Compact Agencies and Transparency (Part I)
States use interstate compacts to address various multi-state regional problems.[1] Sometimes compact signatories create a “compact agency” to administer the compact. Must such agencies provide access to their records?
Every state public records law grants the public access to the records of state agencies. The federal Freedom of Information Acts (“FOIA”) imposes similar public access obligations upon federal agencies. Yet, as explained below, compact agencies may not be subject to these almost universally-applicable mandatory transparency obligations. Recent revisions to the compact governing the Port Authority of New York and New Jersey and the newly adopted Gateway Compact incorporate provisions that impose judicially enforceable transparency obligations on those two compact agencies.
The Transparency Lacunae Occupied by Compact Agencies
Compacts are agreements between two states that are ratified by Congress.[2] Thus the compacts are federal law[3] and the applicability of a signatory state’s laws is limited.[4] A signatory state’s law does not apply to a compact agency unless the compact recognizes such law as binding. A state law may also apply if the laws of all the signatory states are identical.[5] Though Supreme Court precedent suggests that even when the compacting states agree on a compact’s meaning, such agreement is not dispositive.[6] Moreover, because compact agencies are not federal agencies for purposes of basic federal laws like the Administrative Procedure Act or FOIA, such statutes do not apply to them either.[7]
Frequently, compacts contain no provisions regarding access to compact agency records. Many agency-creating compacts pre-date 1966, the year Congress enacted FOIA. Concomitantly these compact also pre-date the expansion of access state government records that followed FOIA’s enactment. But even many post-FOIA compacts do not address transparency issues. Congress, in authorizing or ratifying such compacts, rarely insists upon inclusion of provisions regarding public accessibility of compact agency records.[8]
Even when a compact agency itself grants members of the public access rights, such rights may be judicially unenforceable. If the agency withholds a record claiming that it is not disclosable under its public access policy, the requester may have no judicial recourse. The Compact may not waive the compact agency’s sovereign immunity in the courts of the signatory states with respect to suits to enforce transparency policies adopted by the compact agency.[9] Sovereign immunity is not necessarily an obstacle to federal litigation,[10] but no federal statute clearly provides individuals a right to seek relief against a compact agencies for violating its own policies. Compact agencies are not “federal agencies” for the purpose of the federal APA’s judicial review provisions.[11]
Last year, the ABA adopted a model act to govern compact agencies, the 2019 Model Interstate Compact Administrative Procedure Act (“MISCAPA” or “the Model Act”). The Model Act did not address transparency issues. However, the drafters provided an addendum that included optional provisions signatories could include in an administrative procedure act related to their compacts (or, more likely, in joint legislation passed by signatory states focused on a particular compact or compact agency).[12] These optional provisions addressed: (a) specifying of the procedures for making record requests, (b) defining the records associated with administration of the compact and specifying the entity or entities to be considered custodians of the records, (c) providing for either (i) federal or non-interested agency review of decisions to withhold documents or (ii) judicial review, (d) providing a list of exemptions, and (e) specifying exhaustion requirements, if judicial review was permitted.
The New York/New Jersey Port Authority and Bridgegate
The Port Authority’s FOIA Policies
New York and New Jersey entered the Port Authority Compact in 1921, and in the compact created the Port Authority of New York and New Jersey (“the Port Authority” or “PANYNJ”).[13] Needless to say, the provisions regarding the Port Authority did not discuss public access to the Port Authority’s records. The Port Authority first adopted a freedom of information policy in 1977.[14]
In March 2012, the Port Authority adopted an updated policy after a comprehensive review of New Jersey’s Open Public Records Act (“OPRA”) and New York’s Freedom of Information (“FOIL”), as well as administrative and judicial interpretation of those statutes. The policy became effective on April 15, 2012. While the policy itself recognized the possibility of judicial review,[15] there was no mechanism in the Compact, New York or New Jersey law, or federal law that would serve as a vehicle for judicial review of a compact agency’s failure to follow its own policies.
