Township Council Meeting — Agenda

We also observe the motion court recognized plaintiff asserted a cause of action for access to the emails under the common law right of access to public records. The court made no findings concerning the claim because it concluded the emails were otherwise privileged. "The common law right can reach a wider array of documents than" those available under OPRA. Educ. Law Ctr., 198 N.J. at 302. A person seeking public records under the common law right of access "must explain why he seeks access to the requested documents" and the person's interest in obtaining the documents "must be balanced against the State's interest in preventing disclosure." O'Boyle, 218 N.J. at 196 (quoting Educ. Law Ctr., 198 N.J. at 302). "[T]o determine whether the common law right of access applies to a particular set of records, a court must follow a three-step test." Id. at 196. The court must first "determine whether the documents in question are 'public records.'" Ibid. (quoting Atl. City Convention Ctr. Auth. v. S. Jersey Publ'g Co., materials overrides the government's interest in confidentiality." Educ. Law Ctr., 198 N.J. at 287; see also ibid. (explaining a litigant may obtain documents otherwise privileged under the deliberative process privilege by demonstrating a compelling need, which is determined by considering "(1) the relevance of the evidence; (2) the availability of other evidence; (3) the government's role in the litigation; and (4) the extent to which disclosure would hinder frank and independent discussion regarding contemplated policies and decisions" (quoting Integrity Ins. Co., 165 N.J. at 85-86)). A-2287-19 26 Pa026

135 N.J. 53, 59 (1994)). "Second, the party seeking disclosure must show that he has an interest in the public record. More specifically, if the plaintiff is seeking 'disclosure of privileged records,' . . . he [or she] must show [a] 'particularized need.'" Ibid. (citation omitted) (quoting Wilson v. Brown, 404 N.J. Super. 557, 583 (App. Div. 2009)). To "determine[e] whether a party has articulated a particularized need," ibid., courts must analyze: "1) the extent to which the information may be available from other sources, 2) the degree of harm the litigant will suffer from its unavailability, and 3) the possible prejudice to the agency's investigation," id. at 196-97 (quoting McClain v. Coll. Hosp., 99 N.J. 346, 351 (1985)). Finally, "once the plaintiff's interest in the public record has been established, the burden shifts to the public entity to establish that its need for non-disclosure outweighs the plaintiff's need for disclosure." Ibid. This final step "requires the court to 'balance the plaintiff's interest in the information against the public interest in confidentiality of the documents, including a consideration of whether the demand for inspection is premised upon a purpose [that] tends to advance or further a wholesome public interest or a legitimate private interest.'" Drinker Biddle & Reath LLP v. N.J. Dep't of Law & Pub. Safety, Div. of Law, 421 N.J. Super. 489, 500 (App. Div. 2011) (quoting S. N.J. Newspapers, Inc. v. Twp. of Mt. Laurel, 141 N.J. 56, 72 (1995)). "Where A-2287-19 27 Pa027

'reasons for maintaining a high degree of confidentiality in the public records are present, even when the citizen asserts a public interest in the information, more than [the] citizen's status and good faith are necessary to call for production of the documents.'" Ibid. (alteration in original) (quoting S. N.J. Newspapers, Inc., 141 N.J. at 72). The pertinent factors for courts to consider in determining the balance under the third prong are: (1) the extent to which disclosure will impede agency functions by discouraging citizens from providing information to the government; (2) the effect disclosure may have upon persons who have given such information, and whether they did so in reliance that their identities would not be disclosed; (3) the extent to which agency self-evaluation, program improvement, or other decision making will be chilled by disclosure; (4) the degree to which the information sought includes factual data as opposed to evaluative reports of policymakers; (5) whether any findings of public misconduct have been insufficiently corrected by remedial measures instituted by the investigative agency; and (6) whether any agency disciplinary or investigatory proceedings have arisen that may circumscribe the individual's asserted need for the materials. [Loigman v. Kimmelman, 102 N.J. 98, 113 (1986).] "Against these and any other relevant factors should be balanced the importance of the information sought to the plaintiff's vindication of the public interest." Ibid. A-2287-19 28 Pa028

The motion court found the emails were privileged but then did not consider or make any findings as to whether plaintiff demonstrated a particularized need for the documents and otherwise satisfied his burden of establishing an entitlement to the documents under the common law right of access standard. See O'Boyle, 218 N.J. at 196. As a result, the court did not consider or determine whether there were issues of material fact precluding a determination of plaintiff's common law right of access claim or supporting defendants' argument plaintiff could not sustain the claim as a matter of law. Again, it is not our role to decide those issues for the first instance on appeal, see Est. of Doerfler, 454 N.J. Super. at 302, and we therefore vacate the court's order granting summary judgment to defendants on plaintiff's common law right of access claim, and remand for the court to reconsider its decision and make findings of fact and conclusions of law, see R. 1:7-4(a), supporting its determination based on the summary judgment record presented. Because a determination of the validity of plaintiff's claims must be first made by the trial court, we do not reach plaintiff's claim he is entitled to an award of attorneys' fees and costs based on defendants' alleged failure to honor their legal obligation to produce the requested emails. Any award of counsel fees shall abide the disposition of plaintiff's claims on remand. Due to the extant A-2287-19 29 Pa029

factual and other issues related to the disposition of defendants' summary judgment motion, we are also convinced the summary judgment record presents issues of material fact precluding plaintiff's cross-motion. We therefore affirm the court's denial of plaintiff's cross-motion. Our determinations are based solely on the summary judgment record presented. We do not offer an opinion on the merits of the parties' claims or arguments that may only properly be decided based on a complete review of the evidence and fact findings and conclusions of law founded on a complete record. Affirmed in part, vacated in part, and remanded for further proceedings in accordance with this opinion. We do not retain jurisdiction. A-2287-19 30 Pa030

