Since Asbury Park Press v. County of Monmouth, 406 N.J. Super. 1 (App. Div. 2009), aff’d o.b., 201 N.J. 5 (2010), settlement agreements to which public agencies are parties have been treated as public records, even if the settlements contained confidentiality or non-disclosure provisions. However, in Libertarians for Transparent Government v. Cumberland County, 465 N.J. Super. 11 (App. Div. 2020), the Appellate Division reversed the trial court and held that a settlement agreement that resolved an internal disciplinary matter was not a public record because it was a “personnel record.”
In Libertarians, the Plaintiff had received and reviewed minutes of a Board meeting of the Police and Fireman’s Retirement System, which reflected that a Cumberland County corrections officer sought early retirement. The corrections officer had been charged under a preliminary notice of disciplinary action with having sex with two inmates and bringing them contraband. While that disciplinary action was pending, the corrections officer agreed to cooperate with Cumberland County regarding investigations into other “suspected acts of improper fraternization.” As a result of that cooperation, the corrections officer entered into a settlement agreement with the County that withdrew the disciplinary charges and allowed him to retire.
As a result of learning this information, Plaintiff filed an OPRA request with the County that requested a copy of that settlement agreement. After the County denied access to the settlement agreement, Plaintiff filed an action in Superior Court challenging that denial. The trial court ordered that the settlement agreement be disclosed; on appeal, the Appellate Division reversed.
The Appellate Division reasoned that since the preliminary notice of disciplinary action was a personnel record, then a document that resolved that disciplinary action would also be a personnel record. The Court also construed Asbury Park Press as applying only to actions filed in Court, not internal disciplinary matters. The Court also reasoned that OPRA’s exception for “information generated by or on behalf of public employers or public employees in connection with any sexual harassment complaint filed with a public employer” implied that resolutions of internal employee matters are confidential (even though the internal matter here did not involve a “sexual harassment complaint”).
This case marks a break from the general rule that all public employee settlement agreements are confidential. In addition, the Court has created a pathway for public employers and public employees potentially to hide the resolution of issues that may have substantial public importance behind the shield of the personnel records exception.
On January 15, 2021, the Supreme Court granted certification in this matter, so the Appellate Division’s decision will not be the last word on the matter.
Anyone who has been denied access to records or has questions about access to public records should contact Cohn Lifland to discuss their options. The statute of limitations to file a denial of access complaint in Superior Court is 45 days after the date of the denial, so it is important to act quickly.