Gebhardt & Kiefer Successfully Defends Privacy Interests of Municipal Employee in OPRA Payroll Records Lawsuit

Dec 5, 2017 | Written by: Tara A. St. Angelo, Esq. | Share

On November 17, 2017, the Appellate Division issued its decision in favor of Gebhardt & Kiefer’s client, the Borough of Washington.  Tara St. Angelo, Esq. argued the appeal on behalf of Gebhardt & Kiefer, PC.

In the recent unpublished decision, Wolosky v. Borough of Washington, Docket No. A-4884-15T3 (App. Div. Nov. 17, 2017), the Appellate Division concluded that the amounts of a municipal employee’s pension contributions, pension loan payments, and health insurance payments are not subject to the Open Public Records Act (OPRA) and can be redacted from a payroll record in response to an OPRA request.

Plaintiff Jesse Wolosky made a request to the defendant, Borough of Washington, under OPRA, N.J.S.A. 47:1A-1 to -13, for “[a] copy of the actual existing official year[-]end payroll record for 2015 or the year[-]end pay stub for 2015 for the Manager/Municipal Clerk.”  The Borough responded by releasing a copy of the Manager/Clerk’s 2015 year-end payroll record, but redacted the amounts of deductions for pension contributions, pension loan payments, and health insurance payments.  After the plaintiff requested an explanation of the redactions, the Borough’s attorney, Ms. St. Angelo, provided a written response stating that the redacted information amounted to “personnel [and] pension records” that are exempt from disclosure under OPRA (N.J.S.A. 47:1A-10).

The plaintiff filed a complaint and order to show cause seeking access to the redacted information.  The trial court denied the plaintiff’s request and dismissed the complaint.  The plaintiff acknowledged that personnel records are generally exempt from disclosure pursuant to OPRA, but pointed out that “payroll records” are subject to release under OPRA.  N.J.S.A. 47:1A-10.  The plaintiff argued that the redacted deductions were part of the Manager/Clerk’s “payroll record;” and were, therefore, subject to disclosure.  In the trial court’s oral opinion, Judge Yolanda Ciccone rejected the plaintiff's contention on this point and held that the Manager/Clerk's pension contributions, pension loan payments, and health insurance payments were not a required part of an employee's payroll record and, therefore, not subject to disclosure.  Judge Ciccone’s conclusion relied upon New Jersey Department of Labor and Workforce Development’s regulations defining “payroll records” as containing:

1. The beginning and ending dates;
2. The full name of each employee and the day or days in each calendar week on which services for remuneration are performed;
3. The total amount of remuneration paid to each employee showing separately cash, including commissions and bonuses; the cash value of all compensation in any medium other than cash; gratuities received regularly in the course of employment if reported by the employee, or if not so reported, the minimum wage rate prescribed under applicable laws of this State or of the United States of the amount of remuneration actually received by the employee from his employing unit, whichever is the higher[,] and service charges collected by the employer and distributed to workers in lieu of gratuities and tips;
4. The total amount of all remuneration paid to all employees;
5. The number of weeks worked.

Because an employee's pension and health insurance payments are excluded from this definition, Judge Ciccone found that this information was not covered by OPRA’s mandate that “payroll records” be released. 

Judge Ciccone continued in her opinion to address the plaintiff's contention that the Manager/Clerk's expectation of privacy did not outweigh the public's right to access. Judge Ciccone applied the balancing test analysis established by the Supreme Court in Doe v. Poritz, 142 N.J. 1, 88 (1995), and considered the following seven factors:

(1) the type of record requested; (2) the information it does or might contain; (3) the potential for harm in any subsequent nonconsensual disclosure; (4) the injury from disclosure to the relationship in which the record was generated; (5) the adequacy of safeguards to prevent unauthorized disclosure; (6) the degree of need for access; and (7) whether there is an express statutory mandate, articulated public policy, or other recognized public interest militating toward access. Id.

An analysis of these factors led Judge Ciccone to hold that “the controlling factor for this [c]ourt is the determination that the public's right to access of the amount of money that [the Manager/Clerk] contributes to her health insurance and pension is heavily outweighed by [the clerk's] expectation of privacy in the information.” Therefore, the trial court concluded that the Borough properly redacted the deduction information under the Doe balancing test.

The plaintiff appealed, and the Appellate Division affirmed the trial court’s ruling.  The Appellate Division specifically noted that OPRA’s “right to disclosure is not unlimited” and that “the public's right of access [is] not absolute.” Kovalcik v. Somerset Cnty. Prosecutor's Office, 206 N.J. 581, 588 (2011).  The Appellate Division continued that the plaintiff’s contentions “are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).”  Therefore, the Appellate Division affirmed the trial court’s ruling and denied the plaintiff access to the requested information.  The Appellate Division also stated in a footnote that Judge Ciccone’s decision in the matter was consistent with two prior decisions of the Government Records Council (“GRC”) and with training materials the GRC provides to government agencies. See McCormack v. N.J. Dep't of Treasury, GRC Complaint No. 2005-164 (July 2008); Jackson v. Kean Univ,, GRC Complaint No. 2002-98 (Feb. 2004).