In October 2014, the Port Authority promulgated a new FOI policy, providing that it would apply the New York FOIL and New Jersey OPRA to records requests and providing for internal review of decisions denying records, followed by binding arbitration.[16] Both the 2012 and 2014 revisions appear to have been an attempts to forestall impending legislative actions by the New York and New Jersey legislatures.
Calls for Legislative Reform
Even before the March 2012 revision of the Port Authority’s public records policy, the calls for reform of the Port Authority, including revisions of its policies regarding meeting, public hearings, and records accessibility, had been gaining strength.[17] On August 5, 2011, the Port Authority announced proposed toll and fare increases, and held 10 public hearings to receive public comment a mere 11 days later, on August 16, 2011, all on that one day. On August 18, two days after the public-hearing-palooza, the Governors of New York and New Jersey proposed an alternative toll and fare increase plan. The Port Authority Board of Commissioners adopted the Governors’ alternative plan the very next day.[18]
This course of events provoked public outrage. In March 2012, a proposed Port Authority “Transparency and Accountability Act” was introduced in the New Jersey State Senate.[19] The bill included provisions regarding the timing of the Port Authority’s public hearings and the manner in which they would be conducted. Almost simultaneously, the New Jersey Assembly, its own requests to the Port Authority for documents related to the toll and fare hikes having either gone unanswered or been met with “a demand of exorbitant fees for complying with any such request,” deputized its Transportation Committee to investigate all aspects of the Port Authority.[20]
Then, 18 months later, Bridgegate occurred.[21] From September 9-13, 2013, the Port Authority, without prior notice, reduced the number of access lanes to the George Washington Bridge (“GW Bridge”) from the New Jersey side from three lanes to one. The closure caused significant traffic delays in Fort Lee, New Jersey, the access point to the GW Bridge in New Jersey.[22] The rationale offered for the closures was the need to conduct a “traffic study.” But there was evidence that allies of New Jersey Governor Chris Christie had ordered the lane closures as political retribution for the Mayor of Fort Lee’s refusal to cross party lines and endorse the Governor for reelection.[23]
Numerous requests for documents were made shortly after the lane closures ended. While voluminous statistical or factual tabulations of data were provided,[24] documents providing discussions regarding initiating the traffic study were not, the Port Authority citing exemption 5 of its policy regarding intra-agency communications and communications between the governors of New York and New Jersey and the Port Authority Board.[25]
In January 2014, concurrent resolutions were proposed in the New Jersey legislature asking Congress to take measures to increase the Port Authority’s transparency and accountability. On May 6, 2014, the Governors Andrew Cuomo and Chris Christie commissioned a Special Panel on the Future of the Port Authority (“Special Panel” or “Panel”) to “review and evaluate reforms of the Port Authority’s mission, structure, management, operations, and overall governance.”[26] The Committee would ultimately propose comprehensive reforms, on December 26, 2014. As noted earlier, in October 2014, the Port Authority had revised its FOI policy, adding provisions for internal review of decisions denying records followed by binding arbitration.[27] The Special Panel Report fully supported the October 2014 revised policy.[28]
Joint New York and New Jersey Legislation Regarding Access to Port Authority Records
On June 16, 2014, little more than one month after the Special Panel had been commissioned, a bill to subject the Port Authority to the public records acts of New York and New Jersey was introduced in the New Jersey Senate.[29] Companion legislation was proposed in the New York legislature.[30] The bills provided that the PANYNJ would be subject to the public records laws in both states. In the case of a discrepancy between those laws, the law of the state that mandated disclosure would be applicable. The bills also conferred jurisdiction over challenges to the denial of records upon the state courts of New York under Article 78 of New York’s Civil Practice Law and Rules and, in New Jersey, the New Jersey Superior Court or the New Jersey Government Records Council.[31]
