The Appellate Division issued a short, unpublished opinion today which resolves a significant and previously-unaddressed question–whether settlement negotiation records of public bodies must be disclosed under OPRA. The court held that William Paterson University properly rejected disclosure of an unfiled and unexecuted draft litigation settlement agreement. Libertarians for Transparent Government v. Wm. Paterson U.

The document in question was an email containing a red-lined version and a clean version of the proposed settlement agreement between the parties. As of the date of the OPRA request, the parties had not agreed upon the language in the red-lined version.

The court stated that until a settlement agreement is signed, it is a draft document, subject to revision and negotiation, and therefore exempt under OPRA. In this case, the settlement was not fully executed until a few weeks after the settlement documents at issue, leading the court to rule that these documents were exempt from disclosure.

Anyone who has ever been involved in litigation would probably consider it obvious that all of the parties’ communications leading up to the final, signed settlement agreement, including drafts of language for the settlement, are confidential. But there are OPRA requestors who do not accept this principle; I’m aware of many OPRA requests that sought to make public the records of litigants’ settlement negotiations.

This claim comes up because there’s no precedential OPRA case law directly stating that public agencies’ settlement negotiation records are exempt records. Unfortunately, because this new Appellate Division is unpublished, there still is no direct precedent. I anticipate that some requestors will continue to assert the frivolous position that they are entitled to disclosure of these records.