LIBERTARIANS FOR TRANSPARENT GOVERNMENT, v. CUMBERLAND COUNTY

Annotate this Case
NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-1661-18T2


LIBERTARIANS FOR
TRANSPARENT GOVERNMENT,               APPROVED FOR PUBLICATION
a NJ Nonprofit Corporation,
                                            September 4, 2020

     Plaintiff-Respondent,                APPELLATE DIVISION


v.

CUMBERLAND COUNTY and
BLAKE HETHERINGTON in her
official capacity as Custodian of
Records for Cumberland County,

     Defendants-Appellants.
_____________________________

           Argued November 13, 2019 - Decided September 4, 2020

           Before Judges Fisher, Accurso and Gilson.

           On appeal from the Superior Court of New Jersey,
           Law Division, Cumberland County, Docket No.
           L-0609-18.

           Melissa D. Strickland, Assistant County Counsel,
           argued the cause for appellants (Theodore E. Baker,
           County Counsel, attorney; Melissa D. Strickland, on
           the brief).

           Michael J. Zoller argued the cause for respondent
           (Pashman Stein Walder Hayden, PC, attorneys; CJ
           Griffin, of counsel and on the brief).
      The opinion of the court was delivered by

ACCURSO, J.A.D.

      The central issue on this appeal is whether a settlement agreement

between defendant Cumberland County and a former County employee

resolving a preliminary notice of disciplinary action (PNDA) against the

employee is a government record under  N.J.S.A. 47:1A-10 (section 10) of the

Open Public Records Act (OPRA),  N.J.S.A. 47:1A-1 to -13, the exemption for

personnel records. We hold a settlement agreement resolving an internal

disciplinary action against a public employee is not classified as a government

record under OPRA, but instead is a personnel record exempt from disclosure

under section 10 of the statute. We, accordingly, reverse the trial court order

that held to the contrary, and remand for the court to consider whether plaintiff

Libertarians for Transparent Government is entitled to the settlement

agreement, either in whole or in part, under the common law right of access to

public records, see Bergen Cty. Improvement Auth. v. N. Jersey Media Grp.,

Inc.,  370 N.J. Super. 504, 520 (App. Div. 2004).

      The essential facts are easily summarized. Libertarians obtained minutes

of the March 12, 2018 Board Meeting of the Police and Fireman's Retirement

System, reflecting the Board's consideration of an application for special

retirement by Tyrone Ellis, a corrections officer employed by Cumberland



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County at its correctional facility. The minutes state that Ellis was charged in

a PNDA seeking his termination with conduct unbecoming and other sufficient

causes following an internal affairs investigation in which Ellis admitted to

engaging in sex with two inmates and bringing them contraband, including

bras, underwear, cigarettes and a cellphone. He also admitted to using an alias

that allowed him to correspond with and provide money to one of the inmates

through JPAY, a service that allows individuals to transfer money to inmates.

      The minutes reflect that Ellis resigned while the disciplinary action was

pending. According to the minutes, when Ellis learned the County intended to

continue to pursue the disciplinary charges, he agreed to cooperate in an

investigation of other suspected acts of improper fraternization, leading to

charges against four other officers. "As a result of his cooperation,

Cumberland County agreed to dismiss the disciplinary charges and permit Mr.

Ellis to retire in good standing" as reflected in a March 1, 2017 settlement

agreement between Ellis and the County. The PFRS Board determined Ellis'

misconduct required a partial forfeiture of his service and salary, and approved

his service retirement less that partial forfeiture.

      Having obtained those minutes, Libertarians made an OPRA request to

the County for the PNDA issued to Ellis, a copy of the settlement agreement,

and Ellis' "name, title, position, salary, length of service, date of separation



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and the reason therefor" in accordance with section 10. County counsel timely

responded by advising that section 10 prohibited access to the PNDA, but in

accordance with the exception in that section for the specific information

Libertarians sought, provided Ellis' name, his title, his yearly salary of

$71,575, his hire date of March 6, 1991, and separation date of February 28,

2017. County counsel advised Ellis "was charged with a disciplinary

infraction and was terminated."

      County counsel also confirmed the existence of "an agreement with

respect to the disciplinary action resulting in separation from employment."

He advised the County could not

            unfortunately, make additional information available
            as personnel records, including disciplinary records,
            are confidential. The settlement agreement pertains to
            a disciplinary matter and does not fall under the
            exception with respect to settlement agreements
            pertaining to outside litigation under the case of
            Burnett v. Gloucester County,  415 N.J. Super. 506
            (App. Div. 2010). See too, South Jersey Publishing
            Company, Inc. v. New Jersey Expressway Authority,
             124 N.J. 478 (1991). That case also would preclude
            the release of that type of information.

