On Friday, March 4, 2016 at 9 a.m. Hudson County Superior Court Judge Joseph A. Turula will hear my Open Public Records Act (OPRA) case against the City of Bayonne. See, Paff v. City of Bayonne et al, Docket No. HUD-L-5203-15. This is the lawsuit discussed in Jonathan Lin’s January 27, 2016 Jersey Journal article and I am being represented by CJ Griffin of Hackensack.
I maintain a blog called NJ Civil Settlements which, as its name implies, reports on settlements of lawsuits against government agencies and officials. Learning whether, when and how these lawsuits have concluded is sometimes difficult, especially since many of the settlement agreements contain confidentiality clauses that prevent the parties from revealing the amount of settlement or even the existence of a settlement agreement.
After learning (or suspecting) that a such case has settled, my procedure is is to submit an OPRA request for the settlement agreement. Since the Appellate Division’s 2009 decision in Asbury Park Press and Paff v. Monmouth County (and the New Jersey Supreme Court’s 2010 affirmance), a settlement agreement must be disclosed even if it contains a confidentiality agreement.
In many cases, however, even though the court has marked the case “settled,” I am told that the settlement agreement cannot be disclosed because it had not been “finalized” or “approved” by all of the lawsuit’s parties. Sometimes, I am required to wait several weeks or even two or three months for these formal settlement agreements to be “finalized.”
OPRA guarantees that non-exempt records be made promptly available, not just available whenever it is convenient for the government. And, the public’s interest in knowing a lawsuit’s settlement amount is greatest when the settlement is consummated and the value decreases as time passes.
At issue in my case against Bayonne are two separate lawsuits against the City, one filed by a person named Glunk and the other by a person named Rios. According to November 17, 2015 letters from Glunk’s and Rios’ lawyer, Bayonne informed the lawyer that proposed settlements, tentatively agreed to in August and September, were “approved by the powers that be” on September 24, 2015.
On October 25, 2015, I submitted an OPRA request to Bayonne seeking a copy of the settlement agreements or, if they had not yet been finalized, “all informal agreements, draft agreements, correspondence, e-mails, etc. . . . that disclose the settlement amount and/or other settlement terms.” I was careful to exclude from my request “internal correspondence between [Bayonne] and/or its agents/attorneys/insurers.” Rather, I wanted only settlement correspondence between the parties.
After the City improperly granted itself an extension, assistant city lawyer William P. Opel, in a November 9, 2015 letter, informed me that a) no formal settlement agreement yet existed and b) that “any correspondence, electronic or otherwise, between counsel for the City and counsel for the plaintiffs would be exempt from disclosure under both the attorney client privilege and the deliberative material exemption.”
Remember, however, that Bayonne’s “powers that be” had already agreed to the essential terms of settlement about six weeks earlier.
Notice the trickiness in Opel’s letter. He doesn’t say whether or not any correspondence between the parties existed. Rather, he stated that if such correspondence existed, I cannot have a copy of it because any such correspondence is exempt from disclosure.
Fortunately, Opel’s mealy-mouthed response is not permitted by OPRA. For all but the most sensitive of records, the records custodian must identify the records that exist and then, for each record for which access is denied, give a specific basis on why it’s being denied. A custodian’s refusal to identify or even acknowledge the existence of responsive records to which access is denied is unfair. And, I’ve won cases where it turned out that there really were no responsive records but the custodian refused to tell me that. See Paff v. Stafford, for example.
According to the Jonathan Lin’s January 15, 2016 Jersey Journal article, we now know that Glunk’s and Rios’ lawsuits settled for a total of $335,000. This late revelation, however, does not moot my lawsuit. My argument is that Opel was under a duty, when he authored his November 9, 2015 letter, to advise me of the existence of and provide me with copies of any informal correspondence between the parties that set forth the settlement terms and amounts. In sum, I believe that I should have known on November 9, 2015 that which the Jersey Journal reported on January 15, 2016.