NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3947-14T3

 A-3948-14T3

NORTH JERSEY MEDIA GROUP INC.,

d/b/a THE RECORD, 

Plaintiff-Appellant,

v. 

STATE OF NEW JERSEY OFFICE OF

THE GOVERNOR, 

Defendant-Respondent,

and

NED NURICK, ASSISTANT COUNSEL 

AND A CUSTODIAN OF PUBLIC RECORDS 

FOR THE OFFICE OF THE GOVERNOR, 

Defendant.

____________________________________

Argued January 24, 2017 – Decided

Before Judges Fisher, Leone and Vernoia.

On appeal from the Superior Court of New 

Jersey, Law Division, Mercer County, Docket 

Nos. L-1059-14 and L-0248-14.

Samuel J. Samaro argued the cause for 

appellant (Pashman Stein, attorneys; Mr. 

Samaro and Jennifer A. Borg, of counsel and 

on the briefs; CJ Griffin and James W. 

Boyan, III, on the briefs).

Raymond R. Chance, III, Assistant Attorney 

General, argued the cause for respondent 

APPROVED FOR PUBLICATION

August 3, 2017

APPELLATE DIVISION

August 3, 2017
2 A-3947-14T3

(Christopher S. Porrino, Attorney General, 

attorney; Michael C. Walters, Assistant 

Attorney General, of counsel; Jeffrey S. 

Jacobson, Counsel to the Attorney General, 

on the brief). 

The opinion of the court was delivered by

VERNOIA, J.A.D.

In these consolidated appeals arising out of two complaints 

seeking production of public records under the Open Public 

Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and the common law 

right of access to public records, we consider whether the 

Superior Court has the authority under N.J.S.A. 47:1A-11 to 

impose civil penalties for knowing and willful violations of 

OPRA, and whether the court erred in denying plaintiff's request 

for relief in aid of litigants' rights under Rule 1:10-3. We 

conclude the court erred in finding it lacked the authority to 

impose civil penalties under N.J.S.A. 47:1A-11, and that 

plaintiff was entitled to relief in aid of litigants' rights. We 

reverse and remand for further proceedings. 

I.

Plaintiff North Jersey Media Group Inc. publishes daily and 

weekly newspapers and maintains two websites. It appeals a 

December 16, 2014 order addressing motions filed in two lawsuits 

that were not consolidated but which the court considered 

jointly with the consent of the parties. 
3 A-3947-14T3

The lawsuits arose from plaintiff's requests that defendant

State of New Jersey Office of the Governor1 produce records 

concerning the Port Authority of New York and New Jersey's 

September 9 to 13, 2013 closures of local traffic lanes from 

Fort Lee to the George Washington Bridge. The closures caused 

significant traffic delays in Fort Lee, and led to an 

investigation by the New Jersey Legislature, and criminal 

prosecutions of Port Authority employees William Baroni and 

David Wildstein, and Governor Chris Christie's deputy chief of 

staff Bridget Kelly. 

Plaintiff's December 17, 2013 OPRA Request

On December 17, 2013, plaintiff filed a request with 

defendant for records under OPRA. The request sought 

"[c]orrespondence (including but not limited to emails, memos 

and letters) dated from Aug[ust] 1, 2013 to the present" between 

Baroni or Wildstein, and Governor Chris Christie, Kevin O'Dowd, 

Maria Comella, Michael Drewniak, Colin Reed, and Deborah 

 

1 The complaints also identified fictitiously named defendants.

One of the complaints also named as a defendant Ned Nurick, as 

"Assistant Counsel and Custodian of Public Records For The 

Office Of The Governor," but the record on appeal does not show 

Nurick was served with the complaint or that he participated in 

the proceedings in the trial court. No appearance has been filed 

on his behalf here. We therefore do not address any issues 

related to Nurick.
4 A-3947-14T3

Gramiccioni,2 "related to the lane closures of the George 

Washington Bridge during the week of Sept[ember] 9, 2013." 

Defendant's response to the request was provided in an unsigned 

December 27, 2013 letter from the "Office of the Governor," 

stating it "reviewed its records and has not identified any 

records that are responsive to [the] request," and that 

"[a]ccordingly, [the] OPRA request is hereby closed." 

Plaintiff subsequently obtained from other sources a copy 

of a September 12, 2013 email concerning the lane closures from 

Wildstein to Kelly and Drewniak, Governor Christie's press 

secretary. Wildstein wrote that "[t]he Port Authority is 

reviewing traffic safety patterns at the George Washington 

Bridge to ensure proper placement of toll lanes. The [Port 

Authority Police Department] has been in contact with the [Fort 

Lee] police throughout this transition." Plaintiff observed that 

the email was covered by its December 17, 2013 OPRA request, and 

that although defendant represented it "reviewed its records," 

it failed to provide the email in response to plaintiff's 

request. 

 

2 Plaintiff also requested records from anyone acting "on behalf 

of" the named individuals, "such as an assistant."
5 A-3947-14T3

Plaintiff's January and February 2014 OPRA Requests

In January and February 2014, plaintiff served defendant 

with four additional OPRA requests. On January 6, 2014, 

plaintiff served two requests for records of "[c]ommunications 

(including but not limited to text messages, emails, memos and 

letters)" related to the lane closures between fifteen named 

employees and officials in the Office of the Governor,3 and 

Baroni, Wildstein, and Port Authority Executive Director David 

Samson. On February 2, 2014, plaintiff requested records related 

to defendant's policies for the use of personal email accounts 

to conduct official or public business. On February 27, 2014, 

plaintiff requested defendant's policies related to the use of 

email correspondence for business and personal use.

