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Notices

Posted on: September 14, 2020

Appellate Division Rules Certain Employee Settlement Agreements Exempt from OPRA

The Appellate Division issued a decision regarding OPRA, holding that a settlement agreement between a public body and its employee, resolving an internal disciplinary action against that employee, is exempt from disclosure as a personnel record.

Last week, the Appellate Division issued a notable decision regarding the Open Public Records Act (OPRA). In Libertarians for Transparent Government v. Cumberland County the court held that a settlement agreement between a public body and its employee, resolving an internal disciplinary action against that employee, is exempt from disclosure as a personnel record.

While it was determined long ago determined that litigation settlements must be disclosed, there was ambiguity in how OPRA’s exemption for personnel records would apply to agreements resolving employee disciplinary charges before litigation ensues. The Appellate Division distinguished these internal settlement agreements from litigation matters. They succinctly reasoned that because an employee’s disciplinary records are covered by OPRA’s personnel exemption, it follows that the settlement of disciplinary charges are also covered by the personnel exemption.

The Appellate Division went further and determined that under OPRA’s personnel exemption, the entire settlement agreement must be withheld. It would not be enough to simply redact portions.

Although the court found that the settlement agreement was exempt from disclosure under OPRA, it remanded the case back to the trial court to determine if the agreement could be obtained under the common law right of access. We will continue to keep you updated on this case.

Contact: Frank Marshall, Esq., Associate General Counsel, fmarshall@njlm.org, 609-695-3481 x137.

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