Tag Archives: personnel records

Once Again, Appellate Division Rules That A Request Requiring Research Is Invalid

Leave a reply

It’s a bedrock OPRA principle, stated consistently by the courts, that a request must be for a specific record, and cannot require the custodian to conduct research to fulfill the request. For this reason, the Appellate Division recently upheld the denial of a request that sought the “real reason” for the separations of various police officers from employment. Owoh v. Maple Shade Police Department.

The request asked the police department for personnel information that’s not exempt from disclosure under OPRA–the “[n]ames, date of hire, date of separation and reason for separation and salary of
individuals who…[were separated] in the last [five] years from [the] police department.” The department provided the requested information. For the reasons for separation, it properly indicated whether the officer resigned, retired or was terminated.

The requestor objected that this did not show the “real reason” for separation, which might be due to a plea agreement or a conviction. The court rejected this argument, concluding that the department complied with OPRA by giving the requestor the reasons for the officers’ separations.

Regarding the requestor’s interest in finding the so-called “real reasons” for officers’ separations from employment, the court indicated that the custodian was not obligated to try to figure out what records might contain such information. The court emphasized that the request did not identify any specific records that have the “real reasons,” and the custodian was not required to conduct research and analyze the agency’s records to attempt to find this information.

Analysis: The Supreme Court’s Recent Opinions Strengthen OPRA Exemptions

Leave a reply

In March, the Supreme Court issued two highly consequential OPRA opinions. These cases are particularly significant because, in both matters, the Court rejected arguments that the applicable OPRA exemptions should be cast aside. Instead, the Court ensured the continuing viability of the exemptions for personnel records and police internal affairs records.

In Libertarians for Transparent Govt. v. Cumberland County, the requestor, the ACLU, and other organizations asked the Court to disregard OPRA’s personnel exemption and hold that the public is entitled to disclosure of all settlements of internal disciplinary actions. The Court declined this invitation to weaken the personnel exemption. Instead, it reiterated the longstanding requirement of OPRA that public employee personnel records–which include records of disciplinary settlements–are strictly confidential. A limited exception to this rule is that OPRA expressly designates certain personnel information as public, including the reason for the employee’s separation from employment.

In Rivera v. Union County Prosecutor, the Court similarly rejected the requestor’s main argument–that OPRA does not exempt police internal affairs records from disclosure. The Court unambiguously held that these records are exempt under OPRA, thereby precluding automatic public access to them. The Court said such records are only potentially disclosable through a common law records request.

Thus, these cases are important in two ways: they provide guidance on crucial OPRA issues, and they conclusively reject efforts to undermine OPRA’s confidentiality guarantees.

Supreme Court: The Portion of a Personnel Record that Shows the Reason for an Employee’s Separation from Employment Must Be Disclosed

Leave a reply

The Supreme Court recently reaffirmed the requirement of OPRA that certain information found in a personnel record, including the reason for an employee’s separation from public service, is not confidential. As a result, the Court ordered disclosure of the portion of an exempt personnel record, an internal agency settlement agreement, that showed the reason for the separation of a county employee. Libertarians for Transparent Govt v. Cumberland County.

The Court’s opinion breaks no new ground, as OPRA itself, as well as prior Supreme Court precedent, is clear that certain personnel information is public; specifically, “an individual’s name, title,
position, salary, payroll record, length of service, date of separation and the reason therefor, and the amount and type of any pension received….” Because part of the settlement agreement in question in Libertarians showed the reason for the employee’s separation, the Court determined that the County erred in withholding the entire document, and ordered it to release a redacted version that would disclose the separation information.

Crucially, the Court rejected the main argument advanced by the requestor–that a settlement resolving an internal disciplinary action is not an exempt personnel record. In other words, the requestor asked the Court to hold that all such settlements are completely public. This result would be contrary to long settled law, and would cast doubt on the confidential status of all other personnel records.

The Court refused to go down this path. It unambiguously stated that all internal settlement agreements are personnel records that are not disclosable. Only the portion containing the separation reason must be disclosed.

Major OPRA Case Law Expected in 2022

Leave a reply

This year will see at least two Supreme Court opinions on crucial public records issues.

Libertarians for Transparent Govt v. Cumberland County involves the question of whether a settlement agreement between a public body and its employee, which resolves an internal disciplinary action against that employee, is an exempt personnel record. As I’ve previously discussed, this has always been considered to be a confidential personnel record. Will the Supreme Court depart from this longstanding rule?

In the other pending Supreme Court case, Rivera v. Union County Prosecutor, the Court will determine whether police department internal affairs reports at issue, concerning alleged misconduct by a city’s police director, must be disclosed under OPRA and the common law. Since the Supreme Court held in 2020 that police internal affairs records are confidential under OPRA, it seems unlikely it will reverse that position here. I think it’s more likely that this case will focus on whether the records in question should be made public under the common law.

In addition to these Supreme Court opinions, public bodies should expect disputes and litigation related to interpreting some of the cases decided in 2021. I anticipate more claims seeking attorney fee awards for litigating common law record requests, in view of last year’s precedential opinion of the Appellate Division permitting such awards in common law cases. And the extent of OPRA’s privacy protection will continue to be a hot issue; this is currently the subject of a number of pending cases, specifically involving requests for individuals’ email addresses.