From January 14, 2014 to March 28, 2014, plaintiff's and 

defendant's respective counsel communicated concerning the 

January and February requests, and defendant's requests for 

extensions of time to respond. Defendant's counsel advised that 

the delays in providing responses were the result of defendant's 

efforts to respond to numerous requests for the same 

information, including those made by the Legislature and the 

 

3 The individuals were Governor Christie, O'Dowd, Comella,

Drewniak, Gramiccioni, Reed, Kelly, Louis Goetting, Charles 

McKenna, Paul Matey, Matthew McDermott, Lauren Fritts, Rosemary 

Iannacone, and Kara Walker.
6 A-3947-14T3

United States Attorney's Office as part of their investigations. 

Plaintiff was also informed a law firm representing defendant 

was conducting an investigation of the lane closures that 

involved reviewing over 250,000 documents and interviewing more 

than seventy witnesses. Defendant advised plaintiff it would 

provide documents in response to the January and February OPRA 

requests as soon as feasible given those circumstances.

On March 27, 2014, the law firm representing defendant 

advised plaintiff's counsel it issued a report detailing its 

investigation of the lane closures, with over 3000 pages of 

exhibits annexed, and that the report and exhibits were 

available on the law firm's website. On March 28, 2014, 

defendant provided a putative response to plaintiff's January 

and February OPRA requests, advising plaintiff that "documents 

responsive to [the] request[s] may be found at" the website. 

The February Action

On February 7, 2014, plaintiff filed a verified complaint 

(February action) in the Law Division alleging defendant's 

response to plaintiff's December 17, 2013 request violated OPRA 

and plaintiff's common law right of access to public records. 

Plaintiff further alleged defendant's response to the OPRA 

request constituted part of defendant's ongoing pattern and 

practice of violating OPRA and denying public access to 
7 A-3947-14T3

government records. Plaintiff sought a declaration that 

defendant violated OPRA, an award of civil penalties under 

N.J.S.A. 47:1A-11, an order directing that defendant identify 

the records custodian who supplied the December 27, 2013 

response to the OPRA request, "a sworn statement from any 

persons involved in handling [the] OPRA request as set forth in 

Paff v. New Jersey Dep't of Labor, 392 N.J. Super. 334 (App. 

Div. 2007)," and a "plenary hearing to conduct discovery and 

resolve factual disputes."4

The May Action

On May 9, 2014, plaintiff filed a second verified complaint 

(May action) alleging defendant violated OPRA and plaintiff's 

common law right of access to government records in its response 

to plaintiff's January and February OPRA requests. Plaintiff 

sought the identical relief requested in the February action.

The Amended Complaint and Order to Show Cause in the 

February Action

On May 29, 2014, plaintiff filed an amended verified 

complaint and order to show cause in the February action. The 

amended complaint repeated the allegations concerning 

defendant's response to plaintiff's December 17, 2013 OPRA 

request, and detailed plaintiff's claim that defendant violated 

 

4 Plaintiff also sought other relief not pertinent here.
8 A-3947-14T3

OPRA in its response to six other requests made by plaintiff in 

2013 and 2014, including its January 6, 2014 request for records 

concerning the lane closures.5 Plaintiff alleged defendant 

consistently flouted the requirements of OPRA, "flagrant[ly] 

disregard[ed] its statutory obligations," and engaged in a 

pattern and practice of violating OPRA's requirements by 

(i) failing to identify or even acknowledge 

the existence of public records responsive 

to [p]laintiff's OPRA requests; (ii) failing 

to disclose public records responsive to 

[p]laintiff's OPRA requests; (iii) redacting 

public information from records provided 

(over-redacting records); (iv) consistently 

refusing to provide a Vaughn[

6] or similar 

index to explain the type of any record that 

they are withholding or to explain 

redactions to a record they have provided; 

(v) failing to meet the statutory deadlines 

and their own self-imposed extensions; and 

 

5 The amended complaint alleged defendant's pattern and practice 

of failing to comply with OPRA's requirements necessitated the 

filing of lawsuits in six other matters: North Jersey Media 

Group Inc. v. Office of the Governor, Docket No. MER-L-1059-14; 

North Jersey Media Group Inc. v. Office of the Governor, Docket 

No. MER-L-877-14; North Jersey Media Group Inc. v. Office of the 

Governor, Docket No. MER-L-67-14; North Jersey Media Group Inc. 

v. Office of the Governor, Docket No. MER-L-1432-13; North 

Jersey Media Group Inc. v. New Jersey State Police and Office of 

the Governor, Docket No. MER-L-310-13; and North Jersey Media 

Group Inc. v. Office of the Governor, Docket No. MER-L-251-14. 

6 The term "Vaughn index" refers to a list of the records a 

custodian has identified as responsive to a request and any 

exemptions that warrant non-disclosure. North Jersey Media 

Group, Inc. v. Bergen Cty. Prosecutor's Office, 447 N.J. Super.

182, 191 (App. Div. 2016) (citing Vaughn v. Rosen, 484 F.2d 820,

826-27 (D.C. Cir. 1973), cert. denied, 415 U.S. 977, 94 S. Ct.

1564, 39 L. Ed. 2d 873 (1974)). 
9 A-3947-14T3

(vi) failing to sign their responses or, 

otherwise, even identify their custodians in 

their responses to [p]laintiff's OPRA 

requests. 

The June 3, 2014 Case Management Order

On June 3, 2014, the court held a joint case management 

conference in the February and May actions. Defendant's counsel 

claimed defendant provided all of the records responsive to 

plaintiff's December 17, 2013 and January and February 2014 OPRA 

requests. Plaintiff's counsel represented that plaintiff had 

obtained from other sources at least one document that was 

responsive to the requests, but which defendant failed to 

provide. Plaintiff's counsel thus argued there was reason to 

question whether defendant actually conducted a search for the 

requested records and, if so, whether the search was adequate. 

