SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3716-20

MICHAEL SHURIN, 

Plaintiff-Appellant,

v.

BOARD OF EDUCATION

OF HUDSON COUNTY

SCHOOLS OF TECHNOLOGY,

and JOSEPH M. MUNIZ in his 

official capacity as Board

Secretary and Records

Custodian of Hudson County

Schools of Technology,

Defendants-Respondents.

___________________________

Argued August 30, 2022 – Decided September 26, 2022

Before Judges Haas and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law 

Division, Hudson County, Docket No. L-1328-21.

Walter M. Luers argued the cause for appellant (Cohn 

Lifland Pearlman Herrmann & Knopf LLP, attorneys; 

Walter M. Luers, on the briefs).

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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Jorge R. De Armas argued the cause for respondents

(Scarinci Hollenbeck, LLC, attorneys; Robert E. Levy, 

of counsel and on the brief; Jorge R. De Armas, on the 

brief).

PER CURIAM

Plaintiff Michael Shurin appeals from the July 9, 2021 Law Division order 

dismissing his verified complaint and denying his order to show cause in which 

he sought an order compelling defendants, Board of Education of Hudson

County Schools of Technology (Board) and Board Secretary Joseph Muniz, to 

produce an employee settlement agreement pursuant to the Open Public Records 

Act (OPRA), N.J.S.A. 47:1A-1 to -13.1 We affirm.

We glean these facts from the record. On February 27, 2020, the Board 

adopted a resolution reinstating Graciela Rubet, who had been suspended after 

a workplace incident led to criminal charges being filed against her. Ultimately, 

the municipal court dismissed the charges on the prosecutor's recommendation. 

Subsequently, Rubet presented "a pre-suit litigation demand" to the Board, 

alleging she was wrongfully suspended. Following consultation with its insurer, 

on July 16, 2020, the Board adopted a resolution approving a $115,000 

1

 The verified complaint also included a count based on the common law right 

of access, which was addressed by the trial court but abandoned on appeal. See

N.J. Dep't of Envtl. Prot. v. Alloway Tp., 438 N.J. Super. 501, 505 n.2 (App. 

Div. 2015) ("An issue that is not briefed is deemed waived upon appeal.").
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settlement payment to Rubet in exchange for a general release of the Hudson 

County Schools of Technology (HCST) and all its employees from all claims 

related to the suspension. The resolution provided that the settlement amount 

was funded by three sources: $65,000 from the insurer; $15,000 from HCST;

and the remaining $35,000 from an unnamed "source." The resolution identified 

the unnamed "source" as a "HCST employee" who would "sign a payment 

agreement and general release to be formalized by the employee, Superintendent 

and HCST General Counsel."

On February 10, 2021, Shurin, an independent journalist, submitted an 

OPRA request to Muniz seeking: (1) a copy of Rubet's notice of tort claim; (2) 

certain email communications regarding a published story about Rubet; and (3) 

a copy of the "payment agreement and general release" between the unnamed 

employee and HCST in connection with the $35,000 payment to Rubet. In 

response, HCST provided copies of the requested emails but informed Shurin 

there was no tort claims notice. Additionally, HCST denied Shurin's request for 

the payment agreement with the unnamed employee, citing N.J.S.A. 47:1A-1.1, 

defining government records; N.J.S.A. 47:1A-10, limiting access to government 

personnel records; and this court's decision in Libertarians for Transparent 

Government v. Cumberland County (Libertarians I), 465 N.J. Super. 11, 13
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(App. Div. 2020), rev'd 250 N.J. 46 (2022), which held that "a settlement 

agreement resolving an internal disciplinary action against a public employee is 

not classified as a government record under OPRA." Defendants later provided 

Shurin with a copy of Rubet's settlement agreement and general release, which

made no mention of the payment agreement with the unnamed employee. 

In April 2021, Shurin filed a verified complaint and an order to show 

cause, seeking access to the payment agreement with the unnamed employee. 

In an opposing certification, Muniz averred that the unnamed employee was the 

subject of an "internal disciplinary investigation" which began in February 2020. 

