finding it lacked the authority to
impose civil penalties under N.J.S.A. 47:1A-11, and that
plaintiff was entitled to relief in aid of litigants' rights. We
reverse and remand for further proceedings.
I.
Plaintiff North Jersey Media Group Inc. publishes daily and
weekly newspapers and maintains two websites. It appeals a
December 16, 2014 order addressing motions filed in two lawsuits
that were not consolidated but which the court considered
jointly with the consent of the parties.
2 A-3947-14T3
The lawsuits arose from plaintiff's requests that defendant
State of New Jersey Office of the Governor1 produce records
concerning the Port Authority of New York and New Jersey's
September 9 to 13, 2013 closures of local traffic lanes from
Fort Lee to the George Washington Bridge. The closures caused
significant traffic delays in Fort Lee, and led to an
investigation by the New Jersey Legislature, and criminal
prosecutions of Port Authority employees William Baroni and
David Wildstein, and Governor Chris Christie's deputy chief of
staff Bridget Kelly.
Plaintiff's December 17, 2013 OPRA Request
On December 17, 2013, plaintiff filed a request with
defendant for records under OPRA. The request sought
"[c]orrespondence (including but not limited to emails, memos
and letters) dated from Aug[ust] 1, 2013 to the present" between
Baroni or Wildstein, and Governor Chris Christie, Kevin O'Dowd,
Maria Comella, Michael Drewniak, Colin Reed, and Deborah
1
The complaints also identified fictitiously named defendants.
One of the complaints also named as a defendant Ned Nurick, as
"Assistant Counsel and Custodian of Public Records For The
Office Of The Governor," but the record on appeal does not show
Nurick was served with the complaint or that he participated in
the proceedings in the trial court. No appearance has been filed
on his behalf here. We therefore do not address any issues
related to Nurick.
3 A-3947-14T3
Gramiccioni,2 "related to the lane closures of the George
Washington Bridge during the week of Sept[ember] 9, 2013."
Defendant's response to the request was provided in an unsigned
December 27, 2013 letter from the "Office of the Governor,"
stating it "reviewed its records and has not identified any
records that are responsive to [the] request," and that
"[a]ccordingly, [the] OPRA request is hereby closed."
Plaintiff subsequently obtained from other sources a copy
of a September 12, 2013 email concerning the lane closures from
Wildstein to Kelly and Drewniak, Governor Christie's press
secretary. Wildstein wrote that "[t]he Port Authority is
reviewing traffic safety patterns at the George Washington
Bridge to ensure proper placement of toll lanes. The [Port
Authority Police Department] has been in contact with the [Fort
Lee] police throughout this transition." Plaintiff observed that
the email was covered by its December 17, 2013 OPRA request, and
that although defendant represented it "reviewed its records,"
it failed to provide the email in response to plaintiff's
request.
2
Plaintiff also requested records from anyone acting "on behalf
of" the named individuals, "such as an assistant."
4 A-3947-14T3
Plaintiff's January and February 2014 OPRA Requests
In January and February 2014, plaintiff served defendant
with four additional OPRA requests. On January 6, 2014,
plaintiff served two requests for records of "[c]ommunications
(including but not limited to text messages, emails, memos and
letters)" related to the lane closures between fifteen named
employees and officials in the Office of the Governor, 3 and
Baroni, Wildstein, and Port Authority Executive Director David
Samson. On February 2, 2014, plaintiff requested records related
to defendant's policies for the use of personal email accounts
to conduct official or public business. On February 27, 2014,
plaintiff requested defendant's policies related to the use of
email correspondence for business and personal use.
From January 14, 2014 to March 28, 2014, plaintiff's and
defendant's respective counsel communicated concerning the
January and February requests, and defendant's requests for
extensions of time to respond. Defendant's counsel advised that
the delays in providing responses were the result of defendant's
efforts to respond to numerous requests for the same
information, including those made by the Legislature and the
3
The individuals were Governor Christie, O'Dowd, Comella,
Drewniak, Gramiccioni, Reed, Kelly, Louis Goetting, Charles
McKenna, Paul Matey, Matthew McDermott, Lauren Fritts, Rosemary
Iannacone, and Kara Walker.
5 A-3947-14T3
United States Attorney's Office as part of their investigations.
Plaintiff was also informed a law firm representing defendant
was conducting an investigation of the lane closures that
involved reviewing over 250,000 documents and interviewing more
than seventy witnesses. Defendant advised plaintiff it would
provide documents in response to the January and February OPRA
requests as soon as feasible given those circumstances.
On March 27, 2014, the law firm representing defendant
advised plaintiff's counsel it issued a report detailing its
investigation of the lane closures, with over 3000 pages of
exhibits annexed, and that the report and exhibits were
available on the law firm's website. On March 28, 2014,
defendant provided a putative response to plaintiff's January
and February OPRA requests, advising plaintiff that "documents
responsive to [the] request[s] may be found at" the website.
The February Action
On February 7, 2014, plaintiff filed a verified complaint
(February action) in the Law Division alleging defendant's
response to plaintiff's December 17, 2013 request violated OPRA
and plaintiff's common law right of access to public records.
Plaintiff further alleged defendant's response to the OPRA
request constituted part of defendant's ongoing pattern and
practice of violating OPRA and denying public access to
6 A-3947-14T3
government records. Plaintiff sought a declaration that
defendant violated OPRA, an award of civil penalties under
N.J.S.A. 47:1A-11, an order directing that defendant identify
the records custodian who supplied the December 27, 2013
response to the OPRA request, "a sworn statement from any
persons involved in handling [the] OPRA request as set forth in
Paff v. New Jersey Dep't of Labor, 392 N.J. Super. 334 (App.