Governor Christie conditionally vetoed the New Jersey legislation.[32] He asserted that the bill would require each states’ courts to interpret the law of the other. In addition, the Governor expressed concern that the bill would require courts to apply the law as of the date of the proposed legislation’s enactment, rather than the law at the time of the litigation.[33] He proposed that a requester be permitted to sue in either state, and that the applicable law be that of the forum state.[34] The New Jersey and New York legislatures and Governor Cuomo acceded to Governor Christie’s suggested change in approach.[35]
Apparently the approach caused problems. As suggested by a resolution clarifying the legislation, some New Jersey courts were reticent to apply OPRA to the Port Authority due to the inconsistencies in the New York and New Jersey laws regarding the accessibility of public records.[36] The resolution suggested that there were other ways by which the Port Authority could to “reconcile NJ OPRA and NY FOIL.” The Port Authority could simply allow requesters to indicate whether the request is being made pursuant to NJ OPRA or NY FOIL.[37]
The Gateway Compact
New York and New Jersey have recently entered into another compact, the Gateway Compact, which provides for the establishment of the Gateway Development Commission.[38] The Compact is designed to ensure bi-state cooperation in repairing the existing tunnel and creating a new tunnel between New Jersey and New York. The repairs and new construction would be designed to accommodate the existing and future volume of commuter and long-distance passenger travel that must proceed through the current rail tunnel connecting the two states.[39]
Freed from having to accede to Governor Christie views, due to his departure from office at the end of his term, New York and New Jersey agreed to the approach the states’ legislatures had initially embraced with regard to the Port Authority. In particular, the Commission was made subject to both New York’s FOIL and New Jersey’s OPRA, and “[w]hen there is an inconsistency between” the two, “the law of the state that provide[s] the greatest rights of access shall apply.”[40] Moreover, the Compact requires the Commission to “adopt and promulgate appropriate bylaws, rules, or regulations concerning the rights of the public to obtain records of the commissioner’s activities or public business,” and to publish such rules on its website.[41]
Part II of This Series
In Part II I will offer my observations regarding the three methods of reconciling signatory states’ varying public records laws so as to impose upon compact agencies a legally enforceable obligation to provide public access to their records.
[1] A list of all compacts from 1785 through 2014 can be found at ballotpedia. The Council on State Government’s National Center for Interstate Compacts maintains an extensive database on all interstate compacts, which can be accessed here.
[2] See, Cuyler v. Adams, 449 U.S. 433, 440–41 (1981); Washington Metro. Area Transit Auth. v. One Parcel of Land, 706 F.2d 1312, 1317 & n.9 (4th Cir. 1983).
[3] Pennsylvania v. Wheeling & Belmont Bridge Co., 54 U.S. 518, 565-66 (1851)(“[t]his compact, by sanction of Congress, has become a law of the Union”); accord, Cuyler v. Adams, 449 U.S. 433, 440 (1981); see New York v. Hill, 528 U.S. 110, 111 (2000); Wedding v. Meyler, 192 U.S. 573 (1904). This is referred to as “the Law of the Union doctrine.” The doctrine has been questioned, see, Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92 (1938); People v. Central R.R., 79 U.S. 455 (1870); David E. Engdahl, Construction of Interstate Compacts: A Questionable Federal Question, 51 VA. L. REV. 987, 1015-16 (1965).
The term “law of the Union” was apparently first used by Supreme Court advocate John Catron in his argument in Poole v. Fleger, 36 U.S. 185 (1837), where he asserted that congressional consent amounted to the adoption of the compact by Congress, bringing it within the Supremacy Clause and making it superior to a state constitution. Catron was later appointed to the Supreme Court and joined the majority in Pennsylvania v. Wheeling & Belmont Bridge, supra.
