On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County.
Approved for Publication January 17, 1995.
Before Judges Baime, Kestin and A.a. Rodriguez. The opinion of the court was delivered by Kestin, J.A.D.
The opinion of the court was delivered by: Kestin
The opinion of the court was delivered by
In a complaint in lieu of prerogative writ, plaintiff, a local police union, asserted the Right-to-Know Law, N.J.S.A. 47:1A-1 to -4, specifically N.J.S.A. 47:1A-2, as a basis for seeking an order granting it access to "copies of any and all bills from any attorneys, arbitrators, or other professionals of any kind, hired by the Township [of Franklin (defendant)] in connection with any policy matter from January, 1990 through and inclusive of [April 26, 1994]." Plaintiff also sought attorneys fees and costs. Plaintiff did not plead its common law right of access to the documents in question.
Defendant, in its answer, denied that the statute conferred a right of access to the indicated information. Among the affirmative defenses pleaded were the protection of the attorney-client privilege, and waiver and estoppel by reason of a written agreement between representatives of the parties wherein plaintiff "agreed to withdraw and not pursue in any forum any then-outstanding issues between the parties."
Defendant also asserted in two counterclaims that the agreement not to pursue further claims against defendant was a fraudulent inducement on defendant to enter into the parties' collective bargaining agreement, or that violation of the agreement not to pursue outstanding issues was a breach of the collective bargaining agreement. Defendant sought recission of the collective bargaining agreement, reimbursement for all paid increases in salary, benefits and other compensation provided in that agreement, damages and counsel fees.
Without answering the counterclaims, plaintiff moved for summary judgment on its complaint, together with counsel fees pursuant to N.J.S.A. 47:1A-4 and N.J.S.A. 2A:15-59.1, and a dismissal of the counterclaims. Defendant cross-moved for summary judgment on both the complaint and the counterclaims.
After argument on the return date of the motions, the trial Judge rendered an oral opinion holding that the requested documents were public records under the Right-to-Know Law, rejecting defendant's affirmative defense that the documents were protected by the attorney-client privilege, and denying counsel fees to both parties. Defendant's counterclaims were seen as moot, and the trial Judge did not address the waiver/estoppel defense. The order memorializing the trial court's ruling required defendant to produce the disputed documents within five days and formally dismissed the counterclaims as moot.
After defendant's notice of appeal was filed, we granted a stay pending appeal. Plaintiff cross-appealed from the denial of counsel fees.
We affirm the trial court's determinations that N.J.S.A. 47:1A-1 and -2 require disclosure of the disputed documents, and that the documents are not insulated from disclosure by the attorney-client privilege. We are in substantial agreement with the trial Judge's reasoning that the billings sought are subject to disclosure because they are required by law to be submitted before any payment may be made and that, in preparing, processing and submitting them, defendant and its attorneys are obliged to conform with specific requirements of law, N.J.S.A. 40A:5-16a; because the billings are required by statute to carry a certification from an appropriate local officer that the goods provided or services rendered were received, N.J.S.A. 40A:5-16b, thereby establishing the billings as documents "required by law to be made...by" the local officer, N.J.S.A. 47:1A-2; and because a record, "open to the public," must be kept of "all claims approved for payment", N.J.S.A. 40A:5-18. The latter provision, not only requires that a record of such documents must be kept by a public officer, satisfying a criterion for public disclosure under the Right-to-Know Law, but it is also a separate public disclosure statute because it provides that "the record of approval shall be open to the public."
We note also that the trial Judge was correct to perceive the "made...by" criterion of N.J.S.A. 47:1A-2 to be a separate standard from the "maintained...by" and "kept on file by" tests. A document that satisfies any one of these three criteria is subject to disclosure under the statute.
As a separate basis for inclusion within the ambit of the Right-to-Know Law, we are also in substantial agreement with the trial Judge's observation: "There can't be any credible argument by defendant that these documents are not required to be kept or maintained[ ]" by the standards of good fiscal practice embodied in the Local Fiscal Affairs Law, N.J.S.A. 40A:5-1 to -42, even if there were no particular statutory provision requiring that they be kept or maintained. See Board of Ed. of Newark vs. Department of the Treasury, 279 N.J. Super. 489, 498-502, 653 A.2d 589 (App. Div.), leave to appeal granted, 142 N.J. 440-41 (1995). Furthermore, and most generally in respect of the legislative design in enacting the Right-to-Know Law, see North Jersey Newspapers Co. v. Passaic County, 127 N.J. 9, 18, 601 A.2d 693 (1992), we can conceive of nothing more within the scope of the public's ...