County counsel invited Libertarians to provide any "additional information or

authority which you believe entitles you to this information," but advised that

"[a]t this point," the County was constrained to limit disclosure to the

information provided.



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      Libertarians filed this OPRA action seeking access to the settlement

agreement alleging "it is not wholly exempt under OPRA" and that it should

"[a]t a minimum" have been produced in redacted form. Libertarians also

sought a ruling that the County violated section 10 by misrepresenting the

reason for Ellis' separation, indicating he was "terminated" instead of allowed

to retire in good standing. Alternatively, Libertarians demanded the agreement

under the common law right of access, alleging that "[m]uch of the details

about Ellis' misconduct and his separation from employment are already

known to the public" through the PFRS board minutes and a lawsuit filed in

federal court against the County by an inmate claiming Ellis forced her into

sex, Cantoni v. Cumberland County, Civ. No. 17-7893 (NHL)(AMD) 2018,

U.S. Dist. LEXIS 11269 (D.N.J. July 6, 2018).

      After hearing argument, but before review of the settlement agreement,

the court rejected the County's position that the agreement was a personnel

record exempted from disclosure by section 10. Relying on those cases

holding that agreements settling claims and lawsuits between claimants and

governmental entities constitute government records accessible under OPRA,

see Burnett,  415 N.J. Super. at 512, and Asbury Park Press v. County of

Monmouth,  406 N.J. Super. 1, 10 (App. Div. 2009), the court ruled the

settlement agreement between Ellis and the County was a government record



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subject to disclosure with necessary redactions. The court specifically rejected

the County's argument distinguishing those cases because the settlement

agreements at issue there resolved lawsuits, not internal disciplinary actions,

deeming it not "persuasive."

      Specifically, the court stated:

             ultimately what I see here is the county couching this
             settlement agreement as a personnel [record] in its
             entirety. Which I think is an unfair characterization of
             what the settlement agreement is. Is it likely that
             there's some personnel information in that record that
             should be redacted? Yes, it's certainly likely. But the
             public, under OPRA, should be entitled to and is
             entitled to information concerning especially financial
             aspects of this arrangement.

The court expressed the concern that

             if we give a document a certain name, then what
             happens is the government will attempt to argue that
             because we named it a settlement of a personnel
             matter or whatever we want to call it, the government
             will seek to limit the disclosure of the document as a
             governmental record, which flies in the face of what
             OPRA is seeking to accomplish.

It also found that the County's alleged misrepresentation of the true reason for

Ellis' separation "in and of itself, [was] cause for [the] court to address at least

that inconsistency, by releasing the portions of this governmental record."

      The court also rejected the County's position that the exemption for

ongoing investigations,  N.J.S.A. 47:1A-3(a), also shielded the settlement



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agreement from disclosure under OPRA. Acknowledging the County's

representation that the investigation revealed in the minutes of the PFRS

Board, with which Ellis had agreed to cooperate, included a criminal

investigation by the County prosecutor's office,1 which was then still ongoing,

the court ruled that "if there's information in there that's going to interfere with

the investigation of the prosecutor's office, it should not be made public."

      The court advised the parties it would perform an in camera review of

the document, saying it "suspect[ed]" it would "further confirm this court's

opinion that this, in fact, is a governmental record, with some personnel

information contained therein." Although declining to make its ruling final

pending its in camera review of the document, the court nevertheless found

Libertarians a prevailing party entitled to counsel fees.

1
  We include reference to the criminal investigation, which was not mentioned
in the PFRS Board minutes, because it was included in that part of the trial
transcript that the trial court directed not be sealed. See R. 1:2-1. See also R.
1:38-1A. We are not aware of whether the existence of that criminal
investigation was public knowledge before it was discussed on the record in
this matter. Trial courts should obviously take care to avoid compromising
ongoing criminal investigations in OPRA proceedings, hearing argument by
the public entity as part of the in camera review, if necessary. See Hartz
Mountain Indus., Inc. v. N.J. Sports & Exposition Auth.,  369 N.J. Super. 175,
183 (App. Div. 2004). We further note that the parties learned when the
County ordered the transcript that the entire record of the proceeding had been
sealed, requiring a motion to this court to unseal it to permit prosecution of the
appeal. OPRA proceedings should, of course, be conducted in open court in
accordance with Rule 1:2, and sealing of any portion of the transcript of the
proceeding determined in accordance with Rules 1:2-2 and 1:38-11.


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      Following an hour recess to permit in camera review of the settlement

agreement, the court advised the parties on the record:

             that probably about 90 percent of the agreement . . .
             falls into the category [previously] discussed, the
             category being the criminal investigation or
             particularly the disciplinary issues that . . . involve
             Mr. Ellis. That does mean there's about 10 percent or
             so of the information I do find to be appropriate to be
             released.

