O’Boyle v. Borough of Longport, 426 N.J. Super. 1 (App. Div. 2012). This is yet another Open Public Records Act (“OPRA”) case. Plaintiff was a frequent antagonist of the defendant Borough, hostility that began when the Borough cited him for a zoning violation. Plaintiff had sued not only the Borough but a former planning and zoning board member and two other citizens of Longport (collectively, “the citizens”), in prior litigation.
In the present case, plaintiff sought access to communications between the Borough’s attorney in the prior litigation and counsel for the citizens in that litigation. Plaintiff also sought several CD’s that contained documents that counsel for the citizens had provided to the Borough’s counsel, but that were later returned to the citizens’ counsel at his request. The Law Division concluded that the correspondence between the attorneys was protected by the attorney-client privilege, and that the CD’s were not public records under OPRA because their contents were not prepared by a public entity. Besides, the CD ‘s were not in the possession of the Borough, as a result of the request for their return to counsel for the citizens, and not because the Borough was trying to avoid producing documents. OPRA did not compel a non-public person or entity to produce materials. Plaintiff appealed, and the Appellate Division, speaking through Judge Alvarez, affirmed.
After discussing the standard of review, which is de novo when statutory interpretation is involved but deferential when the issue relates to findings of fact, Judge Alvarez reviewed the parameters of OPRA and noted that documents covered by the duty of disclosure are defined broadly. However, even if the letters and the CD’s were considered to be producible in the first instance, the work product doctrine, and the common interest that the Borough shared with the citizens in the prior litigation, protected the correspondence from disclosure. As Judge Alvarez noted, 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.” The opinion contains a useful discussion of the common interest privilege, which is not often discussed in reported opinions.
Plaintiff fared no better under the common law right of access. The letters and CD’s wer not public records, since they were not created “at the behest [ ] of public officers,” and they were “all created for litigation purposes, a private, not public, function.” Moreover, when seeking production of privileged materials, a requestor must show a “particularized need” for them. Judge Alvarez held that plaintiff had failed to do that.