Judges in Essex and Hudson Counties will hold hearings this month to determine whether settlement correspondence and draft agreements traded between the parties to a lawsuit (where one party is a government agency) are subject to disclosure under the Open Public Records Act (OPRA).  

The first hearing will be held before Essex County Superior Court Judge Frank Covello at 4 p.m. on Wednesday, September 14, 2016 at the Hall of Records 465 Dr. Martin Luther King, Jr. Boulevard, Newark.  The case being heard is Libertarians for Transparent Government (LFTG) v. Borough of Caldwell, et al, Docket No. ESX-L-5197-16.  At issue is whether a June 22, 2016 settlement confirmation letter exchanged between the parties was disclosable under OPRA even though the settlement had not formally been approved by the Garden State Municipal Joint Insurance Fund Board of Commissioners at the time LFTG’s June 25, 2016 OPRA request was received.  In the settled case, DeVito v. Borough Caldwell, Federal Case No. 2:13-cv-0678, the court had been advised on June 21, 2016 that it had been settled.

On September 14, 2016, Judge Covello ruled that the June 22nd letter was responsive to the OPRA request and that there was no lawful reason allowing Caldwell to withhold it.  On September 27, 2016, Judge Covello ordered Caldwell to pay the plaintiff’s attorney $5,199.84 in court costs and attorney fees.

The second hearing will be held before Hudson County Superior Court Judge Daniel D’Alessandro at 1:30 p.m. on Friday, September 30, 2016, at the Brennan Courthouse, 583 Newark Avenue, Jersey City. The case being heard is Libertarians for Transparent Government (LFTG) v. City of Jersey City, et al, Docket No. HUD-L-2952-16.  At issue is whether draft settlement agreements or settlement correspondence exchanged between Jersey City’s lawyers and the plaintiff’s attorney were disclosable even though a formal, signed settlement agreement did not exist at the time of LFTG’s July 3, 2016 OPRA request. The litigation for which the settlement was sought is Tevin Henry v. Jersey City Police, Federal Case 2:14-cv05480 which was marked settled by the court on June 29, 2016.  The formal settlement agreement was signed on July 15, 2016.

The two cases seek an outcome similar to Judge Thomas F. Brogan’s September 1, 2016 ruling in Libertarians for Transparent Government (LFTG) v. William Paterson University et al, Docket No. PAS-L-1541-16.  In that case, Judge Brogan ruled that since the most important settlement terms had been agreed to and since the settlement had been reported to the court and was enforceable at the time of the OPRA request, a draft of the settlement that contained those terms was disclosable under OPRA.

LTFG is being represented in the Essex case by CJ Griffin of Hackensack and by Walter M. Luers of Clifton in the Hudson case.  Both hearings are open to the press and the public.  Those who wish to attend are urged to call the court offices (Essex/Covello at 973-776-9517 and Hudson/D’Alessandro at 201-795-6650) prior to the hearing to ensure that it hasn’t been postponed.

Chairman of the New Jersey Libertarian Party's Open Government Advocacy Project. Please send all comments to [email protected]