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.