The investigation uncovered "a commonality of fact as between at least a portion 

of the allegations underlying [Rubet's] pre-suit claim and the conduct for which 

the [unnamed employee] was being investigated." After determining the 

unnamed employee's conduct warranted disciplinary action, "HCST and the 

[e]mployee entered into an internal '[s]ettlement [a]greement,'" wherein the 

employee forfeited "accumulated benefit time . . . valued at $35,000[]" to satisfy 

"the monetary component" of the disciplinary action. However, "[Rubet] was 

not a party to the agreement between . . . HCST and the [unnamed e]mployee, 

and the [unnamed e]mployee was not a party to the agreement between . . . HCST 

and [Rubet]." According to Muniz, "[n]o funds were actually exchanged in 
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satisfaction of th[e] $35,000[]" and no agreement was ever reached between 

Rubet and the unnamed employee. Instead, Muniz asserted that the $35,000 

"monetary component" of the disciplinary action was HCST's attempt to 

"recoup" some of the funds it paid to Rubet. Muniz stressed the record sought 

was "an internal employee personnel matter" that "was never the subject of a 

civil lawsuit" and was not "part of a global resolution" of Rubet's "pre-suit claim 

for damages."

Following oral argument on the order to show cause, the trial judge denied 

Shurin's request and dismissed the complaint. Relying on this court's decision 

in Libertarians I, 465 N.J. Super. at 21, the judge found that the payment

agreement with the unnamed employee was "in fact a personnel record which 

involve[d] internal employee discipline and investigation into misconduct." 

Therefore, the judge concluded the record was "exempt from disclosure" under 

OPRA, pursuant to N.J.S.A. 47:1A-10. The judge reasoned that "some 

employees agree to settle disciplinary charges, at least in part, to avoid public 

disclosure of the charges."

In this ensuing appeal, Shurin argues that the internal settlement 

agreement with the unnamed employee was not merely a personnel record but 

rather "part of a global resolution" of Rubet's "pre-suit claim for damages." 
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According to Shurin, because the unnamed employee was both a beneficiary of 

Rubet's settlement agreement by virtue of its general release of all claims against 

all of defendants' employees, including the unnamed employee, as well as a 

contributor to the funds comprising Rubet's settlement, the internal settlement 

agreement "cannot be fairly said to be a resolution of a personnel matter." 

Inasmuch as the public has the right to access government settlement agreements 

that resolve civil litigation under OPRA, see Asbury Park Press v. Cnty. of 

Monmouth, 406 N.J. Super. 1, 9 (App. Div. 2009), Shurin maintains he is 

entitled to access the unnamed employee's internal settlement agreement

because it "resolved potential litigation."

"[D]eterminations about the applicability of OPRA and its exemptions are 

legal conclusions, and are therefore subject to de novo review." In re N.J. 

Firemen's Ass'n Obligation, 230 N.J. 258, 273-74 (2017) (citations omitted). 

"OPRA's purpose is 'to maximize public knowledge about public affairs in order 

to ensure an informed citizenry and to minimize the evils inherent in a secluded 

process.'" Mason v. City of Hoboken, 196 N.J. 51, 64 (2008) (quoting Asbury 

Park Press v. Ocean Cnty. Prosecutor's Off., 374 N.J. Super. 312, 329 (Law Div.

2004)). 

To that end, OPRA declares that:
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government records shall be readily accessible for 

inspection, copying, or examination by the citizens of 

this State, with certain exceptions, for the protection of 

the public interest, and any limitations on the right of 

access accorded by [OPRA] . . . shall be construed in 

favor of the public's right of access.

[N.J.S.A. 47:1A-1.]

"As further expansion of the public's right of access, OPRA places the burden 

of proof on the government to show that a requested record may be withheld 

under an exemption or exclusion from the disclosure requirement." Asbury Park 

Press v. Cnty. of Monmouth, 406 N.J. Super. at 7 (citing N.J.S.A. 47:1A-6).

Although "[t]he statute broadly defines the term 'government record,'" it

"also calls for a careful balancing of competing interests -- the right of access to 

government records versus the need to protect personal information." 

Libertarians for Transparent Gov't v. Cumberland County (Libertarians II), 250 

N.J. 46, 54 (2022) (citing Burnett v. Cnty. of Bergen, 198 N.J. 408, 414 (2009)). 

Thus, from this broad definition of government record, OPRA provides specific 

exclusions from the disclosure requirement. Pertinent to this appeal, N.J.S.A. 

47:1A-10 (section 10) specifies that "the personnel or pension records of any 

individual in the possession of a public agency, including but not limited to 

records relating to any grievance filed by or against an individual, shall not be 
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considered a government record and shall not be made available for public 

access." 

