Township Council Meeting — Agenda

Univ., 434 N.J. Super. 1, 12 (App. Div. 2013). Thus, in the first instance defendants had the burden of establishing the emails constituted privileged attorney-client communications for those communications to fall within the OPRA exemption. Based on our de novo review of the summary judgment record, we are not convinced the undisputed material facts established defendants were entitled to a judgment as a matter of law that the emails constitute privileged attorney - client communications. None of the emails at issue are between the Township's attorneys and their client, the Township. Thus, none of the emails are a direct communication between the Township, as the client, and its counsel. Instead, all but one of the emails is between the Township's counsel and HGA. And the remaining email is between the Township's counsel and the planning board's chairman and the planning board's counsel. Nonetheless, defendants argue all the emails fall within the attorney client privilege because HGA is a necessary intermediary for the Township's communications with the Township's counsel. The Township's argument is premised on the factual contention that HGA acted as the Township's agent when it was retained to provide the study and report as to whether the Township Library fell within an area in need of redevelopment. That is, defendants argue A-2287-19 16 Pa016

the communications constituted attorney client communications because they were between the Township's counsel and the Township's agent, HGA, which served as a necessary intermediary for the Township in its communications with its counsel. The summary judgment record does not support defendants' claim. There is no evidence establishing as a matter of undisputed fact that HGA served as an agent, or necessary intermediary, of the Township, and the record suggests that was not the case. The summary judgment record is devoid of any evidence the Township retained HGA to serve as its agent or intermediary. To the contrary, the transcript of the Township Council November 27, 2018 meeting reflects the Township authorized the planning board to appoint HGA to serve as its expert to conduct a study that the planning board would utilize, and later did utilize, to make its recommendation to the Township about whether the library was an area in need of development. As the Township's attorney explained at the November 27, 2018 meeting, the Township Council authorized the planning board's use of HGA as a "tool" for the planning board to utilize in making its determination whether to recommend that the Township Library is an area in need of redevelopment. A-2287-19 17 Pa017

The Township's counsel could not properly also function as counsel for the planning board, In re Opinion 452, 87 N.J. 45, 51 (1981); N.J.S.A. 40:55D- 24, and there is no evidence the Township's attorneys did so here. The summary judgment record establishes the attorneys from McManimon, Scotland & Baumann, LLC law firm represented the Township only, and the planning board was separately represented by different counsel, Pat Dwyer. Thus, to the extent HGA was retained as the planning board's expert, the record summary judgment record does not support a determination that HGA served as a necessary intermediary for the purposes of engaging in privileged communications between the Township's counsel and its client, the Township. For those reasons, we conclude defendants failed to sustain their burden of demonstrating the undisputed facts established they were entitled to judgment as a matter of law on their claim the emails are protected by the attorney client privilege because its email exchanges with Baree were with a necessary intermediary. The motion court found HGA served as a necessary intermediary for the Township and the planning board because "HGA was retained as a consultant by the Township Counsel and the [p]lanning [b]oard," but, as noted, the summary judgment record does not support that finding such that it can be determined as a matter of law the emails constituted privileged attorney client A-2287-19 18 Pa018

communications between the Township's counsel with a necessary intermediary of the Township. We therefore reverse the court's summary judgment determination the emails exchanged between the Township's counsel and HGA are exempt from disclosure under OPRA, as well as plaintiff's common law entitlement to disclosure of public records, based on the attorney client privilege. As noted, there is a single email – sent at 3:31 p.m. on February 6, 2019 – between the Township's counsel and the chairman of the planning board and the planning board's counsel. We discern no basis to conclude that email constitutes an attorney client privileged communication because the planning board was not, and could not properly have been, the Township's counsel's client. See In re Opinion 452, 87 N.J. at 51. Additionally, the Township does not argue, and there is no evidential support for a finding, the planning board chairman and counsel constituted necessary intermediaries of the Township such that the email constitutes a privileged attorney client communication on that basis. We therefore also reverse the court's determination the email constitutes A-2287-19 19 Pa019

