A recently-filed appeal raises an issue that has been under the radar, but is of critical importance to public agencies–whether trial court judges have the legal authority to impose OPRA’s financial penalties.

OPRA requires imposition of a civil penalty, ranging from $1000 to $5000, upon any public official or employee who knowingly and willfully violates the statute. The GRC has fined custodians under this provision, see this example of a $2500 penalty, but there is no clear case law on whether trial court judges also have the power to impose the statutory penalty.

North Jersey Media Group recently filed an appeal which presents this issue. The case concerns a reporter’s December 2013 OPRA request to the Governor’s Office for correspondence related to the now-infamous George Washington Bridge lane closures. The trial judge ruled that the Governor’s Office violated OPRA in responding to the request. North Jersey’s appeal argues that members of the Governor’s Office should have been subject to penalties for their handling of the request. The threshold question in the appeal therefore is whether a trial judge has the legal authority to impose OPRA’s penalties.

There is no precedential court opinion addressing this issue. In an unpublished 2008 opinion, the Appellate Division said that the statute provides that only the GRC, and not the trial court, has authority to impose penalties. I think the Appellate Division was correct, but of course a future court may disagree and decline to follow this non-binding opinion.

A ruling that trial courts may impose penalties would dramatically increase the risks and costs of agencies’ OPRA litigation. A penalty claim would require a judge to conduct a proceeding to determine whether any of the employees involved in the OPRA response committed the violation knowingly and willfully. This inquiry may well require discovery and an evidentiary hearing. As a result, many OPRA cases would turn into lengthy and expensive litigation.

In addition, giving judges the power to impose penalties would adversely affect the ability of agencies to settle OPRA actions favorably. Requestors would be able to use the prospect of costly and time-consuming penalty litigation, plus the risk of an increased attorney fee award as a result of this litigation, as added leverage in settlement negotiations with the agency.

The Appellate Division will probably issue its opinion in the North Jersey appeal some time late next year.