Tuesday, September 6, 2016

OPRA win: Passaic judge orders disclosure of draft settlement agreement.

Update: On February 24, 2017, Deputy Attorney General Lauren A. Jensen, on behalf of William Paterson University, filed an appeal of Judge Brogan's order.  The transcripts are on-line here.  The State's opening appellate brief is here.
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On September 1, 2016, Passaic County Superior Court Judge Thomas F. Brogan ruled that William Paterson University violated the Open Public Records Act (OPRA) by not disclosing a draft of a settlement agreement that the parties to a lawsuit had exchanged with each other. Brogan, however, did not issue his written order memorializing his findings until February 22, 2017.  In a January 10, 2017 Order, Brogan awarded the plaintiff's attorney $30,350 in costs and attorney fees.

Judge Brogan, in a oral decision delivered from the bench, 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.  This is the first decision of its kind in New Jersey and background on the case is available in a June 7, 2016 NJ Open Government Notes article

It is an important decision.  As author of NJ Civil Settlements, a blog which reports settlements of lawsuits against government agencies and officials, I have often encountered situations where, in response to an OPRA request, I am told that the settlement agreement is "not yet available" even though a meeting of the minds has been reached among the parties and the matter has been marked "settled" in the court's records.  The typical justification for the denial is that the settlement agreement has not yet been formalized or that it has not received the signatures of all parties.

It sometimes takes months for lawyers to work out all the minor details and gather all the signatures. For example, Brennan v. William Paterson University, et al, Federal Case No. 2:11-cv-06101 (the basis of the present case) was reported "settled" to the court on March 15, 2016.  Yet, the agreement wasn't finalized and publicly disclosed until nearly two months later--May 11, 2016.  It is unfair to deprive the public of the essential settlement terms (e.g. how much money the plaintiff received) while the minor settlement details are being ironed out.

I was represented in the matter by Richard M. Gutman of Montclair.  William Paterson University was represented by Deputy Attorney General Lauren A. Jensen.  After Judge Brogan issues his written order, the University will have 45 days to file an appeal if it chooses to do so.

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