On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4817-07 and L-4358-07.
The opinion of the court was delivered by: Ashrafi, J.S.C. (temporarily assigned).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Grall and Ashrafi.
In these consolidated appeals, we consider whether the County of Monmouth may withhold public disclosure of its agreement with an employee to settle her sexual harassment and discrimination lawsuit. The trial court ruled that neither the Open Public Records Act ("OPRA"), N.J.S.A. 47:1A-1 to -13, nor the public's common law right of access to government records requires disclosure.
We reverse and hold that OPRA requires disclosure of the settlement agreement. We need not reach the issue of the common law right to disclosure.
The facts relevant to our decision are not in dispute. In April 2005, Carol Melnick filed a lawsuit in the Superior Court naming as defendants the Monmouth County Board of Chosen Freeholders and five individually named past and present employees of the County. Melnick asserted claims for seX discrimination, sexual harassment, retaliation, and hostile work environment.
Through entry of a consent protective order, Melnick and the County defendants agreed to maintain the confidentiality of information exchanged between the parties while conducting discovery. The protective order applied to: any medical, psychological counseling, financial or personnel information and/or personnel files concerning Plaintiff and/or Defendants, as well as records of complaints and/or investigations conducted by the County of Monmouth . . . of harassment, discrimination and/or retaliation by individuals other than Plaintiff, or other documents . . . that pertain to employees of the County of Monmouth other than Plaintiff.
In June or July 2007, Melnick settled her lawsuit. The settlement agreement contained its own confidentiality provision and was not filed with the court or executed in the form of an order or judgment. Instead, on August 6, 2007, Melnick and the County jointly filed a one-sentence stipulation of dismissal terminating the lawsuit with prejudice.
In July 2007, appellants John Paff and the Asbury Park Press, acting separately, made formal requests under OPRA for records related to the settlement. The County declined both requests on procedural and substantive grounds. Both appellants persisted in their OPRA requests and attempted to satisfy the County's procedural objections. The County then responded that it was not required to disclose information pertaining to Melnick's lawsuit under OPRA or any other law.
Each appellant filed a complaint in the Law Division to compel disclosure. Paff requested only a copy of the settlement agreement. The Asbury Park Press requested copies of a broader range of records pertaining to Melnick's lawsuit. The trial court directed that Melnick be joined as a party-defendant and consolidated the two cases for purposes of a summary trial under Rule 4:67.
At the summary trial, both appellants stipulated that the only record they then sought was a copy of the County's settlement agreement. Relying upon a documentary record and the parties' arguments, the trial court concluded that OPRA's definition of "government record" specifically excludes information generated in connection with a sexual harassment complaint. As to the common law, the court concluded that Melnick's privacy interests and the court's policy favoring settlement of lawsuits outweigh the public's interest in disclosure of the terms of a sexual harassment settlement involving a governmental agency.
Our standard of review is plenary with respect to interpretation of the OPRA exclusion upon which the County relies. See Manalapan Realty v. Twp. Comm. ...