The court entered a June 3, 2014 joint case management 

order in the February and May actions. In order for defendant to 

"evaluate the efficacy of [its] own searches," the court 

directed plaintiff to provide defendant with any documents it 

obtained from other sources but which were not provided by 

defendant in response to the OPRA requests. The court also 

directed that defendant provide sworn statements "explaining its 

searches for records" responsive to plaintiff's December 17, 

2013 and January and February 2014 records requests. The court 

required that the statements be based on personal knowledge, 
10 A-3947-14T3

"explain the recent search that produced responsive documents as 

well as defendant['s] initial responses to plaintiff's OPRA 

requests that did not result in the turnover of any documents," 

and include the information required by the court in Paff, 

supra, 392 N.J. Super. at 341.7 The order permitted defendant to 

provide multiple sworn statements "to adequately explain the 

searches in accordance with the personal knowledge requirement." 

Defendant provided two certifications in response to the 

court's June 3, 2014 order: a certification from Drewniak 

 

7 In Paff, we required the records custodian to provide a sworn 

statement describing:

(1) the search undertaken to satisfy the 

request;

(2)the documents found that are responsive 

to the request;

(3) the determination of whether the 

document or any part thereof is confidential 

and the source of the confidential 

information; [and]

(4) a statement of the agency's document 

retention/destruction policy and the last 

date on which documents that may have been 

responsive to the request were destroyed.

[392 N.J. Super. at 341.]

We also required that the statement include an appendix with "an 

index of all documents deemed by the agency to be confidential 

in whole or in part, with an accurate description of the 

documents deemed confidential." Ibid.
11 A-3947-14T3

purporting to describe defendant's response to plaintiff's 

December 17, 2013 request, and a certification from Alexander H. 

Southwell, a partner at the law firm representing defendant 

purporting to describe defendant's search for records responsive 

to the January and February 2014 requests. 

Defendant moved to dismiss the complaints in the February 

and May actions. Plaintiff opposed the motion and cross-moved 

to: enforce litigants' rights under Rule 1:10-3 based on 

defendant's alleged failure to supply sworn statements supported 

by personal knowledge detailing defendant's searches for the 

records as required by the June 3, 2014 order; strike the 

Southwell certification because it was not based on personal 

knowledge; convert the February and May actions into a plenary 

action and permit plaintiff to conduct discovery; and award 

attorneys' fees.

The court denied defendant's motion to dismiss the 

complaint, and granted in part and denied in part plaintiff's 

cross-motion. The court first addressed the February action and 

found defendant's search for records in response to the December 

17, 2013 OPRA request was "unreasonable" and "inadequate on its 

face." The court noted that it provided defendant with an 

opportunity to describe its records search by ordering defendant 

to supply sworn statements describing its search efforts. The 
12 A-3947-14T3

court found defendant provided only Drewniak's affidavit which 

showed that based on his "strained" interpretation of 

plaintiff's request, defendant failed to conduct any search for 

the records requested on December 17, 2013. Defendant did not 

provide an affidavit describing the search for records it 

claimed it undertook in its unsigned December 27, 2013 response 

to plaintiff's request. The court also determined defendant 

violated OPRA by failing to search for the records requested on 

December 17, 2013, and by failing to identify the records 

custodian as required by OPRA.

The court denied plaintiff's request for the imposition of 

a civil penalty, finding it lacked the authority to impose a 

penalty under N.J.S.A. 47:1A-11, and that a civil penalty could 

only be awarded in a proceeding before the Government Records 

Council (GRC). The court found plaintiff was the prevailing 

party in the February action and granted plaintiff's request for 

an award of attorneys' fees on that basis. 

The court also addressed the May action and denied 

plaintiff's motion to strike the Southwell certification, 

finding it documented a reasonable search for records in 

response to the January and February 2014 records requests. The 

court, however, determined plaintiff was entitled to attorneys' 

fees in the May action because plaintiff's initiation of the 
13 A-3947-14T3

litigation resulted in defendant's production of the requested 

records.

The court denied plaintiff's motion for relief in aid of 

litigants' rights under Rule 1:10-3. The court reasoned that the 

June 3, 2014 order's purpose was to require that defendant 

supply sworn statements describing its searches for records in 

response to plaintiff's requests, and determined that purpose 

was achieved by the Drewniak and Southwell certifications. The 

court also found that because plaintiff was supplied with 

records responsive to its requests, relief in aid of litigants' 

rights was unnecessary. 

The court dismissed without prejudice plaintiff's claim 

that defendant engaged in a pattern and practice of violating 

OPRA and the common law right of access to public records, and 

denied plaintiff's requests for discovery and a plenary action. 

The court determined that further litigation of the claim with 

the concomitant discovery and plenary hearing was inconsistent 

with the summary proceedings contemplated under OPRA.

The court memorialized its decision first in an October 28, 

2014 joint order in the February and May actions, and then in an 

amended order on December 16, 2014. The court directed the 

parties to negotiate the amount of the attorneys' fees due 

plaintiff. On March 31, 2015, following the parties' agreement 
14 A-3947-14T3

on the attorneys' fee award, the court entered a final order. 

This appeal followed. 

II.

We first address plaintiff's claim the court erred by 

denying its motion for relief in aid of litigants' rights. 

Plaintiff argues defendant's submission of the Drewniak and 

Southwell certifications violated the court's June 3, 2014 order 

because the certifications were not from defendant's designated 

records custodians, they failed to explain defendant's searches 

for the requested records, and the Southwell certification was 

not based on personal knowledge. Plaintiff also argues that 

contrary to the court's order, the certifications did not 

include the information we required in Paff, supra, 392 N.J. 

Super. at 341. 

We defer to the trial court's factual findings when they 

are "supported by adequate, substantial and credible evidence." 

Zaman v. Felton, 219 N.J. 199, 215 (2014) (quoting Toll Bros., 

Inc. v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002)). We 

review de novo the "trial court's interpretation of the law and 

the legal consequences that flow from established facts." 

Manalapan Realty L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 

378 (1995). 

 Rule 1:10-3 provides a "means for securing relief and 
15 A-3947-14T3

allow[s] for judicial discretion in fashioning relief to 

litigants when a party does not comply with a judgment or 

order." In re N.J.A.C. 5:96, 221 N.J. 1, 17-18 (2015); accord

Abbott v. Burke, 206 N.J. 332, 371 (2011). "Relief under Rule

1:10-3 . . . is not for the purpose of punishment, but as a 

coercive measure to facilitate the enforcement of the court 

order." Ridley v. Dennison, 298 N.J. Super. 373, 381 (App. Div. 

