NEW JERSEY SECOND AMENDMENT SOCIETY VS. DIVISION OF STATE POLICE, ETC. (L-1143-11, MERCER COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2033-15T1
NEW JERSEY SECOND AMENDMENT
SOCIETY,
Plaintiff-Appellant,
v.
DIVISION OF STATE POLICE OF THE
NEW JERSEY DEPARTMENT OF LAW AND
PUBIC SAFETY,
Defendant-Respondent.
____________________________________
Argued October 30, 2017 – Decided June 19, 2018
Before Judges Messano and Vernoia.
On appeal from the Superior Court of New
Jersey, Law Division, Mercer County, Docket
No. L-1143-11.
Richard M. Gutman argued the cause for
appellant.
Daniel M. Vannella, Deputy Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General, attorney; Lisa
A. Puglisi, Assistant Attorney General, of
counsel; Daniel M. Vannella, on the brief).
PER CURIAM
Plaintiff New Jersey Second Amendment Society appeals from
an order finding defendant New Jersey State Police's (NJSP)
production of a redacted version of its Firearms Applicant
Investigation Guide (Guide) complied with the requirements of the
Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and
dismissing the complaint. We affirm in part, vacate in part and
remand for further proceedings.
I.
We detailed the facts in our initial decision in his matter,
N.J. Second Amendment Soc'y v. Div. of State Police of the N.J.
Dep't of Law & Pub. Safety, No. A-2103-11T3, A-2396-11T3 (App.
Div. May 14, 2015) (slip. op. at 4-8), and briefly summarize the
facts pertinent to this appeal. In 2011, plaintiff served the
NJSP with an OPRA request for production of "the most recent
version" of the Guide. The NJSP distributes the Guide to State
Police officers and municipal police departments throughout New
Jersey to aid in the investigation of "firearms-related
applications" and enforcement of "the State's firearms regulations
in a uniform and standardized manner."
The NJSP denied plaintiff's request, asserting the Guide was
exempt from disclosure under OPRA pursuant to a proposed
regulation, N.J.A.C. 13:1E-3.2(a) (2011), which was implemented
on November 3, 2010, pursuant to then-Governor Chris Christie's
2 A-2033-15T1
Executive Order No. 47.1 See Exec. Order No. 47 (Nov. 3, 2010),
42 N.J.R. 2830(a) (Dec. 6, 2010). The regulation exempted from
OPRA's definition of government records all "[s]tandard
[o]perating [p]rocedures and training materials," N.J.A.C. 13:1E-
3.2(a)(1) (2011), and "[r]ecords which may reveal . . . an agency's
surveillance, security or investigative techniques or procedures
. . . ," N.J.A.C. 13:1E-3.2(a)(3) (2011).
Plaintiff filed a verified complaint challenging the NJSP's
denial, and the Law Division subsequently determined the NJSP
properly denied access to the Guide and dismissed the complaint.
Three days later, N.J.A.C. 13:1E-3.2(a) (2011), which had been
adopted by the Department of Law and Public Safety (LPS), became
effective. 43 N.J.R. 3188(b) (Dec. 5, 2011). Plaintiff appealed
the order dismissing the complaint.
In our decision on appeal, we explained that following the
complaint's dismissal, LPS proposed amendments to N.J.A.C. 13:1E-
3.2(a) (2011) because "paragraph a(1) of the [r]egulation 'd[id]
not clearly express the purpose for which it was promulgated – to
serve the public interest in protecting the confidentiality of
[LPS's] law enforcement and legal services functions.'" N.J.
1
The Executive Order stated the proposed rule, and others, "shall
be and shall remain in full force and effect pending their adoption
as final rules pursuant to the provisions of the Administrative
Procedure Act," N.J.S.A. 52:14B-1 to -31. Exec. Order No. 47.
