By   Wong Fleming, PC  On Jul 24, 2009  @14:49

Asbury Park Press v. County of Monmouth, 2009 N.J. Super. LEXIS 55 (App. Div. 2009)

The Appellate Division recently held that the Open Public Records Act (“OPRA”) requires disclosure of a confidential settlement agreement entered into between the plaintiff in a sexual harassment and discrimination lawsuit and the defendant county.

The facts of the case were as follows. Plaintiff, Carol Melnick, filed a lawsuit in the Superior Court law Division against the Monmouth County Board of Chosen Freeholders and individual defendants alleging that she had been subjected to sex discrimination, sexual harassment, retaliation, and hostile work environment in violation of the New Jersey Law Against Discrimination (“LAD”).  Subsequently, the lawsuit was settled and the parties entered into a settlement agreement, which contained a confidentiality provision.  After the lawsuit was settled, John Paff and the Asbury Park Press, filed OPRA requests requesting records pertaining to the settlement, which the County denied.

Mr. Paff and the Asbury Park Press then filed complaints with the Superior Court Law Division to compel disclosure of the confidential settlement agreement.  The trial Court ordered Ms. Melnick to be joined as a party and consolidated the two cases for a summary trial.   Prior to the summary trial being held, it was stipulated between the parties that Paff and The Asbury Park Press only sought disclosure of the settlement agreement.

A summary trial was held and the trial court held that the settlement agreement did not have to be disclosed by the County.  The trial court said that Ms. Melnick's privacy interests and the court's policy favoring settlement of lawsuits outweighed the public's interest in disclosure of the terms of a sexual harassment settlement involving a governmental agency.  The trial Court based its decision on several factors including: 1) the fact that OPRA's definition of "government record" specifically excluded information generated in connection with a sexual harassment complaint; 2) that the parties specifically included a confidentiality in the settlement agreement; and; 3) the fact that there is a strong public policy in favor of settlement of lawsuits and disclosing sexual harassment settlements could have a chilling effect on victims coming forward and filing sexual harassment lawsuits against public employers.

On appeal, the Appellate Division reversed and held that the settlement agreement must be disclosed.  The Court said that the OPRA exclusion for information generated in connection with sexual harassment complaints applied only to internal complaints filed with the public employer not filed lawsuits.  The Court also rejected the argument that the settlement agreement contained a confidentiality clause, stating that the public’s right to know outweighs the individual’s right to privacy.  Further, the Court stated that rather than having a chilling effect on the filing of sexual harassment lawsuits, disclosure of such settlement agreements might actually, “encourage other victims to come forward.”  Finally, the Court rejected the trial court’s reasoning that there is a strong public policy in favor of settlements, stating that the “policy favoring settlements is … outweighed by the importance of maintaining open government.”

The Appellate Division reversed the decision of the trial court, and remanded the case for consideration of appellants' demand for attorney's fees.