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NJ High Court Rules Law Clinic Not Subject to OPRA Disclosure

In an opinion on July 5, 2012, the New Jersey Supreme Court determined that the Rutgers Environmental Law Clinic (RELC), a public law school clinic, is not subject to the Open Public Records Act (OPRA).  The main legal issue in this case was whether the clinic, by virtue of its ties to Rutgers, a state university, was itself a “public agency” and thus subject to OPRA’s reach.  The Court, reversing a decision of the Appellate Division, held that RELC is used as a teaching tool for students and acts as a private law firm in assisting individual clients with environmental issues and is therefore exempt from OPRA.

In 2004, RELC began representing two non-profit corporations who objected to a developer’s plan to build an outlet mall in Frankford Township, New Jersey.  In a series of lawsuits regarding this proposed development, the developer, Sussex Commons, sued a rival company, Chelsea Property Group, for tortious interference with economic advantage.  Sussex Commons also attempted to sue several officers of these non-profit corporations for conspiracy to commit the tortious interference.  As part of this conspiracy theory, Sussex Commons sought communications between RELC and Chelsea.  The trial court denied Sussex Commons’ attempts to sue the officers and stated that any such communications were privileged.  Sussex Commons then filed an OPRA request with Rutgers University seeking these communications.  The request was denied and Sussex Commons filed suit.

The trial court found that RELC was exempt from OPRA.  The court was concerned with the chilling effect that would occur on potential clients using RELC out of fear that their case files could be disclosed.  The Appellate Division reversed, finding that since Rutgers and the law school were subject to OPRA, the clinic as an arm of the law school was subject to the public records disclosure law as well.  The final word from the Supreme Court was that the clinic was indeed exempt from OPRA and was not required to disclose the communications.

The Supreme Court ruling is an important one for individual and organizational clients who seek out the assistance of law clinics.  Oftentimes, these individuals and groups do not have the funds to retain a private attorney, but wish to add their voices to land use and other decisions that may impact the environment, open space or other public resources.

The legal maneuverings of the developer in this case is commonly referred to as a “SLAPP” suit—a Strategic Lawsuit Against Public Participation.  SLAPP suits are usually designed to silence or punish public opposition to land use and other projects.  In keeping with our firm’s non-partisan mission to provide legal representation to a broad swath of clients in the environmental and land use arenas, Lieberman & Blecher has assisted many non-profit and community organizations that have an interest in land use projects that may impact the environment, open space or other public resources.  As a result of their representation of citizen groups and non-profit and community organizations, the attorneys at Lieberman & Blecher have also successfully defended SLAPP suits against our clients.

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