3 A-2033-15T1
Second Amendment Soc'y, slip op. at 6 (second and third alteration
in original) (quoting 45 N.J.R. 2023(a) (Sept. 3, 2013)). We
explained LPS intended the amendments "to clarify that not all
[LPS] standard operating procedures and training materials are
considered confidential." Ibid. (alteration in original) (quoting
45 N.J.R. 2023(a)). The amendments therefore limited the OPRA
exemption to only those standard operating procedures and training
materials that "may reveal an agency's investigative . . . or
operational techniques, measures, or procedures which, if
disclosed, would create a risk to the safety of persons [or]
property, . . . or compromise an agency's ability to effectively
conduct investigations . . . ." Id. at 6-7 (emphasis in original)
(quoting 45 N.J.R. 2023(a)).
We further noted the amended N.J.A.C. 13:1E-3.2(a), which
became effective April 7, 2014, provides in pertinent part as
follows:
[T]he following records shall not be
considered government records subject to
public access pursuant to [OPRA]:
. . . .
2. Records, including standard operating
procedures, manuals, and training materials,
that may reveal . . . an agency's
surveillance, security, tactical,
investigative, or operational techniques,
measures, or procedures, which, if disclosed,
would create a risk to the safety of persons,
4 A-2033-15T1
property, electronic data, or software, or
compromise an agency's ability to effectively
conduct investigations;
[Id. at 7-8 (emphasis added) (quoting N.J.A.C.
13:1E-3.2(a)(2)).]
We observed the Law Division considered plaintiff's request
for the Guide under N.J.A.C. 13:1E-3.2(a) (2011), which included
a blanket exemption from OPRA's definition of government records
for all standard operating procedures, id. at 8, and noted that
where a government entity "asserts an exemption, OPRA clearly
favors the production of redacted government records," id. at 13
(citing N.J.S.A. 47:1A-5(g)). We therefore reversed the order
dismissing the complaint and remanded for the trial court to
conduct a hearing to determine "whether [the amended] section a(2)
of [N.J.A.C. 13:1E-3.2] applies to exempt the Guide from OPRA's
definition of a government record and whether the Guide should be
produced in redacted form." Ibid.
Following the remand, the NJSP provided the Guide to plaintiff
with the following portions redacted: (1) a section titled
"Investigation" and five sections titled "Investigation of the
Applicant," each of which detail investigatory procedures for
various firearms-related applications;2 (2) the Firearms
2
We have been provided with the redacted and unredacted versions
of the Guide provided to the trial court. The redacted
5 A-2033-15T1
Investigation Report Form 407 (the Form) and the accompanying
description of the procedure for completing and utilizing the Form
during an investigation; and (3) Attachments A, B and C, consisting
of two letters and one memorandum from the Attorney General's
office that include general legal guidance pertaining to firearms
permit processing. More particularly, Attachment A is a January
24, 1996 letter from a Deputy Attorney General to a Piscataway
Police Department detective. Attachment B is an undated and
unsigned letter to a Deputy Attorney General. Attachment C is a
May 26, 2000 memorandum from a Deputy Attorney General to the Unit
Head of the NJSP Firearms Investigation Unit.
On remand, the court conducted an in camera review of the
redacted and unredacted versions of the Guide. The court also
considered a certification from NJSP Lieutenant Glenn Ross3
"Investigation" paragraphs are contained in the Guide's "General
Information" section. The redacted paragraphs titled
"Investigation of the Applicant" are respectively contained in the
Guide's "Firearms ID Cards," "Permit to Purchase," "Duplicate ID
Cards," "Permit to Carry," and "Police Applicants ID Cards"
sections. The redacted Firearms Investigation Report Form 407 and
a description of the procedures for completing and utilizing the
Form during an investigation are included in the Guide's "Firearms
Investigation Report" section.
3
The court was also presented with the certification of NJSP
Lieutenant Darryl L. Williams, who is assigned to the Firearms
Investigation Unit. Williams's certification also explains the
NJSP's redactions to the Guide and the manner in which disclosure
of the redacted information in the sections titled "Investigation"
6 A-2033-15T1
explaining the NJSP limited its redactions of the Guide to "only
. . . the steps . . . implemented when conducting the actual
investigation of firearms applicants, the forms used solely for
the investigation itself, and attorney-client privileged"
correspondence which "provid[ed] legal advice on certain issues
related to firearms law."