1997). "The particular manner in which compliance may be sought 

is left to the court's sound discretion." Bd. of Educ. of 

Middletown v. Middletown Twp. Educ. Ass'n, 352 N.J. Super. 501, 

509 (Ch. Div. 2001).

We reject plaintiff's argument that defendant violated the 

court's order because Drewniak and Southwell were not designated 

records custodians under N.J.S.A. 47:1A-1.1. The court's order 

did not require that defendant identify a records custodian or 

that the sworn statements be provided by a records custodian.8

The order directed that defendant provide sworn statements 

explaining its searches for records responsive to plaintiff's 

OPRA requests, that the statements include the information 

required in Paff, supra, 392 N.J. Super. at 341, and that the 

 

8 Similarly, in Paff, supra, 392 N.J. Super. at 341, we did not 

require a sworn statement from a designated records custodian,

but instead required a sworn statement from the public entity's 

"personnel."
16 A-3947-14T3

statements be based on personal knowledge. Accordingly, the fact 

that Drewniak and Southwell were not designated records 

custodians under N.J.S.A. 47:1A-1.1 did not render defendant's 

submission of their certifications a violation of the order and 

did not permit relief in aid of litigants' rights under Rule

1:10-3.

We also reject plaintiff's argument that submission of 

Drewniak's certification violated the court's order because the 

certification did not describe a search for records and did not 

otherwise provide the information required in Paff. To be sure, 

and as the court correctly found, Drewniak's certification "did 

not . . . explain[] the search for records responsive to 

[plaintiff's December 17, 2013 OPRA] request," and failed to 

detail "what [defendant] did and didn't do" to search for the 

requested records. The court, however, determined Drewniak's 

certification did not violate the June 3, 2014 order because it 

established that defendant simply did not conduct any search for 

records responsive to plaintiff's December 17, 2013 request. 

Indeed, the court relied on Drewniak's certification to support 

its determination that defendant acted inconsistently with its 

obligations under OPRA and the common law in its response to 

plaintiff's December 17, 2013 records request.

The court therefore determined there was no need for relief 
17 A-3947-14T3

in aid of litigants' rights to compel compliance with the 

order's directive that defendant explain its records search 

because, as Drewniak's certification established, defendant 

could not explain a search it failed to conduct. Under those 

circumstances, we are satisfied the record supports the court's 

conclusion that submission of Drewniak's certification did not 

violate the order.9

Plaintiff also claims the court erred by denying relief 

under Rule 1:10-3 because the Southwell certification was not 

based on personal knowledge and did not include, as directed by 

the court, the information required in Paff. We agree. The court 

rejected plaintiff's argument and found defendant was confronted 

with multiple requests for records concerning the lane closures 

from plaintiff, the Legislature, federal authorities, and 

others. The court noted it was not the "norm to employ an 

outside" law firm to conduct a search for public records, and 

that it was not unreasonable for defendant to have done so under 

the circumstances presented. The court concluded plaintiff was 

not entitled to relief under Rule 1:10-3 because Southwell's 

 

9 We recognize the obvious and unexplained contradiction between 

Drewniak's certification, which states defendant did not conduct 

a search for records in response to plaintiff's December 17,

2013 request, and defendant's December 27, 2013 response to 

plaintiff's request, which expressly states that a search for 

records was conducted and no responsive records were found. 
18 A-3947-14T3

certification adequately described the search conducted on 

defendant's behalf and established the search was reasonable.

Southwell's certification generally describes his firm's 

investigation concerning the lane closures "in response to 

certain subpoenas," but does not describe any personal 

involvement by him in the search for documents in response to 

the subpoenas. His firm employed a third-party vendor, which he 

identifies only as "the expert firm," to search defendant's 

email exchange server and the personal email accounts of certain 

of defendant's employees, whom Southwell also failed to 

identify. According to Southwell, unidentified attorneys at his 

firm then reviewed the records to determine which documents were 

responsive to the subpoenas or were pertinent to their 

investigation. 

Southwell also explained his firm first conducted a search 

for documents responsive to plaintiff's January 6, 2014 requests 

following the issuance of the firm's March 27, 2014 report.10 On 

or about May 8, 2014, his firm was provided with plaintiff's 

 

10 This representation appears contrary to Southwell's firm's 

March 28, 2014 letter to plaintiff's counsel advising that 

documents responsive to plaintiff's requests were contained in 

the firm's report and annexed exhibits. Southwell's 

certification states that the firm's search for documents 

responsive to plaintiff's requests did not occur until May 8,

2014, when the firm received plaintiff's requests. 
19 A-3947-14T3

January 6, 2014 requests, but neither he nor anyone at his firm 

personally undertook a search for the documents. Instead, his 

firm asked the third-party vendor, the purported "expert firm," 

to search the database it developed in response to subpoenas for 

documents responsive to plaintiff's requests.11 According to 

Southwell, the "expert firm's" search uncovered only four 

documents responsive to plaintiff's requests that had not been 

included in the exhibits attached to his firm's March 27, 2014 

report.

Plaintiff correctly argues the Southwell certification did 

not fully comply with the court's June 3, 2014 order, which 

required that defendant provide sworn statements based solely on 

personal knowledge explaining the search for records responsive 

to plaintiff's requests. Southwell's description of the search 

is not based on his personal knowledge, nor could it have been, 

as it was conducted by an unidentified third-party vendor and, 

at times, unidentified attorneys at his firm. 

