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Mark Y. Moon v. County of Hudson

March 28, 2011

MARK Y. MOON, PLAINTIFF-APPELLANT,
v.
COUNTY OF HUDSON, HUDSON COUNTY BOARD OF CHOSEN FREEHOLDERS AND ALBERT SANTOS, INDIVIDUALLY AND IN HIS CAPACITY AS CLERK OF THE BOARD OF CHOSEN FREEHOLDERS, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-0041-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 14, 2011

Before Judges Reisner and Alvarez.

Plaintiff appeals from an order dated March 8, 2010 denying his request for an unredacted copy of the transcript of a closed session meeting of the Hudson County Board of Chosen Freeholders (Board). We remand this matter to the trial court for reconsideration.

I

The case arose from a dispute over a publicly bid contract to provide medical services at the Hudson County Correctional Center. Plaintiff's client, CFG Health Systems, LLC (CFG), was the losing bidder. In a separate lawsuit, CFG successfully challenged the award to the winning bidder, Correctional Health Systems L.L.C.*fn1 Plaintiff then made a request under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, seeking the transcript of a March 26, 2009 closed session, during which the Board had discussed the awarding of the contract. In response, the Board produced a redacted transcript of the closed session, contending that the redacted information was protected by the attorney-client privilege and was therefore exempt from disclosure under OPRA. Plaintiff filed suit claiming a right to the transcript under OPRA and under the common law.

The OPRA lawsuit was heard by a different judge than the one who decided the bidding litigation. At oral argument in the OPRA lawsuit, plaintiff contended that the Board went into a closed session without adopting the necessary resolution under the Open Public Meetings Act (OPMA). N.J.S.A. 10:4-13. Plaintiff did not present any legally competent evidence to support that contention. According to the trial judge's decision, however, after the motion hearing, the Board "conceded that no resolution was made." Plaintiff also argued that the Board waived any attorney-client privilege that might have existed, by later discussing the attorney's advice in open session.

The Board's counsel argued that the closed session transcript was protected from OPRA disclosure by the attorney-client privilege, and that the privilege had not been waived. The Board's counsel also asserted that a failure to adopt an appropriate OPMA resolution would not defeat the exception set forth in OPRA for attorney-client communications.

The Board provided the judge with the entire transcript of the closed session for in camera review. After reviewing the transcript in camera, the judge issued a written opinion dated February 16, 2010, concluding that the redacted transcript was protected by the attorney-client privilege. She further found that the privilege was not vitiated by the Board's failure to take a proper vote, pursuant to OPMA, before going into closed session.

The judge also found that "the substance" of the closed session was discussed in open public meetings that occurred in April 2009. However, in her decision, the judge did not address or decide plaintiff's argument that the discussion in the public portions of the meetings in April constituted a waiver of the attorney-client privilege.

II

On this appeal, plaintiff contends, as he did in the trial court, that the Board cannot claim the protections of any OPRA exception, including the attorney-client privilege, because it failed to follow the proper OPMA procedure for going into closed session. Plaintiff also argues that the Board waived the attorney-client privilege by discussing the attorney's advice in open sessions held on April 21 and 23, 2009.

We cannot conclude that the OPRA exception for attorney-client communications is vitiated by an agency's failure to comply with OPMA. This is so because OPRA contains its own exception for attorney-client privileged materials. N.J.S.A. 47:1A-1.1 specifically provides that "[a] government record shall not include the following information which is deemed to be confidential: . . . any record within the attorney-client ...


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