Notice & Comment

Compact Agencies and Transparency (Part II)

This post is the second in a two-part series exploring recent proposals or innovations to extend public access obligations to bi-state or multi-state agencies created to administer interstate compacts, i.e., compact agencies.  Compact agencies have traditionally occupied a lacunae in which neither federal nor state freedom of information (“FOI”) laws applied.  In Part I, I provided an account of the successful effort to impose judicially-enforceable FOI obligations on two New York/New Jersey compact agencies: the Port Authority of New York and New Jersey (“the Port Authority”) and the Gateway Commission.

Three Approaches

Three approaches to imposing judicially-enforceable obligations on compact agencies emerge from the account of recent events offered in Part I.  First, the Model Interstate Compact APA suggests that a separate public records law be adopted to govern interstate compacts, with judicial recourse in the federal district courts.  Second, the Governor Christie approach, reflected in the final Port Authority public records legislation, makes the compact agency amenable to the laws of each signatory state, and essentially allows requesters to choose the applicable law.  Third, the Gateway Commission approach, which was the initial choice of five of the six institutional player with respect to the Port Authority statute and ultimately adopted in the Gateway Compact, makes the compact agency amenable to the laws of each signatory state and directs the courts with jurisdiction to apply the most favorable law.  For the second and third approaches, judicial recourse is in the state courts.

This post offers brief observations on these three competing approaches.


The Model Interstate Compact APA Solution

The Model Interstate Compact APA approach will require the drafting and adoption of a public records act for each combination of states that has bi-state or multi-state agencies, and might even require a compact-agency-by-compact-agency approach.  The signatory states will have to reconcile their separate approaches to transparency to craft a unitary law.[1]  Most likely the drafting of the unitary will be performed by either the compact agency itself or gubernatorial staff of the respective signatory states.  Such institutions can much more easily reach agreement than can the legislative bodies of two different states.  But, of course, it is legislative bodies, rather than agencies themselves, chief executives, or the executive branch of government, that tend to be the most enthusiastic about robust public records laws. 

Under the Model Compact APA approach the task of judicial review is assigned to federal district courts.  Theoretically, this would allow for a consistent interpretation of the compact FOI statute across state lines, with district courts operating under the auspices of a single federal Court of Appeals.  But here, New York and New Jersey pose a special problem.  New York and New Jersey are in different judicial circuits — New York is in the Second Circuit, while New Jersey is in Third.  The only court that could make a definitive ruling to reconcile conflicting lower court holdings, the U.S. Supreme Court, is hardly likely to devote much of its limited agenda to resolving such disputes.[2]

The Christie and Gateway Solutions

The second and third approaches reflect a more ingenious response to the problem of applying public records laws to compact agencies.  Both allow standard state FOI law to govern compact records, while accommodating the divergence between the compact signatories’ separate FOIA laws.  By doing so both approaches obviate the need for separately crafting FOI provisions for each combination of states that enter a compact or for each compact agency on a case-by-case basis.  And, the FOI provisions applicable to compact agencies will likely be more robust — general provisions for government-wide transparency drafted by legislatures are far more likely to be robust than special provisions primarily drafted by the compact agencies or negotiated between the relevant governors’ staffs.

The Christie Solution

The Christie approach is premised on the rationale that each state court system (or administrative forum) should apply only its own law.  While Governor Christie seemed quite concerned about the prospect of one state having to apply another state’s substantive law, state courts must frequently do so.  For example, when tort or contract actions involve the “interests” of more than one state, forum states will sometimes choose to apply the law of another state.  An entire body of doctrine focuses on which state’s substantive law should apply in particular case, the body of doctrine referred to as conflict of laws.[3]  Indeed, the most difficult aspect of such cases is generally not interpreting another state’s law, but determining which state’s law is most appropriate to apply.

The Christie approach also leads to forum shopping.  Plaintiffs will, if they can, challenge the Port Authority’s refusal to provide documents in the state that provides the most favorable law.  Of course, one problem with offering requesters such a choice is that the requester’s choice may often be somewhat uninformed.  Requesters may have to choose their law without knowledge of the precise question that will be involved.  Remember, even if the agency informs the requester of the FOI provisions it is invoking to withhold documents,[4] the requester will not have had the benefit of reviewing the documents to assess the soundness of the compact agency’s position under either signatory state’s laws.[5]

Moreover, does res judicata apply to the judgment rendered by the first court to determine the dispute?  If a plaintiff chooses to sue in New York and loses, can the plaintiff then sue in New Jersey as well, hoping for a better result under New Jersey law?[6]  Ordinarily, even if a plaintiff has a choice of states in which to bring suit, the law to be applied should be consistent whichever jurisdiction is chosen — that’s one goal of the conflict of laws doctrine.[7]  Under that assumption application of res judicata is sensible, given that whether brought in one state or the other the facts regarding the dispute are the same, as well as the applicable law.  Thus, one would expect that a judgment denying tort liability in New York would be given res judicata effect in New Jersey.  But such a result makes little sense if the applicable law is different in New York and New Jersey and the New York court lacks jurisdiction to apply New Jersey law.[8]

If res judicata applies, different requesters may get different results depending on their strategic choice regarding which state’s FOI law to invoke and which state courts it chooses for its suit.  If res judicata does not apply, then many suits may be litigated twice, once in New Jersey and once in New York.

