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Vesselin Dittrich v. the Port Authority of New York and New Jersey and Daniel D. Duffy In

October 4, 2012

VESSELIN DITTRICH, PLAINTIFF-APPELLANT,
v.
THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY AND DANIEL D. DUFFY IN HIS OFFICIAL CAPACITY AS FREEDOM OF INFORMATION OFFICER OF THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3670-11.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 24, 2012

Before Judges Espinosa and Guadagno.

This appeal presents the question whether the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, applies to the Port Authority of New York and New Jersey (Port Authority). Plaintiff appeals from an order that dismissed his complaint and order to show cause, in which he alleged that the Port Authority had violated OPRA and the common law right of access to public documents. We agree with the trial court that OPRA does not apply to the Port Authority and affirm.

Following his arrest by Port Authority Police at the Hoboken PATH station in August 2010, plaintiff made the first of a series of requests for documents to the Port Authority. The Port Authority responded, informing him that his request was being processed pursuant to the Port Authority's Freedom of Information Policy (the Policy) and provided him with a copy of the Policy. It is unnecessary for us to recount the ensuing exchange of requests and responses. As of June 2011, Daniel Duffy, the Port Authority's Freedom of Information Administrator, advised plaintiff's counsel that certain requested records were exempt from disclosure pursuant to specific exemptions in the Policy, and also advised him of the fees for retrieving and copying other requests, which would require an upfront payment of $3891. Plaintiff did not submit the payment or file a written appeal pursuant to the Port Authority's appeal process to challenge the denial of access to any records.*fn1 Instead, he chose to initiate this litigation and now appeals from the trial court's order, arguing that OPRA should be applied to the Port Authority.

To implement its purpose "to promote transparency in the operation of government," Sussex Commons Assocs., LLC v. Rutgers, 210 N.J. 531, 540-41 (2012), OPRA requires that "government records shall be readily accessible" to the public "with certain exceptions, for the protection of the public interest." N.J.S.A. 47:1A-1.

The statute defines "government records" broadly as:

[any record] made, maintained or kept on file in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards thereof, or that has been received in the course of his or its official business by any such officer, commission, agency, or authority of the State or of any political subdivision thereof, including subordinate boards thereof. The terms shall not include inter-agency or intra-agency advisory, consultative, or deliberative material. [N.J.S.A. 47:1A-1.1.]

"In short, any document kept on file or received in the course of the official business of an 'agency' of a political subdivision is a government document." Fair Share Hous. Ctr., Inc. v. N.J. State League of Municipalities, 207 N.J. 489, 508 (2011). OPRA defines "public agency" or "agency" as: any of the principal departments in the Executive Branch of State Government, and any division, board, bureau, office, commission or other instrumentality within or created by such department; the Legislature of the State and any office, board, bureau or commission within or created by the Legislative Branch; and any independent State authority, commission, instrumentality or agency. The terms also mean any political subdivision of the State or combination of political subdivisions, and any division, board, bureau, office, commission or other instrumentality within or created by a political subdivision of the State or combination of political subdivisions, and any independent authority, commission, instrumentality or agency created by a political subdivision or combination of political subdivisions. [N.J.S.A. 47:1A-1.1.]

The threshold question here is whether the Port Authority is an agency within the definition of N.J.S.A. 47:1A-1.1.

The Port Authority was created in 1921 by an interstate compact between New York and New Jersey, the New York-New Jersey Port Authority Compact of 1921 (the Compact), and with the consent of Congress, pursuant to the Compact Clause. U.S.

Const. art. I, § 10, cl. 3. As a bi-state entity, the Port Authority is to "be regarded as the municipal corporate instrumentality of the two states for the purpose of developing the port . . . ." N.J.S.A. 32:1-33 (emphasis added); see also Bunk v. Port Auth. of N.Y. & N.J., 144 N.J. 176, 184 (1996) ("The Port Authority is not the agency of a single state but rather a public corporate instrumentality of New Jersey and New York.").

In Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 115 S. Ct. 394, 130 L. Ed. 2d 245 (1994), the Supreme Court discussed the difference ...


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