Thursday, October 4, 2012

The Port Authority is not subject to OPRA

UPDATE: The conclusion reached in this post has been superseded by the June 26, 2015 enactment of P.L. 2015, Chapter 64 which, along with a similar enactment in New York, made the Port Authority subject to OPRA.
Today, October 4, 2012, the Appellate Division ruled that the Port Authority of New York and New Jersey is not subject to the Open Public Records Act (OPRA).  In its ten-page opinion, available here, the court found that since the Authority was created jointly by both New York and New Jersey, it is not subject to the statutory law of only one state. This decision, of course, is not good for open government.

The Port Authority recently denied me access to the settlement agreement arising out of Hannah Shostack v. Port Authority, Federal Case No. 2:11-cv-00177. Shostack, who used to work for the Authority, was fired "without notice or cause" on August 11, 2010.  While the Port Authority told her that her position was being eliminated, Shostack claimed in her lawsuit, which is available on-line here, that the real reason she was fired was because "she is not affiliated with the Republican Party and/or the administration of Republican Governor Chris Christie."  In her lawsuit, Shostack alleged that her supervisor "Chris Russell informed her that the decision to discharge her came straight from Governor Christie's office and there was nothing he could do to save her job."  Her suit claims that at about the same time she was fired, several other employees who were not affiliated with the Republican Party were also fired.

New Jersey Courts have held that disclosure of lawsuit settlement agreements serves the public interest. Burnett v. County of Gloucester, 415 N.J. Super. 506, 517 (App. Div. 2010) ("We find the public interest in settlements to be a significant one, since such settlements may provide valuable information regarding the conduct of governmental officials and the condition of government property.") Yet, the Port Authority's records custodian, Daniel D. Duffy, in his September 5, 2012 denial letter, claimed that the settlement agreement was "exempt from disclosure pursuant to Exemption (3) of the [Port Authority's Freedom of Information] Code" which exempts sensitive records that "are compiled for public safety, law enforcement or official investigatory (internal or external) purposes."  This is clearly erroneous, but according to the Authority's FOIA code, Duffy's decisions are "final."


Knowing the amount of money that Shostack received in her lawsuit settlement for is especially important because she alleges, in essence, that the Port Authority is filled with political patronage jobs that the sitting governor can award to his supporters and cronies.  If Shostack received, say, a $500,000 settlement, the public could reasonably draw an inference that there was some truth to her allegations.  If she received, however, $10,000, the public could reasonably disregard her claims as nothing more than sour grapes.

Unfortunately, the Port Authority doesn't want the public to know the settlement information and New Jersey courts, in today's ruling, have upheld the Port Authority's ability keep the public in the dark.

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