Monthly Archives: March 2022

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 Holds That Police Internal Affairs Reports are Confidential Under OPRA, But May be Accessed Under The Common Law

Leave a reply

The Supreme Court issued its second OPRA opinion in March, Rivera v. Union Prosecutor. As I predicted, the Court held that records of police internal affairs investigations are exempt under OPRA, but ordered release of the internal affairs report in question under the common law.

Prior Supreme Court opinions indicated that internal affairs records are not accessible under OPRA. In Rivera the Court put to rest any possible claim that these records may be obtained through an OPRA request. It held that internal affairs reports are exempt because the Attorney General’s Internal Affairs Policy and Procedure, which has the force of law, requires their confidentiality.

The Court also stated, consistent with settled law, that this type of exempt record may be accessed under the common law, if in the particular situation, the interest in disclosure outweighs the need for confidentiality. The Court reiterated the important confidentiality considerations that must be taken into account in conducting this balancing, and it also provided guidance on the factors that may favor disclosure of an internal affairs report.

The Court held that the report at issue in the case should be made public under the common law, as it concerned a matter of considerable public interest, involving racist and sexist misconduct by the City of Elizabeth Police Director. The Court remanded the case to the trial court to conduct the common law balancing test to determine specifically what portions of the report should be made public. Notably, the Court also stated that the trial court must ensure redaction of information in the report that warrants confidentiality, including names of complainants, witnesses, informants, and cooperators; personal information of officers and other individuals; and other information protected by privacy interests.

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.