Div. 2007)," and a "plenary hearing to conduct discovery and
resolve factual disputes."4
The May Action
On May 9, 2014, plaintiff filed a second verified complaint
(May action) alleging defendant violated OPRA and plaintiff's
common law right of access to government records in its response
to plaintiff's January and February OPRA requests. Plaintiff
sought the identical relief requested in the February action.
The Amended Complaint and Order to Show Cause in the
February Action
On May 29, 2014, plaintiff filed an amended verified
complaint and order to show cause in the February action. The
amended complaint repeated the allegations concerning
defendant's response to plaintiff's December 17, 2013 OPRA
request, and detailed plaintiff's claim that defendant violated
4
Plaintiff also sought other relief not pertinent here.
7 A-3947-14T3
OPRA in its response to six other requests made by plaintiff in
2013 and 2014, including its January 6, 2014 request for records
concerning the lane closures.5 Plaintiff alleged defendant
consistently flouted the requirements of OPRA, "flagrant[ly]
disregard[ed] its statutory obligations," and engaged in a
pattern and practice of violating OPRA's requirements by
(i) failing to identify or even acknowledge
the existence of public records responsive
to [p]laintiff's OPRA requests; (ii) failing
to disclose public records responsive to
[p]laintiff's OPRA requests; (iii) redacting
public information from records provided
(over-redacting records); (iv) consistently
refusing to provide a Vaughn[6] or similar
index to explain the type of any record that
they are withholding or to explain
redactions to a record they have provided;
(v) failing to meet the statutory deadlines
and their own self-imposed extensions; and
5
The amended complaint alleged defendant's pattern and practice
of failing to comply with OPRA's requirements necessitated the
filing of lawsuits in six other matters: North Jersey Media
Group Inc. v. Office of the Governor, Docket No. MER-L-1059-14;
North Jersey Media Group Inc. v. Office of the Governor, Docket
No. MER-L-877-14; North Jersey Media Group Inc. v. Office of the
Governor, Docket No. MER-L-67-14; North Jersey Media Group Inc.
v. Office of the Governor, Docket No. MER-L-1432-13; North
Jersey Media Group Inc. v. New Jersey State Police and Office of
the Governor, Docket No. MER-L-310-13; and North Jersey Media
Group Inc. v. Office of the Governor, Docket No. MER-L-251-14.
6
The term "Vaughn index" refers to a list of the records a
custodian has identified as responsive to a request and any
exemptions that warrant non-disclosure. North Jersey Media
Group, Inc. v. Bergen Cty. Prosecutor's Office, 447 N.J. Super.
182, 191 (App. Div. 2016) (citing Vaughn v. Rosen, 484 F.2d 820,
826-27 (D.C. Cir. 1973), cert. denied, 415 U.S. 977, 94 S. Ct.
1564, 39 L. Ed. 2d 873 (1974)).
8 A-3947-14T3
(vi) failing to sign their responses or,
otherwise, even identify their custodians in
their responses to [p]laintiff's OPRA
requests.
The June 3, 2014 Case Management Order
On June 3, 2014, the court held a joint case management
conference in the February and May actions. Defendant's counsel
claimed defendant provided all of the records responsive to
plaintiff's December 17, 2013 and January and February 2014 OPRA
requests. Plaintiff's counsel represented that plaintiff had
obtained from other sources at least one document that was
responsive to the requests, but which defendant failed to
provide. Plaintiff's counsel thus argued there was reason to
question whether defendant actually conducted a search for the
requested records and, if so, whether the search was adequate.
The court entered a June 3, 2014 joint case management
order in the February and May actions. In order for defendant to
"evaluate the efficacy of [its] own searches," the court
directed plaintiff to provide defendant with any documents it
obtained from other sources but which were not provided by
defendant in response to the OPRA requests. The court also
directed that defendant provide sworn statements "explaining its
searches for records" responsive to plaintiff's December 17,
2013 and January and February 2014 records requests. The court
required that the statements be based on personal knowledge,
9 A-3947-14T3
"explain the recent search that produced responsive documents as
well as defendant['s] initial responses to plaintiff's OPRA
requests that did not result in the turnover of any documents,"
and include the information required by the court in Paff,
supra, 392 N.J. Super. at 341.7 The order permitted defendant to
provide multiple sworn statements "to adequately explain the
searches in accordance with the personal knowledge requirement."
Defendant provided two certifications in response to the
court's June 3, 2014 order: a certification from Drewniak
7
In Paff, we required the records custodian to provide a sworn
statement describing:
(1) the search undertaken to satisfy the
request;
(2)the documents found that are responsive
to the request;
(3) the determination of whether the
document or any part thereof is confidential
and the source of the confidential
information; [and]
(4) a statement of the agency's document
retention/destruction policy and the last
date on which documents that may have been
responsive to the request were destroyed.
[392 N.J. Super. at 341.]
We also required that the statement include an appendix with "an
index of all documents deemed by the agency to be confidential
in whole or in part, with an accurate description of the
documents deemed confidential." Ibid.
10 A-3947-14T3
purporting to describe defendant's response to plaintiff's
December 17, 2013 request, and a certification from Alexander H.
Southwell, a partner at the law firm representing defendant
purporting to describe defendant's search for records responsive
to the January and February 2014 requests.
