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Sussex Commons Associates, LLC v. Rutgers

October 25, 2010


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8465-06.

The opinion of the court was delivered by: Fuentes, J.A.D.



Argued April 13, 2010

Before Judges Fuentes, Gilroy and Simonelli.

Plaintiffs Sussex Commons Associates, LLC, and Howard Buerkle filed a formal request under the Open Public Records Act ("OPRA"), N.J.S.A. 47:1A-1 to -13, with the Custodian of Records for Rutgers, the State University, seeking access to eighteen categories of documents concerning the Environmental Law Clinic (Clinic) operated by Rutgers Law School in Newark. The request sought documents related to the Clinic's finances and its representation of two private citizens' groups that were opposing plaintiffs' proposed development of an outlet mall.

The Custodian denied plaintiffs' request because, in her view, the request was "open-ended" and did not identify what particular documents plaintiffs sought to inspect or copy. Instead of narrowing the request or identifying the specific documents they sought to inspect and copy, plaintiffs filed an action in lieu of prerogative writs in the Law Division seeking relief under both OPRA and our State's common law right of access. Plaintiffs named as defendants Rutgers, the State University, the Clinic, and the Custodian of Records for Rutgers University.

After the Law Division granted defendants' motion to transfer venue from Sussex County to Middlesex County, the parties conducted discovery under a court-ordered schedule during which the Custodian submitted a supplemental response to plaintiffs' initial OPRA request. On the return date of the order to show cause, the court ruled that the Environmental Law Clinic was not subject to OPRA and dismissed plaintiffs' complaint. The court did not address plaintiffs' claims under the common law right of access.

Plaintiffs now appeal, arguing that the trial court erred in denying their request for these records pursuant to both OPRA and the common law right of access. Defendants and amici curiae urge us to uphold the ruling of the trial court. After reviewing the record developed by the parties, we reverse the trial court's ruling exempting the Clinic from the provisions of OPRA and remand for the trial court to determine whether the specific documents requested by plaintiffs are exempt from disclosure under the definition of "government record" in N.J.S.A. 47:1A-1.1. To the extent that OPRA may not provide complete relief, the trial court shall also review and decide plaintiffs' requests under our State's common law right of access.

The following facts will inform our discussion of the issues raised by the parties.


The Clinic at Rutgers Law School (Law School) in Newark has been in existence since 1985. The Clinic provides pro bono environmental legal services to the public and offers the students attending the Law School a unique and challenging didactic experience: the opportunity to work on real cases under the supervision of their professors, thereby creating a "hands-on" legal experience while providing under-represented clients with competent legal assistance.

The Clinic is one of eight clinical programs affiliated with the Law School. They share office space and have dedicated computer systems that are physically separate from the Law School and the University. As part of the Law School, public funds underwrite a portion of the operating expenses of the Clinic.*fn1

Beginning in 2004, the Clinic represented two related nonprofit citizens' groups, the Coalition to Protect Our Land, Lakes and Watersheds (Coalition) and the Citizens for Responsible Development at Ross' Corner (CRDRC). These organizations challenged an application by plaintiff Sussex Commons to build a ninety-store outlet mall in Frankford Township (Township). Acting as the legal representative of these two non-profit groups, the Clinic presented evidence in opposition to plaintiff's application at all permit and development hearings, intervened and filed cross-claims in at least two lawsuits between Sussex Commons and the Township, and directly appealed the Township's development approvals.

Despite this opposition, Sussex Commons succeeded in obtaining subdivision and site plan approvals for the outlet mall development. Thereafter, Sussex Commons filed suit against one of its competitors, Chelsea Property Group ("CPG"), alleging tortious interference with prospective business advantage, unfair competition, and prima facie tort stemming from the defendant's alleged attempts to impede the development of SusseX Commons. During the proceedings in that litigation, Sussex Commons discovered that CPG had given $16,500 to the Coalition and the CRDRC to pay for a traffic study opposing the outlet mall development project. In light of this evidence, Sussex Commons moved to add the Coalition and the CRDRC as co-conspirator defendants in the tortious interference suit. The judge presiding over the case denied the motion, finding the groups' opposition to the development was a protected activity under the First Amendment.

The denial of this motion did not deter Sussex Commons in its efforts to obtain more information concerning the groups' activities. Specifically, in an attempt to show that CPG had conspired with the Clinic, the citizens' groups, and Township officials to thwart its development plans, Sussex Commons sought to compel discovery of communications between CPG's counsel (Pitney Hardin, now Day Pitney) and the Clinic. The judge presiding over the litigation denied Sussex Commons' application, holding that the communications were protected under the attorney-client privilege as "work product and attorney materials." The judge gave the following explanation in support of his ruling:

Even if Sussex is entitled to know if [CPG]'s attorneys are lending aid or assistance to the Law Clinic, which the Court believes they are, Sussex [Commons] is not entitled to the substance of those communications. That would totally undermine attorney-client privileges and work product exceptions. What Sussex [Commons] is seeking here is much too broad. Can they ask [CPG] reps if they are assisting the Environmental Law Clinic and CRDRC? I believe that they can. Can they see those communications? I don't believe that they're entitled at this juncture based upon the information that they're providing. It's in great part a fishing expedition.

So other than the disclosure that the assistance is being rendered, the actual substance of the aid is protected unless there is a suggestion, more than a suggestion that [the Clinic] is acting improperly. And I don't believe, as has been suggested today, that they are acting improperly. They were totally within their legal bounds in pressing their point of view before these various governmental agencies.

The fact that Pitney Hardin actually gave legal assistance to [the Clinic] is relevant. It shows the intent that [Sussex Commons] is trying to show, but again, they can't go beyond that and get the individual documents that are being sought.

Plaintiff's tortious interference complaint was ultimately dismissed in 2008. On plaintiff's appeal, we affirmed the trial court's order of dismissal. Sussex Commons Outlets, LLC v. Chelsea Prop. Group, Inc., No. A-3714-07T1 (App. Div. Sept. 23, 2010) (slip op. at 2).

In May 2006, plaintiffs submitted a formal request to the University's Custodian of Records seeking access to eighteen categories of information that plaintiffs believed could demonstrate financial or other ties between CPG, the Clinic, the CRDRC, and Township officials. This request encompassed documents showing how the Clinic was funded, records of time and funds spent on opposing the outlet mall, staff meeting minutes, communications with the CRDRC before the Clinic's representation, and any documents received from CPG or its counsel in Sussex Commons' tortious interference case. Specifically, plaintiffs requested:

1) Documents reflecting the allocation of funds by Rutgers University to Rutgers Environmental Law Clinic for 2003, 2004, 2005 and 2006.

2) Copies of all bills to Citizens for Responsible Development at Ross' Corner from Rutgers Environmental Law Clinic.

3) Documents containing the time records and time spent for all attorneys, paralegals and secretaries of the Rutgers Environmental Law Clinic on behalf of Citizens for Responsible Development at Ross' Corner in connection with the Sussex Commons project at Ross' Corner.

4) Documents containing all disbursements on behalf of Citizens for Responsible Development at Ross' Corner in connection with the ...

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