Port Authority Now Subject to OPRA

Port Authority NJNY

The New Jersey Open Public Records Act (OPRA) now applies to the Port Authority of New York and New Jersey.  The measure is the first post “Bridgegate” Port Authority reform to make it into law.

While efforts to improve transparency have been in the works for several years, the ongoing “Bridgegate” scandal spurred the legislative action. A series of bills intended to reform the Port Authority received nearly unanimous approval from lawmakers in both states.

The legislation is needed because the Port Authority is an instrumentality of the two states and, therefore, not considered an “agency” subject to OPRA’s government records requirement. As a New Jersey appeals court explained in 2012, “Bi-state entities occupy a significantly different position in our federal system than do the states themselves. The states, as separate sovereigns, are the constituent elements of the union. Bi-state entities, in contrast, are typically creations of three entities: two states and the federal government.” While the court acknowledged that similarities exist in New York and New Jersey open public records laws, it found that there must also be some agreement by both states that the law of one state will apply.

Last year, New Jersey and New York lawmakers overwhelmingly approved such a measure. However, Gov. Christie issued a conditional veto in January. He argued that the bill, as drafted at the time, would require New Jersey courts to interpret New York law, and vice versa, whenever a dispute over records arose. Gov. Christie explained in his veto statement, “This system would result in unnecessary conflicts of law that would only frustrate disclosure without enhancing transparency.”

To resolve the issue, Gov. Christie recommended that the Port Authority be deemed an “agency” for purposes of New York’s Freedom of Information Law and a “public agency” for purposes of New Jersey’s Open Public Records Act. If the plaintiff sues in New York, New York law applies; if the plaintiff sues in New Jersey, New Jersey law applies.

The recently enacted public records law adopts Gov. Christie’s recommended approach. Port Authority records will be open to the public in accordance with each state’s laws pertaining to the disclosure of government records. In New Jersey, OPRA will be applied to enforce the bill, while New York will use its own application.

Gov. Andrew Cuomo of New York previously signed a nearly identical version of the bill. However, New York law still contains the provision Gov. Christie found problematic. The bill states that when there is an inconsistency between the law of the State of New York and the law of the State of New Jersey, the law of the state that provided the greatest rights of access on the date it became law will apply. Going forward, the Port Authority may still have to consider both OPRA and the New York Freedom of Information Law in order to determine which is more favorable to the requester. If not, the agency could face a lawsuit in New York under the state’s “greatest rights of access” provision.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs.

Port Authority Now Subject to OPRA