Defendant moved to dismiss the complaints in the February
and May actions. Plaintiff opposed the motion and cross-moved
to: enforce litigants' rights under Rule 1:10-3 based on
defendant's alleged failure to supply sworn statements supported
by personal knowledge detailing defendant's searches for the
records as required by the June 3, 2014 order; strike the
Southwell certification because it was not based on personal
knowledge; convert the February and May actions into a plenary
action and permit plaintiff to conduct discovery; and award
attorneys' fees.
The court denied defendant's motion to dismiss the
complaint, and granted in part and denied in part plaintiff's
cross-motion. The court first addressed the February action and
found defendant's search for records in response to the December
17, 2013 OPRA request was "unreasonable" and "inadequate on its
face." The court noted that it provided defendant with an
opportunity to describe its records search by ordering defendant
to supply sworn statements describing its search efforts. The
11 A-3947-14T3
court found defendant provided only Drewniak's affidavit which
showed that based on his "strained" interpretation of
plaintiff's request, defendant failed to conduct any search for
the records requested on December 17, 2013. Defendant did not
provide an affidavit describing the search for records it
claimed it undertook in its unsigned December 27, 2013 response
to plaintiff's request. The court also determined defendant
violated OPRA by failing to search for the records requested on
December 17, 2013, and by failing to identify the records
custodian as required by OPRA.
The court denied plaintiff's request for the imposition of
a civil penalty, finding it lacked the authority to impose a
penalty under N.J.S.A. 47:1A-11, and that a civil penalty could
only be awarded in a proceeding before the Government Records
Council (GRC). The court found plaintiff was the prevailing
party in the February action and granted plaintiff's request for
an award of attorneys' fees on that basis.
The court also addressed the May action and denied
plaintiff's motion to strike the Southwell certification,
finding it documented a reasonable search for records in
response to the January and February 2014 records requests. The
court, however, determined plaintiff was entitled to attorneys'
fees in the May action because plaintiff's initiation of the
12 A-3947-14T3
litigation resulted in defendant's production of the requested
records.
The court denied plaintiff's motion for relief in aid of
litigants' rights under Rule 1:10-3. The court reasoned that the
June 3, 2014 order's purpose was to require that defendant
supply sworn statements describing its searches for records in
response to plaintiff's requests, and determined that purpose
was achieved by the Drewniak and Southwell certifications. The
court also found that because plaintiff was supplied with
records responsive to its requests, relief in aid of litigants'
rights was unnecessary.
The court dismissed without prejudice plaintiff's claim
that defendant engaged in a pattern and practice of violating
OPRA and the common law right of access to public records, and
denied plaintiff's requests for discovery and a plenary action.
The court determined that further litigation of the claim with
the concomitant discovery and plenary hearing was inconsistent
with the summary proceedings contemplated under OPRA.
The court memorialized its decision first in an October 28,
2014 joint order in the February and May actions, and then in an
amended order on December 16, 2014. The court directed the
parties to negotiate the amount of the attorneys' fees due
plaintiff. On March 31, 2015, following the parties' agreement
13 A-3947-14T3
on the attorneys' fee award, the court entered a final order.
This appeal followed.
II.
We first address plaintiff's claim the court erred by
denying its motion for relief in aid of litigants' rights.
Plaintiff argues defendant's submission of the Drewniak and
Southwell certifications violated the court's June 3, 2014 order
because the certifications were not from defendant's designated
records custodians, they failed to explain defendant's searches
for the requested records, and the Southwell certification was
not based on personal knowledge. Plaintiff also argues that
contrary to the court's order, the certifications did not
include the information we required in Paff, supra, 392 N.J.
Super. at 341.
We defer to the trial court's factual findings when they
are "supported by adequate, substantial and credible evidence."
Zaman v. Felton, 219 N.J. 199, 215 (2014) (quoting Toll Bros.,
Inc. v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002)). We
review de novo the "trial court's interpretation of the law and
the legal consequences that flow from established facts."
Manalapan Realty L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,
378 (1995).
Rule 1:10-3 provides a "means for securing relief and
14 A-3947-14T3
allow[s] for judicial discretion in fashioning relief to
litigants when a party does not comply with a judgment or
order." In re N.J.A.C. 5:96, 221 N.J. 1, 17-18 (2015); accord
Abbott v. Burke, 206 N.J. 332, 371 (2011). "Relief under Rule
1:10-3 . . . is not for the purpose of punishment, but as a
coercive measure to facilitate the enforcement of the court
order." Ridley v. Dennison, 298 N.J. Super. 373, 381 (App. Div.
1997). "The particular manner in which compliance may be sought
is left to the court's sound discretion." Bd. of Educ. of
Middletown v. Middletown Twp. Educ. Ass'n, 352 N.J. Super. 501,
509 (Ch. Div. 2001).
We reject plaintiff's argument that defendant violated the
court's order because Drewniak and Southwell were not designated
records custodians under N.J.S.A. 47:1A-1.1. The court's order
did not require that defendant identify a records custodian or
that the sworn statements be provided by a records custodian. 8
The order directed that defendant provide sworn statements
explaining its searches for records responsive to plaintiff's
OPRA requests, that the statements include the information
required in Paff, supra, 392 N.J. Super. at 341, and that the
8
Similarly, in Paff, supra, 392 N.J. Super. at 341, we did not
require a sworn statement from a designated records custodian,
but instead required a sworn statement from the public entity's
"personnel."
