The Appellate Division recently issued a precedential OPRA opinion on an issue of first impression. The court held that a settlement agreement between a public body and its employee, resolving an internal disciplinary action against that employee, is exempt from disclosure as a personnel record. Libertarians for Transparent Govt v. Cumberland County.

It’s well-settled and unquestionable that litigation settlements are public under OPRA, but what about agreements resolving employee disciplinary charges before litigation ensues? The Appellate Division recognized that these internal agreements are not subject to the case law requiring disclosure of the settlement of public litigation matters.

The court concluded that this type of agreement between employer and employee is an exempt personnel record. The court’s analysis was straightforward: because an employee’s disciplinary records are covered by OPRA’s personnel exemption, it follows that the settlement of disciplinary charges are also covered by the personnel exemption.

The Appellate Division’s opinion contains a second significant holding–the court determined that under OPRA’s personnel exemption, the entire settlement agreement must be withheld. The appellant argued the document should have been released with redactions, but the court properly rejected this as inconsistent with OPRA’s requirement that personnel records are completely confidential.

Although the court rejected the requestor’s OPRA arguments, it remanded the case for the trial court to consider the requestor’s effort to obtain the settlement under the common law right of access.