After reviewing the specific redactions on the record, the court concluded:

             So, essentially, when it's all said and done, what this
             court did was leave in there the fact that Mr. Ellis
             submitted his resignation, that Mr. Ellis is going to
             cooperate in some fashion. And that assuming he
             cooperates in that fashion, then he will be permitted to
             retire in good standing. That's the portion that I find
             to be subject to public inspection.

      The parties subsequently entered into a consent order for fees in the sum

of $10,000, which they agreed to stay pending the County's appeal. The court

filed an amplification of its oral opinion, reiterating its finding that the

settlement agreement did not qualify as a personnel record. The court also

found that because the agreement predated commencement of any

investigation, the exemption in OPRA for investigations in progress,  N.J.S.A.

47:1A-3(a), did not apply, citing Serrano v. South Brunswick Township,  358 N.J. Super. 352, 366-67 (App. Div. 2003). The court stayed its order for




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access, releasing the redacted document only to counsel for Libertarians to

permit it to defend an anticipated appeal in this court.

      The County appeals, reprising its arguments to the trial court.

Libertarians counters that settlement agreements are not "categorically

exempt" personnel records, and that the trial court did not err in concluding the

settlement agreement "was not wholly exempt from access" and properly

released it as redacted.

      Our review of the trial court's determination that the settlement

agreement between Ellis and the County is a government record under OPRA

is de novo. K.L. v. Evesham Twp. Bd. of Educ.,  423 N.J. Super. 337, 349

(App. Div. 2011). The Supreme Court has stated on more than one occasion

that "[t]he Legislature enacted OPRA 'to promote transparency in the operation

of government.'" Paff v. Ocean Cty. Prosecutor's Office,  235 N.J. 1, 16 (2018)

(quoting Carter v. Doe (In re N.J. Firemen's Ass'n Obligation),  230 N.J. 258,

276 (2017)). "With broad public access to information about how state and

local governments operate, citizens and the media can play a watchful role in

curbing wasteful government spending and guarding against corruption and

misconduct." Burnett v. County of Bergen,  198 N.J. 408, 414 (2009).

      OPRA advances that policy "by broadly defining 'government records,'

 N.J.S.A. 47:1A-1.1, and by publicly declaring that they shall be accessible,



                                                                          A-1661-18T2
                                         9 N.J.S.A. 47:1A-1." Kovalcik v. Somerset Cty. Prosecutor's Office,  206 N.J.
 581, 588 (2011). As the Court has explained, "[n]otwithstanding that

sweeping declaration, the right to disclosure is not unlimited, because as [the

Court has] previously found, OPRA itself makes plain that 'the public's right of

access [is] not absolute.'" Ibid. (quoting Educ. Law Ctr. v. N.J. Dep't of Educ.,

 198 N.J. 274, 284 (2009)).

      In addition to the more than twenty different categories of information

within government records the statute expressly deems confidential and thus

exempt from public access,  N.J.S.A. 47:1A-1.1, OPRA excludes personnel and

pension records from the definition of government records, with limited

exceptions, only one of which is at issue here. 2 Specifically, section 10 of the

statute provides in its entirety:

             Personnel or pension records not considered
             government records; exceptions

             Notwithstanding the provisions of P.L. 1963, c. 73 (C.
             47:1A-1 et seq.) or any other law to the contrary, the
             personnel or pension records of any individual in the
             possession of a public agency, including but not

2
  The County provided Libertarians the information contained in the first
exception, the one at issue here, which excepts from the exemption for
personnel records, "an individual's name, title, position, salary, payroll record,
length of service, date of separation and the reason therefore, and the amount
and type of any pension received," in its initial response to the OPRA request.
The County also offered on the return date to produce payroll records
reflecting the same information.


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            limited to records relating to any grievance filed by or
            against an individual, shall not be considered a
            government record and shall not be made available for
            public access, except that:

            an individual's name, title, position, salary, payroll
            record, length of service, date of separation and the
            reason therefor, and the amount and type of any
            pension received shall be a government record;

            personnel or pension records of any individual shall be
            accessible when required to be disclosed by another
            law, when disclosure is essential to the performance of
            official duties of a person duly authorized by this State
            or the United States, or when authorized by an
            individual in interest; and

            data contained in information which disclose
            conformity with specific experiential, educational or
            medical qualifications required for government
            employment or for receipt of a public pension, but not
            including any detailed medical or psychological
            information, shall be a government record.

            [N.J.S.A. 47:1A-10.]

      As the Court has explained, "[t]he Legislature has declared in this

provision that personnel records are, by definition, not classified as

government records at all; any document that qualifies as a personnel record is

therefore not subject to being disclosed notwithstanding the other provisions of

the statute." Kovalcik,  206 N.J. at 592. Unfortunately, however, OPRA "does

not define precisely what information is covered by the phrase 'personnel




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record,'" and the "case law interpreting this provision is sparse." McGee v.