Ross certified the redacted materials and standards describe
uniform investigatory procedures and "reveal exactly how the
investigations are to be conducted, and what steps to take and
even in what specific order." The redacted portions explain the
investigators' "sources of information when conducting an
investigation," identifies the "types of databases" utilized, and
specifies "what parts of the databases to access, and at what
points in time during the investigation to do so." Ross also
explained that the redacted portions of the Guide "show exactly
what types of information the investigator is to derive from the
applicant and" how to address "different responses" from the
applicant and "the applicant's references."
According to Ross, disclosure of the redacted portions of the
Guide "would provide the same detailed insight into how the
and "Investigation of Applicant," and those describing the Form,
will interfere with law enforcement's ability to effectively
investigate firearms permit applications.
7 A-2033-15T1
investigations are conducted to those who are being investigated"
and interfere with law enforcement's ability to "to weed out
applicants who are attempting to circumvent the firearms laws."
He explained that disclosure of the redacted investigative
techniques, references to databases, and indicators investigators
are directed to consider when speaking with applicants and their
references would permit those being investigated "to circumvent
[the] procedures or manipulate the investigative process."
Ross further stated that a firearms applicant investigation
report is confidential under N.J.A.C. 13:54-1.15,4 and disclosure
of its contents would reveal investigator work product, including
the manner in which an investigation is conducted, and what
information was and is being sought from various sources. Ross
opined that releasing the Form, and the accompanying redacted
materials describing the procedure for completing the Form, would
result in disclosure of investigatory techniques that would aid
applicants seeking to circumvent and manipulate the investigatory
process.
4
In pertinent part, N.J.A.C. 13:54-1.15 states that "any
background investigation conducted . . . of any applicant for a
permit, firearms identification card license, or registration
. . . is not a public record and shall not be disclosed to any
person not authorized by law . . . ."
8 A-2033-15T1
Ross explained the purpose of the firearms permit applicant
investigatory process is to protect public safety. He stated that
disclosure of the redacted investigatory techniques and procedures
would "compromise [the] agency's ability to effectively conduct
investigations" and "increase the risk that those seeking to
unlawfully obtain firearms would succeed in doing so."
In its oral opinion, the court accepted Ross's unrebutted
representations and found disclosure of the redacted sections of
the Guide would provide "a precise roadmap into the entire
investigation of a firearms application" to those with an "intent
to circumvent the law." The court determined disclosure of the
redacted investigative techniques created a risk to public safety.
The court also rejected plaintiff's contention there was a waiver
of the attorney-client privilege as to the letters and memorandum
from the Attorney General's office, finding there was no evidence
they were publicly distributed or otherwise made publicly
available. The court determined the redacted portions of the
Guide were exempt from disclosure under N.J.A.C. 13:1E-3.2(a)(2),
and entered an order dismissing the complaint.
Plaintiff appealed and presents the following arguments for
our consideration:
9 A-2033-15T1
POINT I
OPRA REQUIRES THAT REDACTIONS BE MINIMIZED AND
JUSTIFIED[.]
POINT II
[THE] TRIAL COURT . . . ERRED IN DENYING ACCESS
TO ALL OF THE GUIDE'S INFORMATION REGARDING
INVESTIGATORY PROCEDURES.
A. Contrary to the Appellate Division's
instruction[s] to minimize redactions, the
trial court . . . erred by permitting NJSP to
redact all portions of the Guide regarding
investigative procedures as if the defunct
blanket exemption for all investigative
procedures were still in effect[.]
B. [The] [t]rial court . . . disregarded the
Appellate Division's suggestion that
publicly-available information be
disclosed[.]
1. [The] [t]rial court . . . failed to consider
that the redacted Firearms Application
Investigation Report form is currently
available to the world on NJSP's website[.]
2. [The] [t]rial court decision failed to
consider that the other redacted investigative
information includes publicly-available
information.
C. [T]he [t]rial court . . . erred by accepting
a conclusory assertion of harm[.]
POINT III
[THE] [T]RIAL COURT . . . ERRED IN RULING THAT
NJSP'S DISTRIBUTION OF THE GUIDE'S ATTACHMENTS
A, B, AND C TO POLICE DEPARTMENTS THROUGHOUT
THE STATE AND POSTING ON NJSP'S WEBSITE DID
NOT WAIVE NJSP'S ATTORNEY-CLIENT PRIVILEGE[.]
