O'Boyle v. Borough of Longport

• Decision Date: 21 May 2012
• Citation: 42 A.3d 910,426 N.J.Super. 1
• Parties: Martin E. O'BOYLE, Plaintiff–Appellant, v. BOROUGH OF LONGPORT, and Thomas Hiltner in his capacity as Borough of Longport Clerk and Custodian of Records, Defendants–Respondents.
• Court: New Jersey Superior Court

426 N.J.Super. 1

42 A.3d 910

Martin E. O'BOYLE, Plaintiff–Appellant,

v.BOROUGH OF LONGPORT, and Thomas Hiltner in his capacity as Borough of Longport Clerk and Custodian of Records, Defendants–Respondents.

Superior Court of New Jersey, Appellate Division.

Argued Nov. 7, 2011.

Decided May 21, 2012.

Walter M. Luers argued the cause for appellant.

Gene R. Mariano, Mount Laurel, argued the cause for respondents (Parker McCay P.A., attorneys; Mr. Mariano, of counsel; Stacy L. Moore, Jr., on the brief).

Before Judges PARRILLO, ALVAREZ and SKILLMAN.

The opinion of the court was delivered by

ALVAREZ, J.A.D.

Plaintiff Martin E. O'Boyle sought to compel defendants Borough of Longport (Longport) and Longport's Clerk and Custodian of Records, Thomas Hiltner, to produce certain letters and compact discs (CDs) pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A–1 to –13, and the common law right of access. A judgment was entered on December 20, 2010,¹ dismissing plaintiff's complaint and finding that the items, which consist of litigation materials and correspondence exchanged between outside counsel for Longport and private counsel for a former Planning and Zoning Board member and other persons who had been or were being sued by plaintiff, were not subject to production. This appeal follows. We affirm.

A brief history will place the dispute in context. Over the past several years, plaintiff has sued several Longport officials as well as individuals with connections to Longport's borough governance. This includes Peter Isen, a former Planning and Zoning Board member, and Longport residents Frank and Anthony DiLorenzo. David W. Sufrin, Esquire, represents Isen and the DiLorenzos.

Plaintiff's conflicts with Longport, and some individuals connected with the municipality, began in 2007 when he was cited for a zoning violation. Plaintiff has also filed lawsuits through his corporation, Commerce Group Construction, Inc., and his organization, Citizens for Open Government, LLC, against Frank and Anthony DiLorenzo and Jerome DiPentino. Additionally, plaintiff sued the Press of Atlantic City for defamation resulting from its coverage of these disputes.

Since 2007, plaintiff has been supplied hundreds of documents by Longport, pursuant to OPRA. In fact, he has successfully sued defendants under OPRA, prevailed, and been awarded counsel fees. Longport retained outside counsel, Emanuel Argentieri, Esquire, as to these matters.

On April 23, 2010, plaintiff demanded from Longport the production of certain documents that he learned about by examining Argentieri's legal bills, which in turn he obtained under OPRA. The bills included charges for time spent corresponding with Sufrin. Longport provided some of the items requested, but refused to supply: 1) an August 20, 2009 letter from Argentieri to Sufrin; 2) a September 18, 2009 letter from Sufrin to Argentieri, captioned “Confidential: Joint–Defense Strategy Memorandum–Attorney Joint Defense Work Product not for Disclosure to Third Parties”; 3) a September 29, 2009 letter from Sufrin to Argentieri captioned “CONFIDENTIAL JOINT–DEFENSE Attorney Work Product”; 4) a second September 29, 2009 letter from Sufrin to Argentieri along with two CDs; 5) an undated letter from Sufrin to Argentieri which was reviewed by Argentieri on October 20, [426 N.J.Super. 7]2009; and 6) documents contained on a third CD provided by Sufrin to Argentieri, which Argentieri reviewed on October 14, 2009. Allegedly, one of the CDs contained a list Sufrin compiled of all the lawsuits plaintiff initiated.

Longport refused to supply the items on the basis that the letters were privileged communications, and the CDs were not in its possession, as they had been returned to Sufrin months earlier and were not copied. Plaintiff's verified complaint followed.

After oral argument and an in camera inspection of the letters, the trial judge found they were protected by the attorney-client privilege, and were therefore excluded from the purview of both OPRA and the common law right of access. The court further found that the CDs were not public records, were also subject to the attorney-client privilege, and, since they were not the work product of defendants, disclosure was not mandated in any event. The judge noted that Sufrin was not Longport's agent, and thus questioned whether plaintiff's OPRA demand could effectively require Sufrin, essentially a third party unrelated to Longport, to produce documents. The judge also found that the CDs were returned without any intent to avoid production, as no OPRA request was submitted until after their return. Accordingly, the trial judge dismissed plaintiff's complaint and sealed the documents.