Law Offices of Walter M. Luers, LLC 67 Beaver Avenue, Suite 18 Annandale, NJ 08801 INVOICE 908-894-5656 Invoice # 735 Invoice Date May 04, 2022 Matter # A-2287-19 (Team 02) Bill To: Due Due Upon Receipt Malanga v West Case/Matter Kevin Malanga, Esq. Orange_Appeal Date Description Staff Rate Hours Amount Feb 10, 2020 Rev'd eCourts email. Notice of AD $100.00 0.1 $10.00 Appeal filed by WML. Conf'd w/WML. Feb 10, 2020 Review file; prepare and file appeal; WML $450.00 1.2 $540.00 email filed appellate documents to client. Feb 11, 2020 Transcript fee - Deposit $150.00 Expense $150.00 Feb 12, 2020 Rev'd eCourts email re: transcript AD $100.00 0.3 $30.00 and conf'd w/WML. (.1) Rev'd eCourts email-Notice of Docketing filed. Saved and reviewed and docketed due dates. (.2) Feb 12, 2020 Filing Fees $250.00 Expense $250.00 Feb 27, 2020 Transcript fee - balance $25.89 Expense $25.89 Mar 28, 2020 Receipt and review of notice from WML $450.00 0.1 $45.00 Appellate Division; update docket. May 13, 2020 Work on brief. WML $450.00 6.0 $2,700.00 May 14, 2020 Prepare and file brief and appendix. WML $450.00 8.5 $3,825.00 May 19, 2020 Attention to providing paper copies WML $450.00 0.5 $225.00 of filed brief and appendix to Court. Jun 10, 2020 Review motion filed by defense WML $450.00 0.3 $135.00 counsel; exchange emails with defense counsel; email to client. Jun 11, 2020 Rev'd eCourts email. Motion filed by AD $100.00 0.3 $30.00

$135.00 counsel; exchange emails with defense counsel; email to client. Jun 11, 2020 Rev'd eCourts email. Motion filed by AD $100.00 0.3 $30.00 Defendant/Respondent. Saved and forwarded to FT to save to the network. Conf'd w/WML re: briefing schedule. Emailed client. Pa031

Jun 12, 2020 Attention to motion to file WML $450.00 0.3 $135.00 documents under seal; emails to defense counsel; file letter consenting to motion. Jun 12, 2020 Rev'd eCourts email - note to defense AD $100.00 0.1 $10.00 counsel from the Court. Jun 12, 2020 Rev'd additional eCourts email - AD $100.00 0.1 $10.00 motion answer filed by WML. Jun 19, 2020 Rev'd eCourts email. Order on AD $100.00 0.3 $30.00 Motion and Scheduling Order filed by the Court. Saved and forwarded to FT to save. Docketed due dates for briefs. Emailed client. Jul 12, 2020 File review. WML $450.00 0.1 $45.00 Jul 20, 2020 Read brief and appendix filed by WML $450.00 0.2 $90.00 Defendants. Jul 20, 2020 Rev'd eCourts email. Brief and AD $100.00 0.2 $20.00 Appendix filed by Defendants. Verified that same is saved to the network. Conf'd w/WML and emailed B&A to client. Jul 28, 2020 Careful reading of Defendant's brief. WML $450.00 1 $450.00 Prepare and file reply brief. Jul 31, 2020 Rev'd eCourts email. Saved the reply AD $100.00 0.2 $20.00 brief filed by WML and emailed to client. Total Fees $8,350.00 Total Expenses $425.89 Your retainer balance prior to this invoice : $0.00. Your current retainer Subtotal $8,775.89 balance as of 05/04/2022 is $0.00. Past Due Balance $0.00 Total

Past Due Balance $0.00 Total $8,775.89 Pa032

MON L 002616-17 05/13/2019 Pg 3 of 11 Trans ID: LCV2019843985 NOT TO BE PUBLISHED WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS GANNETT SATELLITE SUPERIOR COURT OF NEW JERSEY INFORMATION NETWORK, LLC D/B/A MONMOUTH COUNTY ASBURY PARK PRESS, LAW DIVISION, CIVIL PART DOCKET NO. L-2616-17 Plaintiff, v. TOWNSHIP OF NEPTUNE, Defendant. Decided: May 13, 2019 Thomas J. Cafferty, attorney for plaintiff (Gibbons P.C., attorneys). Jonathan F. Cohen, attorney for defendant (PLOSIA COHEN LLC, attorneys). Robert A. Honecker, attorney for amicus curiae Monmouth County Chiefs of Police Association (Ansell Grimm & Aaron P.C., attorneys). Vito A. Gagliardi, Jr., attorney for amicus curiae New Jersey State Association of Chiefs of Police (Porzio Bromberg and Newman P.C., attorneys). THORNTON, A.J.S.C. I. This matter comes before the court on defendant . request for access to Philip Seidle Open Public Records Act, N.J.S.A. 47:1A-1 to -13 OPRA was denied by this court, but access was granted under the common law. Because defendant and intervenors failed to offer controlling decisions or evidence that the court overlooked, failed to appreciate, or misinterpreted, the motion is denied. 1 Pa033