10 A-2033-15T1
A. NJSP did not even attempt to satisfy its
burden of proving that the Guide it
distributed to numerous police departments
omitted Attachments A, B, and C[.]
B. NJSP did not even attempt to satisfy is
burden of proving that the editions of the
Guide it previously posted on its website
omitted Attachments A, B, and C[.]
II.
A "trial court's determinations with respect to the
applicability of OPRA are legal conclusions subject to de novo
review." K.L. v. Evesham Twp. Bd. of Educ., 423 N.J. Super. 337,
349 (App. Div. 2011) (quoting O'Shea v. Twp. of W. Milford, 410
N.J. Super. 371, 379 (App. Div. 2009)). "Our standard of review
is plenary with respect to [a court's] interpretation of OPRA and
its exclusions." Gilleran v. Twp. of Bloomfield, 440 N.J. Super.
490, 497 (App. Div. 2015), rev'd on other grounds, 227 N.J. 159(2016): accord Brennan v. Bergen Cty. Prosecutor's Office, ___
N.J. ___, ___ (2018). We employ those standards in considering
application of N.J.A.C. 13:1E-3.2(a)(2) to the redacted Guide.
See Klawitter v. City of Trenton, 395 N.J. Super. 302, 318 (App.
Div. 2007) (noting "the interpretation of . . . regulations . . .
is a purely legal issue, which we consider de novo").
In enacting OPRA, the Legislature intended "to maximize
public knowledge about public affairs in order to ensure an
informed citizenry and to minimize the evils inherent in a secluded
11 A-2033-15T1
process." Mason v. City of Hoboken, 196 N.J. 51, 64 (2008)
(quoting Asbury Park Press v. Ocean Cty. Prosecutor's Office, 374
N.J. Super. 312, 329 (Law Div. 2004)). OPRA mandates that
"government records shall be readily accessible for inspection,
copying, or examination by the citizens of this State, 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.
The right of access to government records under OPRA is not
absolute. Kovalcik v. Somerset Cty. Prosecutor's Office, 206 N.J.
581, 588 (2011). "That conclusion rests on the fact that OPRA
exempts numerous categories of documents and information from
disclosure." Ibid. Among those categories are exemptions for
"any record within the attorney-client privilege . . .; [and]
security measures and surveillance techniques which, if disclosed,
would create a risk to the safety of persons, property, electronic
data or software . . . [.]" N.J.S.A. 47:1A-1.1. In addition, "an
exemption from a right of public access to a government record can
be established . . . by [an] administrative rule . . . ." Slaughter
v. Gov't Records Council, 413 N.J. Super. 544, 550 (App. Div.
2010) (quoting Mason, 196 N.J. at 65); see also N.J.S.A. 47:1A-
9(a).
12 A-2033-15T1
Here, we consider whether the redacted portions of the Guide
are exempt from disclosure under N.J.A.C. 13:1E-3.2(a)(2) as
"investigative, or operational techniques, measures or procedures,
which, if disclosed, would . . . compromise [the NJSP's] ability
to effectively conduct [firearms permit] investigations," as
required by our remand.
III.
We first turn to whether the redacted sections of the Guide
titled "Investigation" and "Investigation of the Applicant," and
the Form and Guide materials describing the procedure for
completing and utilizing the Form are exempt from OPRA disclosure.
Confidentiality in investigative techniques is "vital not only
because it serves to protect government sources of information,
but also because it enhances the effectiveness of investigative
techniques and procedures." N. Jersey Media Grp., Inc. v. Bergen
Cty. Prosecutor's Office, 447 N.J. Super. 182, 203 (App. Div.
2016). This is precisely the underlying purpose of N.J.A.C. 13:1E-
3.2(a)(2). See 45 N.J.R. 2023(a) (stating that the purpose of
N.J.A.C. 13:1E-3.2(a)(2) is to protect the confidentiality of
records which, if disclosed, would compromise an agency's
investigatory process).
