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New Jersey Superior Court, Appellate Division/Amicus

Bobby Conner/ACLU-NJ

On September 8, 2009, the ACLU-NJ filed a friend-of-the-court brief in an Open Public Records Act case in which the lower court held that settlement agreements that the county entered into were not "government records" under OPRA because the documents were not "maintained" by the County itself but, rather, were kept by the county's insurance carrier. In short, the Superior Court held that records custodians do not have to try to obtain or produce government documents that are maintained in files held by any "outside sources" (presumably, e.g., outside counsel, insurance companies) even if those entities are hired by the government entity. Our brief points out that the county is required (under the New Jersey Division of Archives and Records Management's "Retention and Disposition Schedule") to maintain the documents requested. We argue that (1) since the county had an obligation to retain the documents, it should not matter under OPRA that they chose to maintain it through an agent rather than in their own in-house files; (2) insurance agencies and outside counsels are agents of the county, so the county should be considered as "maintaining" documents that their insurance carrier or attorney keep in their files; and (3) the Superior Court decision, if upheld, would create an unintended loophole to allow government entities to get around almost the entire scope of OPRA.

Current Status: On May 10, 2010, the Appellate Division agreed with our arguments. It held that settlement agreements are clearly public records; that when outside counsel or insurance agents enter such agreements on behalf of the county, those documents remain clearly public records; and that public records do not lose that status because they are kept by someone other than the clerk. The Court also, importantly, held that Burnett's request for every settlement agreement within a specified time frame did not require inappropriate "research," limiting the reach of a case that towns have often used to try to claim that OPRA requests are overly broad.

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