Township of East Amwell,  416 N.J. Super. 602, 615 (App. Div. 2010).

      We have little doubt that the PNDA — the Preliminary Notice of

Disciplinary Action — which Libertarians initially sought from the County,

but did not pursue in this action, would qualify as a personnel record under

section 10. The plain language of that section, that "the personnel . . . records

of any individual in the possession of a public agency, including but not

limited to records relating to any grievance filed by or against an individual,

shall not be considered a government record," does not admit any other

interpretation. "When the language in a statute 'is clear and unambiguous, and

susceptible to only one interpretation,'" courts should not look elsewhere to

glean its meaning. Burnett,  198 N.J. at 421 (quoting Lozano v. Frank DeLuca

Constr.,  178 N.J. 513, 522 (2004)). Instead, we are to "apply the statute as

written." Lozano,  178 N.J. at 522 (quoting In re Passaic Cty. Utils. Auth.,  164 N.J. 270, 299 (2000)).

      The Government Records Council considers records involving employee

discipline or investigations into employee misconduct as personnel records

exempt from disclosure under OPRA. 3 See Rick Moreno v. Bor. of Ho-Ho-


3
 Libertarians relies on another GRC case, Ungaro v. Town of Dover, GRC
Complaint No. 2008-115 (November 2009), to support its argument that the


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Kus, GRC Complaint No. 2003-110 (March 2004) (internal reprimands of a

municipal police officer); Allen v. County of Warren, GRC Complaint No.

2003-155 (March 2004) (harassment complaint filed against an employee).

Although the GRC's decisions are not binding on us or any court,  N.J.S.A.

47:1A-7(e), Paff v. Galloway Township,  229 N.J. 340, 357 (2017), we

nevertheless accord some weight to the GRC's interpretation of OPRA.

McGee,  416 N.J. Super. at 616. Its determination that a public employee's

disciplinary records are personnel records not subject to public access under

the statute is reasonable and consistent with the statutory language.

      If the disciplinary records themselves are exempt from disclosure under

section 10, we have difficulty understanding why an internal settlement

agreement resolving disciplinary charges, which often involves an employee

accepting discipline, would not similarly be considered a personnel record

exempt from disclosure. Indeed, we expect that some employees agree to

settle disciplinary charges, at least in part, to avoid public disclosure of the

charges. We have held that settlement agreements by public entities resolving

GRC considers settlement agreements government records. Ungaro, however,
is clearly distinguishable as the GRC ruled only that Dover's reliance on a
confidentiality clause in a settlement agreement between the municipality and
its business administrator, would not protect the document from disclosure
under OPRA, because the statute has no exemption for confidentiality clauses.
Moreover, Ungaro did not involve the resolution of an internal disciplinary
action brought by a public agency against its employee, as is the case here.


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civil litigation are unequivocally public records under OPRA that must be

disclosed upon request. See e.g., Asbury Park Press,  406 N.J. Super. at 9. But

those cases involved settlements of lawsuits, as in Asbury Park Press, or

monetary claims against public agencies, as in Burnett, for which there is no

exception in OPRA.

      As we explained in Asbury Park Press:

                  Lawsuits are filed in a public forum. One of our
            basic Rules of Court requires that court proceedings
            be conducted openly unless otherwise provided by
            rule or statute. R. 1:2-1. Reviewing a history of open
            government, our Supreme Court has described "open
            judicial proceedings as the cornerstone of a
            democratic society." Tarus v. Borough of Pine Hill,
             189 N.J. 497, 507 (2007) (citing 1 Jeremy Bentham,
            Rationale of Judicial Evidence 524 (London, 1827)).
            Privacy interests give way to the public's right to
            know the business of the courts, with exceptions not
            relevant here primarily applicable in the Family
            Division.

            [Asbury Park Press,  406 N.J. Super. at 9.]

      Asbury Park Press involved a sex discrimination, sexual harassment,

retaliation, and hostile work environment suit filed in the Law Division by a

county employee against the freeholders and five individually named county

employees. Id. at 4. Two years after the suit was filed, it settled. Id. at 4-5.

The parties agreed their settlement agreement would remain confidential, and




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it was not filed or incorporated in a judgment. Id. at 5. The only court filing

was a one-line stipulation of dismissal. Ibid.

      When the Asbury Park Press and John Paff sued to compel release of the

agreement under OPRA, the trial court agreed with Monmouth County that the

exclusion in the definitional section of the statute for "information generated

by or on behalf of public employers or public employees in connection with

any sexual harassment complaint filed with a public employer,"  N.J.S.A.

47:1A-1.1, precluded release of the settlement agreement. Id. at 8. We

reversed. We held "[t]he plain language of the statute limits the exclusion to

sexual harassment complaints 'filed with a public employer.'" Ibid.