[4] Ordinarily, state administrative procedures do not apply to compact agencies because one state’s law cannot control an agreement with another state to which Congressional has given its consent. State ex rel. Dyer v. Sims, 341 U.S. 22, 28 (1951); C.T. Hellmuth & Assocs., Inc. v. Washington Metro. Trans. Auth., 414 F. Supp. 408, 409-10 (D. Md. 1976)(WMATA is not subject to the Maryland Public Information Act); see, Salmon For All v. Dep’t of Fisheries, 821 P.2d 1211, 1215-16 (Wash. 1992) (Compact commission not subject to Washington’s Open Public Meetings Act).
[5] For an overview of the doctrine and its variants, see Int’l Union of Operating Eng’rs v. Del. River Joint Toll Bridge Comm’n, 311 F.3d 273 (3d Cir. 2002); Ballinger v. Delaware River Port Auth., 311 N.J. Super. 317, 324 (App. Div. 1998), aff’d, 172 N.J. 586 (2002) (citing Int’l Union of Operating Eng’rs v. Del. River & Bay Auth., 147 N.J. 433, 445-46, cert. denied, 522 U.S. 861 (1997).)
[6] In Petty v. Tennessee-Missouri Bridge Comm’n, 359 U.S. 275, 278-82 (1959), the Court held that because congressionally-approved compact is federal law, the meaning of the compact may differ from the accepted meaning between the signatories states. The intent of Congress in consenting to the compact, rather than the intent of the compacting states in crafting it, governs. The decision has been heavily criticized.
[7] New York State Dairy Foods, Inc. v. Northeast Dairy Compact Comm’n, 26 F. Supp. 2d 249, 259 (D. Mass. 1998) (“NYS Dairy”); Organic Cow v. Northeast Dairy Compact Comm’n, 146 F. Supp. 2d 412 (D.Vt. 2001); Old Town Trolley Tours, Inc., v. Washington Metro. Area Transit Comm’n, 129 F.3d 201 (D.C. Cir. 1997).
Other federal administrative requirements ordinarily do not apply to interstate compact agencies. California Tahoe Reg’l Planning Agency v. Jennings, 594 F.2d 181, 190 (9th Cir. 1979). For example, neither the National Environmental Policy Act (“NEPA”) nor the Coastal Zone Management Act (“CZMA”), ordinarily apply to interstate compact agencies. Brooklyn Bridge Park Coalition v. Port Auth. of N.Y. & N.J., 951 F. Supp. 383, 392-95 (E.D.N.Y. 1997).
[8] Congress has the power to do so, see, Seattle Master Builders Ass’n v. Pacific Northwest Elec. Power & Conservation Planning Council, 786 F.2d 1359, 1366 (9th Cir. 1986) (Congress directed that the APA govern judicial review of Pacific Northwest Electric Power and Conservation Planning Council), see, 15 U.S.C. § 839f(e)(1).
[9] For example, with respect to the Port Authority of New York and New Jersey, until recently New York and New Jersey have consented only to their respective Attorney Generals’ suits for injunctive relief. McKinney’s Unconsol. Laws §7105; Washington Heights Optical v. Port Authority, 70 A.D.3d 574, 893 N.Y.S.2d 872 (1st Dept. 2010); N.J.S.A. 32:1-161; Evans-Aristocrat Industries, Inc. v. City of Newark, 75 N.J. 84, 380 A.2d 268 (1977).
[10] Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30 (1994).
[11] See note 7 supra.
[12] MISCAPA, Additional Optional Procedures ¶¶19-24.
[13] McKinney’s Unconsol. Laws §§ 6401-6423; N.J.S.A. §§32:1-1 to -23; Public Resolution No. 17, 67 Cong., Ch. 77, 42 Stat. 174 (1921). For an authoritative account of the history of the Port Authority, see JAMESON W. DOIG, EMPIRE ON THE HUDSON: ENTREPRENEURIAL VISION AND POLITICAL POWER AT THE PORT AUTHORITY OF NEW YORK (Columbia University Press 2002).
