Court Chastises NJ Municipality for Attempting to Circumvent OPRA

Court Chastises NJ Municipality for Attempting to Circumvent OPRAIn a recent decision, the Superior Court of New Jersey held that the Borough of Cliffside Park violated the state’s Open Public Records Act (OPRA) by failing to provide copies of a settlement agreement executed between the municipality and its former chief of police.

The cases, John Paff v. Borough of Cliffside Park and North Jersey Media Group Inc. v. Borough of Cliffside Park and Sercan Zoklu, highlight that courts have little patience for attempts to avoid OPRA compliance that they view as disingenuous.

“Attempting to shelter settlement documents and payments agreed upon through deception, artifice, and guile is not an acceptable course of action,” Judge Peter E. Doyne wrote. “The public has a right to access documents regarding expenditures of public funds and no sufficient confidentiality agreements have been presented.”

The Facts of the Case

Borough Police Chief Donald Keane filed suit after Cliffside Park passed an ordinance that he alleged interfered with his rights as chief of police. The parties ultimately reached an agreement on the terms for Keane’s retirement, which resulted in the dismissal of the suit.  The matter was approved pursuant to Resolution 2013-256.

After published an article stating that a $122,000 settlement agreement had been executed between the Borough and Chief Keane, John Paff sent an OPRA request citing the article and seeking a “copy of that settlement agreement, and a copy of the civil complaint filed in any lawsuit(s) that was/were resolved by this settlement.”

Cliffside Park’s records custodian ultimately provided a copy of the two Stipulations of Dismissal and the Verified Complaint in Lieu of Prerogative Writ. However, the borough’s attorney denied the remainder of the request as “vague,” further explaining that “no document entitled ‘Settlement Agreement’ was executed as described.” Accordingly, he determined that the OPRA request was invalid and denied it.

In a similar OPRA request, a reporter with North Jersey Media Group, Inc. (NJMG) requested a copy of the settlement agreement and the termination agreement referenced in Resolution 2013-256. While the custodian provided copies of the court orders dismissing the suit, he provided no further documents. A subsequent letter from the borough’s attorney stated that no settlement agreement had been entered in the litigation and the terminal leave agreement was exempt from OPRA as a personnel record. 

The Court’s Decision

The court concluded that Cliffside Park violated OPRA by wrongfully denying the plaintiffs’ s requests related to the settlement agreement. With regard to the borough’s characterization of the request as “vague,” the court stated:

The initial suggestion the request did not describe the documents with specificity borders on farcical. The request is not vague on its face and the notion it was unclear and insufficient until further clarification was provided is off-putting, hyperbolically. The allegation of vagueness must be considered in light of the Resolution passed by Cliffside Park. The Resolution referenced a “negotiated settlement” and stated the Borough had reviewed “settlement documents”. The OPRA requests regarding these documents from both Paff and NJMG mirror the Resolution language.

The court further rejected the borough’s contention that the terminal leave agreement fell under the personnel records exemption, noting that Cliffside Park could not prevent the public from accessing the settlement documents simply by attempting to identify them as a terminal leave agreement or a personnel record. As further explained in the opinion:

The agreement cannot be precluded from public access by sheltering it as a “personnel record”, attempting to allege no settlement documents exist, or asserting there is no relationship between the dismissal of the lawsuit and the entry of the terminal leave agreement. If the document was simply a personnel record, this exemption would have been identified in response to Paff’s first request. The lack of transparency on behalf of Cliffside Park is exactly what the OPRA statute is meant to address. Cliffside Park is not allowed operate under a cloud of darkness and label the documents as personnel records simply to prevent disclosure to the public.

In addition to the OPRA violations, the judge further concluded that Cliffside Park violated the common law right of access, finding that confidentiality concerns did not outweigh the public’s right to access the information.

For more information about this case or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group. 

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