Sexual Harassment Settlement with Public Employer Cannot Be Kept Secret

Asbury Park Press v. County of Monmouth, et al., No. A-8-09 (N.J., January 25, 2010) – The Supreme Court held that the privacy clause exception in the Open Public Records Act (OPRA), which protects from public disclosure information in the public sector pertaining to a sexual harassment complaint or grievance filed with a public employer, did not provide a sufficient basis for the County of Monmouth to withhold public disclosure of its agreement with an employee to settle her sexual discrimination, sexual harassment, retaliation and hostile work environment claims.

In so holding, the court distinguished its recent decision in Burnett v. County of Bergen, 198 N.J. 408 (2009). In that earlier case, the court determined that a request under the OPRA for “8 million pages” of documents, “spanning a period of twenty-two years, which contained names, addresses, social security numbers” would “expose an untold number of individuals to an increased risk of identity theft.” Id. at 415. Here, the court determined that the concerns it had with the information request in Burnett were not present and that the plaintiff did not have a “reasonable expectation of privacy” in the settlement agreement because she had “filed a public action.” In that regard, the court noted that had the plaintiff’s case not settled it “would have unfolded in a public trial.” The court concluded that if it were to find that the plaintiff had a reasonable expectation of privacy in the settlement agreement with the county, such a finding “would run counter to OPRA’s core concern of transparency in government.”