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OPRA Does Not Require Disclosure of Reasons for Public Employee’s Voluntary Resignation

By on January 11, 2018 in Open Public Records Act with 0 Comments

By: Cameron R. Morgan, Esq.
Editor: Sanmathi (Sanu) Dev, Esq.

In a case construing the “personnel records” exception to the Open Public Records Act (“OPRA”), the Appellate Division recently held that OPRA does not require disclosure of detailed reasons for a government employee’s resignation, where public records do not contain such information.

There are 21 exceptions to the definition of a “government record” under the OPRA statute, few of which are as frequently the source of litigation as the exception for personnel records. This is most likely because there are three exceptions to that exception itself, two of which permit access to (1) the employee’s name, title, position, salary, payroll record, length of service, date of separation and the reasons therefore, and the amount and type of any pension received,” and (2) “data contained in information which discloses conformity with specific experiential, educational, or medical required for public employment or for receipt of a public pension.”  N.J.S.A. 47:1A-10.

In Libertarians for Transparent Gov’t v. Ocean Cnty. Prosecutor’s Office, No. A-1608-16T1 (App. Div. January 5, 2018), the Appellate Division considered the manner in which the Ocean County Prosecutor’s Office (“OCPO”) handled an OPRA request seeking certain information concerning a former employee who had resigned from his post.  The requestor sought the employee’s “name, title, position, salary, payroll record, length of service, date of separation and the reasons therefore,” as well as any agreements regarding his separation from service.  After a search of the employee’s personnel file, the OCPO responded with the requested information, except that it did not initially provide any information on the reasons for the employee’s separation.  In a brief follow-up, the custodian of records furnished a memo from the First Assistant Prosecutor stating that the employee’s resignation became effective on a specified date and clarifying that there were no agreements regarding the employee’s departure.

In response, the plaintiff made a second OPRA request seeking a “more descriptive” explanation of the employee’s reasons for separation, which he prefaced with the statement that he had received information that the employee in question had failed a drug test and resigned in lieu of adverse employment action.  The requestor suggested that the OCPO could satisfy the request by clarifying whether the employee resigned voluntarily or under threat of termination.  The OCPO denied the second request, asserting that it was under no obligation to create records which did not exist or provide a more detailed statement of the reason for the employee’s separation.

The Appellate Division affirmed the trial court’s dismissal of the complaint.  While the court recognized that the three exceptions to the personnel records exemption require disclosure of the information itself as a “government record,” regardless of whether it is reflected in a specific document, the court found that the OCPO had fully complied with the statute.  The court held that the personnel records exception required only disclosure of the reason for separation, in this case resignation.  By its plain terms, the court held, the statute “does not require the provision of the circumstances that may have caused the employee to choose to resign, the employee’s motivation for resigning, or anything beyond the reason for the employee’s “date of separation.”  (Emphasis added.)

Distinguishing two earlier New Jersey Supreme Court cases, the court held that where the information providing reasons for the employee’s separation is not contained in a specific document that falls within the definition of a government record, the public entity is not required to create additional records to satisfy a requestor’s desire for additional clarity on the reasons for resignation.  While the court found that the OCPO erred in limiting its search to only the personnel file of the employee in question, rather than all potentially relevant records, this case represents a continuation of an important limitation curtailing the public from accessing personnel files of public employees under the above exceptions.

Complying with OPRA requests can be confusing and burdensome for records custodians.  With a little assistance from the courts, the OPRA statute’s clarification should come in handy for custodians having to parse the tricky intersection of the exception regarding personnel records when complying with requests.


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