The interstate agreement that created the Port Authority of New York and New Jersey makes it exempt from either state’s laws governing release of public records, a New Jersey appeals court ruled on Thursday.
“A political compact, by its very nature, shifts a part of a state’s authority to another state or states, or to the agency the several states jointly create to run the compact,” the Appellate Division held in Dittrich v. Port Authority of New York and New Jersey, A-1289-11, rejecting a claim that the New Jersey Open Public Records Act applies.
The question arose in the case of a man arrested by Port Authority police at the Hoboken PATH station in August 2010. Vesselin Dittrich thereafter made a series of document requests, some of which were denied due to specific exemptions in the Port Authority’s Freedom of Information Policy (FOIL).
He also was also billed $3,891 up front for his request for five years of summonses issued by the officer who arrested him. Instead of appealing to the Port Authority, he sued.
Hudson County Superior Court Judge Bernadette DeCastro dismissed the suit for lack of jurisdiction and on Thursday, Judges Marianne Espinosa and Michael Guadagno affirmed.
The judges said that OPRA applies to records of any agency of a political subdivision of the state, whereas the Port Authority — created in 1921 by a compact between New York and New Jersey with the consent of Congress under the U.S. Consitution’s compact clause — may be regarded as an instrumentality of the two states.
“Bistate 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. Bistate entities, in contrast, typically are creations of three entities: two states and the federal government,” the panel said, citing Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30 (1994).
Because entities formed under the compact clause owe their existence to state and federal agencies acting cooperatively, and not to any one state, “their political accountability is diffuse,” the Hess court said.
A bistate entity may be subject to New Jersey law under three scenarios, the appeals court said: if the compact creating the entity explicitly allows for unilateral state action, if both states have parallel or complementary legislation, and if the agency impliedly consented to a single state’s jurisdiction.
The compact creating the Port Authority prohibits unilateral state action without the concurrence of the sister state, the panel said.
Dittrich contended that OPRA is complementary and parallel to FOIL, but the appeals court found that although the two laws are similar, both states must agree that the law of one state will apply in order to give New Jersey unilateral state jurisdiction.
Dittrich also claimed that the Port Authority consented to application of OPRA in its bylaws, which state that it “shall follow a Freedom of Information Policy consistent with the freedom of information laws of the two states.”
But the panel said the stated goal of following a policy that is consistent with that of the creator states does not equate with consent to submit to the jurisdiction of either state.
Dittrich further argued that the Port Authority is subject to regulation under New Jersey’s common law, but the court said no legal authority was cited to support that premise.
Dittrich’s lawyer, Clinton solo Walter Luers, says he is considering seeking certification from the Supreme Court. He says the Port Authority records policy in effect when his client made the requests was “terrible,” but a new policy that is more friendly to requesters has since been enacted.
Luers says a Port Authority records request that is denied or not acted on can be appealed to the agency’s legal department, but there is no judicial review.
The Port Authority’s lawyer in the case, staff attorney Jonathan Meinen, did not return a call.