15 A-3947-14T3
statements be based on personal knowledge. Accordingly, the fact
that Drewniak and Southwell were not designated records
custodians under N.J.S.A. 47:1A-1.1 did not render defendant's
submission of their certifications a violation of the order and
did not permit relief in aid of litigants' rights under Rule
1:10-3.
We also reject plaintiff's argument that submission of
Drewniak's certification violated the court's order because the
certification did not describe a search for records and did not
otherwise provide the information required in Paff. To be sure,
and as the court correctly found, Drewniak's certification "did
not . . . explain[] the search for records responsive to
[plaintiff's December 17, 2013 OPRA] request," and failed to
detail "what [defendant] did and didn't do" to search for the
requested records. The court, however, determined Drewniak's
certification did not violate the June 3, 2014 order because it
established that defendant simply did not conduct any search for
records responsive to plaintiff's December 17, 2013 request.
Indeed, the court relied on Drewniak's certification to support
its determination that defendant acted inconsistently with its
obligations under OPRA and the common law in its response to
plaintiff's December 17, 2013 records request.
The court therefore determined there was no need for relief
16 A-3947-14T3
in aid of litigants' rights to compel compliance with the
order's directive that defendant explain its records search
because, as Drewniak's certification established, defendant
could not explain a search it failed to conduct. Under those
circumstances, we are satisfied the record supports the court's
conclusion that submission of Drewniak's certification did not
violate the order.9
Plaintiff also claims the court erred by denying relief
under Rule 1:10-3 because the Southwell certification was not
based on personal knowledge and did not include, as directed by
the court, the information required in Paff. We agree. The court
rejected plaintiff's argument and found defendant was confronted
with multiple requests for records concerning the lane closures
from plaintiff, the Legislature, federal authorities, and
others. The court noted it was not the "norm to employ an
outside" law firm to conduct a search for public records, and
that it was not unreasonable for defendant to have done so under
the circumstances presented. The court concluded plaintiff was
not entitled to relief under Rule 1:10-3 because Southwell's
9
We recognize the obvious and unexplained contradiction between
Drewniak's certification, which states defendant did not conduct
a search for records in response to plaintiff's December 17,
2013 request, and defendant's December 27, 2013 response to
plaintiff's request, which expressly states that a search for
records was conducted and no responsive records were found.
17 A-3947-14T3
certification adequately described the search conducted on
defendant's behalf and established the search was reasonable.
Southwell's certification generally describes his firm's
investigation concerning the lane closures "in response to
certain subpoenas," but does not describe any personal
involvement by him in the search for documents in response to
the subpoenas. His firm employed a third-party vendor, which he
identifies only as "the expert firm," to search defendant's
email exchange server and the personal email accounts of certain
of defendant's employees, whom Southwell also failed to
identify. According to Southwell, unidentified attorneys at his
firm then reviewed the records to determine which documents were
responsive to the subpoenas or were pertinent to their
investigation.
Southwell also explained his firm first conducted a search
for documents responsive to plaintiff's January 6, 2014 requests
following the issuance of the firm's March 27, 2014 report. 10 On
or about May 8, 2014, his firm was provided with plaintiff's
10
This representation appears contrary to Southwell's firm's
March 28, 2014 letter to plaintiff's counsel advising that
documents responsive to plaintiff's requests were contained in
the firm's report and annexed exhibits. Southwell's
certification states that the firm's search for documents
responsive to plaintiff's requests did not occur until May 8,
2014, when the firm received plaintiff's requests.
18 A-3947-14T3
January 6, 2014 requests, but neither he nor anyone at his firm
personally undertook a search for the documents. Instead, his
firm asked the third-party vendor, the purported "expert firm,"
to search the database it developed in response to subpoenas for
documents responsive to plaintiff's requests.11 According to
Southwell, the "expert firm's" search uncovered only four
documents responsive to plaintiff's requests that had not been
included in the exhibits attached to his firm's March 27, 2014
report.
Plaintiff correctly argues the Southwell certification did
not fully comply with the court's June 3, 2014 order, which
required that defendant provide sworn statements based solely on
personal knowledge explaining the search for records responsive
to plaintiff's requests. Southwell's description of the search
is not based on his personal knowledge, nor could it have been,
as it was conducted by an unidentified third-party vendor and,
at times, unidentified attorneys at his firm.
Submission of the Southwell certification also violated the
requirement that the sworn statement provide the information
required in Paff, supra, 392 N.J. Super. at 341. The
11
The Southwell certification does not describe or establish a
search of all of defendant's government records in response to
the January and February 2014 requests. The Southwell
certification details only a search of records that were
assembled in response to subpoenas.
19 A-3947-14T3
certification does not state whether a determination had been
made that any document or any part thereof was confidential, and
did not include defendant's "document retention/destruction
policy" or indicate the last date documents responsive to
plaintiff's requests were destroyed as required in Paff and
under the court's June 3, 2014 order.
Plaintiff sought relief in aid of litigants' rights under
Rule 1:10-3 based on the deficiencies in the Southwell
certification, but the court denied the request and found the
certification showed defendant's search for the records was
reasonable. We are convinced the court abused its discretion in
reaching that conclusion.
An abuse of discretion occurs "when a decision is 'made
without a rational explanation, inexplicably departed from
established policies, or rested on an impermissible basis.'"