Submission of the Southwell certification also violated the 

requirement that the sworn statement provide the information 

required in Paff, supra, 392 N.J. Super. at 341. The 

 

11 The Southwell certification does not describe or establish a 

search of all of defendant's government records in response to 

the January and February 2014 requests. The Southwell 

certification details only a search of records that were 

assembled in response to subpoenas. 
20 A-3947-14T3

certification does not state whether a determination had been 

made that any document or any part thereof was confidential, and 

did not include defendant's "document retention/destruction 

policy" or indicate the last date documents responsive to 

plaintiff's requests were destroyed as required in Paff and 

under the court's June 3, 2014 order.

Plaintiff sought relief in aid of litigants' rights under 

Rule 1:10-3 based on the deficiencies in the Southwell 

certification, but the court denied the request and found the 

certification showed defendant's search for the records was 

reasonable. We are convinced the court abused its discretion in 

reaching that conclusion. 

An abuse of discretion occurs "when a decision is 'made 

without a rational explanation, inexplicably departed from 

established policies, or rested on an impermissible basis.'" 

U.S. Bank Nat. Ass'n v. Guillaume, 209 N.J. 449, 467 (2012) 

(quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 

(2007)). Here, defendant's submission of the Southwell 

certification violated the unambiguous requirements of the June 

3, 2014 order, which plaintiff sought to enforce in its Rule

1:10-3 motion. The court's failure to consider defendant's clear 

violations of the order was without any explanation, and 
21 A-3947-14T3

overlooked the purpose of Rule 1:10-3: ensuring compliance with 

court orders. Ridley, supra, 298 N.J. Super. at 381.

Moreover, the court's denial of plaintiff's Rule 1:10-3 

motion rested on an impermissible basis. The court denied the 

motion because it determined Southwell described a reasonable 

search for the records plaintiff requested. But Southwell's 

description of the search was not based on his personal 

knowledge and, therefore, the record is bereft of any competent 

evidence supporting the court's determination that defendant's 

search for the records requested in January and February 2014 

was reasonable and compliant with its obligations under OPRA and 

the common law. See R. 1:6-6 ("If a motion is based on facts not 

appearing of record or not judicially noticeable, the court may 

hear it on affidavits made on personal knowledge . . . ."); 

Allen v. World Inspection Network Intern., Inc., 389 N.J. Super.

115, 121 (App. Div. 2006) (finding plaintiffs failed to submit 

"competent evidence" where the complaint was not properly 

verified because it was not based on personal knowledge), 

certif. denied, 194 N.J. 267 (2007).

Therefore, we are constrained to reverse the court's 

December 16, 2014 order denying plaintiff's motion for relief in 

aid of litigants' rights as it pertains to defendant's failure 

to provide a sworn statement based on personal knowledge 
22 A-3947-14T3

explaining its search for records in response to plaintiff's 

January and February 2014 requests. On remand, the court shall 

enter an order pursuant to Rule 1:10-3 requiring defendant to 

supply the sworn statements based on personal knowledge 

explaining the records search and otherwise satisfying the 

requirements of the June 3, 2014 order. 

We also observe that the court relied on the Southwell 

certification to support its dismissal of plaintiff's complaint 

in the May action. The court determined the Southwell 

certification detailed a reasonable search in response to 

plaintiff's January and February 2014 requests, and that the 

search was therefore compliant with defendant's obligations 

under OPRA and the common law. Because we are convinced the 

court could not properly rely on Southwell's certification to 

support its conclusion defendant's search was compliant with 

OPRA and the common law, there was insufficient credible 

evidence supporting the court's finding that defendant's search 

for records was reasonable. We therefore vacate the order 

dismissing plaintiff's complaint in the May action, and remand 

for further proceedings based on competent evidence.

III.

Plaintiff next claims the court erred by denying its motion 

for the imposition of civil penalties under N.J.S.A. 47:1A-11. 
23 A-3947-14T3

The court denied the motion finding it lacked authority to 

impose civil penalties because the statute permits the 

imposition of penalties only in a proceeding before the GRC. 

Plaintiff contends N.J.S.A. 47:1A-11 vests the Superior Court 

with the authority to impose civil penalties where there is a 

knowing and willful violation of OPRA and an unreasonable denial 

of access to public records under the totality of the 

circumstances presented. We are persuaded by plaintiff's 

arguments.

A "trial court's determinations with respect to the 

applicability of OPRA are legal conclusions subject to de novo 

review." K.L. v. Evesham Twp. Bd. of Educ., 423 N.J. Super. 337, 

349 (App. Div. 2011) (quoting O'Shea v. Twp. of W. Milford, 410 

N.J. Super. 371, 379 (App. Div. 2009)), certif. denied, 210 N.J.

108 (2012); accord Paff v. Ocean Cty. Prosecutor's Office, 446 

N.J. Super. 163, 175 (App. Div.), certif. granted, 228 N.J. 403 

(2016); Drinker Biddle & Reath LLP v. N.J. Dep't. of Law & Pub. 

Safety, 421 N.J. Super. 489, 497 (App. Div. 2011); MAG Entm't, 

LLC v. Div. of Alcoholic Beverage Control, 375 N.J. Super. 534, 

543 (App. Div. 2005). "Our standard of review is plenary with 

respect to [a trial court's] interpretation of OPRA and its 

exclusions." Gilleran v. Twp. of Bloomfield, 440 N.J. Super.

490, 497 (App. Div. 2015), rev'd on other grounds, 227 N.J. 159 
24 A-3947-14T3

(2016); see also State v. Goodwin, 224 N.J. 102, 110 (2016) ("In 

construing the meaning of a statute, our review is de novo."). 

"The purpose of OPRA 'is to maximize public knowledge about 

public affairs in order to ensure an informed citizenry and to 

minimize the evils inherent in a secluded process.'" Times of 

Trenton Publ'g Corp. v. Lafayette Yard Cmty. Dev. Corp., 183

N.J. 519, 535 (2005) (quoting Asbury Park Press v. Ocean Cty.

Prosecutor's Office, 374 N.J. Super. 312, 329 (Law Div. 2004)). 

