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NJ Open Government Notes

Appellate Division: Courts are empowered to penalize government officials for knowing and willful OPRA violations.

There has been some confusion over the power of Superior Court judges to assess monetary penalties against records custodians and other government officials who knowingly, willfully and unreasonably violate the Open Public Records Act (OPRA)

The confusion stems from the Appellate Division’s August 5, 2008, unpublished opinion in Hirsch v. City of Hoboken.  In that case, a three-judge panel held that the Superior Court lacks the authority to issue civil penalties against government officials because the court’s “role under OPRA is not as broad as the role of the Government Records Council (GRC).”

On August 3, 2017, the Appellate Division issued a published opinion in North Jersey Media Group, Inc. v. Office of the Governor, 451 N.J. Super. 282 that rejected this limitation.  This precedential opinion states that both the Superior Court and the GRC are empowered to assess civil penalties against records custodians in appropriate cases.

Under N.J.S.A. 47:1A-11, “[a] public official, officer, employee or custodian who knowingly and willfully violates [OPRA} and is found to have unreasonably denied access under the totality of the circumstances, shall be subject to a civil penalty of $1,000 for an initial violation, $2,500 for a second violation that occurs within 10 years of an initial violation, and $5,000 for a third violation that occurs within 10 years of an initial violation.”

By John Paff

Chairman of the New Jersey Libertarian Party's Open Government Advocacy Project