Township Council Meeting — Agenda

Following the issuance of the HGA report, but prior to the planning board's March 12, 2019 resolution and the Township Council's March 19, 2019 resolution, plaintiff submitted an OPRA request to the Township seeking "[a] copy of all reports pertaining to the designation of the . . . library as an area in need of redevelopment," and "[a] copy of all letters, emails, memoranda, and any other forms of correspondence for the period January 1, 2018[,] to February 11, 2019[,] pertaining to the designation of the . . . library as an area in need of redevelopment." In a February 25, 2019 letter to plaintiff, the Township clerk's office "produced 124 pages of documents." The letter also advised plaintiff "that certain communications do not constitute 'government records' as defined under OPRA as they are confidential and/or privilege[d] under the [a]ttorney-[c]lient privilege and/or advisory, consultative and deliberative exception under OPRA." The letter provided plaintiff with a list of thirty-two emails the Township claimed were either privileged or within an exception from the disclosure required under OPRA. A-2287-19 6 Pa006

On appeal defendants claim there are thirty-three emails at issue. 3 Thirty of the emails were exchanged between HGA representative Baree and counsel for the Township. Two of the emails were exchanged between counsel for the Township, with copies sent to Baree. 4 The remaining email is between Mark Y. Moon, one of the Township's attorneys, planning board chairman Ron Weston, 3 In the February 25, 2019 letter to plaintiff, the Township included a list of thirty-two emails it claimed were exempt from disclosure under OPRA. The list included eight emails dated November 19, 2018. In his complaint and cross- motion, plaintiff sought a judgment requiring disclosure of the thirty -two emails listed in the Township's letter. In their motion for summary judgment, defendants sought an order dismissing plaintiff's complaint seeking production of the thirty-two emails identified in the Township's February 25, 2019 letter. On appeal, however, defendants' confidential appendix identifies and provides thirty-three emails it claims are exempt from disclosure and for which we should affirm the court's summary judgment order. The emails provided in the confidential appendix include nine emails dated November 19, 2018, and it therefore appears the Township included for the first time on appeal an additional November 9, 2018 email it contends is exempt from disclosure. Given the general descriptions of the emails included in the February 25, 2019 letter, it is not possible to determine which November 19, 2018 email included in the confidential appendix was not presented to the motion court and was added by defendants on appeal. In any event, because we reverse in part the court's order granting defendants' motion and remand for further proceedings, we need not address the particulars of each of the emails. As we explain, a ny issues concerning exemptions or privileges applicable to the emails must be addressed anew by the trial court on remand. 4 Two December 12, 2018 emails are exchanged between the Township's attorneys Mark Y. Moon and Richard D. Trenk. Copies of the emails were sent to HGA representative Barre. A-2287-19 7 Pa007

and planning board attorney Pat Dwyer, with copies of the email also sent to Jack Sayers, the Township Administrator, Carnevale, and Richard D. Trenk. 5 Plaintiff filed a complaint and order to show cause "challenging the withholding of the [c]onfidential [c]ommunications" and asserting claims under OPRA and the common law right of access to public records. Plaintiff sought a judgment requiring the Township to "disclose to [p]laintiff copies of the [confidential] communications . . . requested," and ordering the Township to pay "[p]laintiff['s] costs and reasonable attorneys' fees." The Township filed an answer to the complaint and subsequently moved for summary judgment. Plaintiff filed a cross-motion for summary judgment. The Township later submitted the emails it claimed are privileged and exempt from disclosure to the court for its in camera review.6 The court heard oral argument on the motions and later issued a written statement of reasons and order granting the Township's summary judgment motion and denying plaintiff's cross-motion. The court found the emails "are 5 The email from Mark Y. Moon to Weston and Dwyer is dated February 6, 2019. 6 The summary judgment record does not reflect whether defendants provided the motion court with the thirty-two emails referenced in the Township's February 25, 2019 letter to plaintiff or the thirty-three emails defendants included in their confidential appendix on appeal. A-2287-19 8 Pa008