[14] Access to Port Authority Records – Ensuring Open Public Records – Port Authority Freedom of Information Code, Minutes of the Special Committee on Operations 38 (March 29, 2012).
[15] The “Finality” provision stated: “The Determinations made under this Code by the Secretary of the Port Authority (or the Secretary’s designee) shall be final. Any person who is denied access to a Record of the Port Authority may, therefore, seek such judicial recourse as may be available in either State.”
[16] Access To Port Authority Records – Enhanced Transparency And Efficiency – Revised Port Authority Freedom Of Information Policy, Minutes of the Board 174, 174-177 (Oct. 22, 2014).
[17] Meir Rinde, Explainer: Legislators in Two States Push to Reform the NY-NJ Port Authority, NJ SPOTLIGHT (Feb.15, 2015)(“How we got here”).
[18] Assembly Concurrent Resolution No. 217, New Jersey Assembly, 215th Sess. (introduced Jan. 4, 2014). Two years later, the GAO issued a report entitled “Transparency and Oversight of Bi-State Tolling Authorities Could Be Enhanced.” The study of four such entities, the Port Authority, the Delaware River and Bay Authority, the Delaware River Joint Toll Bridge Commission, and the Delaware River Port Authority. It concluded that:
“In contrast to federal and general state requirements and leading practices, the bi-state authorities did not in all cases (1) have documented public involvement procedures for toll setting; (2) provide the public with key information on the toll proposals in advance of public hearings; (3) offer the public sufficient opportunities to comment on toll proposals; and (4) provide a public summary of comments received before toll increases were approved.”
[19] Sen. Bill 1761, PANYNJ Transparency and Accountability Act, N.J. Senate, 215th Session (introduced March 8, 2012). The bill passed the Assembly and the Senate, but was conditionally vetoed by Governor Christie.
[20] Assembly Resolution 61, N.J. Assembly, 215th Sess. (March 15, 2012); see Interim Report To The New Jersey Legislature Regarding The September 2013 Closure Of George Washington Bridge Access Lanes In Fort Lee, N.J. 6 (Dec. 8, 2014)(authored by Reid J. Schar, Jenner & Block) (“Interim Report Regarding Bridgegate”).
[21] I addressed questions of public access to the Port Authority’s records in relation to Bridgegate in a presentation on April 11, 2014 at the New Jersey Society of Professional Journalists’ Third Annual Conference on Media and Democratic Governance. The title of my remarks were “Bridgegate, Compact Agencies, and Access to Information.”
[22] Assembly Concurrent Resolution No. 217 (whereas clauses); Rinde, supra (“For critics, Bridgegate further illustrated the Port Authority’s secrecy and Governor Christie’s politicization of the agency”). A detailed account of the events surrounding the closures is provided in Interim Report Regarding Bridgegate.
[23] Interim Report Regarding Bridgegate, supra, at 115. The legislative committee concluded that the closures were retaliatory, but could not state definitively whether they stemmed from some other unknown reason allies or Governor Christie were upset with the mayor. Id.
[24] See here, here, and here.
[25] E.g., Letter from Damiel D. Duffy, FOIA Administrator to Ted Mann, Wall Street Journal (dated Jan. 24, 2014) ; Letter from Damiel D. Duffy, FOIA Administrator to Abbott Koloff, The Record at 3 (dated March 10, 2014); Letter from Damiel D. Duffy, FOIA Administrator to Marcia Kramer, WCBS-TV (dated Jan. 24, 2014); Letter from William Shalewitz, FOIA Administrator to Andrea Bernstein, WNYC New York Public Radio (dated May 25, 2016)(invoking “privacy, attorney-client privilege and intra-agency advisory, consultative, or deliberative material”). Ensuring Open Records (March 29, 2012), supra, at 40.
