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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.
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