a privileged attorney-client communication because it was exchanged with a necessary intermediary of the Township.8 We further note that the two emails exchanged between the Township's attorneys Mark Y. Moon and Richard D. Trenk are copied to Baree. For the reasons we have explained, the summary judgment record does not permit a finding as a matter of law that those emails, which counsel for the Township shared with a third-party Baree, are protected by the attorney-client privilege because he was a necessary intermediary for the Township. We therefore reverse the court's summary judgment award finding the thirty-three emails constitute attorney-client communications based on its legal conclusion the emails were exchanged between the Township's attorneys and necessary intermediaries of the Township. 9 8 We do not consider or address whether the email might otherwise be privileged under the "[t]he common interest exception to a waiver of confidential attorney- client communications or work product due to disclosure to third parties [that] applies to communications between attorneys for different parties if the disclosure is made due to actual or anticipated litigation for the purpose of furthering a common interest," O'Boyle v. Borough of Longport, 218 N.J. 168, 198-99 (2014), or any other privilege or exemption. Defendants have never asserted the email, or any others, fall within those privileges. 9 As noted, our determination is limited to a finding the summary judgment record does not support a determination that, as a matter of law, the emails are privileged attorney-client communications with a necessary intermediary of the A-2287-19 20 Pa020

The court also found the emails were exempt from disclosure under OPRA because they constituted "inter-agency or intra-agency advisory, consultative, or deliberative material." See N.J.S.A. 47:1A-1.1. The "exemption has been construed to encompass the deliberative process privilege, which has its roots in the common law." Ciesla v. N.J. Dep't of Health and Human Servs., 429 N.J. Super. 127, 137 (App. Div. 2012). "[T]he deliberative process privilege . . . allow[s] the government to 'withhold documents that reflect advisory opinions, recommendations, and deliberations comprising part of a process by which [its] decisions and policies are formulated.'" Ibid. (fourth alteration in original) (quoting In re Liquidation of Integrity Ins. Co., 165 N.J. 75, 83 (2000)). "[T]he deliberative process privilege is governed by a two-prong test." Libertarians for Transparent Gov't v. Gov't Recs. Council, 453 N.J. Super. 83, Township's attorneys' client, the Township. On remand, subject to any defenses that may be available to plaintiff, the Township is not precluded from presenting evidence establishing that as a matter of fact and law the emails are privileged communications on that basis, or any other basis supporting a finding the emails are protected from disclosure by the attorney-client privilege or any other privilege or exemption available under OPRA or in response to a request for public records under the common law right of access to public records. See, e.g., O'Boyle, 218 N.J. at 186-88 (discussing the common interest rule, joint defense agreements, and the work product doctrine as bases supporting a finding that communications between attorneys and third parties are protected from disclosure under the attorney-client privilege). A-2287-19 21 Pa021

89 (App. Div. 2018). For a document to fall within the privilege, the court must find that the document is both "(1) 'pre-decisional,' meaning it was 'generated before the adoption of an agency's policy or decision;' and (2) deliberative, in that it 'contain[s] opinions, recommendations, or advice about agency policies'" or decisions. Id. at 89-90 (alteration in original) (quoting Educ. Law. Ctr. v. Dep't of Educ., 198 N.J. 274, 286 (2009)). "To satisfy the second prong, the document must be shown to be closely related to 'the formulation or exercise of . . . policy-oriented judgment or [to] the process by which policy is formulated.'" Id. at 91 (alterations in original) (quoting Ciesla, 429 N.J. Super. at 138). Here, although the record does not establish the Township retained HGA as its agent at the November 27, 2018 meeting or at any time prior to February 6, 2019, the date of the exchange of the last of the thirty-three emails at issue, it is undisputed that on November 27, 2018, the Township Council decided to appoint HGA to serve as the planning board's expert and agent. Thus, the seventeen emails exchanged prior to a 2:29 p.m., November 27, 2018 email between Mark Y. Moon and Baree, were exchanged prior to the Township's November 27, 2018 decision appointing HGA as the planning board's agent and A-2287-19 22 Pa022

