                    NOT FOR PUBLICATION WITHOUT THE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,
                                         APPROVED FOR PUBLICATION

v.                                            August 3, 2017

STATE OF NEW JERSEY OFFICE OF               APPELLATE DIVISION
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 August 3, 2017

          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
               (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.




                                              2                                     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.




                                             3                                     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."



                                             4                                        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.



                                            5                               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




                                              6                                  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.




                                              7                                         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)).



                                      8                             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,



                                           9                                       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.




                                           10                                  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




                                                11                                    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




                                               12                                     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




                                            13                                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




                                           14                                        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."



                                                  15                                    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




                                                16                               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.



                                          17                                  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.




                                        18                                        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.



                                          19                               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




                                               20                                      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




                                              21                                      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.




                                              22                                    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




                                         23                                 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. 47:1A-

6; 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:




                                             24                                    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. 47:1A-

7(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



                                         25                                 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




                                          26                                  A-3947-14T3
doing so. To the contrary, the first sentence of N.J.S.A. 47:1A-

11 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




                                          27                               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




                                   28                             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,




                                           29                                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




                                         30                                   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. 47:1A-

7(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




                                               31                                      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.



                                   32                               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. 47:1A-

11 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)


                                          33                                        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).



                                              34                                        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




                                               35                                         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.



                                          36                               A-3947-14T3