U.S. Bank Nat. Ass'n v. Guillaume, 209 N.J. 449, 467 (2012)
(quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123
(2007)). Here, defendant's submission of the Southwell
certification violated the unambiguous requirements of the June
3, 2014 order, which plaintiff sought to enforce in its Rule
1:10-3 motion. The court's failure to consider defendant's clear
violations of the order was without any explanation, and
20 A-3947-14T3
overlooked the purpose of Rule 1:10-3: ensuring compliance with
court orders. Ridley, supra, 298 N.J. Super. at 381.
Moreover, the court's denial of plaintiff's Rule 1:10-3
motion rested on an impermissible basis. The court denied the
motion because it determined Southwell described a reasonable
search for the records plaintiff requested. But Southwell's
description of the search was not based on his personal
knowledge and, therefore, the record is bereft of any competent
evidence supporting the court's determination that defendant's
search for the records requested in January and February 2014
was reasonable and compliant with its obligations under OPRA and
the common law. See R. 1:6-6 ("If a motion is based on facts not
appearing of record or not judicially noticeable, the court may
hear it on affidavits made on personal knowledge . . . .");
Allen v. World Inspection Network Intern., Inc., 389 N.J. Super.
115, 121 (App. Div. 2006) (finding plaintiffs failed to submit
"competent evidence" where the complaint was not properly
verified because it was not based on personal knowledge),
certif. denied, 194 N.J. 267 (2007).
Therefore, we are constrained to reverse the court's
December 16, 2014 order denying plaintiff's motion for relief in
aid of litigants' rights as it pertains to defendant's failure
to provide a sworn statement based on personal knowledge
21 A-3947-14T3
explaining its search for records in response to plaintiff's
January and February 2014 requests. On remand, the court shall
enter an order pursuant to Rule 1:10-3 requiring defendant to
supply the sworn statements based on personal knowledge
explaining the records search and otherwise satisfying the
requirements of the June 3, 2014 order.
We also observe that the court relied on the Southwell
certification to support its dismissal of plaintiff's complaint
in the May action. The court determined the Southwell
certification detailed a reasonable search in response to
plaintiff's January and February 2014 requests, and that the
search was therefore compliant with defendant's obligations
under OPRA and the common law. Because we are convinced the
court could not properly rely on Southwell's certification to
support its conclusion defendant's search was compliant with
OPRA and the common law, there was insufficient credible
evidence supporting the court's finding that defendant's search
for records was reasonable. We therefore vacate the order
dismissing plaintiff's complaint in the May action, and remand
for further proceedings based on competent evidence.
III.
Plaintiff next claims the court erred by denying its motion
for the imposition of civil penalties under N.J.S.A. 47:1A-11.
22 A-3947-14T3
The court denied the motion finding it lacked authority to
impose civil penalties because the statute permits the
imposition of penalties only in a proceeding before the GRC.
Plaintiff contends N.J.S.A. 47:1A-11 vests the Superior Court
with the authority to impose civil penalties where there is a
knowing and willful violation of OPRA and an unreasonable denial
of access to public records under the totality of the
circumstances presented. We are persuaded by plaintiff's
arguments.
A "trial court's determinations with respect to the
applicability of OPRA are legal conclusions subject to de novo
review." K.L. v. Evesham Twp. Bd. of Educ., 423 N.J. Super. 337,
349 (App. Div. 2011) (quoting O'Shea v. Twp. of W. Milford, 410
N.J. Super. 371, 379 (App. Div. 2009)), certif. denied, 210 N.J.
108 (2012); accord Paff v. Ocean Cty. Prosecutor's Office, 446
N.J. Super. 163, 175 (App. Div.), certif. granted, 228 N.J. 403
(2016); Drinker Biddle & Reath LLP v. N.J. Dep't. of Law & Pub.
Safety, 421 N.J. Super. 489, 497 (App. Div. 2011); MAG Entm't,
LLC v. Div. of Alcoholic Beverage Control, 375 N.J. Super. 534,
543 (App. Div. 2005). "Our standard of review is plenary with
respect to [a trial court's] interpretation of OPRA and its
exclusions." Gilleran v. Twp. of Bloomfield, 440 N.J. Super.
490, 497 (App. Div. 2015), rev'd on other grounds, 227 N.J. 159
23 A-3947-14T3
(2016); see also State v. Goodwin, 224 N.J. 102, 110 (2016) ("In
construing the meaning of a statute, our review is de novo.").
"The purpose of OPRA 'is to maximize public knowledge about
public affairs in order to ensure an informed citizenry and to
minimize the evils inherent in a secluded process.'" Times of
Trenton Publ'g Corp. v. Lafayette Yard Cmty. Dev. Corp., 183
N.J. 519, 535 (2005) (quoting Asbury Park Press v. Ocean Cty.
Prosecutor's Office, 374 N.J. Super. 312, 329 (Law Div. 2004)).
"In enacting OPRA, the Legislature intended to bring greater
transparency to the operations of government and public
officials." Paff v. Galloway Twp., ___ N.J. ___, ___ (2017)
(slip op. at 15); see also Sussex Commons Assocs., LLC v.
Rutgers, 210 N.J. 531, 541 (2012).
OPRA provides that where a person's request for government
records is denied, the requester has the option of challenging
the denial in one of two forums: by "filing an action in
Superior Court" or "a complaint with the [GRC]." N.J.S.A. 47:1A-
6; Mason v. City of Hoboken, 196 N.J. 51, 68 (2008). Challenges
filed in the Superior Court and the GRC "shall proceed in a
summary or expedited manner" and where "it is determined that
access was improperly denied the court or [GRC] shall order that
access be allowed." N.J.S.A. 47:1A-6.
