The NJ Supreme Court recently decided the case of Libertarians for Transparent Government v. Cumberland County, et al., allowing the release of a former employee’s settlement agreement through a public records request.
Tyrone Ellis worked for the Cumberland County Jail as a corrections officer. Mr. Ellis was charged in a Preliminary Notice of Disciplinary Action (PNDA) by the County. He ultimately entered into an agreement with the County in which the County agreed to drop the disciplinary charges against Mr. Ellis and allow him to retire in good standing in exchange for his cooperation with the County’s investigation of other correctional officers’ suspected misconduct. Mr. Ellis and the County signed a settlement agreement.
Open Public Records Act: Privacy Rights vs. the Right to Public Information
Libertarians learned about the disciplinary action against Mr. Ellis.
It filed a request with the County, relying on the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. Libertarians requested the PNDA, the settlement agreement, and Mr. Ellis’s name, title, position, salary, length of service, date of separation, and the reason therefore in accordance with N.J.S.A. 47:1A-10. The County refused to produce the PNDA and the settlement agreement, arguing they were personnel records and exempt from disclosure. The County sent an email to Libertarians providing the other requested information.
The OPRA provides the public with access to all government records unless they fall under an exemption.
Public Access to Settlement Agreements Increase Accountability
Most personnel records are exempt from disclosure under the OPRA and are not required to be produced in an open records request. However, there are exceptions to this personnel records exemption. One of those exceptions is that “an individual’s name, title, position, salary, payroll record, length of service, date of separation and the reason, therefore, and the amount and type of any pension received shall be a government record” and therefore, that information must be produced in an open records request.
The Supreme Court looked at the language of the OPRA and held that a settlement agreement that includes this information is a “government record” and a redacted version of the document must be produced in an open records request. Simply providing the information without also providing the document is not sufficient. This holding is limited to settlement agreements and does not unilaterally require that redacted versions of all documents in a personnel file must be produced in an open records request.
Why This Case Matters
One of the key factors that attorneys engage in when deciding whether to take your case is how they will prove the facts that you are telling them. A case supported by documentary evidence is much stronger than “he said/she said” cases, which ultimately rely on other witnesses corroborating your side of the story.
The Bottom Line
When you decide that it’s time to retain a lawyer and you work for the state or other governmental entity, you will be subject to OPRA restrictions on what the defendants will and won’t produce in discovery. In general, all defendants play games with discovery, but governmental entity defendants hide behind OPRA protections as well.
If you are a state or government employee seeking to pursue a case against your employer, reach out today.