expert.10 Those emails therefore satisfy the pre-decisional prong of the standard for the deliberative process privilege. Libertarians for Transparent Gov't, 453 N.J. Super. at 90. Similarly, the record shows eight emails were exchanged concerning the Township Council's consideration of an amended resolution authorizing the planning board to consider and determine whether the library was an area in need of redevelopment. The emails consist of a consecutive series of communications, the first of which was exchanged at 3:34 p.m. on December 12, 2018, and the last at 12:00 p.m. on December 20, 2018. Those emails are therefore pre-decisional – exchanged prior to any decision by the Township's Council concerning the revised resolution – under the deliberative process privilege standard. See Ibid. There are eight additional emails for which the summary judgment record does not permit a finding the information exchanged was as part of a decision - making or deliberative process. Those emails include exchanges at 2:29 p.m. and 2:31 p.m. on November 29, 2018, and at 4:13 p.m. on December 11, 2018. 10 The confidential appendix includes seventeen emails that were exchanged prior to the Township Council's adoption of the resolution appointing HGA as the planning board's expert and agent. The last of those emails was exchanged at 1:12 p.m. on November 27, 2018. A-2287-19 23 Pa023

In addition, there are five emails, the first of which was exchanged at 2:41 p.m. on January 17, 2019, and the last of which was exchanged at 2:52 p.m. on February 6, 2019, that appear to concern the HGA's redevelopment study, and resolutions concerning the Township's referral to the planning board. The summary judgment record, however, does not demonstrate whether those emails are related to any pre-decisional, advisory, deliberative or consultative process of the Township. As a result, the summary judgment record does not permit a determination those eight emails satisfied the first prong of the deliberative process privilege standard. We therefore reverse the court's order granting defendants summary judgment on plaintiff's claim he is entitled to access to those eight emails under OPRA and his common law right of access to public records based on the Township's claim they are protected by the advisory, deliberative, or consultative privilege. For the twenty-five emails that appear to satisfy the first-prong of the deliberative process privilege, the motion court did not make any findings of fact or conclusions of law addressed to the second prong of the standard. That is, the court did not consider or make any findings whether the pre-decisional emails "contain opinions, recommendations, or advice about agency policies[,]" Educ. Law Ctr., 198 N.J. at 286, or if the emails are related to the "formulation A-2287-19 24 Pa024

or exercise" of a policy or decision-orientated judgment or the process by which the policy or decision was formulated, Ciesla, 429 N.J. Super. at 138. Although we review the motion court's summary judgment order de novo, "our function as an appellate court is to review the decision of the trial court, not to decide the motion tabula rosa." Est. of Doerfler v. Federal Ins. Co., 454 N.J. Super. 298, 302 (App. Div. 2018); see also R. 1:7-4(a). Therefore, with regard to the twenty-five emails for which the summary judgment record establishes defendants satisfied only the pre-decisional prong of the deliberative process privilege standard, we vacate the court's order granting defendants summary judgment dismissing plaintiff's claimed entitlement to those emails under OPRA and the common law right of access and remand for the court to separately consider each of the emails and make findings and conclusions of law as to whether the summary judgment record supports a determination the emails satisfy the second prong of the deliberative process privilege standard as a matter of law.11 11 To the extent the court finds that the summary judgment record permits a determination that any of the twenty-four emails are privileged under the deliberative process privilege as a matter of law, the court shall also consider, decide, and make appropriate findings as to whether the summary judgment record permits a determination as to whether plaintiff is entitled to disclosure of the otherwise privileged emails based "upon a showing that the need for the A-2287-19 25 Pa025