Appellate Division Overturns GRC in OPRA Case Involving Release of Settlement Agreement
On November 15, 2017, the New Jersey Appellate Division issued an unpublished decision in Scheeler v. Galloway Township regarding an Open Public Records Act (“OPRA”) request seeking a settlement agreement between Galloway Township (“Galloway”) and its former manager. In short, the Appellate Division found that the document in question constituted a final settlement agreement subject to disclosure under OPRA contrary to the position of Galloway.
On November 12, 2014, Galloway adopted a resolution in public session authorizing the settlement of the litigation between it and the former manager. Specifically, the resolution stated that Galloway’s agreement to settle was subject to (1) execution and delivery of a general settlement agreement and release, (2) counsel for Galloway’s review and approval of the settlement agreement and release, (3) execution of the settlement agreement and release by Galloway’s mayor, and (4) attestation of the mayor’s signature by Galloway’s township clerk. Prior to Galloway formally adopting the resolution, it released a payment to the former manager per the terms of the settlement.
On November 20, 2014, Plaintiff Harry B. Scheeler, Jr. made an OPRA request to Galloway seeking the settlement agreement between Galloway and the former manager. Galloway denied the OPRA request that same day explaining that the settlement agreement has not been executed. Approximately one month later on December 22, 2014, Plaintiff made the same OPRA request. On December 29, 2014, Galloway provided the same response as it did in November.
On January 1, 2015, Plaintiff informed Galloway that he learned that a check was issued to the former manager and asked how Galloway could do so if there was no executed settlement agreement. In response, Galloway provided Plaintiff a document entitled “RELEASE AND SETTLEMENT AGREEMENT” (“Release”). This document released Galloway from all claims that the former manager may have against it. The Release was signed by the former manager. However, the document did not require or permit execution by anyone on behalf of Galloway.
Plaintiff then filed two complaints with the Government Records Council (“GRC”) alleging that Galloway unlawfully denied access to the Release in response to his November 20, 2014 and December 22, 2014 OPRA requests. The GRC disagreed with Plaintiff and reasoned that the settlement between Galloway and the former manager was not finalized nor executed consistent with Galloway’s resolution. The GRC also found it relevant that Galloway’s records custodian had not seen the Release prior to Plaintiff’s November 20, 2014 OPRA request and that she reasonably believed no settlement had been reached because she had not been asked to attest to the mayor’s signature per the resolution. With respect to the December 22, 2014 OPRA request, the GRC reasoned that no violation occurred because Galloway provided the Release within seven business days of Plaintiff’s request.
Plaintiff appealed to the Appellate Division, which reversed the GRC. The Appellate Division determined that Galloway and the former manager reached a final settlement at the time Plaintiff made his OPRA requests and Galloway should have provided the Release immediately. In overturning the GRC, the Appellate Division explained that the GRC made no factual findings supported by substantial evidence that the settlement was not final on November 20, 2014. The Appellate Division criticized the GRC for assuming the Release was advisory, consultative, or deliberative material not subject to disclosure. The Appellate Division reasoned that all of the terms of the settlement agreement were agreed to by the attorneys for the parties, the attorneys executed and exchanged stipulations of dismissal pursuant to the terms of the agreement, and Galloway even issued a payment to the former manager. No evidence suggested that prior to November 20, 2014, the attorneys negotiated or agreed to different terms.
Even though the Release was only signed by the former manager, the Appellate Division determined that based on the circumstances, a final settlement was reached between the parties. Therefore, Galloway was required to disclose the Release upon Plaintiff’s OPRA request.
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