The Gateway Solution

The Gateway solution does involve having courts in each state applying both their own law and the law of the other signatory state (or in the case of a multi-state compact, signatory states).  As noted above, states must apply the law of another state in many contexts.  However, it will be a challenge for the New York courts, the New Jersey courts, and the New Jersey Government Records Council to develop a unified and consistent interpretation of New York’s FOIL and New Jersey’s OPRA in the context of compact agencies.  But the Gateway solution avoids multiplying the number of lawsuits and forum shopping by plaintiffs who may lack the information to make a fully informed choice.[9]

The Gateway solution raises two questions.  First, will the courts develop a doctrine that considers certain matters particularly appropriate for resolution under one state’s law, even if that law is arguably more restrictive?  For example, if New Jersey law shields emails a New Jersey Commissioner sends to the New Jersey Governor, should the document be subject to disclosure because New York’s FOIL would require such disclosure?  Such a request would not involve the operations and decisions of the Port Authority, but advice given to one state’s governor by one of that state’s own representatives.

Second, could a suit challenging the bi-state agency’s refusal to provide documents be brought in federal court, despite provisions in the compact limiting review to state courts?  As we have seen, compact provisions are considered federal law, which make violations of the compact a “federal question.”[10]  Moreover, could “diversity of citizenship” jurisdiction be asserted if a New Jersey citizen sued the Port Authority in federal court in New York?  Sovereign immunity generally does not protect compact agencies, making a waiver of sovereign immunity unnecessary.  But because compacts are federal law, perhaps the provisions of the compact specifying state courts as the forum for challenges to denial of records requests serves as a “federal law” limitation on the federal courts’ jurisdiction.


Revising compacts to incorporate a provisions that makes each of the signatories’ general FOI laws applicable to compact agencies, and giving the most favorable law preeminence in cases of conflict, is an ingenious solution to the problem of the lack of judicially-enforceable FOI obligations governing compact agencies.  I have raised certain potential issues regarding two approaches to implementing such a principle.  We will see in the years ahead whether these issues are largely academic, because the public records statutes in New York and New Jersey are so consistent with each other, or whether they assume great practical importance in the context of the Port Authority and the Gateway Development Commission.

[1] The endeavor becomes even more daunting as the number of signatory states increases.

[2] The Court takes less than one FOIA case per year.  Perhaps the process for multi-district litigation could be used to ensure that the applicable law is decided consistently across judicial district lines, see 28 U.S.C. § 1407.  However, such processes are designed for pre-trial development of one or more common questions of fact pending in different judicial districts.  Id. at 1407(a).

[3] See, RESTATEMENT (SECOND) CONFLICT OF LAWS §§1, 2, 5, & 6 (1971).

[4] Often agencies do not comply with the statutory requirements for responses to records requests, see, Delayed, Denied, Dismissed: Failures on the FOIA Front, PROPUBLICA (July 21, 2016); JW August and Tom Jones, Closed To The Public? Local Governments Respond Slowly – or Not at All – To Requests For COVID-19 Information and Records, (March 31, 2020).

[5] And if plaintiffs must choose their law when submitting their request, as the New Jersey Legislature’s 2017 Joint Resolution suggested, Sen. Jt. Res. No. 113, 217th Session, ¶1(d)(approved July 21, 2017), they will not even know which exemptions the compact agency will be relying upon, or even the full range of documents responsive to their requests.

[6] And what if the requester first proceeds by seeking resolution of the dispute by the New Jersey Government Records Council?  Would a New York Court give res judicata effect to an administrative determination in another state?  See, RESTATEMENT (SECOND) OF JUDGMENTS §83 (1982).

[7] Granted, this seems to be somewhat of a low order goal of conflict of laws.  RESTATEMENT (SECOND) CONFLICT OF LAWS §6.

[8] RESTATEMENT (SECOND) OF JUDGMENTS §26(c) & comm. (c) (1982).  Section 26(c) provides that the general rule against splitting a cause of action is inapplicable when:

The plaintiff was unable to rely on a certain theory of the case or to seek a certain remedy or form of relief in the first action because of the limitations on the subject matter jurisdiction of the courts or restrictions on their authority to entertain multiple theories or demands for multiple remedies or forms of relief in a single action, and the plaintiff desires in the second action to rely on that theory or to seek that remedy or form of relief.

[9] As with each of the other approaches, the greater the number of signatory states, the more unwieldy the approach becomes.

[10] Cuyler v. Adams, 449 U.S. 433, 438 (1981)(“[b]ecause congressional consent transforms an interstate compact . . . into a law of the United States, we have held that the construction of an interstate agreement sanctioned by Congress under the Compact Clause presents a federal question”)(citing cases); League to Save Lake Tahoe v. Tahoe Regional Planning Agency, 507 F.2d 517, 519-22 (9th Cir. 1974), cert. denied, 420 U.S. 974 (1975); see, Port Authority Bondholders Pro. Comm. v. Port of N.Y. Auth., 387 F.2d 259, 261-262 & n. 1 (2d Cir. 1967)(Friendly, J.).

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