The new year has started with issuance by the Appellate Division of an important opinion that addresses a longstanding problematic OPRA question–whether the statute requires public bodies to provide an explanation of the reasons underlying an employee’s separation from employment. The court held that OPRA does not require a public body to disclose information about the circumstances surrounding the separation; this means, for example, where the employee has resigned, the public is not entitled to learn his motivation for doing so. Libertarians for Transparent Government v. Ocean County Prosecutor.
The claim that public bodies must provide an explanation of the reasons why an individual is no longer employed is based on one of the statute’s exceptions to the personnel records exemption, which states that “the date of separation and the reason therefor” must be disclosed. Requestors often argue (as the requestor did in this case) that this phrase means that it is insufficient for a public body to indicate simply that an employee “resigned,” “retired,” or “was discharged.” They contend that OPRA requires the employer to reveal the “real” reasons an employee was separated, even if there are no records reflecting these reasons.
The Appellate Division rejected this argument as contrary to the statute’s plain language and intent. It held that the Prosecutor’s Office complied with OPRA’s requirement by indicating that the employee in question had resigned. The court refused to read into the statute the obligation to create records containing an explanation of the reasons underlying the resignation.
This is the first time an appellate court has addressed this issue. Unfortunately (and surprisingly), the opinion is not a published, precedential opinion.
In an unpublished opinion issued today, the Appellate Division rejected the argument that OPRA requires the disclosure of employee resumes with no redactions. Scheeler v. NJ Dept. of Children and Families.
OPRA exempts personnel records, which includes resumes, from disclosure. The statute permits only limited resume information to be disclosed–information which shows that a public employee meets the specific education and experience qualifications that are prerequisites for his job. In this appeal, the agency complied with the statute and released employee resumes with much information redacted.
The requestor argued that Executive Order 26 (McGreevey) overrides this statutory requirement and mandates release of unredacted resumes. The Appellate Division rejected this position, because it would nullify the legislative protection of personnel records in OPRA.
The court’s conclusion that the executive order cannot supersede the statute seems self-evident, but nevertheless OPRA requestors often rely on Executive Order 26 in seeking access to resumes. For example, see this post concerning an (unsuccessful) effort to obtain applicants’ resumes. The appellate and trial courts have consistently rejected the Executive Order 26 argument and upheld the confidentiality of resumes, but there is no precedential opinion addressing this precise issue.
Some requestors attempt to use OPRA to evade basic notions of privacy and gain access to personal information held by the government. This post from early 2017 discusses how public bodies frequently must defend OPRA litigation seeking disclosure of clearly private information. A recent Appellate Division case presents yet another example of this.
In Wolosky v. Boro of Washington, the requestor sought the municipal clerk’s 2015 payroll record. The Boro provided this document, redacting the deductions for pension contributions, pension loan payments and health insurance payments. The Appellate Division upheld this decision, because the redacted material is exempt personnel information.
The requestor also argued that the employee’s privacy interest in the withheld information should not block disclosure. The Appellate Division agreed with the trial judge’s rejection of this claim. The trial judge said that any public interest in disclosure of how much money the employee contributes for her health insurance and pension is “heavily outweighed” by her expectation of privacy in this information.
It’s clear that outside activity records of public employees are exempt under OPRA. In an unpublished opinion issued today, the Appellate Division emphasized that these records also are typically not accessible under the common law. New York Public Radio v. Gov. Office.
The requestor in this case sought outside activity notifications submitted to the Governor’s Office’s ethics liaison officer. The trial judge ruled that these are exempt under OPRA because they are personnel records, but ordered disclosure under the common law. The Appellate Division disagreed. It held that the significant privacy interest of employees in their outside activities outweighs the limited public interest in disclosure of this information.
The court also noted the importance of maintaining the confidentiality of ethics communications, to ensure that public employees will not be deterred from making such inquiries.
The Appellate Division also dealt with a separate OPRA request that presented the issue of whether the deliberative process privilege applied to a “Town Priority List” used by the Governor’s Office. The appellate court again reversed the trial court’s disclosure order. It ruled that this list was covered by the deliberative process privilege, in that it was a key component of the Governor’s Office’s decisionmaking process regarding allocation of resources.
Mercer County Assignment Judge Jacobson recently ruled that the City of Trenton properly denied an OPRA request for the resumes of the applicants who were not chosen for the position of chief municipal prosecutor. As discussed in this earlier post, OPRA’s personnel exemption prohibits a public body from releasing the resumes of the individuals who applied for jobs, but were not appointed.
It appears that the judge (as is her usual practice) did not issue a written opinion. The news article indicates that she rejected the argument that Executive Order 26 (2002) imposes upon a public body the obligation to contact the candidates to find out if they consent to disclosure of their resumes. The judge recognized that adding this requirement to the custodian’s duties would be contrary to OPRA.
The judge also disagreed with the plaintiff’s position that the executive order makes resumes public documents, on the ground that an executive order cannot override the statutory requirement that personnel records are confidential.
There is no published court opinion that expressly holds that resumes of unsuccessful job applicants are within OPRA’s personnel exemption, probably because it is so clear that resumes are confidential personnel records. Any doubt on this question is dispelled by the Supreme Court’s opinion in Kovalcik v. Somerset Prosecutor, where the Court held that OPRA permits disclosure of only an extremely limited amount of personnel information.
Interestingly, when I argued this case, some of the justices suggested, during the oral argument, that Executive Order 26 was invalid because it conflicts with OPRA’s personnel exemption. However, the Court’s opinion does not address this. In my view, any requirement that makes resumes public would in be invalid, as the statute and Kovalcik clearly do not authorize disclosure of these personnel records.
This recent Trentonian article suggests that the City of Trenton improperly denied its OPRA request for the resumes of the applicants who were not chosen for the position of chief municipal prosecutor. However, the law is clear that OPRA prohibits a public body from releasing these personnel records.
Job applicants’ resumes are classic examples of personnel records. While resumes of public employees may be subject to disclosure (as discussed in this post), the resumes of the individuals who applied for jobs, but were not appointed, are confidential under OPRA’s strict limitation on revealing personnel information.
The Trentonian article incorrectly says that an executive order makes public the resumes of those who didn’t obtain employment and requires the public body to determine if the candidate consents to disclosure of the resume. The executive order in question, Executive Order 26 (McGreevey), does not state that the resumes of unsuccessful job candidates are public records; in fact, such a statement would be legally invalid, because it is contrary to OPRA’s personnel exemption provision. And nothing in the executive order provides that an agency must determine if an unsuccessful candidate would consent to public release of his or her resume.