In an unpublished opinion issued today, the Appellate Division reversed a GRC ruling and held that the City of Orange’s denial of an OPRA request was willful and deliberate. Gordon v. City of Orange.

The GRC had determined that the custodian should not be fined for the incorrect denial of the request, on the ground that there was no knowing and willful violation and unreasonable denial of access. The court, however, concluded that the evidence in the record did not support this finding. The court noted that the City denied the request due to “ongoing litigation,” but in fact there was no litigation. And the court noted that there was no valid basis for denying access to the requested payroll records.

This opinion is unique in OPRA caselaw: this is the first time the Appellate Division has made its own determination that a public body’s violation was knowing and willful, and effectively mandated that the GRC impose  fines on the responsible officials.

This opinion may wind up having an impact on all public officials involved in OPRA matters, by making it more likely that the GRC will impose penalties for OPRA violations. I suspect the GRC will try to avoid appellate reversal in future penalty cases by taking a stricter stance, consistent with the Gordon opinion, in evaluating whether the public body’s conduct was knowing and willful.