OPRA also authorizes the imposition of civil penalties:
24 A-3947-14T3
A public official, officer, employee or
custodian who knowingly and willfully
violates [OPRA] as amended and supplemented,
and is found to have unreasonably denied
access under the totality of the
circumstances, shall be subject to a civil
penalty . . . . [The] penalty shall be
collected and enforced in proceedings in
accordance with the "Penalty Enforcement Law
of 1999," P.L. 1999, c. 274 [N.J.S.A. 2A:58-
10 to -12], and the rules of court governing
actions for the collection of civil
penalties. The Superior Court shall have
jurisdiction of proceedings for the
collection and enforcement of the penalty
imposed by this section.
[N.J.S.A. 47:1A-11.]
Here, the court determined N.J.S.A. 47:1A-11 does not
permit imposition of civil penalties by the Superior Court. The
judge first found that N.J.S.A. 47:1A-7, which defines the
powers, duties and jurisdiction of the GRC, expressly grants the
GRC the authority to impose civil penalties. See N.J.S.A. 47:1A-
7(e). The judge reasoned that because OPRA does not include a
similar express grant of authority to the Superior Court,
N.J.S.A. 47:1A-11 does not permit the Superior Court to impose
civil penalties. Second, the court found that an interpretation
of N.J.S.A. 47:1A-11 permitting the Superior Court to impose
civil penalties is inconsistent with OPRA's requirement that
challenges to records request denials be addressed in a
"summary" manner. For the reasons that follow, we reject the
court's reasoning and conclude N.J.S.A. 47:1A-11 permits the
25 A-3947-14T3
Superior Court to impose a civil penalty where appropriate under
the statutory standard.
In our interpretation of N.J.S.A. 47:1A-11, our goal "is to
ascertain and effectuate the Legislature's intent." State v.
Olivero, 221 N.J. 632, 639 (2015); see also Sussex Commons
Assocs., LLC, supra, 210 N.J. at 540-41 (finding court's
obligation in interpreting OPRA "is to determine and carry out
the Legislature's intent"). We first "look at the plain language
of the statute," Sussex Commons Assocs., LLC, supra, 210 N.J. at
541, because it "is typically the best indicator of intent," In
re Plan for the Abolition of the Council on Affordable Hous.,
214 N.J. 444, 467 (2013); accord Gilleran, supra, 227 N.J. at
171-72; DiProspero v. Penn, 183 N.J. 477, 492 (2005). Moreover,
we "read and construe[]" the words and phrases of the statute
"with their context," giving them "their generally accepted
meaning, according to the approved usage of the language,"
"unless inconsistent with the manifest intent of the legislature
or unless another or different meaning is expressly indicated."
N.J.S.A. 1:1-1; State v. Regis, 208 N.J. 439, 447 (2011).
The first sentence of N.J.S.A. 47:1A-11 authorizes the
imposition of a civil penalty, and establishes the standard for
the assessment of a penalty. It does not authorize only the GRC
to impose a civil penalty, or prohibit the Superior Court from
26 A-3947-14T3
doing so. To the contrary, the first sentence of N.J.S.A. 47:1A-
11 conditions the award of a civil penalty only upon the making
of two findings: that there is a knowing and willful violation
of OPRA, and an unreasonable denial of access to the requested
government records under the totality of the circumstances.
N.J.S.A. 47:1A-11; Bart v. Passaic Cty. Pub. Hous. Agency, 406
N.J. Super. 445, 452 (App. Div. 2009).
The Legislature established only two forums with
jurisdiction to make the findings necessary for an award of a
civil penalty under N.J.S.A. 47:1A-11: the Superior Court and
the GRC. N.J.S.A. 47:1A-6. In setting the standard for an award
of a civil penalty in the first sentence of N.J.S.A. 47:1A-11,
the Legislature did not mandate that the requisite findings be
made in a particular forum, did not authorize only the GRC to
make the findings, and did not prohibit the Superior Court from
making the findings necessary for the imposition of a civil
penalty.
Having established two forums for the adjudication of
challenges to government records requests denials, the
Legislature could have chosen to expressly limit the forum in
which the requisite findings for the imposition of a civil
penalty could be made, but it elected not to do so. We therefore
discern nothing in the first sentence of N.J.S.A. 47:1A-11
27 A-3947-14T3
limiting the jurisdiction to impose a civil penalty to the GRC,
and it is not our role to "rewrite a plainly-written enactment
of the Legislature []or presume that the Legislature intended
something other than that expressed by way of the plain
language." DiProspero, supra, 183 N.J. at 492 (quoting O'Connell
v. State, 171 N.J. 484, 488 (2002)). We also will not "'write in
an additional qualification which the Legislature pointedly
omitted in drafting its own enactment,' or 'engage in conjecture
or surmise which will circumvent the plain meaning of the act.'"
Ibid. (first quoting Craster v. Bd. of Comm'rs of Newark, 9 N.J.
225, 230 (1952); then quoting In re Closing of Jamesburg High
School, 83 N.J. 540, 548 (1980)).
Defendant ignores the plain language of the first sentence
of N.J.S.A. 47:1A-11 and argues the statute vests the GRC with
the exclusive jurisdiction to impose a civil penalty because
N.J.S.A. 47:1A-7, which establishes and defines the powers and
duties of the GRC, expressly provides that the GRC may impose a
civil penalty. More particularly, N.J.S.A. 47:1A-7(e) provides
that if the GRC "determines, by a majority vote of its members,
that a custodian has knowingly and willfully violated [OPRA] . .
