The Appellate Division recently held, for the first time, that trial judges have the authority to impose the financial penalties set forth in OPRA for individuals who knowingly violate the statute. North Jersey Media v. Office of the Governor. This opinion upended the practice that had been followed since OPRA’s enactment, under which only the GRC imposed these fines.

This is a very unfavorable ruling for public entities. As discussed here, allowing requestors to bring penalty claims in trial court actions will dramatically increase the risks and costs for public agencies in litigating OPRA cases.

The Appellate Division’s conclusion that OPRA permits requestors to file court complaints demanding that public officials be fined strikes me as incorrect. It creates the odd situation where private plaintiffs may file suit for monetary penalties that are to be paid to the State, not to the plaintiffs. This appears to be an unconstitutional delegation of the State’s power to private parties.

Presumably, the Attorney General will seek Supreme Court review in this case. But for the foreseeable future, public bodies face litigation not just over whether an OPRA request was properly denied, but also over whether employees involved in that OPRA request should be fined.