Settlement agreements are public records, Supreme Court says

COLLEEN O'DEA, SENIOR WRITER AND PROJECTS EDITOR | MARCH 8, 2022

NJ Spotlight News

Settlement agreements between public employers and workers are public records that must be made available on request, with appropriate redactions, the New Jersey Supreme Court ruled Monday in a case that will make it easier for people to monitor the appropriateness of the deals.

“Access to public records fosters transparency, accountability and candor,” wrote Chief Justice Stuart Rabner in the court’s unanimous decision in a case involving a former Cumberland County Jail officer accused of forcing a woman to “engage in non-consensual sex acts on a regular basis.”

The officer, Tyrone Ellis, was allowed to retire “in good standing” with a reduced pension after agreeing to cooperate with the county’s investigation of four other officers suspected of misconduct. Libertarians for Transparent Government sought a copy of the settlement agreement between Ellis and Cumberland County. A records custodian denied that request, saying it was a personnel record that is exempt from the state’s Open Public Records Act (OPRA). A Superior Court judge agreed and ordered a redacted version of the agreement be provided, but the Appellate Division reversed that.

The Supreme Court took the appeal and agreed to hear friend-of-the-court arguments from ACLU-NJ and a number of news organizations. The court agreed with the libertarian group and its supporters in the case. The state law that makes most personnel and pension records private does require public access to basic information: a person’s name, title, position, salary, payroll record, length of service, date of separation and reason for that and the amount and type of pension received, the court ruled.

“OPRA safeguards an individual’s personal information when disclosure would violate a person’s reasonable expectation of privacy,” the court wrote. But because the law specifies certain information can be released, “No reasonable claim of privacy can justify withholding Ellis’s settlement agreement from disclosure.”

CJ Griffin, a lawyer specializing in open government issues who represented Libertarians for Transparent Government, called the decision “significant” in reversing the appellate ruling that had for a time put these agreements out of the public eye. Prior to that ruling, many agencies would release agreements with redactions.

‘Greater accountability and oversight’

“The public must have a right to view settlement agreements that public agencies enter into so we can review the terms and determine whether or not they are reasonable,” Griffin said. “The Appellate Division’s decision in this case made employee separation agreements confidential, which prohibited the public from playing any oversight role to ensure that employees weren’t given sweetheart deals on the way out or that misconduct wasn’t bargained away … The Appellate Division’s decision shut down that access. Now the Supreme Court has restored it and it will result in greater accountability and oversight.”

The Reporters Committee for Freedom of the Press, a national nonprofit supporting journalists in issues involving the First Amendment and freedom of information, argued broadly that OPRA and other public records laws advance the public interest by allowing journalists to report on the conduct of government and public workers. Libertarians for Transparent Government more specifically asserted that the court’s decision would have far-reaching consequences for transparency in policing and sexual abuse in jails.

The decision recognizes both of those arguments. It also states that people who ask for the settlement agreements are entitled to a copy, once redacted to remove information the law states should be kept confidential, and not simply a record custodian’s response to an individual’s questions. In this case, Cumberland County refused to release the agreement but told the libertarian group that Ellis was terminated because of his misconduct as a corrections officer, which was not accurate — he was allowed to retire in good standing and retain most of his pension.

“We recognize that some requestors may be satisfied to receive a written summary of information in response to an OPRA request. But OPRA entitles them to press for actual government records in many situations, which they can then inspect,” the decision states. “Without access to actual documents in cases like this, the public can be left with incomplete or incorrect information.”

Griffin said being able to get a copy of a document is crucial to keeping public officials and agencies honest.

“This decision prohibits agencies from lying,” she said. “They can’t tell us they terminated someone when an agreement shows they really let the person retire with a pension.”

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published this page in News and Politics 2022-03-08 03:19:30 -0800