The parties do not dispute that the redacted portions of the
Guide describing specific investigatory procedures for various
13 A-2033-15T1
firearms applications are "investigative techniques" under
N.J.A.C. 13:1E-3.2(a)(2). Rather, plaintiff contends the NJSP has
not met its burden of showing that disclosure of the investigative
techniques would "compromise [its] ability to effectively conduct
[firearms] investigations" under N.J.A.C. 13:1E-3.2(a)(2). We
disagree.
"The law . . . places the burden on the public agency to
prove that it appropriately denied a request," Brennan, ___ N.J.
at ___ (citing N.J.S.A. 47:1A-6), and that its denial is authorized
by law, Paff v. Ocean Cty. Prosecutor's Office, 446 N.J. Super.
163, 178 (App. Div.) (citing N.J.S.A. 47:1A-6), certif. granted,
228 N.J. 403 (2016). Generally, "[u]nder OPRA, a public agency
seeking to restrict the public's right of access to government
records must produce specific reliable evidence sufficient to meet
a statutorily recognized basis for confidentiality." Courier News
v. Hunterdon Cty. Prosecutor's Office, 358 N.J. Super. 373, 382-
83 (App. Div. 2003).
The N.J.A.C. 13:1E-3.2(a) exemption adopted in 2014 was
intended to include firearms application investigative techniques
and procedures such as those encompassed in the redacted portions
of the Guide. In its proposal for the 2014 amendments to N.J.A.C.
13:1E-3.2(a), LPS expressly stated the exemption "covers . . . the
standard operating procedure[s] for investigation of firearms
14 A-2033-15T1
applications." 45 N.J.R. 2023(a). Thus, LPS recognized, as the
motion court did here, that disclosure of firearms application
investigative techniques and procedures created a risk to public
safety and would compromise law enforcement's ability to
effectively investigate firearms applications.
In addition, on remand the NJSB submitted specific reliable
evidence establishing that disclosure of the Guide's sections
titled "Investigation," "Investigation of the Applicant," and the
Form and the Guide materials describing the procedure for
completing and utilizing the Form "would create a risk to the
safety of persons, property, . . . or compromise [its] ability to
effectively conduct investigations." N.J.A.C. 13:1E:3.2(a)(2).
As the trial court observed, Ross provided a detailed and credible
explanation that the redacted sections of the Guide detail the
techniques, timing, information, data sources, and response
strategies law enforcement officers are required to employ and
follow in their investigations of individuals seeking various
firearms permits. Moreover, although the court did not expressly
rely on the Williams certification, it also provides evidential
support for the court's findings. The certifications establish
that disclosing the redacted information would provide applicants
being investigated with the ability to manipulate and circumvent
the investigative process and, in doing so, interfere with law
15 A-2033-15T1
enforcement's "ability to effectively conduct" firearm permit
investigations. N.J.A.C. 13:1E-3.2(a)(2).
We are therefore satisfied the credible evidence supports a
finding that the redacted sections of the Guide are exempt from
disclosure under OPRA pursuant to N.J.A.C. 13:1E-3.2(a)(2).
IV.
We are also not persuaded by plaintiff's contention the Form
and Guide materials describing its completion and use should be
disclosed because it is publically available on the internet. We
have compared the version of the Form plaintiff contends is
available on the internet with the current Form provided for our
in camera review, and the two versions are different. Thus, the
premise for plaintiff's contention – that the NJSP has made the
current Form publically available – is erroneous.
Plaintiff also argues that since the NJSP once made other
versions of the Form publicly available, there is a diminished
need for confidentiality. Plaintiff relies on language in Keddie
v. Rutgers, State University, 148 N.J. 36, 50-52 (1997), where the
Court addressed the effect of public disclosure of documents on
the balancing of interests required to assess a request made under
the common-law right of access to public records. Here, however,
we are not required to conduct the balancing test the Court applied
in Keddie because we consider only whether the redacted portions
16 A-2033-15T1
of the Guide are exempt from disclosure under N.J.A.C. 13:1E-
3.2(a)(2). Id. at 49-50.
We reject plaintiff's assertion the NJSP "closed the barn
door after the horse escaped," by removing a prior version of the
Form from its homepage. As noted, plaintiff has not demonstrated
the current version of the Form is publicly available. Moreover,
the mere fact that a prior, different version may be available
does not diminish the NJSP's interest in keeping its current
investigatory techniques confidential, nor does it diminish the
applicability of N.J.A.C. 13:1E-3.2(a)(2)'s exemption to the
current version.5
V.