., and is found to have unreasonably denied access under the
totality of the circumstances, [it] may impose" a civil penalty
under N.J.S.A. 47:1A-11. Defendant contends that because OPRA
28 A-3947-14T3
does not contain a similar express grant of authority to the
Superior Court, it can be reasonably inferred the Superior Court
does not have the authority to impose a civil penalty under
N.J.S.A. 47:1A-11. We disagree.
The plain language of N.J.S.A. 47:1A-7(e) does not grant
the GRC the exclusive authority to impose a civil penalty under
N.J.S.A. 47:1A-11, and does not limit the Superior Court's
authority to impose a civil penalty. N.J.S.A. 47:1A-7(e)
authorizes the GRC to impose a civil penalty only "as provided
for in N.J.S.A. 47:1A-11." Thus, by its express terms, N.J.S.A.
47:1A-7(e) does not define the forum in which a civil penalty
may be assessed under N.J.S.A. 47:1A-11, or modify the
jurisdiction to impose a civil penalty as provided under
N.J.S.A. 47:1A-11. Instead, N.J.S.A. 47:1A-7(e) simply
authorizes the GRC to impose a civil penalty as permitted under
N.J.S.A. 47:1A-11.
Moreover, the language in N.J.S.A. 47:1A-7(e) relied upon
by defendant cannot be read in isolation. It is one part of a
broader statute, N.J.S.A. 47:1A-7(a)-(g), which establishes the
GRC and defines its duties, powers and jurisdiction. When viewed
in that context, the language in N.J.S.A. 47:1A-7(e) establishes
that the GRC's powers include the authority to impose a civil
penalty in accordance with N.J.S.A. 47:1A-11. As noted, however,
29 A-3947-14T3
there is nothing in N.J.S.A. 47:1A-7(e) or N.J.S.A. 47:1A-11
granting exclusive authority to the GRC.
In addition, N.J.S.A. 47:1A-7(e) supports the conclusion
the GRC does not have exclusive jurisdiction to impose a civil
penalty and that the Superior Court also has jurisdiction to
impose a penalty. N.J.S.A. 47:1A-7(e) narrowly grants the GRC
the authority to impose a civil penalty. The statute provides
that the GRC may impose a civil penalty where it determines a
"custodian" violated OPRA willfully and knowingly. N.J.S.A.
47:1A-7(e).
In contrast, N.J.S.A. 47:1A-11 more broadly permits the
award of a civil penalty where "[a] public official, officer,
employee or custodian" knowingly or willfully violates OPRA. As
such, N.J.S.A. 47:1A-7(e) does not expressly grant the GRC the
authority to impose a civil penalty in all of the circumstances
for which a penalty may be imposed under N.J.S.A. 47:1A-11.
We reject defendant's reliance on N.J.S.A. 47:1A-7(e) as
support for its argument that only the GRC is authorized to
impose a civil penalty under N.J.S.A. 47:1A-11. To accept
defendant's interpretation would render meaningless the language
in N.J.S.A. 47:1A-11 permitting the imposition of a penalty
based on the actions of public officials, officers and
employees. See State in the Interest of K.O., 217 N.J. 83, 91
30 A-3947-14T3
(2014) ("when construing the Legislature's words, every effort
should be made to avoid rendering any part of the statute
superfluous"); Patel v. N.J. Motor Vehicle Comm'n, 200 N.J. 413,
418-19 ("we do not assume that the Legislature used any
unnecessary or meaningless language"). Because N.J.S.A. 47:1A-
7(e) does not authorize the GRC to impose a civil penalty under
N.J.S.A. 47:1A-11 based on the actions of public officials,
officers and employees, the only logical conclusion, as
supported by the plain language of the first sentence of
N.J.S.A. 47:1A-11, is that the Legislature vested the Superior
Court with the jurisdiction to do so.
We also reject defendant's assertion that N.J.S.A. 47:1A-11
permits only the GRC to impose a civil penalty because the
statute provides that a penalty "shall be collected and enforced
in proceedings in accordance with the 'Penalty Enforcement Act
of 1999'" (PEA), N.J.S.A. 2A:58-10 to -12, "and the rules of
court governing actions for collection of civil penalties," and
further states "[t]he Superior Court shall have jurisdiction of
proceedings for the collection and enforcement of the penalty
imposed by this section." Although the PEA provides for the
entry of a final order on the judgment docket for civil
penalties awarded by an administrative agency, N.J.S.A. 2A:58-
10, it also authorizes the Superior Court to collect and enforce
31 A-3947-14T3
a civil penalty where, as here, a statute directly authorizes
the court to impose a civil penalty, N.J.S.A. 2A:58-11(a)-(f).
Defendant relies on our decision in State v. Tri-Way Kars,
Inc., 402 N.J. Super. 215, 220-23 (App. Div.), certif. denied,
197 N.J. 259 (2008), where we considered whether a municipal
court had jurisdiction to impose a penalty under a Consumer
Fraud Act12 (CFA) provision stating that municipal courts "shall
have jurisdiction of proceedings for the collection and
enforcement of a penalty imposed because of [a] violation" of
the CFA. See N.J.S.A. 56:8-14. We decided that municipal courts
did not have jurisdiction under N.J.S.A. 56:8-14 to impose the
penalty because the CFA regulations vested the director of the
Division of Consumer Affairs with the exclusive authority to
impose the penalty at issue. Tri-Way Kars, supra, 402 N.J.
Super. at 223. We thus read the language in N.J.S.A. 56:8-14 to
grant municipal courts jurisdiction only to collect and enforce,
but not impose, the CFA penalty. Ibid.