      Because "Melnick's complaint was filed in the Superior Court, not with

Monmouth County," we found Melnick's complaint, and the agreement

memorializing her settlement of it, did "not come within the plain language of

the exclusion." Ibid. We wrote that

            [b]y referring in OPRA to sexual harassment
            complaints "filed with a public employer," the
            Legislature distinguished between internal complaints
            addressed only to the employer and those filed as a
            matter of public record. The distinction makes sense
            and continues to value a policy of encouraging victims
            to come forward. The Legislature gave victims the
            opportunity to bring sexual harassment complaints to
            their public employers without public access. At the
            same time, the Legislature did not interfere with the
            long-standing governmental policy of conducting
            judicial affairs openly to the public.

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            [Id. at 10.]

      Although the exemption for sexual harassment complaints filed with an

employer and the total exclusion of personnel records are in different sections

of the statute, the treatment of sexual harassment complaints in OPRA is

instructive here. As the Court has noted in construing other exemptions in

OPRA, "[o]ur job is to understand the intent that animated those exemptions

and to give it effect." Gilleran v. Bloomfield,  227 N.J. 159, 172 (2016). We

don't do so by "view[ing] the statutory words in isolation but 'in context with

related provisions so as to give sense to the legislation as a whole.'" Ibid.

(quoting Murray v. Plainfield Rescue Squad,  210 N.J. 581, 592 (2012)).

      Viewed together, the exemption of personnel records in section 10 and

the exclusion of "information generated by or on behalf of public employers or

public employees in connection with any sexual harassment complaint filed

with a public employer," in the definitional section of the statute,  N.J.S.A.

47:1A-1.1, "advance a discernible public policy," ibid., in OPRA to

differentiate between internal records maintained by a governmental entity

relating to employee personnel matters, be it disciplinary records, or sexual

harassment complaints and investigations, and the public airing of such

matters in a civil lawsuit. OPRA expressly exempts only the former from

disclosure, not the latter. Thus, the statute provides no right of access to



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internal personnel records, including those related to disciplinary infractions or

sexual harassment allegations, while requiring disclosure of such records when

one side or the other advances the matter out of the internal realm of the public

agency by filing a lawsuit.

      As we noted in Asbury Park Press,

            the Legislature struck a balance in OPRA between the
            competing interests of privacy and open government.
            It excluded from the reach of OPRA those complaints
            of sexual harassment that are filed only with the
            public employer and do not enter into a public forum,
            such as the courts. The Legislature did not undertake
            to assure privacy when an alleged victim of sexual
            harassment chooses to seek redress in the courts.

            [ 406 N.J. Super. at 11.]

      Neither Asbury Park Press nor Burnett,  415 N.J. Super. at 512, also

relied on by the trial court but which did not involve the personnel records

exemption or a claim by an employee, provides support for finding

Libertarians has a right of access under OPRA to the settlement agreement

resolving Cumberland County's employee-related disciplinary charges against

Ellis, which charges were resolved internally within the public agency.

Although this matter and Asbury Park Press both involved a request to access a

settlement agreement entered into by a public agency, that is the extent of their

commonality. Settlement agreements by public agencies to resolve civil suits,

including sex harassment suits by employees, are accessible under OPRA.

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Ibid. Settlement agreements by public agencies to resolve internal disciplinary

charges or internal sexual harassment complaints are not accessible under

OPRA.  N.J.S.A. 47:1A-1.1, 10.

      We do not share the trial court's concern that a ruling permitting public

agencies to shield settlement agreements resolving internal disciplinary

charges will result in the improper characterization of other settlements as

agreements resolving "personnel" matters. We, of course, expect government

agencies to comply with law and "turn square corners" in doing so. See

Dolente v. Borough of Pine Hill,  313 N.J. Super. 410, 418 (App. Div. 1998).

Additionally, in camera review of challenged documents permits both the GRC

and the Law Division to quickly and efficiently test the government's claim

that a document is not publicly accessible under OPRA. See  N.J.S.A. 47:1A-

7(f); Paff v. N.J. Dept. of Labor,  379 N.J. Super. 346, 355 (App. Div. 2005);

MAG Entm't, LLC v. Div. of Alcoholic Beverage Control,  375 N.J. Super.
 534, 551 (App. Div. 2005).

      We have considered whether the first exception to section 10's

exemption of personnel records from the definition of government record, that

"an individual's name, title, position, salary, payroll record, length of service,

date of separation and the reason therefor, and the amount and type of any

pension received shall be a government record," required the County to permit



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Libertarians access to the settlement agreement redacted to disclose the

excepted information. Although we acknowledge the matter is not altogether

free from doubt, we conclude OPRA does not generally require government

agencies to make exempt personnel and pension records accessible in redacted

form.