protected by both the attorney client privilege and the [advisory, consultative and deliberative] exception[s] to the OPRA statute." The court found "HGA was retained as a consultant by the Township Council and [p]lanning [b]oard specifically to investigate the merits of designating the [library] as an area in need of redevelopment . . . and that in that role, . . . Baree was a necessary intermediary who communicated with the Township and [p]lanning [b]oard attorneys on these issues." Thus, the court reasoned the emails "revealed only communications between the counsel and a necessary intermediary." The court granted defendants summary judgment on plaintiff's OPRA and common law right of access claims. Plaintiff appeals from the court's December 27, 2019 order granting the Township's motion for summary judgment and denying his cross-motion. II. We conduct a de novo review of a court's order granting or denying a summary judgment motion, "applying the same standard as the trial court." Abboud v. Nat'l Union Fire Ins. Co., 450 N.J. Super. 400, 406 (App. Div. 2017). This standard mandates the granting of summary judgment "if the pleadings, depositions, answers to interrogatories[,] and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact A-2287-19 9 Pa009

challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). We also review de novo a court's decision concerning the applicability of OPRA and its exemptions. In re N.J. Fireman's Ass'n Obligation, 230 N.J. 258, 273-74 (2017); see also K.L. v. Evesham Twp. Bd. of Educ., 423 N.J. Super. 337, 349 (App. Div. 2011) ("We . . . conduct [a] plenary review of the trial court's legal conclusion that a privilege exempts the requested records from disclosure."). We "apply a . . . deferential standard of review when a court conducts an in camera review of documents and balances competing interests in disclosure and confidentiality in connection with a common-law-based request to inspect public records." N. Jersey Media Grp., Inc. v. Twp. of Lyndhurst, 441 N.J. Super. 70, 89 (App. Div. 2015). "However, 'to the extent [the appellate court] can be said to be reviewing essentially a legal determination, [it] can review the documents which'" are being requested. Id. at 89-90 (alterations in original) (quoting Shuttleworth v. City of Camden, 258 N.J. Super. 573, 588 (App. Div. 1992)). In enacting OPRA, the New Jersey "Legislature . . . declare[d] it to be the public policy of this State that . . . government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, A-2287-19 10 Pa010

with certain exceptions, for the protection of the public interest, and any limitations on the right of access . . . shall be construed in favor of the public's right of access." N.J.S.A. 47:1A-1. "In keeping with that goal of transparency," Paff v. Galloway Twp., 229 N.J. 340, 352 (2017), OPRA defines a "government record" as [a]ny paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed 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. [Id. at 352-353 (quoting N.J.S.A. 47:1A-1.1).] The public's right to access government records is not absolute. See N.J.S.A. 47:1A-1.1; N.J.S.A. 47:1A-9. OPRA excludes various types of information from the definition of government record, see N.J.S.A. 47:1A-1.1, and courts "must always maintain a sharp focus on the purpose of OPRA and resist attempts to limit its scope, absent a clear showing that one of its exemptions or exceptions incorporated in the statute by reference is applicable to the requested disclosure." Tractenberg v. Township of West Orange, 416 N.J. A-2287-19 11 Pa011

Super. 354, 378-79 (App. Div. 2010) (quoting Asbury Park Press v. Ocean Cnty. Prosecutor's Office, 374 N.J. Super. 312, 329 (Law Div. 2004)). OPRA expressly exempts from its definition of "government record" "inter-agency or intra-agency advisory, consultative, or deliberative material," and "any record within the attorney-client privilege." N.J.S.A. 47:1A-1.1. Here, defendants claimed, and the court found, the requested emails were exempt under OPRA because they fell within these two statutory exemptions. 7 We address the claimed exemptions, and their application to the emails at issue, in turn. "The attorney-client privilege has been codified in New Jersey, by both statute and rule, the terms of which are identical." Paff v. Div. of Law, 412 N.J. Super. 140 150 (App. Div. 2010). "To qualify for the privilege, a party must show that there was a confidential communication 'between [a] lawyer and his [or her] client in the course of that relationship and in professional confidence[.]" Tractenberg, 416 N.J. Super. at 375 (third alteration in original) (quoting N.J.R.E. 504(1)); N.J.S.A. 2A:84A-20(1). "Confidential communications are only those 'communications which the client either 7 We limit our discussion to the exemptions relied on by defendants in the February 25, 2019 letter to plaintiff and asserted by defendants before the motion court. A-2287-19 12 Pa012