Our holding in Tri-Way Kars is inapposite here. OPRA does
not vest the GRC with exclusive jurisdiction to impose a civil
penalty under N.J.S.A. 47:1A-11. For the reasons noted, the
Superior Court has jurisdiction to impose a civil penalty and
12
The Consumer Fraud Act is codified at N.J.S.A. 56:8-1 to -
166.
32 A-3947-14T3
thus, unlike in Tri-Way Kars, the language in N.J.S.A. 47:1A-11
permitting the collection and enforcement of an OPRA civil
penalty does not define the limits of the Superior Court's
jurisdiction. Instead, the language simply provides a means of
collection and enforcement of a civil penalty the Superior Court
and GRC are each otherwise authorized to impose.
Defendant asserts that an interpretation of N.J.S.A. 47:1A-
11 permitting the Superior Court to impose a civil penalty runs
afoul of the requirement that OPRA "proceeding[s] shall proceed
in a summary or expedited manner." N.J.S.A. 47:1A-6. The
assertion is contradicted by the plain language of N.J.S.A.
47:1A-11, which provides for a trial to resolve issues of fact
related to the imposition of a civil penalty and allows for the
conversion of a summary action into a plenary proceeding where
appropriate.
N.J.S.A. 47:1A-11 provides that a penalty shall be
collected and enforced in accordance with the PEA and "the rules
of court governing actions for the collection of civil
penalties." Under the PEA, a court authorized to impose a civil
penalty is required to "decide the case in a summary manner
without a jury,"13 but requires that the court "hear testimony on
13
The statute includes an exception to the requirement that is
not applicable here. The court is required to "decide the case
(continued)
33 A-3947-14T3
any factual issues." N.J.S.A. 2A:58-11. Similarly, our Rules
require the court in a summary action to "hear the evidence" to
determine any genuine factual issues, and permit the conversion
of the matter into a plenary action where good cause is shown.
R. 4:67-5; see also Cent. State Bank v. Hudik-Ross Co., 164 N.J.
Super. 317, 324 (App. Div. 1978) (finding that Rule 4:67-5
permits a court to direct that a matter brought on an order to
show cause proceed as a plenary action). Thus, contrary to
defendant's claim, resolution of factual disputes at a hearing
and conversion of a civil penalty proceeding into a plenary
action are wholly consistent with the requirements for the
imposition of a civil penalty under N.J.S.A. 47:1A-11.
Although our interpretation of N.J.S.A. 47:1A-11 is
required by its plain language, it is also consistent with
OPRA's underlying policy "to maximize public knowledge about
public affairs in order to ensure an informed citizenry[,] [] to
minimize the evils inherent in a secluded process," O'Boyle v.
Borough of Longport, 218 N.J. 168, 184 (2014) (quoting Mason,
supra, 196 N.J. at 64), and to "protect[] [] the public
interest," Sussex Commons Assocs., LLC, supra, 210 N.J. at 541
(quoting N.J.S.A. 47:1A-1). OPRA enables "citizens and the media
(continued)
in a summary manner without a jury unless otherwise provided in
the statute imposing the penalty." N.J.S.A. 2A:58-11(c).
34 A-3947-14T3
[to] play a watchful role in curbing wasteful government
spending and guarding against corruption and misconduct."
Burnett v. Cty. of Bergen, 198 N.J. 408, 414 (2009).
N.J.S.A. 47:1A-11 provides a valuable means to compel
compliance with OPRA by public officials, officers, employees
and records custodians who might otherwise flout OPRA's
requirements and willfully and knowingly deprive the public of
access to government records. The civil penalties permitted
under N.J.S.A. 47:1A-11 help ensure that records at all levels
of government, including the highest levels of our State
government, are not willfully and knowingly withheld in an
effort to shroud possible wrongdoing from the public's view or
deny access to government records to which every citizen is
entitled. It is inconsistent with the plain language of N.J.S.A.
47:1A-11 and OPRA's purpose to shield the recalcitrance and
obfuscation of public officials, officers, custodians and
employees from the imposition of a civil penalty simply because
a requester opted to seek redress in a court of law rather than
with the GRC. We are convinced the motion court erred by
concluding otherwise, and by dismissing plaintiff's claims for
35 A-3947-14T3
the imposition of a civil penalty in the February and May
actions.14
Thus, we vacate the dismissal of the February and May
actions, and reverse the court's order determining it was
without jurisdiction to impose a civil penalty under N.J.S.A.
47:1A-11 and dismissing plaintiff's claims for a civil penalty
in the February and May actions. We remand for further
proceedings consistent with this opinion.
14
We disagree with defendant's contention that there is no basis
to impose a civil penalty because the court did not find either
a willful and knowing violation of OPRA or that there was an
unreasonable denial of access to the requested records under the
totality of the circumstances presented. See N.J.S.A. 47:1A-11.
The court did not make findings of fact under N.J.S.A. 47:1A-11
because it concluded it lacked jurisdiction to impose a civil
penalty under the statute. The findings required for a
determination as to whether a civil penalty should be imposed in
the February and May actions shall be made by the court based on
the evidence presented on remand. We offer no opinion on the
merits of plaintiff's request for a civil penalty in either of
the actions. We also express no opinion on whether discovery
should be permitted, but rather leave that issue for the trial
court to consider in light of our ruling that N.J.S.A. 47:1A-11
allows it to impose civil penalties.
36 A-3947-14T3