We next consider the court's finding that Attachments A, B
and C are exempt from disclosure because they are attorney-client
privileged communications. See N.J.S.A. 47:1A-1.1 (exempting
attorney-client privileged communications from the definition of
government records under OPRA).
5
We therefore deny plaintiff's motion (M-000183-16) to take
judicial notice of materials it contends are available on the
internet, or, in the alternative, to supplement the record with
such materials.
17 A-2033-15T1
Plaintiff concedes the Attachments constitute attorney-
client privileged communications,6 see, e.g., Paff v. Div. of Law,
412 N.J. Super. 140, 154 (App. Div. 2010) ("[T]he attorney-client
privilege applies whenever confidential legal advice is rendered
to state agencies, whether by private counsel . . . or by the
Division [of Law] . . . ."), but argues the NJSP waived the
privilege by disseminating the Attachments with the Guide to police
departments throughout the State.
The attorney-client privilege is codified in N.J.S.A. 2A:84A-
20(1) and N.J.R.E. 504. The purpose of the attorney-client
privilege is "to encourage clients to make full disclosure to
their attorneys." Paff, 412 N.J. Super. at 150 (quoting Macey v.
Rollins Envtl. Servs. (N.J.), Inc., 179 N.J. Super. 535, 539 (App.
Div. 1981)). The attorney-client privilege is "ordinarily waived
when a confidential communication between an attorney and a client
is revealed to a third party." O'Boyle v. Borough of Longport,
218 N.J. 168, 186 (2014) (citation omitted).
In our view, the evidentiary record before the trial court
is insufficient to permit a determination of whether distribution
6
We are therefore not required to determine whether Attachments
A, B and C are in fact attorney-client privileged communications.
An issue not briefed on appeal is deemed waived. Jefferson Loan
Co. v. Session, 397 N.J. Super. 520, 525 n.4 (App. Div. 2008);
Zavodnick v. Leven, 340 N.J. Super. 94, 103 (App. Div. 2001).
18 A-2033-15T1
of Attachments A, B and C as part of the Guide to multiple law
enforcement agencies resulted in a waiver of the attorney-client
privilege. The court did not, however, determine the identity of
the client for each of the communications, see N.J.S.A. 2A:84A-
20(1); N.J.R.E. 504 (providing that the "client has [the]
privilege"); see also Paff, 412 N.J. Super. at 151 (finding the
State agency to which the Division of Law provides legal advice
is the client for purposes of determining the attorney-client
privilege), and did not consider or decide whether distribution
of each of the communications resulted in the client's waiver of
the privilege.
For those reasons, we remand for the court to determine
whether there was a waiver of the attorney-client privilege as to
the communications in Attachments A, B and C. If it determines
the privilege was waived as to any of the Attachments, the court
shall order disclosure of the Attachment.
The NJSP claims it did not waive the privilege by
disseminating the Attachments with the Guide because the
"execution and enforcement" of firearms laws are "responsibilities
shared between the NJSP and other, local law enforcement agencies."
The NJSP also asserts that such disclosures are regarded "as part
of the same client or co-clients, or as third parties with a common
interest in the enforcement of the State's firearms application
19 A-2033-15T1
laws," and relies on the New Jersey Supreme Court's decision in
O'Boyle, 218 N.J. at 185-88, and our decision in In re Grand Jury
Subpoenas Duces Tecum Served by Sussex County., 241 N.J. Super.
18 (App. Div. 1989).
The NJSP's reliance on Grand Jury Subpoenas, 241 N.J. Super.
at 32, is misplaced. In Grand Jury Subpoenas, a Sussex County
Freeholder publicly distributed a preliminary report prepared by
a private law firm the Sussex County Board of Freeholders retained
to serve as special counsel. Id. at 22. The report "contain[ed]
a thorough review of State statutes and regulations and ma[de]
various recommendations to correct the deficiencies found to exist
in the Adjuster's Office." Id. at 22-23.
