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NJ Open Government Notes

Appellate Division: Release that settled lawsuit is disclosable at time settlement terms are agreed to by the parties.

Are lawsuit settlement agreements subject to disclosure when the settlement terms are first hammered out and agreed to by the parties or can agencies suppress settlement information until all the paperwork is signed, sealed and delivered?  This is an important question because weeks or sometimes months elapse between a lawsuit’s parties’ informal–yet binding–agreement to settle and the signing of a formal agreement by all parties.  During those weeks or months, many public agencies deny access to settlement agreements thus depriving the public of important settlement information.

The case law on this issue has so far has been mixed.  Judges in Essex, Hudson and Passaic Counties have ruled that agencies must disclose settlement agreements as soon as the settlement’s essential terms have been agreed to and reduced to writing.  (William Paterson University, however, has appealed the Passaic County judge’s ruling and that appeal remains pending.)  But, a judge in Mercer County has reached the opposite conclusion.

Today, an Appellate Division panel has come out on the side of early release.

On November 15, 2017, a two-judge Appellate Division panel issued an unpublished (and thus non-precedential) opinion holding that a release that settled a lawsuit was final and required to be disclosed to an Open Public Records Act (OPRA) requestor when “the terms of the settlement were agreed to between the attorneys for the respective parties” even though “the stipulations of dismissal were not filed and the settlement checks were not delivered until after” the parties’ attorneys came to their agreement.  The panel also said that releases and settlement agreements that settle lawsuits are “contracts” which must be made “immediately available” in accordance with N.J.S.A. 47:1A-5(e).

The opinion reversed a Final Agency Decision of the Government Records Council (GRC).

By John Paff

Chairman of the New Jersey Libertarian Party's Open Government Advocacy Project