"In enacting OPRA, the Legislature intended to bring greater 

transparency to the operations of government and public 

officials." Paff v. Galloway Twp., ___ N.J. ___, ___ (2017) 

(slip op. at 15); see also Sussex Commons Assocs., LLC v. 

Rutgers, 210 N.J. 531, 541 (2012). 

OPRA provides that where a person's request for government 

records is denied, the requester has the option of challenging 

the denial in one of two forums: by "filing an action in 

Superior Court" or "a complaint with the [GRC]." N.J.S.A. 47:1A6; Mason v. City of Hoboken, 196 N.J. 51, 68 (2008). Challenges 

filed in the Superior Court and the GRC "shall proceed in a 

summary or expedited manner" and where "it is determined that 

access was improperly denied the court or [GRC] shall order that 

access be allowed." N.J.S.A. 47:1A-6.

OPRA also authorizes the imposition of civil penalties: 
25 A-3947-14T3

A public official, officer, employee or 

custodian who knowingly and willfully 

violates [OPRA] as amended and supplemented, 

and is found to have unreasonably denied 

access under the totality of the 

circumstances, shall be subject to a civil 

penalty . . . . [The] penalty shall be 

collected and enforced in proceedings in 

accordance with the "Penalty Enforcement Law 

of 1999," P.L. 1999, c. 274 [N.J.S.A. 2A:58-

10 to -12], and the rules of court governing 

actions for the collection of civil 

penalties. The Superior Court shall have 

jurisdiction of proceedings for the 

collection and enforcement of the penalty 

imposed by this section.

[N.J.S.A. 47:1A-11.]

Here, the court determined N.J.S.A. 47:1A-11 does not 

permit imposition of civil penalties by the Superior Court. The 

judge first found that N.J.S.A. 47:1A-7, which defines the 

powers, duties and jurisdiction of the GRC, expressly grants the 

GRC the authority to impose civil penalties. See N.J.S.A. 47:1A7(e). The judge reasoned that because OPRA does not include a 

similar express grant of authority to the Superior Court, 

N.J.S.A. 47:1A-11 does not permit the Superior Court to impose 

civil penalties. Second, the court found that an interpretation 

of N.J.S.A. 47:1A-11 permitting the Superior Court to impose 

civil penalties is inconsistent with OPRA's requirement that 

challenges to records request denials be addressed in a 

"summary" manner. For the reasons that follow, we reject the 

court's reasoning and conclude N.J.S.A. 47:1A-11 permits the 
26 A-3947-14T3

Superior Court to impose a civil penalty where appropriate under 

the statutory standard. 

In our interpretation of N.J.S.A. 47:1A-11, our goal "is to 

ascertain and effectuate the Legislature's intent." State v. 

Olivero, 221 N.J. 632, 639 (2015); see also Sussex Commons 

Assocs., LLC, supra, 210 N.J. at 540-41 (finding court's 

obligation in interpreting OPRA "is to determine and carry out 

the Legislature's intent"). We first "look at the plain language 

of the statute," Sussex Commons Assocs., LLC, supra, 210 N.J. at 

541, because it "is typically the best indicator of intent," In 

re Plan for the Abolition of the Council on Affordable Hous., 

214 N.J. 444, 467 (2013); accord Gilleran, supra, 227 N.J. at

171-72; DiProspero v. Penn, 183 N.J. 477, 492 (2005). Moreover, 

we "read and construe[]" the words and phrases of the statute 

"with their context," giving them "their generally accepted 

meaning, according to the approved usage of the language," 

"unless inconsistent with the manifest intent of the legislature 

or unless another or different meaning is expressly indicated." 

N.J.S.A. 1:1-1; State v. Regis, 208 N.J. 439, 447 (2011).

The first sentence of N.J.S.A. 47:1A-11 authorizes the 

imposition of a civil penalty, and establishes the standard for 

the assessment of a penalty. It does not authorize only the GRC 

to impose a civil penalty, or prohibit the Superior Court from 
27 A-3947-14T3

doing so. To the contrary, the first sentence of N.J.S.A. 47:1A11 conditions the award of a civil penalty only upon the making 

of two findings: that there is a knowing and willful violation 

of OPRA, and an unreasonable denial of access to the requested 

government records under the totality of the circumstances. 

N.J.S.A. 47:1A-11; Bart v. Passaic Cty. Pub. Hous. Agency, 406 

N.J. Super. 445, 452 (App. Div. 2009). 

The Legislature established only two forums with 

jurisdiction to make the findings necessary for an award of a 

civil penalty under N.J.S.A. 47:1A-11: the Superior Court and 

the GRC. N.J.S.A. 47:1A-6. In setting the standard for an award 

of a civil penalty in the first sentence of N.J.S.A. 47:1A-11, 

the Legislature did not mandate that the requisite findings be 

made in a particular forum, did not authorize only the GRC to 

make the findings, and did not prohibit the Superior Court from 

making the findings necessary for the imposition of a civil 

penalty. 

Having established two forums for the adjudication of 

challenges to government records requests denials, the 

Legislature could have chosen to expressly limit the forum in 

which the requisite findings for the imposition of a civil 

penalty could be made, but it elected not to do so. We therefore 

discern nothing in the first sentence of N.J.S.A. 47:1A-11 
28 A-3947-14T3

limiting the jurisdiction to impose a civil penalty to the GRC, 

and it is not our role to "rewrite a plainly-written enactment 

of the Legislature []or presume that the Legislature intended 

something other than that expressed by way of the plain 

language." DiProspero, supra, 183 N.J. at 492 (quoting O'Connell 

v. State, 171 N.J. 484, 488 (2002)). We also will not "'write in 

an additional qualification which the Legislature pointedly 

omitted in drafting its own enactment,' or 'engage in conjecture 

or surmise which will circumvent the plain meaning of the act.'" 

Ibid. (first quoting Craster v. Bd. of Comm'rs of Newark, 9 N.J.

225, 230 (1952); then quoting In re Closing of Jamesburg High 

School, 83 N.J. 540, 548 (1980)).