There, we determined that the Freeholder's public release of
the report did not constitute a complete waiver of the attorney-
client privilege between the firm and the Board because the report
"did not expressly disclose communications made to [the firm] by
the Board. Rather, it set forth the statutory and regulatory
framework within which the Adjuster's Office must operate and
provided preliminary recommendations designed to cure deficient
past practices and procedures." Id. at 31-32. Thus, we held that
the public release was merely a "limited disclosure" that did not
constitute an "absolute and complete waiver" of the privilege.
Id. at 31. We did not hold the documents themselves were protected
20 A-2033-15T1
from further disclosure, but rather, that their dissemination did
not result in a complete waiver of the privilege and thus the
firm's attorneys were not required to testify to privileged
information regarding their representation of the Board of
Freeholders. Ibid.Although we recognize that the Attorney General is "the sole
legal adviser, attorney or counsel, . . . for all officers,
departments, boards, bodies, commissions and instrumentalities of
the State Government," Paff, 412 N.J. Super. at 151, it does not
follow that the privilege is always preserved where State and
municipal agencies share confidential attorney-client
communications or information with one another. Thus, we are
unconvinced the Court's holding in O'Boyle, 218 N.J. at 201,
supports the NJSP's assertion that the NJSP and local law
enforcement agencies share a "common interest," and NJSP's
dissemination of the Attachments to third parties — other law
enforcement agencies — did not constitute a waiver of the
privilege.
In O'Boyle, the plaintiff sought documents exchanged between
a private attorney representing a former Longport zoning and
planning board member and the attorney representing the Longport
municipality. Id. at 176. There, the private attorney prepared
a "joint strategy memorandum and a compendium of documents . . .
21 A-2033-15T1
and sent them to the municipal attorney" following an agreement
"that they cooperate in the defense of current and anticipated
litigation filed by [the plaintiff]." Id. at 176-77.
The O'Boyle Court expressly adopted the three-pronged "common
interest rule" as articulated in Laporta v. Gloucester County
Board of Chosen Freeholders, 340 N.J. Super. 254, 262 (App. Div.
2001). Id. at 198-99. Under this rule, a party may invoke a
common interest exception to waiver of the attorney-client
privilege resulting from disclosure to third parties where:
(1) the disclosure is made due to actual or
anticipated litigation; (2) for the purpose
of furthering a common interest; and (3) the
disclosure is made in a manner not
inconsistent with maintaining confidentiality
against adverse parties. It is not necessary
for actual litigation to have commenced at the
time of the transmittal of information for the
privilege to be applicable.
[Id. at 190-91 (internal citations omitted)
(quoting Laporta, 340 N.J. Super. at 262).]
The Court further noted that "communications need not only
be among counsel for the clients[;] [c]ommunications between
counsel for a party and an individual representative of a party
with a common interest are also protected." Id. at 191 (quoting
Laporta, 340 N.J. Super. at 262). The Court determined the
documents sought by the plaintiff were exempt from OPRA disclosure
under the first two Laporta prongs because the clients anticipated
22 A-2033-15T1
future litigation from plaintiff and shared a common purpose: "to
repel further legal challenges from a citizen who did not agree
with the manner in which elected and appointed officials discharged
their public duties." Id. at 199.
The Court also determined that the manner in which the
material was disseminated was "calculated to preserve its
confidentiality" under the third Laporta prong because "[t]here
[was] no evidence that the municipal attorney shared the material
with anyone else." Id. at 200. The Court affirmed our
determination that the municipal residents and the former board
member "shared a common interest that permitted non-disclosure of
the withheld documents." Id. at 177, 201.
Here, the record is inadequate to determine if the
circumstances surrounding the dissemination of one or more of the
Attachments support application of the common interest exception
to waiver of the attorney-client privilege under the Laporta
standard. We do not decide the issue and leave its resolution to
the remand court.
Accordingly, we vacate the Law Division's order determining
there was no waiver of the attorney-client privilege as to
Attachments A, B and C.
Plaintiff's remaining arguments are without merit sufficient
to warrant discussion in a written opinion. R. 2:11-3(e)(3)(E).
23 A-2033-15T1
Affirmed in part, vacated in part, and remanded for further
proceedings in accordance with this opinion. We do not retain
jurisdiction.
24 A-2033-15T1