Search Site
Menu

Recent N.J. Court Decisions Examine the Applicability of OPRA

In two recent New Jersey court opinions, important questions as to the scope and application of the New Jersey Open Public Record Act (“OPRA”) were decided. The first, Kennedy v. Montclair Center Corporation Business Improvement District, 2014 N.J. Super. Unpub. LEXIS 1654 (App. Div. Jun. 24, 2014), clarifies that OPRA applies to corporations formed to manage special improvement districts in many New Jersey downtown areas. In O’Boyle v. Borough of Longport, 2014 N.J. LEXIS 787 (July 21, 2014), the New Jersey Supreme Court held that the common interest privilege operates to shield documents from OPRA when they are prepared by a lawyer representing a public entity and shared with a third party with common interests.

Kennedy concerned the corporation formed pursuant to the New Jersey Pedestrian Mall and District Improvement Act of 1984 (“PMDI”) to administer the downtown improvement district in Montclair, New Jersey (the “MCC”). Like other such downtown district improvement corporations, the MCC collects assessments from local businesses for maintenance of the downtown area and to attract new businesses. The former executive director and member of the MCC, sought to obtain the corporation’s telephone records via an OPRA request. The MCC claimed that it was not subject to OPRA, but offered the member the opportunity to review the records at its offices or to obtain copies at a price per page four times that required by OPRA. The member sued to obtain the records at the price prescribed by OPRA and a declaration that the MCC was subject to OPRA. While the trial court agreed that OPRA did not apply to the corporation because it was created by private individuals, the Appellate Division found that, under the broad definition of “public entity” within OPRA and the public policy of openness of government operations embodied by OPRA, improvement corporations created under the PMDI are subject to OPRA.

By contrast, the O’Boyle case revolved around the importance of OPRA requests vs attorney-client privilege. The plaintiff in that case had sued a municipality, and frequently submitted OPRA requests to the defendant regarding the litigation, as well as other cases which he brought against the municipality. During the review of documents obtained by such an OPRA request, the plaintiff discovered reference of correspondence that had been exchanged between counsel for the municipality in the matter, and counsel for private individuals were defendants in the same action brought by plaintiff. The plaintiff requested copies of those correspondences under a further OPRA request; however, the trial court and Appellate Division declared them privileged. When the matter was brought before the Supreme Court, the Court noted the importance of balancing the need governmental transparency and public policies of attorney-client privilege. Ultimately, the Court adopted a broad view of the common-interest privilege such that parties with a common interest may engage in the free flow of information in anticipation of litigation. Therefore, it was held that the plaintiff in O’Boyle could not obtain those letters via an OPRA request without violating the privilege of those common defendants.

The attorneys at Lieberman Blecher & Sinkevich P.C., who regularly serve OPRA requests on public entities in the course of assisting clients with environmental legal issues throughout New Jersey, will be closely following the developments in this area of the law as it evolves to address the realities of advancements in technology, their effect on the legal process, and any developments that may affect the flow of information between attorneys, their clients, and other parties.

 

Leave a Reply

Your email address will not be published. Required fields are marked *

Our Attorneys

Recent Twitter Posts

  • New Jersey sets emergency water standards for new chemicals. https://t.co/trgaaLL1mD
    5 months ago
  • How will New Jersey manage stormwater as the climate changes and flooding increases? https://t.co/dhVLALyzZ2
    5 months ago
  • Unprecedented storms are slamming NJ – learn how to be the best advocate for your clients when the next flood hits.… https://t.co/TicH6iAjP0
    5 months ago
  • Trenton Water Works has removed 25 percent of lead pipes throughout its service area. https://t.co/KUvhMsJlvU
    5 months ago

Recent Blog Posts

Supreme Court concludes that attorney review period is not a requirement of absolute auction contracts

On June 9, 2022, the New Jersey Supreme Court unanimously decided that attorney review period is not a required contractual provision for a residential real estate sale by absolute auction.
Read More
Supreme Court concludes that attorney review period is not a requirement of absolute auction contracts

It Depends on the Language – The Non-Disparagement Clause

How enforceable is a non-disparagement clause in an agreement? As is always the case with any contract or agreement, it depends on the language. On May 31, 2022, the Appellate Division
Read More
It Depends on the Language – The Non-Disparagement Clause

DCA Tries Again to Use RSIS to Limit Municipal Stormwater Controls

By Michele Donato, Esq. and Stuart Lieberman, Esq. In the 1990’s, developers claimed that municipal residential development ordinances lacked uniformity, increased development costs, and caused uncertainty in the development process. In
Read More
DCA Tries Again to Use RSIS to Limit Municipal Stormwater Controls

Previous Property Manager Charged with Embezzling and Laundering Stolen Funds from Hamilton Park CO-OP.

Nicolas DePaola of Ewing New Jersey was indicted on twelve charges for embezzling and laundering stolen money from his prior client, Hamilton Park CO-OP. On April 1, 2022, a Mercer
Read More
Previous Property Manager Charged with Embezzling and Laundering Stolen Funds from Hamilton Park CO-OP.

In The Media

  • Gulf Coast Town Center facing foreclosure

    Naples Daily News, September 16, 2015

    Wells Fargo filed a lawsuit Sept. 8 against an affiliate of CBL & Associates, the owners of the decadeold, 1.2 million-square-foot mall in south Fort Myers for a $190.9 million unpaid loan. The center has 94 stores on 204 acres, with such anchors as Super Target, Belk, Best Buy, Dick’s Sporting Goods, Marshalls and Costco...

    Read More
  • Town liable for private company's leaking underground tanks, court rules

    NJ.com Jul 26, 2017

    CRANFORD -- A couple that owned a businesses in town and became sick from leaking underground tanks owned by an adjacent business can sue the township for damages because the tanks were partially ...

    Read More
  • Dark Waters: How a Class Action Catapulted NJ to Forefront of 'Forever Chemicals' Battle

    NJ Law Journal Jan 09, 2020

    As property owners become increasingly aware of PFAS contamination, and as individuals exposed to PFAS learn of the health risks associated with exposure, liability will likely affect entire supply chains.

    Read More
  1. 1
  2. 2
  3. 3
  4. 4
  5. 5
Contact Our Firm

Quick Contact Form