NORTH JERSEY MEDIA GROUP INC., D/B/A THE RECORD VS. STATE OF NEW JERSEY OFFICE OF THE GOVERNOR Â (L-1059-14 AND L-0248-14, MERCER COUNTY AND STATEWIDE)(CONSOLIDATED)
166 A.3d 1181
| N.J. Super. Ct. App. Div. | 2017Background
- North Jersey Media Group (NJMG) made OPRA requests (Dec 17, 2013; Jan–Feb 2014) for communications related to the George Washington Bridge lane closures. The Governor’s Office responded initially saying no responsive records were found.
- NJMG later obtained at least one responsive email from other sources, prompting two verified complaints (Feb. and May 2014) alleging OPRA and common-law access violations and seeking declaratory relief, attorneys’ fees, and civil penalties under N.J.S.A. 47:1A-11.
- The trial court ordered the Governor’s Office to provide sworn statements (per Paff) explaining searches for responsive records. The Office submitted certifications from Michael Drewniak and Alexander Southwell (an outside law firm partner).
- The trial court found Drewniak’s affidavit showed no search had been conducted for the Dec. 17 request (OPRA violation) and awarded fees, but denied civil penalties, concluding it lacked jurisdiction to impose penalties under N.J.S.A. 47:1A-11; it also denied NJMG’s Rule 1:10-3 relief regarding the Southwell certification.
- NJMG appealed, challenging (1) denial of Rule 1:10-3 relief for deficiencies in the Southwell certification (lack of personal knowledge, failure to meet Paff requirements), and (2) the conclusion that the Superior Court lacks authority under N.J.S.A. 47:1A-11 to impose civil penalties.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court erred in denying Rule 1:10-3 relief for deficient sworn statement about search for Jan/Feb 2014 requests | Southwell’s certification was not based on personal knowledge, relied on an unnamed third-party vendor, and failed to include Paff information; relief should compel proper sworn statements | Certifications reasonably described the searches; use of outside counsel/vendor was reasonable; no need to compel further sworn statements | Court abused discretion: Southwell not based on personal knowledge and failed Paff requirements; remand to require proper sworn statements under Rule 1:10-3 |
| Whether Drewniak affidavit complied with the June 3, 2014 order | Drewniak did not describe a records search so it violated the order | Drewniak demonstrated no search was conducted, which itself explained inability to describe a search | Trial court’s finding that Drewniak’s certification did not violate the order was supported; Drewniak showed no search for Dec. 17 request and supported OPRA violation finding |
| Whether Superior Court may impose civil penalties under N.J.S.A. 47:1A-11 | N.J.S.A. 47:1A-11 authorizes civil penalties when there is a knowing/willful violation and unreasonable denial; Superior Court is one of two forums (GRC or Superior Court) and thus may impose penalties | Civil-penalty authority lies with the GRC; statutory language and summary nature of OPRA proceedings limit Superior Court’s role; penalties only to be collected/enforced per PEA | Superior Court has jurisdiction to impose civil penalties under N.J.S.A. 47:1A-11; remand for proceedings on penalties and related factual findings |
| Whether dismissal of May action was proper given reliance on Southwell certification | Dismissal improper because Southwell’s certification lacks personal-knowledge foundation and thus cannot support finding of reasonable search | Southwell’s certification described a reasonable search and supported dismissal | Vacated dismissal of May action; remand for further proceedings based on competent evidence |
Key Cases Cited
- Paff v. New Jersey Dept. of Labor, 392 N.J. Super. 334 (App. Div. 2007) (requires sworn statement describing search, responsive documents, confidentiality determinations, and document retention/destruction policy)
- Times of Trenton Publ’g Corp. v. Lafayette Yard Cmty. Dev. Corp., 183 N.J. 519 (2005) (articulates OPRA’s purpose to maximize public knowledge and transparency)
- Mason v. City of Hoboken, 196 N.J. 51 (2008) (OPRA challenges may be brought in Superior Court or before the GRC)
- Sussex Commons Assocs., LLC v. Rutgers, 210 N.J. 531 (2012) (statutory interpretation requires effectuating Legislature’s intent and OPRA’s transparency goals)
- Tri-Way Kars, Inc. v. State, 402 N.J. Super. 215 (App. Div. 2008) (interpreting a differently worded statute and administrative/municipal court jurisdiction over penalties; distinguished in this opinion)