On appeal, plaintiff asserts that the correspondence and the CDs were subject to production under OPRA and the common law right of access, that Isen and Longport share no joint interest such as would protect the items from disclosure under the attorney-client privilege, and that the court should have required a Vaughn Index ² and conducted an in camera inspection not just of the correspondence, but of the CDs as well. We will first consider the claims made under OPRA, and next under the common law right of access.

I

A trial court's interpretation of a statute, because it is a question of law, is reviewed under a de novo standard. Real v. Radir Wheels, Inc., 198 N.J. 511, 524, 969 A.2d 1069 (2009) (quoting In re Liquidation of Integrity Ins. Co., 193 N.J. 86, 94, 935 A.2d 1184 (2007)). In doing so, we “construe and apply the statute as enacted.” Ibid. (quoting Daidone v. Buterick Bulkheading, 191 N.J. 557, 565, 924 A.2d 1193 (2007)). Our analysis “begins with the plain language of the statute.” In re Liquidation, supra, 193 N.J. at 94, 935 A.2d 1184 (quoting Daidone, supra, 191 N.J. at 566, 924 A.2d 1193). Findings of fact, however, are reviewed deferentially. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484, 323 A.2d 495 (1974).

OPRA requires that “government records ... be readily accessible for inspection, copying, or examination ... with certain exceptions” and that “all government records shall be subject to public access unless exempt from such access....” N.J.S.A. 47:1A–1. “The purpose of OPRA ‘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.’ ” Times of Trenton Pub. Corp. v. Lafayette Yard Comm. Dev. Corp., 183 N.J. 519, 535, 874 A.2d 1064 (2005) (quoting Asbury Park Press v. Ocean Cnty. Prosecutor's Office, 374 N.J.Super. 312, 329, 864 A.2d 446 (Law Div.2004)). With that goal in mind, the statute also provides it will not affect “the common law right of access to any record....” N.J.S.A. 47:1A–1; N.J.S.A. 47:1A–8.

OPRA defines government records expansively, as

any paper, written or printed book, document, ... information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof, ... or that has been received in the course of his or its official business by any such officer, commission, agency or authority of the State or of any political subdivision thereof....

[N.J.S.A. 47:1A–1.1.]

Even if we assume for the sake of argument that the letters and CDs are government records within the statutory definition, we are also mindful that OPRA does “not abrogate or erode any ... grant of confidentiality heretofore established or recognized by ... court rule ..., which ... may ... restrict public access to a ... government record.” N.J.S.A. 47:1A–9.³ Such privileges include work product as defined in Rule 4:10–2(c), which “protect[s] against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation” or materials prepared “in anticipation of litigation....” Protected items can include “documents, electronically stored information, and tangible things ... prepared ... by or for another party....” R. 4:10–2(c); Laporta v. Gloucester Cnty. Bd. of Chosen Freeholders, 340 N.J.Super. 254, 259–60, 774 A.2d 545 (App.Div.2001).

The work product doctrine developed from the self-evident need for attorneys to “work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel.” Hickman v. Taylor, 329 U.S. 495, 510–11, 67 S.Ct. 385, 393, 91 L.Ed. 451, 462 (1947). In order to compel disclosure, the party seeking to acquire the documents must establish that he is unable to gain access to the information by other means without undue hardship. R. 4:10–2(c); see Hickman, supra, 329 U.S. at 511, 67 S.Ct. at 394, 91 L.Ed. at 462–63. Where such a showing is made, the party seeking disclosure is still not entitled to the “mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” R. 4:10–2(c).

Because Longport and its officials, and Sufrin and his clients share a common interest, we conclude that the letters and CDs in this case, prepared in the process of developing a litigation defense strategy against one individual, are items protected by the work product privilege.

The common interest rule is routinely applied in the context of the attorney-client privilege. See In re State Comm'n of Investigation Subpoena No. 5441, 226 N.J.Super. 461, 466–67, 544 A.2d 893 (App.Div.), certif. denied,113 N.J. 382, 550 A.2d 484 (1988); In re Envtl. Ins. Declaratory Judgment Actions, 259 N.J.Super. 308, 315, 612 A.2d 1338 (App.Div.1992). The common interest rule “protects communications made to a non-party who shares the client's interests.” In re State Comm'n, supra, 226 N.J.Super. at 466, 544 A.2d 893. But the protection afforded by the...