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correct size blogTwo recent court decisions have been issued dealing with the Open Public Records Act (“OPRA”).  The first case issued on August 3, 2017, is an Appellate Court decision concerning the ability of the Superior Court to issue civil penalties for the “knowingly and willful” violations of OPRA.  The second, a NJ Supreme Court case issued on August 7, 2017, deals with a question regarding a fire district and a volunteer fire company’s status as a public agency subject to OPRA.

You should review both of these cases with your municipal attorney for information on how these cases may impact you.

OPRA’s Civil Penalties

On August 3, 2017 the Appellate Division published its opinion in North Jersey Media Group Inc., d/b/a The Record v. State of New Jersey Office of the Governor. This case dealt with whether or not the Superior Court has the power to issue civil penalties under certain OPRA provisions or whether the authority to issue these civil penalties rests exclusively with the Government Records Council (“GRC”).

Due to some unclear language within the OPRA statute, the question was raised as to whether or not the Superior Court shared authority with the GRC to issue civil penalties for “knowingly and willful” violations of OPRA.  The State took the position that the statute allows for the civil penalty for an OPRA violation to be handed down only by the GRC, despite the aggrieved requestor having the option to bring a dispute before either the GRC or the Superior Court.  North Jersey Media Group (“NJMG”) countered that this interpretation of the statute was flawed.  In their view, it would make no sense for the civil penalty to be limited only to disputes brought before the GRC when the aggrieve requestor has the choice to bring the dispute in either venue.

The trial court agreed with the State, the Appellate Division, however, did not and ruled that both the Court and the GRC had the authority to hand down OPRA’s civil penalty and that a reading of the statute otherwise would frustrate the purpose of the penalty.

Defining a Public Agency Under OPRA – A Tale of an Instrumentality of an Instrumentality

On August 7, 2017, the NJ Supreme Court issued its opinion in Robert A. Verry v. Franklin Fire District No. 1 (A-77-15)(077495).  This case dealt with whether or not a fire district and a volunteer fire company that is part of that fire district are public agencies and therefore subject to the requirements of OPRA.  In a 5-2 decision, the Court ruled that the Fire District is a public agency and therefore subject to OPRA but that the volunteer fire department, which is part of the Fire District, is not a public agency and therefore not subject to OPRA.

This conclusion was reached after the Court found the fire district to be an instrumentality of a political subdivision and therefore subject to OPRA.  Further, the Court decided that the volunteer fire department, which is part of the Fire District, is only an instrumentality of an instrumentality and therefore not subject to OPRA.  The Court reasoned that the volunteer fire department is not subject to OPRA because only public agencies are subject to OPRA and the law does not define an instrumentality of an instrumentality as a public agency.

The reasoning for the decision is complicated and you may find the breakdown below helpful in following the Court’s reasoning.

Fire District = Instrumentality of Political Subdivision (municipality) = Public Agency = Subject to OPRA

Volunteer Fire Company = Instrumentality of Instrumentality (Fire District) = Not Public Agency = Not Subject to OPRA

While the Court ruled that the volunteer fire department, which is part of the Fire District, itself is not subject to OPRA it did rule that the fire district is, and because the district acts as the supervising agency of the department, the fire district “has certain responsibilities under OPRA to provide public access to records relating to that supervision.”  Therefore, any documents which are necessary for the district’s supervision of the volunteer department should be made available under OPRA via a request to the district, even though those records do not need to be made available through an OPRA request to the department.

For more information in connection to this blog click here.

Contact: Frank Marshall, Esq., League Staff Attorney, fmarshall@njslom.org or 609-695-3481 x137.

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