Defendant ignores the plain language of the first sentence 

of N.J.S.A. 47:1A-11 and argues the statute vests the GRC with 

the exclusive jurisdiction to impose a civil penalty because 

N.J.S.A. 47:1A-7, which establishes and defines the powers and 

duties of the GRC, expressly provides that the GRC may impose a 

civil penalty. More particularly, N.J.S.A. 47:1A-7(e) provides 

that if the GRC "determines, by a majority vote of its members, 

that a custodian has knowingly and willfully violated [OPRA] . . 

., and is found to have unreasonably denied access under the 

totality of the circumstances, [it] may impose" a civil penalty 

under N.J.S.A. 47:1A-11. Defendant contends that because OPRA 
29 A-3947-14T3

does not contain a similar express grant of authority to the 

Superior Court, it can be reasonably inferred the Superior Court 

does not have the authority to impose a civil penalty under 

N.J.S.A. 47:1A-11. We disagree.

The plain language of N.J.S.A. 47:1A-7(e) does not grant 

the GRC the exclusive authority to impose a civil penalty under 

N.J.S.A. 47:1A-11, and does not limit the Superior Court's 

authority to impose a civil penalty. N.J.S.A. 47:1A-7(e) 

authorizes the GRC to impose a civil penalty only "as provided 

for in N.J.S.A. 47:1A-11." Thus, by its express terms, N.J.S.A.

47:1A-7(e) does not define the forum in which a civil penalty 

may be assessed under N.J.S.A. 47:1A-11, or modify the 

jurisdiction to impose a civil penalty as provided under 

N.J.S.A. 47:1A-11. Instead, N.J.S.A. 47:1A-7(e) simply 

authorizes the GRC to impose a civil penalty as permitted under 

N.J.S.A. 47:1A-11. 

Moreover, the language in N.J.S.A. 47:1A-7(e) relied upon 

by defendant cannot be read in isolation. It is one part of a 

broader statute, N.J.S.A. 47:1A-7(a)-(g), which establishes the 

GRC and defines its duties, powers and jurisdiction. When viewed 

in that context, the language in N.J.S.A. 47:1A-7(e) establishes 

that the GRC's powers include the authority to impose a civil 

penalty in accordance with N.J.S.A. 47:1A-11. As noted, however, 
30 A-3947-14T3

there is nothing in N.J.S.A. 47:1A-7(e) or N.J.S.A. 47:1A-11 

granting exclusive authority to the GRC.

In addition, N.J.S.A. 47:1A-7(e) supports the conclusion 

the GRC does not have exclusive jurisdiction to impose a civil 

penalty and that the Superior Court also has jurisdiction to 

impose a penalty. N.J.S.A. 47:1A-7(e) narrowly grants the GRC 

the authority to impose a civil penalty. The statute provides 

that the GRC may impose a civil penalty where it determines a 

"custodian" violated OPRA willfully and knowingly. N.J.S.A.

47:1A-7(e). 

In contrast, N.J.S.A. 47:1A-11 more broadly permits the 

award of a civil penalty where "[a] public official, officer, 

employee or custodian" knowingly or willfully violates OPRA. As 

such, N.J.S.A. 47:1A-7(e) does not expressly grant the GRC the 

authority to impose a civil penalty in all of the circumstances 

for which a penalty may be imposed under N.J.S.A. 47:1A-11. 

We reject defendant's reliance on N.J.S.A. 47:1A-7(e) as 

support for its argument that only the GRC is authorized to 

impose a civil penalty under N.J.S.A. 47:1A-11. To accept 

defendant's interpretation would render meaningless the language 

in N.J.S.A. 47:1A-11 permitting the imposition of a penalty 

based on the actions of public officials, officers and 

employees. See State in the Interest of K.O., 217 N.J. 83, 91 
31 A-3947-14T3

(2014) ("when construing the Legislature's words, every effort 

should be made to avoid rendering any part of the statute 

superfluous"); Patel v. N.J. Motor Vehicle Comm'n, 200 N.J. 413, 

418-19 ("we do not assume that the Legislature used any 

unnecessary or meaningless language"). Because N.J.S.A. 47:1A7(e) does not authorize the GRC to impose a civil penalty under 

N.J.S.A. 47:1A-11 based on the actions of public officials, 

officers and employees, the only logical conclusion, as 

supported by the plain language of the first sentence of 

N.J.S.A. 47:1A-11, is that the Legislature vested the Superior 

Court with the jurisdiction to do so.

We also reject defendant's assertion that N.J.S.A. 47:1A-11 

permits only the GRC to impose a civil penalty because the 

statute provides that a penalty "shall be collected and enforced 

in proceedings in accordance with the 'Penalty Enforcement Act 

of 1999'" (PEA), N.J.S.A. 2A:58-10 to -12, "and the rules of 

court governing actions for collection of civil penalties," and 

further states "[t]he Superior Court shall have jurisdiction of 

proceedings for the collection and enforcement of the penalty 

imposed by this section." Although the PEA provides for the 

entry of a final order on the judgment docket for civil 

penalties awarded by an administrative agency, N.J.S.A. 2A:58-

10, it also authorizes the Superior Court to collect and enforce 
32 A-3947-14T3

a civil penalty where, as here, a statute directly authorizes 

the court to impose a civil penalty, N.J.S.A. 2A:58-11(a)-(f). 

Defendant relies on our decision in State v. Tri-Way Kars, 

Inc., 402 N.J. Super. 215, 220-23 (App. Div.), certif. denied, 

197 N.J. 259 (2008), where we considered whether a municipal 

court had jurisdiction to impose a penalty under a Consumer 

Fraud Act12 (CFA) provision stating that municipal courts "shall 

have jurisdiction of proceedings for the collection and 

enforcement of a penalty imposed because of [a] violation" of 

the CFA. See N.J.S.A. 56:8-14. We decided that municipal courts 

did not have jurisdiction under N.J.S.A. 56:8-14 to impose the 

penalty because the CFA regulations vested the director of the 

Division of Consumer Affairs with the exclusive authority to 

impose the penalty at issue. Tri-Way Kars, supra, 402 N.J. 