However, section 10 includes the following exceptions: 

[1] an individual's name, title, position, salary, payroll 

record, length of service, date of separation and the 

reason therefor, and the amount and type of any pension 

received shall be a government record;

[2] personnel or pension records of any individual shall 

be accessible when required to be disclosed by another 

law, when disclosure is essential to the performance of 

official duties of a person duly authorized by this State 

or the United States, or when authorized by an 

individual in interest; and

[3] data contained in information which disclose 

conformity with specific experiential, educational or 

medical qualifications required for government 

employment or for receipt of a public pension, but not 

including any detailed medical or psychological 

information, shall be a government record.

[N.J.S.A. 47:1A-10.]

Although OPRA "does not define precisely what information is covered 

by the phrase 'personnel record,' . . . courts have tended to favor the protection 

of employee confidentiality." McGee v. Twp. of E. Amwell, 416 N.J. Super. 

602, 615 (App. Div. 2010). Nevertheless, in Asbury Park Press v. County of 

Monmouth, we held that OPRA grants the public the right to access settlement 

agreements that resolve civil litigation between a government agency and its 
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employee. 406 N.J. Super. at 4, 9. We predicated that decision, in part, on the 

public's right to access court documents. Id. at 9. We explained:

Even when neither party is a government agency, 

the public has a right of access to court documents filed 

in civil lawsuits. . . . [T]his court held in Verni v. 

Lanzaro, 404 N.J. Super. 16 (App. Div. 2008), that the 

public has a right to disclosure of a confidential 

settlement entered under seal in a civil lawsuit between 

private parties. It would be an odd departure from the 

view expressed in Verni . . . if we were to uphold the 

secrecy of a settlement in a civil lawsuit involving a 

government agency.

[Asbury Park Press v. Cnty. of Monmouth, 406 N.J. 

Super. at 9 (citations omitted).]

In Libertarians I, we held that the plaintiff was not entitled to access a 

redacted settlement agreement that resolved a disciplinary action by allowing a 

county employee to retire with reduced benefits because the document was a 

personnel record that was excluded from disclosure under section 10. 465 N.J. 

Super. at 14, 24. We reasoned that "[i]f the disciplinary records themselves are 

exempt from disclosure under section 10, . . . an internal settlement agreement 

resolving disciplinary charges, which often involves an employee accepting 

discipline, [should] similarly be considered a personnel record exempt from 

disclosure." Id. at 20-21. 
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In reversing our decision, our Supreme Court "d[id] not rely on case law 

about settlement agreements that public entities enter into to resolve a lawsuit. " 

Libertarians II, 250 N.J. at 58 (citing Asbury Park Press v. Cnty. of Monmouth,

406 N.J. Super. at 9). Instead, the Court conducted an interpretive analysis of

"the plain language of section 10" and concluded that "[a] settlement agreement 

that includes . . . details [about the reasons for an employee's separation from 

government service] must . . . be made available to the public once it is 

redacted." Ibid. The Court "recognize[d] that some requestors may be satisfied 

to receive a written summary of information in response to an OPRA request. 

But OPRA entitles them to press for actual government records in many 

situations, which they can then inspect." Ibid.

Here, we conclude that the internal settlement agreement with the 

unnamed employee is a personnel record that does not fall within section 10's 

exceptions. Critically, the agreement did not resolve civil litigation or any threat 

of litigation. Instead, the agreement resolved an internal disciplinary proceeding

that did not result in the unnamed employee's separation. Consequently, the 

Court's holding in Libertarians II, 250 N.J. at 58, is inapplicable here. Further, 

there is no evidence in the record that the settlement with Rubet was predicated 

on the unnamed employee's agreement to forfeit accrued benefit time. Stated
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differently, there is no indication that the Board would not have followed its 

insurer's recommendation to offer Rubet $115,000 had the unnamed employee 

not acquiesced to forfeit accrued benefit time amounting to $35,000. 

Additionally, neither the unnamed employee nor the internal settlement 

agreement is referenced in Rubet's settlement agreement, refuting Shurin's 

contention of a global resolution. At no point did Rubet and the unnamed 

employee enter into any agreement giving rise to privity of contract. Therefore, 

we see no basis for extending our holding in Asbury Park Press v. County of 

Monmouth to encompass the internal settlement agreement of a purely 

disciplinary matter at issue here.

Affirmed.