expressly made confidential or which he could reasonably assume under the circumstances would be understood by the attorney as so intended.'" Ibid. (quoting State v. Schubert, 235 N.J. Super. 212, 221 (App. Div. 1989)). "[A] mere showing . . . the communication was from client to attorney does not suffice, but the circumstances indicating the intention of secrecy must appear." Ibid. (alterations in original) (quoting Schubert, 235 N.J. Super. at 220-21). Further, "[t]he attorney-client privilege is not restricted to legal advice, though '[t]he privilege is limited to those situations in which lawful legal advice is the object of the relationship.'" Rivard v. Am. Home Prods., Inc., 391 N.J. Super. 129, 154 (App. Div. 2007) (second alteration in original) (quoting In re Gonnella, 238 N.J. Super. 509, 512 (Law Div. 1989)). "The purpose of the attorney-client privilege is 'to encourage clients to make full disclosure to their attorneys.'" Tractenberg, 416 N.J. Super. at 375 (quoting Macey v. Rollins Env't Servs. (N.J.), Inc., 179 N.J. Super. 535, 539 (App. Div. 1981)). "The policy underlying this privilege is to promote full and free discussion between a client [and his or her] attorney . . . . [I]t is essential that a client be able to protect his [or her] discussions with his [or her] attorney from disclosure." Paff, 412 N.J. Super. at 150 (second and third alterations in original) (quoting Macey, 179 N.J. Super. at 539). However, "[s]ince the A-2287-19 13 Pa013

recognition of the privileged communication between attorney and client rests in the suppression of the truth[,] the privilege should be strictly construed in accordance with its object. The privilege is an anomaly and ought not to be extended." Id. at 150-51 (quoting In re Selser, 15 N.J. 393, 405-06 (1954)). Thus, "[t]he determination whether a communication between a client and an attorney is protected must be made 'on the basis of the purposes for which the privilege exists and the reasons for its assertion in the context of the particular case.'" In re Custodian of Recs., Crim. Div. Manager, 420 N.J. Super. 182, 187 (App. Div. 2011) (quoting Fellerman v. Bradley, 99 N.J. 493, 502 (1985)). It is well-established "that the [attorney-client] privilege is fully applicable to communications between a public body and an attorney retained to represent it." Paff, 412 N.J. Super. at 152 (alteration in original) (quoting In re Grand Jury Subpoenas Duces Tecum Served by Sussex Cnty., 241 N.J. Super. 18, 28 (App. Div. 1989)). Further, the privilege is not limited to communications made directly between an attorney and client; the privilege "also extends to 'the necessary intermediaries and agents through whom the communications are made.'" Tractenberg, 416 N.J. Super. at 376 (State v. Kociolek, 23 N.J. 400, 413 (1957)). "[A] client's privileged communications are 'permanently protected from disclosure by [itself], or the legal advisor, or by the A-2287-19 14 Pa014

agent of either confidentially used to transmit the communications . . . .'" State v. Davis, 116 N.J. 341, 361 (1989), superseded by constitutional amendment on other grounds, N.J. Const. art. I, ¶ 12, as stated in State v. Cruz, 163 N.J. 403, 411 (2000). "Such 'necessary intermediaries' have been held to include a psychiatrist retained by defense counsel, arson experts hired by defense counsel, a handwriting expert employed by defense counsel, and an engineering firm hired as a consultant for litigation assistance." Tractenberg, 416 N.J. Super. at 376 (citations omitted). Plaintiff argues the emails at issue are not privileged "because the attorneys for [d]efendant Township did not have an attorney[-]client relationship with the [p]lanning [b]oard," which plaintiff asserts "retained [HGA]." Plaintiff claims that "because no attorney-client relationship existed between [the Township's] attorneys and the [p]lanning [b]oard," the Township's counsel's "communications with [HGA] could not be privileged." Plaintiff also correctly notes "[a]lmost all of the [confidential communications — thirty-one out of thirty-two emails —] were between [HGA] and [d]efendant Township’s lawyers, not the [p]lanning [b]oard’s lawyer." The burden of proving a communication is protected by the attorney-client privilege rests with "the person . . . asserting the privilege." Hedden v. Kean A-2287-19 15 Pa015