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North Jersey Media Group Inc. v. State, Office of Governor

Superior Court of New Jersey, Appellate Division

August 3, 2017

NORTH JERSEY MEDIA GROUP INC., d/b/a THE RECORD, Plaintiff-Appellant,
v.
STATE OF NEW JERSEY OFFICE OF 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

         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).

          Before Judges Fisher, Leone and Vernoia.

          OPINION

          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.

         The lawsuits arose from plaintiff's requests that defendant State of New Jersey Office of the Governor[1] 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 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.

         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 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, 0 00 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 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 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 (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, "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 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 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 ...


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