Exemption 5 of the Port Authority’s FOI policy exempted records that
“are inter-agency or intra-agency advisory, consultative or deliberative Records, such as recommendations and communications to or from, and discussions among the members of the Board of Commissioners, the Governors of the States of New York and New Jersey and the Port Authority (or the staffs of the foregoing); and inter-agency or intra-agency memoranda, draft reports and presentations, or e-mail messages, which are not statistical or factual tabulations of data, with instructions to staff that affect the public or final agency policy or determinations not exempted.”
Exemption for inter- and intra-agency deliberations are typical for public records laws, see 5 U.S.C. §552(b)(5); N.J.S.A. §47:1A–9b; 6 N.Y. NY PUB. OFF. §87(2)(g). But, again, there was no judicial recourse to test these assertions.
[26] Keeping the Region Moving: A Report Prepared by the Special Panel on the Future of the Port Authority for the Governors of New York and New Jersey 1 (Dec. 26, 2014). As the report noted: “The Governors’ action followed well-publicized questions regarding the Port Authority’s focus, effectiveness, and commitment to ethical and transparent governance.” Id. at 1.
[27] See note 16 supra.
[28] Keeping the Region Moving, supra at 33.
[29] Sen. Bill 2183, Untitled, N.J. Senate, 216th Session (introduced June 16, 2014).
[30] Sen. Bill 6718, Untitled, N.Y. Senate, 2013-12 Session (introduced March 3, 2014); Ass. Bill 8785, N.Y. Assembly, 2013-2014 Session (introduced February 14, 2014).
[31] N.J. Sen. Bill 2183, §2(c); N.Y. Sen. Bill 6718 §3.
[32] Message Regarding Senate Bill No. 2183 (First Reprint) (undated).
[33] Governor Christie asserted:
As written, the bill would require New Jersey’s courts to interpret New York’s law, and New York’s courts to interpret New Jersey’s law, whenever there is a dispute over records. And those courts would need to apply whatever version of each State’s laws existed as of the date of enactment, rather than what the current laws of each State may be at the time. This system would result in unnecessary conflicts of law that would only frustrate disclosure without enhancing transparency.
[34] Governor Christie asserted:
There is a far simpler approach. The Port Authority should be deemed an “agency” for purposes of New York’s Freedom of Information Law and a “public agency” for purposes of New Jersey’s Open Public Records Act. If 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 the tribunals of either State would apply the current version of their own laws, not versions that may have become antiquated over the years.
[35] 2014 Sess. Law News of N.Y., Ch. 534 (S. 6718-C) (McKinney’s); 2015 N.J. Sess. Law Serv. Ch. 64 (S. 2183)(West).
[36] Sen. Jt. Res. No. 113, 217th Session (whereas clauses)(approved July 21, 2017).
[37] Id., ¶1(d).
[38] Gateway Development Commission Act, 2019 N.Y. Sess. Laws ch. 108 (McKinney’s) (July 22, 2019) (“N.Y. Act”); Gateway Development Commission Act, 2019 N.J. Sess. Law Serv. ch. 195 (West) (July 22, 2019) (“N.J. Act”).
[39] See NY Law, §2.
[40] N.Y. Law ,§5(k)(i)-(ii).
[41] Id., §5(k)(iv). The section provides as follows:
(k) Freedom of Information. (i) The Commission shall be deemed an “agency” and treated as such under the laws of New York, for all purposes under articles 6 and 6-A of the public officers law, and 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.
(ii) When there is an inconsistency between the law of the state of New York and the law of the state of New Jersey, the law of the state that provided the greatest rights of access shall apply.
(iii) The provisions of article 78 of the civil practice law and rules of the state of New York or P.L. 1963, c. 73 (C. 47:1A-1 et seq.), of the laws of New Jersey, as applicable, shall apply to enforce the provisions of this article.
(iv) The Commission shall adopt and promulgate appropriate bylaws, rules, or regulations concerning the rights of the public to obtain records of the commissioner’s activities or public business. Any rules, regulations, or bylaws adopted hereunder shall become part of the minutes of the Commission and be posted on the Commission’s website.
