The New Jersey Supreme Court recently addressed what happens when the New Jersey Open Public Records Act (OPRA) and attorney-client privilege intersect. In O’Boyle v. Borough of Longport, the state’s highest court specifically addressed the application of the common interest rule to litigation documents requested under OPRA and the common law right to access government records.
The Facts of the Case
Plaintiff Martin E. O’Boyle sought to compel defendants Borough of Longport (Longport) and Longport’s Clerk and Custodian of Records, Thomas Hiltner, to produce certain letters and compact discs (CDs) pursuant to OPRA and the common law right of access. The items requested consisted of litigation materials and correspondence exchanged between Longport’s municipal attorney and David Sufrin, private counsel for a former Planning and Zoning Board member and other persons who were involved in lawsuits with O’Boyle.
Longport provided some of the items requested, but refused to supply correspondence exchanged between the attorneys, of which several letters were expressly captioned “Confidential: Joint-Defense Strategy Memorandum-Attorney Joint Defense Work Product not for Disclosure to Third Parties.” O’Boyle subsequently filed suit.
The trial court ruled that the documents were not subject to production under OPRA, and the Appellate Division affirmed. It held that “the requested materials advanced a common interest, i.e., the defense of litigation spanning several years initiated by plaintiff related to his ongoing conflicts with Longport and individuals associated with the municipality. Thus the letters and CDs are protected by the work product privilege, an exception to OPRA.”
The Court’s Decision
The New Jersey Supreme Court agreed. “Because Longport and its officials, and Sufrin and his clients share a common interest, we conclude that the letters and CDs in this case, prepared in the process of developing a litigation defense strategy against one individual, are items protected by the work product privilege,” the court held.
In reaching its decision, the court expressly adopted the common interest rule as articulated in LaPorta v. Gloucester County Board of Chosen Freeholders, 340 N.J. Super. 254 (App. Div. 2001). “The common-interest exception to waiver of confidential attorney-client communications or work product due to disclosure to third parties 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,” the court stated.
With regard to OPRA, the court highlighted that the attorney-client privilege may shield documents that otherwise meet the statutory definition of government record from inspection or production. “The privilege also extends to consultation with third parties whose presence and advice are necessary to the legal representation,” the court concluded.
The much-anticipated decision is good news, as it ensures that municipal and private attorneys will be able to share information and work together without fear that doing so destroys attorney-client privilege
For more information about this case or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.