Bill Text: NJ AJR165 | 2016-2017 | Regular Session | Introduced
Bill Title: Clarifies intent of law subjecting PANYNJ to open public records and freedom of information laws in New Jersey and New York.
Spectrum: Slight Partisan Bill (Democrat 2-1)
Status: (Introduced - Dead) 2017-06-29 - Substituted by SJR113 [AJR165 Detail]
Download: New_Jersey-2016-AJR165-Introduced.html
Sponsored by:
Assemblywoman VALERIE VAINIERI HUTTLE
District 37 (Bergen)
SYNOPSIS
Clarifies intent of law subjecting PANYNJ to open public records and freedom of information laws in New Jersey and New York.
CURRENT VERSION OF TEXT
As introduced.
A Joint Resolution clarifying the intent of P.L.2015, c.64 (C.32:1-6.4 et al.).
Whereas, On June 5, 2014, Assemblywoman Valerie Vainieri Huttle introduced legislation in the New Jersey General Assembly making records of the Port Authority of New York and New Jersey (Port Authority) available to the public pursuant the provisions of New York's Freedom of Information Law (NY FOIL) and New Jersey's open public records act (NJ OPRA) and on June 16, 2014, Senator Robert M. Gordon introduced substantively identical legislation in the New Jersey Senate; and
Whereas, The legislation provided that the records of the Port Authority were to be open to the public in accordance with NY FOIL and NJ OPRA and that a record of the Port Authority subject to disclosure under one set of laws but not the other was required to be made available by the Port Authority; and
Whereas, On June 18, 2014, the New York Legislature passed legislation making records of the Port Authority available to the public pursuant to the provisions of NY FOIL and NJ OPRA but provided a different mechanism in cases of inconsistencies between NY FOIL and NJ OPRA to determine whether a record would be made available; and
Whereas, Under the New York legislation, when there is an inconsistency between NY FOIL and NJ OPRA, the law of the state that provided the greatest rights of access on the date that the legislation became law would govern whether a record would be required to be made available by the Port Authority; and
Whereas, On October 27, 2014, the Assembly State and Local Government committee amended the New Jersey legislation to make it have an identical effect as the New York legislation concerning the applicable law when there is an inconsistency between NY FOIL and NJ OPRA, and on November 13, 2014, the New Jersey legislation was passed by the New Jersey Legislature; and
Whereas, On December 27, 2014, the Governor of New York approved the New York legislation with an understanding that the New York Legislature would provide chapter amendments to the legislation; and
Whereas, On that same date, the Governor of New Jersey conditionally vetoed the New Jersey legislation and recommended language to replace the provisions of the legislation, specifically recommending that the legislation be changed to provide that the Port Authority be deemed an "agency" and treated as such under NY FOIL and be deemed a "public agency" and treated as such under NJ OPRA; and
Whereas, In explaining his conditional veto, the Governor of New Jersey wrote that the bill presented to him "would result in unnecessary conflicts of law that would only frustrate disclosure without enhancing transparency" and that "[t]here is a far simpler approach"; and
Whereas, Under his recommendations, the Governor of New Jersey posited that "[i]f a requestor is denied access to a public record, he or she can sue the Port Authority in either State. If the plaintiff sues in New York, New York law applies; if the plaintiff sues in New Jersey, New Jersey law applies"; and
Whereas, On March 2, 2015, the New York Legislature passed legislation that included the changes recommended in the conditional veto message issued by the Governor of New Jersey and, on March 13, 2015, the Governor of New York signed the legislation into law, to become effective upon the enactment of legislation having an identical effect by the State of New Jersey; and
Whereas, On June 25, 2015, the New Jersey Legislature passed legislation having an identical effect to the legislation enacted in New York and, on June 26, 2015, the Governor of New Jersey signed the legislation into law as P.L.2015, c.64; and
Whereas, Recently, however, plaintiffs have had difficulty convincing the courts to apply NJ OPRA to the Port Authority based on concerns that the legislatures of New Jersey and New York have created a set of inconsistent laws for the Port Authority to follow; and
Whereas, Assertions have been made, contrary to the legislative history of the enactments, that the legislatures directed the Port Authority to comply with both NJ OPRA and NY FOIL simultaneously without taking into consideration the differences between the two laws; and
Whereas, It is altogether fitting and proper for the Legislature to clarify the intent of P.L.2015, c.64 (C.32:1-6.4 et al.), which subjects the Port Authority to NJ OPRA and NY FOIL, in order to further the proper implementation of the law; now, therefore,
Be It Resolved by the Senate and General Assembly of the State of New Jersey:
1. a. P.L.2015, c.64 (C.32:1-6.4 et al.) expressly provides that the Port Authority of New York and New Jersey "shall be deemed a 'public agency' and treated as such under New Jersey, P.L.1963, c.73 (C.47:1A-1 et seq.), pertaining to the disclosure of government records."
b. Although P.L.2015, c.64 (C.32:1-6.4 et al.) also provides that the Port Authority "shall be deemed an 'agency' and treated as such under the laws of New York," and although the laws of New York are not identical to the laws of New Jersey pertaining to the disclosure of government records, the legislatures thoroughly considered the differences between NJ OPRA and NY FOIL and intended to subject the Port Authority to the provisions of both laws.
c. The Governor of New Jersey, in his conditional veto message, provided one method by which the two laws can be reconciled, to wit: "[i]f a requestor is denied access to a public record, he or she can sue the Port Authority in either State. If the plaintiff sues in New York, New York law applies; if the plaintiff sues in New Jersey, New Jersey law applies."
d. Other methods are available by which the Port Authority can reconcile NJ OPRA and NY FOIL, including, for example, that the Port Authority can simply include a provision that allows the requestor to indicate whether the request is being made pursuant to NJ OPRA or NY FOIL, shifting the burden from the Port Authority to the requestor.
2. This joint resolution shall take effect immediately.
STATEMENT
This resolution clarifies the intention of P.L.2015, c.64, which subjects the Port Authority of New York and New Jersey (Port Authority) to New York's Freedom of Information Law and New Jersey's open public records act (OPRA). Since the enactment of P.L.2015, c.64, individuals requesting records from the Port Authority have had difficulties having OPRA deemed applicable to the Port Authority.
