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Martin E. O'boyle v. Borough of Longport

May 21, 2012

MARTIN E. O'BOYLE, PLAINTIFF-APPELLANT,
v.
BOROUGH OF LONGPORT, AND THOMAS HILTNER IN HIS CAPACITY AS BOROUGH OF LONGPORT CLERK AND CUSTODIAN OF RECORDS, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-2591-10.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued November 7, 2011

Before Judges Parrillo, Alvarez and Skillman.

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

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 the Open Public Records Act (OPRA), N.J.S.A. 37:1A-1 to -13, and the common law right of access. A judgment was entered on December 20, 2010,*fn1 dismissing plaintiff's complaint and finding that the items, which consist of litigation materials and correspondence exchanged between outside counsel for Longport and private counsel for a former Planning and Zoning Board member and other persons who had been or were being sued by plaintiff, were not subject to production. This appeal follows. We affirm.

A brief history will place the dispute in context. Over the past several years, plaintiff has sued several Longport officials as well as individuals with connections to Longport's borough governance. This includes Peter Isen, a former Planning and Zoning Board member, and Longport residents Frank and Anthony DiLorenzo. David W. Sufrin, Esquire, represents Isen and the DiLorenzos.

Plaintiff's conflicts with Longport, and some individuals connected with the municipality, began in 2007 when he was cited for a zoning violation. Plaintiff has also filed lawsuits through his corporation, Commerce Group Construction, Inc., and his organization, Citizens for Open Government, LLC, against Frank and Anthony DiLorenzo and Jerome DiPentino. Additionally, plaintiff sued the Press of Atlantic City for defamation resulting from its coverage of these disputes.

Since 2007, plaintiff has been supplied hundreds of documents by Longport, pursuant to OPRA. In fact, he has successfully sued defendants under OPRA, prevailed, and been awarded counsel fees. Longport retained outside counsel, Emanuel Argentieri, Esquire, as to these matters.

On April 23, 2010, plaintiff demanded from Longport the production of certain documents that he learned about by examining Argentieri's legal bills, which in turn he obtained under OPRA. The bills included charges for time spent corresponding with Sufrin. Longport provided some of the items requested, but refused to supply: 1) an August 20, 2009 letter from Argentieri to Sufrin; 2) a September 18, 2009 letter from Sufrin to Argentieri, captioned "Confidential: Joint-Defense Strategy Memorandum - Attorney Joint Defense Work Product not for Disclosure to Third Parties"; 3) a September 29, 2009 letter from Sufrin to Argentieri captioned "CONFIDENTIAL JOINT-DEFENSE Attorney Work Product"; 4) a second September 29, 2009 letter from Sufrin to Argentieri along with two CDs; 5) an undated letter from Sufrin to Argentieri which was reviewed by Argentieri on October 20, 2009; and 6) documents contained on a third CD provided by Sufrin to Argentieri, which Argentieri reviewed on October 14, 2009. Allegedly, one of the CDs contained a list Sufrin compiled of all the lawsuits plaintiff initiated.

Longport refused to supply the items on the basis that the letters were privileged communications, and the CDs were not in its possession, as they had been returned to Sufrin months earlier and were not copied. Plaintiff's verified complaint followed.

After oral argument and an in camera inspection of the letters, the trial judge found they were protected by the attorney-client privilege, and were therefore excluded from the purview of both OPRA and the common law right of access. The court further found that the CDs were not public records, were also subject to the attorney-client privilege, and, since they were not the work product of defendants, disclosure was not mandated in any event. The judge noted that Sufrin was not Longport's agent, and thus questioned whether plaintiff's OPRA demand could effectively require Sufrin, essentially a third party unrelated to Longport, to produce documents. The judge also found that the CDs were returned without any intent to avoid production, as no OPRA request was submitted until after their return. Accordingly, the trial judge dismissed plaintiff's complaint and sealed the documents.

On appeal, plaintiff asserts that the correspondence and the CDs were subject to production under OPRA and the common law right of access, that Isen and Longport share no joint interest such as would protect the items from disclosure under the attorney-client privilege, and that the court should have required a Vaughn Index*fn2 and conducted an in camera inspection not just of the correspondence, but of the CDs ...


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