This week, the Supreme Court of New Jersey issued an opinion in Libertarians for Transparent Government v. Cumberland County. This matter examined the disclosure under the Open Public Records Act (OPRA) of a settlement agreement between a public body and its employee, resolving an internal disciplinary action against that employee.
OPRA generally provides that personnel records are exempt from disclosure. However, OPRA itself, and long-held court precedent, make it clear that certain personnel information is public. This includes an individual’s name, title, position, salary, payroll record, length of service, date of separation and the reason, therefore, and the amount and type of pension received. What has remained unclear, and was perhaps clarified by the Court in this week’s decision, is how personnel information that is disclosable should be provided to a requestor when that information appears in a personnel record.
In the matter at hand, Libertarians for Transparent Government submitted an OPRA request to Cumberland County, seeking a copy of an agreement made between the County and a former employee resolving employee disciplinary charges. The agreement contained information regarding the reason for the employee’s separation. Responding to the OPRA request, the County refused to provide the agreement. Instead, it produced a document that provided the information sought by the Libertarians for Transparent Government, including the reason for the employee’s separation. The Libertarians for Transparent Government, unsatisfied with the response, sought to have the entire agreement be disclosed and filed a court challenge.
Reviewing these facts, the Supreme Court ruled that because the settlement agreement showed the reason for the employee’s separation, the County erred when it withheld the entire document. The Court ordered the County to release a redacted version of the settlement agreement that would disclose the reason for separation. The Court recognized that “some requestors may be satisfied to receive a written summary of information in response to an OPRA request. But OPRA entitles them to press for actual government records in many situations, which they can inspect.”
It is important to note that the Court rejected an argument from the requestor and other parties that a settlement agreement resolving an internal disciplinary action is not an exempt personnel record, and should therefore be completely public. This, of course, would draw into question the confidential status of all personnel records, which the Court refused to do.
This decision should be reviewed with your records custodian and municipal attorney for further information on how it could impact OPRA requests made to your municipality.
Contact: Frank Marshall, Esq., Associate General Counsel, FMarshall@njlm.org or 609-695-3481 x 137.