        Our reasons are twofold, the language of the statute and the history of

the exception. First, section 10 states plainly that the personnel and pension

records of employees "shall not be considered a government record and shall

not be made available for public access,"  N.J.S.A. 47:1A-10, differentiating

them from government records that contain information deemed confidential

by  N.J.S.A. 47:1A-1.1. See Kovalcik,  206 N.J. at 592 (explaining that because

"[t]he Legislature has declared in [section 10] that personnel records are, by

definition, not classified as government records at all; any document that

qualifies as a personnel record is therefore not subject to being disclosed

notwithstanding the other provisions of the statute").

        In contrast, government records containing information included in one

of the more than twenty categories of information deemed confidential in

 N.J.S.A. 47:1A-1.1, are to be made available for public access redacted by the

custodian in accordance with  N.J.S.A. 47:1A-5(g), which provides:

              If the custodian of a government record asserts that
              part of a particular record is exempt from public

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                                        19
             access pursuant to [OPRA], the custodian shall delete
             or excise from a copy of the record that portion which
             the custodian asserts is exempt from access and shall
             promptly permit access to the remainder of the record.

      If documents fairly qualifying as personnel or pension records must be

made publicly accessible, redacted to include only the information included in

the first exception to section 10, that is the "individual's name, title, position,

salary, payroll record, length of service, date of separation and the reason

therefor, and the amount and type of any pension received," they will have

been effectively converted to "government[al] record[s], with some personnel

information contained therein," which can be redacted in accordance with

 N.J.S.A. 47:1A-5(g).

      That was the approach the trial judge took, and that's how he referred to

the settlement agreement resolving Ellis' internal disciplinary charges. The

problem, of course, from the perspective of a statutory analysis, is that it

makes section 10 and its exceptions superfluous, which courts are generally

advised against doing in attempting to derive legislative intent. See In re N.J.

Firemen's Ass'n Obligation,  230 N.J. 258, 274 (2017) (noting "legislative

language must not, if reasonably avoidable, be found to be inoperative,

superfluous or meaningless") (quoting State v. Regis,  208 N.J. 439, 449

(2011)); State in Interest of K.O.,  217 N.J. 83, 91 (2014) ("when construing the

Legislature's words, every effort should be made to avoid rendering any part of

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                                         20
the statute superfluous"). If personnel records, nearly every page of which

would likely contain at least some of the information included in section 10 's

first exception, become government records, accessible as redacted to delete

everything but the information in the exception, why include section 10 at all?

      The answer we suspect is because personnel records of government

employees have historically been treated differently from other sorts of public

records. When OPRA's predecessor, the Right to Know Law, L. 1963, c. 73,

repealed by L.2001, c. 404, § 17, OPRA, eff. July 7, 2002, was enacted in

1963, Governor Hughes issued Executive Order 9, deeming "[p]ersonnel and

pension records which are required to be made, maintained or kept by any

State or local governmental agency" not "public records subject to inspection

and examination and available for copying pursuant to the provisions of

Chapter 73, P. L. 1963." Exec. Order No. 9 (Sept. 30, 1963), 1 Laws of New

Jersey 1963 1153, available at https://nj.gov/infobank/circular/eoh9.shtml.

Executive Order 9 thus excluded all personnel and pension records from access

under the Right to Know Law.

      Governor Byrne refined the exemption for personnel records in

Executive Order 11 in 1974, which provides:

            WHEREAS, Chapter 73, P. L. 1963, finds and
            declares it to be the public policy of this State that
            public records shall be readily accessible for
            examination by the citizens of this State for the

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                                        21
protection of the public interest except as otherwise
provided by said law; and

WHEREAS, Said Chapter 73 provides that all records
which are required by law to be made, maintained or
kept on file by State and local governmental agencies
are to be deemed to be public records, subject to
inspection and examination and available for copying,
pursuant to said law; and

WHEREAS, Said Chapter 73 provides that records
which would otherwise be deemed to be public
records, subject to inspection and examination and
available for copying, pursuant to the provisions of
said law, may be excluded therefrom by Executive
Order of the Governor or by any regulation
promulgated under the authority of any Executive
Order of the Governor; and

WHEREAS, Section 3(b) of 9 issued by Governor
Richard J. Hughes in 1963, states that "personnel and
pension records which are required to be made,
maintained or kept by any State or local governmental
agency . . . shall not be deemed to be public records
subject to inspection and examination and available
for copying pursuant to the provisions of Chapter 73,
P.L. 1963;" and

WHEREAS, Disclosure of the name, title and position
of persons receiving pensions and of the type and
amount of pension being received, is an insignificant
invasion of privacy outweighed by the public's right to
know who it is employing, what jobs they are filling
and the identities of those receiving government
pensions;

Now, Therefore, I, Brendan Byrne, Governor of the
State of New Jersey, by virtue of the authority vested
in me by the Constitution and statutes of this State, do
hereby ORDER and DIRECT

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                           22
1. Section 3 (b) of 9 of Governor Richard J. Hughes is
rescinded and any regulations adopted and
promulgated thereunder shall be null and void.

