In Libertarians for Transparent Government v. Cumberland County, (A-34-20/084956) (Decided March 7, 2022), the Supreme Court of New Jersey held that a settlement agreement between a former corrections officer and his employer, defendant Cumberland County, may be disclosed under the Open Public Records Act (OPRA), subject to redaction. According to the court, the settlement agreement fell under OPRA’s exception under which “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” is considered a government record.
Facts of Libertarians for Transparent Government v. Cumberland County
In October 2017, a woman incarcerated at the Cumberland County Jail filed a lawsuit against the County and several corrections officers, including Tyrone Ellis, alleging she had been forced to engage in non-consensual sex acts on a regular basis.
To learn more about the allegations, plaintiff Libertarians for Transparent Government (Libertarians) obtained minutes of the public meeting of the Board of the Police and Firemen’s Retirement System at which the Board considered Ellis’s application for special retirement. According to the minutes, the County originally sought to terminate Ellis, who had been charged with a disciplinary infraction. When he submitted his resignation, the County warned that it intended to continue to prosecute the disciplinary matter. Ellis, in turn, “agreed to cooperate” with the County’s investigation of four other officers suspected of similar misconduct. “As a result of his cooperation, Cumberland County agreed to dismiss the disciplinary charges and permit Mr. Ellis to retire in good standing” with a reduced pension.
Libertarians sent the County an OPRA request seeking the settlement agreement and Ellis’s “name, title, position, salary, length of service, date of separation and the reason therefor’ in accordance with N.J.S.A. 47:1A-10.” The County declined to produce the settlement agreement, claiming it was a personnel record exempt from disclosure. In response to the request for information, the County stated in part that “Officer Ellis was charged with a disciplinary infraction and was terminated.”
Libertarians filed a complaint in Superior Court, and the trial court ordered the County to provide a redacted version of the settlement agreement. The County appealed, and the Appellate Division reversed the trial court’s judgment.
NJ Supreme Court’s Decision in Libertarians for Transparent Government v. Cumberland County
The New Jersey Supreme Court reversed, reinstating the trial court’s order. “Most personnel records are confidential under OPRA. But under the law’s plain language, certain items qualify as a government record including a person’s name, title, ‘date of separation and the reason therefor,’” the court wrote. “To the extent that information appears in a settlement agreement, the record should be available to the public after appropriate redactions are made.”
As the court explained, the appeal turns on the first exception to Section 10 of OPRA, which addresses personnel records. While most personnel records are exempt from disclosure under the law, the statute has three exceptions. The exception relevant to the case states: “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.”
According to the court, “a plain reading of the text calls for disclosure of a settlement agreement that contains such information once the document has been redacted.” The court further explained:
Section 10 can also be analyzed in a more nuanced way that leads to the same outcome. The provision exempts personnel records, including records relating to a grievance, from disclosure. Ibid. Yet section 10 also provides an exception to that exemption by declaring that a person’s “date of separation and the reason therefor,” along with certain other details, constitute a “government record.” Ibid. Either way, records that contain those details, kept by a public agency, must be made available for inspection with appropriate redactions.
The New Jersey Supreme Court further held that other OPRA exemptions raised by the County do not prevent disclosure either. “OPRA safeguards an individual’s personal information when disclosure would violate a person’s reasonable expectation of privacy,” the court wrote. “Section 10, once again, specifically calls for the release of the information sought here, and any additional exempt or confidential information would be subject to redaction.”
The New Jersey Supreme Court also emphasized that its reading of the statute comports with OPRA’s command to construe the statute “in favor of the public’s right of access.”
“OPRA enables the public to play a role in ‘guarding against corruption and misconduct.’ This case underscores those principles,” the court wrote. “In response to plaintiff’s OPRA request, the County stated that Ellis was terminated because of his misconduct as a corrections officer. The trial judge, who reviewed the settlement agreement in-camera, called the statement a misrepresentation. In reality, according to the minutes of the Retirement Board, after Ellis admitted that he had ‘inappropriate relationships with two inmates,’ he was allowed to retire in good standing with only a partial forfeiture of his pension. Without access to actual documents in cases like this, the public can be left with incomplete or incorrect information.”