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D.F v. Collingswood Board of Education


November 19, 2012


On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3813-10.

Per curiam.


Submitted November 2, 2011

Before Judges Graves and J. N. Harris.

Plaintiff A.C.*fn1 appeals from a November 12, 2010 Law Division order denying her application for "more narrowly redacted versions" of records she received from defendant Collingswood Board of Education (the Board) pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. The court specified that plaintiff's application was denied "without prejudice." For the reasons that follow, the appeal is dismissed.

Plaintiff's son, D.F., was previously enrolled in the Collingswood Public School System. In January 2009, plaintiff filed a due process petition alleging the Board violated her son's rights under the Individuals with Disabilities Education Act, 20 U.S.C.A. §§ 1400 to 1482. After plaintiff's due process petition was dismissed by an Administrative Law Judge (ALJ), plaintiff filed a complaint in the United States District Court for the District of New Jersey. According to the Board, that matter was the subject of an appeal filed by plaintiff in the United States Court of Appeals for the Third Circuit.*fn2

On June 13, 2010, while plaintiff's due process petition was pending before the ALJ, plaintiff's attorney submitted an OPRA request to the Board for access to the following documents:

All records, including, but not limited to, bills, vouchers, contracts, etc., whether in electronic or paper media, whether received or sent, which makes reference to attorney's fees from 11/11/09 to present which make reference to my client [D.F.] and/or his mother [A.C.].

I also request a copy of the Board's current contract with the Board's attorney and/or law firm.

Scott Oswald, Ed.D, Collingswood's Superintendent of Schools, responded in a letter dated June 16, 2010. Oswald stated the Board was providing copies of the billing statements submitted by the Board's attorney with certain information redacted:

Please be advised that certain information on the attorney bills has been redacted as it is exempt from disclosure because it falls within the attorney client privilege. Further, litigation in which you are involved is ongoing in the matters to which the attorney bills relate. The redacted information is blacked out on the bills.

Thereafter, on June 25, 2010, a Board employee e-mailed plaintiff's attorney fifty-one pages of documents.

The first two pages of the documents consisted of a contract between the Board and its attorney for legal services from July 1, 2009 through June 30, 2010. The remaining pages were invoices for legal services rendered by the Board's attorney. However, for the most part, the names of the people the attorney spoke to or corresponded with were redacted from the invoices.

On July 26, 2010, plaintiff filed a verified complaint and order to show cause (OTSC) to compel the Board to disclose the names of the people who communicated with its attorney. Plaintiff specified, however, that she was not challenging "the redactions to the extent that they excise the motive of the client in seeking representation, litigation strategy, the specific nature of the services provided, such as researching particular areas of law, or other matters that are legitimately privileged or exempt from access." In the second count of the complaint, plaintiff claimed entitlement to the information pursuant to her common law right of access to public records. The court granted the OTSC on August 6, 2010.

On the return date of the OTSC, the court directed the Board to provide unredacted billing statements for an in camera review, together with a supporting legal memorandum. Despite plaintiff's request, the court did not order the Board to prepare "a detailed privilege log explaining and justifying each redaction."

In its supplemental submission, the Board argued that its employees had a right to communicate with the Board's attorney regarding the ongoing litigation without "fear that the timing and frequency of each contact will be promptly made public." The Board also argued that the redacted information would provide insight into the Board's legal strategy because the communications took place while the parties were involved in litigation.

On November 12, 2010, after conducting an in camera review of the unredacted records and considering the parties' additional arguments, the court found that "learning with whom an attorney is speaking is just as important and in some cases even more important than learning what an attorney is researching." The court also found that disclosure of the redacted information could "undermine the [Board's] rights and strategy" in the ongoing special education litigation. Accordingly, the court denied plaintiff's application and dismissed her complaint without prejudice until the underlying litigation was concluded.

In this appeal, plaintiff argues, among other things, that the trial court's decision should be reversed because the Board failed to establish that the redacted material was privileged and exempt under OPRA. Plaintiff also claims she is entitled to disclosure pursuant to her common law right of access to public records.

However, we do not address the merits of plaintiff's arguments at this stage of the proceedings because the order dated November 12, 2010, denying plaintiff's application without prejudice is not a final appealable order. Malhame v. Borough of Demarest, 174 N.J. Super. 28, 30-31 (App. Div. 1980); see also Christiansen v. Christiansen, 46 N.J. Super. 101, 109 (App. Div.) ("A dismissal without prejudice . . . adjudicates nothing."), certif. denied, 25 N.J. 56 (1957); Mason v. Nabisco Brands, Inc., 233 N.J. Super. 263, 267 (App. Div. 1989) ("Typically, 'without prejudice' means that there has been no adjudication on the merits of the claim and that a subsequent complaint alleging the same cause of action will not be barred simply by reason of its prior dismissal.").

It is equally clear that the November 12, 2010 order is not a final judgment appealable as of right under Rule 2:2-3(a). "To be final, a judgment must dispose of all claims against all parties."

S.N. Golden Estates, Inc. v. Cont'l Cas. Co., 317 N.J. Super. 82, 87 (App. Div. 1998). This rule reflects "our strong judicial policy against piecemeal appellate review." Ibid. In this case, the trial court did not address plaintiff's common law right of access claim, and the order entered by the court fails to qualify as a final judgment.

In view of the foregoing, the appeal is dismissed without prejudice to plaintiff's right to seek relief from the trial court after the parties' underlying litigation has been concluded.


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