2. Except as otherwise provided by law or when
essential to the performance of official duties or when
authorized by a person in interest, an instrumentality
of government shall not disclose to anyone other than
a person duly authorized by this State or the United
States to inspect such information in connection with
his official duties, personnel or pension records of an
individual, except that the following shall be public

a. An individual's name, title, position, salary, payroll
record, length of service in the instrumentality of
government and in the government, date of separation
from government service and the reason therefor; and
the amount and type of pension he is receiving;

b. Data contained in information which disclose
conformity with specific experiential, educational or
medical qualifications required for government
employment or for receipt of a public pension, but in
no event shall detailed medical or psychological
information be released.

3. This Executive Order shall take effect immediately.

Given, under my hand and seal this 15th day of
November, in the year of our Lord, one thousand nine
hundred and seventy-four, of the Independence of the
United States, the one hundred and ninety- ninth.
/s/ Brendan Byrne
GOVERNOR

Attest:
/s/ Donald Lan,
Executive Secretary to the Governor




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                           23
            [Exec. Order No. 11 (Nov. 15, 1974) 1 Laws of New
            Jersey 1974 765, available at
            https://nj.gov/infobank/circular/eob11.shtml (emphasis
            added).]

      Thus, since the enactment of the Right to Know Law in 1963, the

personnel and pension records of government employees have not been

accessible to the public under statute. Governor's Byrne's Executive Order 11,

making clear, however, that no governmental agency could use that ban on

public disclosure of personnel and pension records to avoid disclosing "the

name, title and position of persons receiving pensions and of the type and

amount of pension being received," in light of "the public's right to know who

it is employing, what jobs they are filling and the identities of those receiving

government pensions."

      When the Legislature repealed the Right to Know Law and replaced it

with OPRA in 2001, it incorporated, almost verbatim, Governor Byrne 's

Executive Order 11 exclusion of personnel and pension records from the

definition of government record and its limited exception making public the

names, titles, positions, salaries and payroll records of any person employed

by the government, as well as their length of service, date and reason for

separation and the amount and type of pension the employee is receiving.

 N.J.S.A. 47:1A-10. Governor McGreevey contemporaneously issued

Executive Order 21, continuing the exemptions in Executive Orders No. 9

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                                        24
(Hughes), and 11 (Byrne), for personnel records. Exec. Order No. 21 (July 8,

2002),  34 N.J.R. 2487(a).

      OPRA likewise provides that all government records

             shall be subject to public access unless exempt from
             such access by: P.L.1963, c.73 (C.47:1A-1 et seq.) as
             amended and supplemented; any other statute;
             resolution of either or both houses of the Legislature;
             regulation promulgated under the authority of any
             statute or Executive Order of the Governor; Executive
             Order of the Governor; Rules of Court; any federal
             law, federal regulation, or federal order.

             [ N.J.S.A. 47:1A-1 (emphasis added).]

Because OPRA "does not abrogate any exemption of a public or government

record pursuant to the Right to Know Law, any other statute, resolution of

either house of the Legislature, any duly adopted regulation, Executive Order,

rule of court or federal law," Michelson v. Wyatt,  379 N.J. Super. 611, 619

(App. Div. 2005) (citing  N.J.S.A. 47:1A-9;  N.J.S.A. 47:1A-5(a)), section 10's

exclusion of personal and pension records, and its exceptions, have to be

interpreted in light of Executive Order 11.

      Doing so leads us to conclude that the mention of an employee's name,

title, position, salary, years of service, date and reason of separation, or the

amount and type of the employee's pension in a personnel or pension record

does not make that document a government record publicly accessible under

OPRA, redacted to exclude all other information. Instead, we conclude, in

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                                         25
accordance with Executive Order 11 that personnel and pension records are not

to be made publicly accessible under OPRA, but that "an individual's name,

title, position, salary, payroll record, length of service, date of separation and

the reason therefor, and the amount and type of any pension received" is public

information, notwithstanding its inclusion in personnel or pension records not

available for inspection under OPRA.

      Accordingly, we reject Libertarians' argument "that the settlement

agreement was not wholly exempt from access" and that it was "properly

released . . . in redacted form" as not supported by the language of section 10

or the history of excluding personnel and pension records from public access

contained in Executive Orders 9 (Hughes), 11 (Byrne) and 21 (McGreevey).

