NJ Appeals Court Clarifies OPRA Personnel Exemption

In Libertarians For Transparent Government v. Ocean County Prosecutor's Office, the Appellate Division held that the state’s Open Public Records Act (OPRA) does not require a covered entity to provide a detailed disclosure of the reasons for an employee’s resignation.  OPRA Personnel Record Exemption OPRA contains an exemption for personnel records. However, the exemption is also subject to several exceptions. The statute provides: Notwithstanding the provisions of P.L.1963, c.73 (C.47:1A-1 et seq.) or any other law to the contrary, the personnel or pension records of any individual in the possession of a public agency, including but not limited to records relating to any grievance filed by or against an individual, shall not be considered a government record and shall not be made available for public access, except that: 

• an individual's name, title, position, salary, payroll record, length of service, date of separation and the reason therefor, and the amount and type of any pension received shall be a government record;
• personnel or pension records of any individual shall be accessible when required to be disclosed by another law, when disclosure is essential to the performance of official duties of a person duly authorized by this State or the United States, or when authorized by an individual in interest; and
• data contained in information which disclose conformity with specific experiential, educational or medical qualifications required for government employment or for receipt of a public pension, but not including any detailed medical or psychological information, shall be a government record.

Facts of the Case Plaintiff Libertarians For Transparent Government filed suit against the Ocean County Prosecutor's Office (OCPO) and its records custodian, arguing that they violated OPRA by refusing to disclose  the reason for former OCPO employee John Doe's separation from employment. Plaintiffs stated that they had received an anonymous tip that Doe failed a drug test and was told by the OCPO that he must resign or be terminated. Plaintiff served the OCPO with an OPRA request seeking Doe's "name, title, position, salary, date of separation and reason therefor" and "any agreement" concerning "[Doe]'s separation from employment." The OCPO replied in a letter and provided documents it stated were "responsive to [the] OPRA request." The documents showed Doe's name, title, position and salary, but did not include information concerning the reason for the date of Doe's separation from employment. The plaintiff later filed a second OPRA request in which plaintiff  asserted that it was entitled to a "more descriptive" explanation of the reason for Doe's separation beyond the date of his separation and the fact that he resigned. The plaintiff suggested the appropriate response might include statements such as Doe "resigned voluntarily" or "resigned under threat of adverse employment action." The OPRA request specifically sought:

1. [Doe]'s "date of separation and the reason therefor" as required by [N.J.S.A.] 47:1A-10.
2. Any memorandum, letter, e-mail or other writing that advised [Doe] that he would suffer adverse employment action if he did not resign.
3. Records that disclose the reason, such as the nature of [Doe]s' misconduct, underlying your agency's decision to seek [Doe]'s resignation.
4. Payroll records showing all money [Doe] received during 2015 and 2016. [And] records that identify the reason for each payment received, such as "regular salary," "sick leave" or "severance."

The OCPO's records custodian responded to the second OPRA request in a letter stating he reviewed Doe's personnel file and it did not contain any additional documents concerning the reason for Doe's resignation and the OCPO did not enter into an agreement with Doe concerning his separation from employment. The records custodian further asserted that the OCPO was not obligated "to generate new documents or otherwise supply information other than what it is in its existing records," and that the OCPO was not required to create a record or supply information characterizing Doe's resignation as voluntary or otherwise as plaintiff requested. The plaintiff subsequently filed a verified complaint and order to show cause alleging the OCPO and its records custodian violated OPRA by failing to provide the reasons for Doe's separation from the OCPO. The trial court rejected plaintiff's assertion that it was entitled to a more detailed statement of the reason for Doe's separation. The judge found the OCPO provided the records responsive to the OPRA requests and satisfied OPRA's requirements. The judge further determined the OCPO was not obligated to create a record showing a more specific reason for Doe's separation than the one contained in the record provided. Court’s Decision The Appellate Division affirmed the trial court's order finding that the OCPO did not violate OPRA by providing a memorandum to Doe's personnel file noting the effective date of his resignation. However, the appeals court vacated the order to the extent it included a finding that the OCPO conducted the required search for the requested records, and remanded for further proceedings. In reaching its decision, the court rejected the plaintiff’s argument that the OCPO's response was deficient because the information provided indicates only that Doe resigned but does not describe the circumstances surrounding his resignation or the reasons he decided to resign. Citing the plain language of OPRA, the appeals court concluded that “the statute does not require the provision of the information that plaintiff argues the OCPO failed to provide here.” As the panel further explained: Although we are mindful that under OPRA any limitation on the right of access shall be construed in favor of the public’s right to access, we are convinced the plain language of the first exception does not support plaintiff’s assertion that the Ocean County Prosecutor’s Office was obligated to provide information concerning the circumstances surrounding Doe’s decision to resign or his motivation for doing so. The Appellate Division did side with the plaintiff regarding the scope of the record custodian’s document search. The court held that responsive documents to the OPRA request should not be limited to documents in Doe’s personnel file. “We discern no permissible reason the OCPO limited its search for the requested records to Doe's personnel file, and perceive no justification for it,” the court wrote. Accordingly, the panel remanded for the prosecutor’s office to conduct “a reasonable and thorough search of its agency records” for additional documents responsive to the plaintiff’s request. It also ordered the OCPO to produce an affidavit documenting its records search. For more information about the court’s OPRA decision or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.