Super. at 223. We thus read the language in N.J.S.A. 56:8-14 to 

grant municipal courts jurisdiction only to collect and enforce, 

but not impose, the CFA penalty. Ibid. 

Our holding in Tri-Way Kars is inapposite here. OPRA does 

not vest the GRC with exclusive jurisdiction to impose a civil 

penalty under N.J.S.A. 47:1A-11. For the reasons noted, the 

Superior Court has jurisdiction to impose a civil penalty and 

 

12 The Consumer Fraud Act is codified at N.J.S.A. 56:8-1 to -

166.
33 A-3947-14T3

thus, unlike in Tri-Way Kars, the language in N.J.S.A. 47:1A-11 

permitting the collection and enforcement of an OPRA civil 

penalty does not define the limits of the Superior Court's 

jurisdiction. Instead, the language simply provides a means of 

collection and enforcement of a civil penalty the Superior Court 

and GRC are each otherwise authorized to impose.

Defendant asserts that an interpretation of N.J.S.A. 47:1A11 permitting the Superior Court to impose a civil penalty runs 

afoul of the requirement that OPRA "proceeding[s] shall proceed 

in a summary or expedited manner." N.J.S.A. 47:1A-6. The 

assertion is contradicted by the plain language of N.J.S.A.

47:1A-11, which provides for a trial to resolve issues of fact 

related to the imposition of a civil penalty and allows for the 

conversion of a summary action into a plenary proceeding where 

appropriate. 

N.J.S.A. 47:1A-11 provides that a penalty shall be 

collected and enforced in accordance with the PEA and "the rules 

of court governing actions for the collection of civil 

penalties." Under the PEA, a court authorized to impose a civil 

penalty is required to "decide the case in a summary manner 

without a jury,"13 but requires that the court "hear testimony on 

 

13 The statute includes an exception to the requirement that is 

not applicable here. The court is required to "decide the case 

(continued)
34 A-3947-14T3

any factual issues." N.J.S.A. 2A:58-11. Similarly, our Rules

require the court in a summary action to "hear the evidence" to 

determine any genuine factual issues, and permit the conversion 

of the matter into a plenary action where good cause is shown. 

R. 4:67-5; see also Cent. State Bank v. Hudik-Ross Co., 164 N.J. 

Super. 317, 324 (App. Div. 1978) (finding that Rule 4:67-5 

permits a court to direct that a matter brought on an order to 

show cause proceed as a plenary action). Thus, contrary to 

defendant's claim, resolution of factual disputes at a hearing 

and conversion of a civil penalty proceeding into a plenary 

action are wholly consistent with the requirements for the 

imposition of a civil penalty under N.J.S.A. 47:1A-11.

Although our interpretation of N.J.S.A. 47:1A-11 is 

required by its plain language, it is also consistent with 

OPRA's underlying policy "to maximize public knowledge about 

public affairs in order to ensure an informed citizenry[,] [] to 

minimize the evils inherent in a secluded process," O'Boyle v. 

Borough of Longport, 218 N.J. 168, 184 (2014) (quoting Mason, 

supra, 196 N.J. at 64), and to "protect[] [] the public 

interest," Sussex Commons Assocs., LLC, supra, 210 N.J. at 541 

(quoting N.J.S.A. 47:1A-1). OPRA enables "citizens and the media 

 

(continued)

in a summary manner without a jury unless otherwise provided in 

the statute imposing the penalty." N.J.S.A. 2A:58-11(c).
35 A-3947-14T3

[to] play a watchful role in curbing wasteful government 

spending and guarding against corruption and misconduct."

Burnett v. Cty. of Bergen, 198 N.J. 408, 414 (2009). 

N.J.S.A. 47:1A-11 provides a valuable means to compel 

compliance with OPRA by public officials, officers, employees 

and records custodians who might otherwise flout OPRA's 

requirements and willfully and knowingly deprive the public of 

access to government records. The civil penalties permitted 

under N.J.S.A. 47:1A-11 help ensure that records at all levels 

of government, including the highest levels of our State 

government, are not willfully and knowingly withheld in an 

effort to shroud possible wrongdoing from the public's view or 

deny access to government records to which every citizen is 

entitled. It is inconsistent with the plain language of N.J.S.A.

47:1A-11 and OPRA's purpose to shield the recalcitrance and 

obfuscation of public officials, officers, custodians and 

employees from the imposition of a civil penalty simply because 

a requester opted to seek redress in a court of law rather than 

with the GRC. We are convinced the motion court erred by 

concluding otherwise, and by dismissing plaintiff's claims for 
36 A-3947-14T3

the imposition of a civil penalty in the February and May 

actions.14

Thus, we vacate the dismissal of the February and May 

actions, and reverse the court's order determining it was 

without jurisdiction to impose a civil penalty under N.J.S.A.

47:1A-11 and dismissing plaintiff's claims for a civil penalty 

in the February and May actions. We remand for further 

proceedings consistent with this opinion.

 

14 We disagree with defendant's contention that there is no basis 

to impose a civil penalty because the court did not find either 

a willful and knowing violation of OPRA or that there was an 

unreasonable denial of access to the requested records under the 

totality of the circumstances presented. See N.J.S.A. 47:1A-11. 

The court did not make findings of fact under N.J.S.A. 47:1A-11 

because it concluded it lacked jurisdiction to impose a civil 

penalty under the statute. The findings required for a 

determination as to whether a civil penalty should be imposed in 

the February and May actions shall be made by the court based on 

the evidence presented on remand. We offer no opinion on the 

merits of plaintiff's request for a civil penalty in either of 

the actions. We also express no opinion on whether discovery 

should be permitted, but rather leave that issue for the trial 

court to consider in light of our ruling that N.J.S.A. 47:1A-11 

allows it to impose civil penalties.