Last month, in Scheeler v. Galloway Tp., the Appellate Division held, for the first time, that public bodies must give requestors “immediate” access to all litigation settlements, including releases. In my view, this holding misinterprets OPRA.
The Appellate Division’s analysis was straightforward: the statute requires that custodians provide immediate access (rather than taking 7 business days to respond) when in receipt of a request for certain types of records; one of the designated records is “contracts;” and a settlement is a contract.
But the OPRA provision in question is not really so clear. The statute doesn’t simply state that immediate access is required for “contracts;” instead, it says, “contracts, including collective negotiations agreements and individual employment contracts.” This means that the statute does not automatically cover all contracts and agreements; if it did, the Legislature would not have needed to add language explaining that union agreements and employment contracts are included.
I think the Legislature added this specific language because its intent was to mandate immediate access only to records that public bodies are capable of producing quickly. What these records have in common with the other records listed in the immediate access section is that the custodian typically can quickly obtain them. Union and employment contracts, as well as salary information, will be on file with the personnel department, and contracts for goods and services will be on file with the purchasing/finance department.
In contrast, as the Appellate Division has previously recognized, litigation settlements are often not even held by the public body itself, but may be in the possession of various outside agents, such as law firms and insurers. As a practical matter, it will be impossible for most custodians to “immediately” provide access to this type of record, meaning that OPRA should not be interpreted to impose this requirement.