We also note that Libertarians acted in accordance with the long-standing

understanding of the first exception to section 10, by asking the County in its

records request for the PNDA, the settlement agreement and "[f]or Ellis, his

name, title, position, salary, length of service, date of separation and reason

therefore" in accordance with  N.J.S.A. 47:1A-10.

      We acknowledge Libertarians' argument that limiting it to "the section

10 information [the government] provides" is "problematic . . . because the

very reason OPRA was adopted was so that members of the public may view

records and not simply trust what the government tells them." That problem is



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                                        26
well-illustrated here by County counsel's representation in response to

Libertarians' OPRA request that "Officer Ellis was charged with a disciplinary

infraction and was terminated." While the County has maintained the response

was not "inaccurate" as it "forced Mr. Ellis to resign and also left him exposed

to the decision of the [PFRS] Board," we agree with Libertarians that OPRA

was designed to prevent public agencies engaging in such inaccurate "spin."

      We do not agree, however, with the trial court's statement that the

County's mischaracterizing Ellis' separation as a termination instead of a

resignation "in and of itself, [was] cause for [the] court to address at least that

inconsistency, by releasing the portions" of the settlement agreement. We do

not condone the County's misstatement regarding the reason for Ellis'

separation, but neither do we accept that such should affect a statutory

analysis, especially when the court has other measures, such as ordering the

County to correct the record following the court's in camera review of the

withheld documents and awarding the requestor its fees, to address the

discrepancy.4



4
  In that regard, we note the trial court made several substantive rulings,
including that Libertarians was a prevailing party, before viewing the
settlement agreement in camera. The better practice would be to avoid
substantive rulings until after in camera review. See e.g., Fisher v. Div. of
Law,  400 N.J. Super. 61, 68 (2008) (remanding matter to the GRC to permit "a


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                                         27
      That the settlement agreement between the County and Ellis resolving

the County's disciplinary charges against Ellis is not a government record

accessible under OPRA does not end the matter. In its complaint, Libertarians

alternatively sought disclosure of the document under the common law right of

access. See  N.J.S.A. 47:1A-1; Bergen Cty. Improvement Auth.,  370 N.J.

Super. at 516 (noting that "[i]n adopting OPRA, the Legislature expressly and

unambiguously declared that the common law right of access remained a

viable and legally independent means for a citizen to obtain public

information"). Because the trial court found the settlement agreement was not

a personnel record under section 10 and ordered it produced as redacted, it did

not consider Libertarians' claim for disclosure of the settlement agreement

under the common law.

      The definition of a public record under the common law is broader than

that of a government record under OPRA, encompassing any "record 'made by

public officers in the exercise of public functions.'" S. N.J. Newspapers v.

Township of Mt. Laurel,  141 N.J. 56, 72 (1995) (quoting N. Jersey

Newspapers Co. v. Passaic Cty. Bd. of Chosen Freeholders,  127 N.J. 9, 13

(1992)). We have no doubt that the settlement agreement at issue here would


thorough in camera review of [records sought] for the purpose of determining
if any privileges exist and whether a special surcharge [was] appropriate").


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                                       28
qualify as a public record under the common law, and that Libertarians can

likely establish an interest in the subject matter of that agreement. See Educ.

Law Ctr. v. N.J. Dept of Educ.,  198 N.J. 274, 302 (2009) (explaining the two-

step inquiry involved in the common law right of access). The sexual

exploitation of inmates and detainees in the Cumberland County jail by

corrections officers is undoubtedly a matter of intense public interest, as is the

County's decision to permit an officer who admittedly engaged in such

wrongdoing to retire in good standing.

      We, however, are ill-equipped to conduct the balancing of Libertarians'

interest in disclosure against Cumberland County's interest in confidentiality

required under Loigman v. Kimmelman,  102 N.J. 98, 113 (1986), particularly

given the County's past assertions that disclosure could affect a then-ongoing

criminal investigation. The trial court rendered its decision in this matter

nearly two years ago. We expect that the considerations, particularly as they

relate to the investigation of wrongdoing in the jail, may well be different now.

See O'Shea v. Township of West Milford,  410 N.J. Super 371, 388 (App. Div.

2009) (noting "[t]he balancing test for access under the common law requires

factual determinations that are best left to the trial courts"); Hartz Mountain,

 369 N.J. Super. at 183. We accordingly remand the matter to the trial court to

balance the County's interest in confidentiality against the public interest in



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                                         29
disclosure of the settlement agreement. See S. N.J. Newspapers,  141 N.J. at
 75.

      To sum up, we reverse the trial court's finding that the settlement

agreement between Ellis and the County is a government record under OPRA,

and reject the argument that it should have been produced in redacted form.

We remand for the court to consider Libertarians' right to disclosure of the

document under the common law right of access. We also reverse the order

for fees to Libertarians as a prevailing party under OPRA. We do not retain

jurisdiction.

      Reversed and remanded.




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                                       30