A Public Employee’s Date of Separation From Employment and the Reasons Therefor Are Not Exempt From Disclosure Under OPRA

Libertarians for Transparent Government v. Cumberland County, ___ N.J. ___ (2022). This is an Open Public Records Act (“OPRA”) case. A woman who had been incarcerated at the Cumberland County Jail had sued the County and several corrections officers, alleging that she had been forced to engage in non-consensual sex acts while held in jail. Plaintiff sought to obtain a copy of a settlement agreement between the County and one of the officers, Tyrone Ellis, whom the County had charged with a disciplinary infraction. In particular, plaintiff’s OPRA request asked for ” 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 responded that the settlement agreement was a personnel record that OPRA exempted from disclosure. In response to the request for the specific information quoted above, the County said that ““Officer Ellis was charged with a disciplinary infraction and was terminated.”

Plaintiff sued. The Law Division ruled that the County had to produce the settlement agreement, redacted to protect those portions that were in fact personnel records, but disclosing the specific information quoted above, as that information was a “government record” of which OPRA required disclosure. The Appellate Division reversed, as discussed here. The Supreme Court granted review, and today the Court unanimously reversed the Appellate Division and reinstated the Law Division’s ruling. Chief Justice Rabner wrote the Court’s opinion, which applied de novo review of the statutory interpretation issue presented.

The Court focused on the language of section 10 of OPRA. Chief Justice Rabner noted that “[m]ost personnel records are exempt from disclosure under the law, but the statute has three exceptions.” One of those exceptions reads as follows:

“Notwithstanding the provisions of L. 1963, c. 73 ([N.J.S.A.] 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: [1] 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.”

Chief Justice Rabner found that language dispositive. “Section 10 expressly states that a person’s ‘date of separation’ from employment ‘and the reason therefor . . . shall be a government record.’ Id. § 10. As a result, 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 added that “part of the settlement agreement that Libertarians seeks contains information covered by section 10’s first exception. For similar reasons, the document is subject to disclosure after it is redacted.”

After providing additional support for the Court’s conclusion, Chief Justice Rabner observed that this case shows the importance of OPRA in advancing “transparency, accountability, and candor.” Though the County had stated that Ellis had been terminated due to his misconduct, ” [t]he 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.”

The Court thus reversed the Appellate Division and reinstated the Law Division’s ruling. “Libertarians was and is entitled to a redacted version of the actual settlement document,” Chief Justice Rabner concluded.