December 19, 2012
EASTERN CAMDEN COUNTY REGIONAL SCHOOL DISTRICT BOARD OF EDUCATION RECORDS CUSTODIAN, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3782-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 5, 2012
Before Judges Axelrad, Nugent and Haas.
Plaintiff M.G., a student, appeals from the dismissal of his claim that defendant, Eastern Camden County Regional School District Board of Education (Board), violated the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. While a prevailing party fee dispute was pending remand from the Third Circuit, M.G. sought school records of attorney bills and other documents related to his federal claim against the school. M.G. challenges the findings by the Law Division judge that the documents provided by the Board were adequate and responsive to his requests, and other requested documents were protected by the attorney-client privilege or otherwise not subject to OPRA. We affirm.
M.G. filed a complaint against the Board with the New Jersey Department of Education, which was settled in 2008. N.G. & K.G. ex. rel. M.G. v. E. Camden Cnty. Reg'l Bd. of Educ., OAL 82-08. He then filed a complaint in the United States District Court for the District of New Jersey seeking counsel fees as the prevailing party under the Rehabilitation Act, 29 U.S.C.A. § 790 to 794f. M.G. v. E. Reg'l High Sch. Dist., No. 08-4019, 2009 U.S. Dist. LEXIS 98631 (D.N.J. Oct. 21, 2009). On October 21, 2009, Judge Robert B. Kugler denied M.G. summary judgment, awarded no fees to his attorney, Jamie Epstein, characterizing the application as "sublimely absurd[,]" and because the claim was only for attorney's fees, dismissed the case. Id. at *36. M.G. appealed. On July 14, 2010, the Third Circuit "largely agree[d]" with Judge Kugler's assessment of the fee petition, but held he "erred by failing to hold a hearing to determine the reasonableness of the [attorney's] hourly rate[,]" and remanded for further proceedings. M.G. v. E. Reg'l High Sch. Dist., 386 Fed. Appx. 186 (3d Cir. 2010). Remand proceedings commenced on or about June 3, 2011.*fn1
M.G. submitted two OPRA requests to the Board -- OPRA1 submitted on June 25 and OPRA2 submitted on June 30, 2011. Based on the Board's responses on June 29 and July 22, 2011, M.G. filed the verified complaint in this action on July 28, 2011, alleging various OPRA violations, requesting the court compel production of the documents, and requesting attorney's fees. The Board filed an answer.
M.G. filed a motion for summary judgment, which the Board opposed. On the return date, Judge Francis J. Orlando, Jr., directed the Board to provide the OPRA2 documents for his in camera review in accordance with Hartz Mountain Industries v. New Jersey Sports and Exposition Authority, 369 N.J. Super. 175, 183 (App. Div.), certif. denied, 182 N.J. 147 (2004).*fn2 Following additional oral argument on November 4, 2011, the judge denied M.G.'s motion for summary judgment and, finding no violations by the Board, dismissed the complaint with prejudice by order dated November 4, 2011. This appeal ensued.
In preparation for the federal hearing on remand, four OPRA requests were made to the Board: June 12, 2010*fn3 (OPRA0) (not a subject of this appeal); June 25, 2011 (OPRA1); June 30, 2011 (OPRA2); and October 14, 2011 (not a subject of this appeal and not included in the record).
DOCUMENTS REQUESTED SINCE LAST OPRA REQUEST (WHICH IS ATTACHED)
1. ALL ATTY BILLS SINCE 12/16/09 (LAST BILL PROVIDED)
2. ALL VOUCHERS SINCE 12/16/09
3. ALL INVOICES SINCE 12/16/09
4. ALL PURCHASE ORDERS SINCE 12/16/09
5. ALL LEGAL SERVICES CONTRACTS SINCE
12/16/09 OPRA0 referenced in OPRA1 states:
ALL BILLS, VOUCHERS, CONTRACTS, INVOICES, ETC., WHETHER IN ELECTRONIC OR PAPER MEDIA, WHETHER RECEIVED OR SENT, FROM 9/1/07 TO PRESENT, FOR LEGAL REPRESENTATION ON BEHALF OF EASTERN H.S. AGAINST MY CLIENTS . .
I ALSO REQUEST ALL COPIES OF THE BOARD'S CONTRACT WITH THE BOARD'S ATTORNEY AND/OR LAW FIRM SINCE 9/1/07.
I ALSO REQUEST ALL COMMUNICATIONS BETWEEN THE BOARD AND ITS INSURANCE CARRIER FROM 9/1/07 TO PRESENT, PERTAINING TO MY CLIENTS
IMMEDIATE ACCESS IS REQUESTED FOR THESE "BILLS, VOUCHERS, CONTRACTS" PURSUANT TO OPRA N.J.S.A. § 47:1A-5(e).
On June 29, 2011, the Board provided a three-page computer run of the attorney work related to the M.G. case from January 7, 2010 to December 23, 2010 and the attorney contract. The Board advised the other requested documents were not provided because it deemed them to be protected by the attorney-client privilege. Epstein provided the following written response:
(1) The "vouchers, invoices and purchase orders since 12/16/09" portion which were requested under OPRA were not provided. They are financial documents not protected by attorney client privilege. . . .
(2) Additionally, I wish to address the bills; the bills consist of one bill which is 3 pages long. The public document in this case would be the bills as submitted to the Board and not a reformatted/cumulative bill. I am requesting the Board provide me with a copy of each bill (since 12/16/09) on file with the Board which included legal services on the MG [case].
P.S. One additional objection, Billing records were requested from 12/16/09 to 6/25/11. No billing records have been provided since 12/23/10 (over 6 months ago). Please advise as to why the last 6 months of bills have not been provided.
On June 30, 2011, M.G. submitted OPRA2, requesting documents identified in bills provided in response to OPRA0. Specifically, OPRA2 states:
THE FOLLOWING DOCUMENTS HEREBY REQUESTED WERE IDENTIFIED IN THE BILLS PROVIDED IN RESPONSE TO OUR 6/14/10 OPRA REQUEST:
1. LETTER REFERRED TO IN THE 8/25/08 BILLING
2. LETTER REFERRED TO IN THE 9/2/08 BILLING
3. CONSENT ORDER REFERRED TO IN THE 9/2/08
4. THE BILL REFERRED TO IN THE 3/10/09
5. THE SUBMISSION REFERRED TO IN THE 9/16/09
6. THE DOCUMENTS "CHALLENGING" THE $100,000
LEGAL FEE IN THE 11/25/09 BILLING ENTRY.
On July 22, 2011, in response to OPRA1, the Board provided additional records and indicated other records would be forthcoming. In response to OPRA2, the Board informed Epstein that all of the records were not on file with the district, and additionally, one requested document was also attorney work product.
Judge Orlando found no OPRA violation in the Board's response to OPRA1 or OPRA2. Specifically, he found the Board's June 29 OPRA1 response was an "adequate, appropriate and proper response to the [June] 25 request[,]" which was "itself vague [and] incomplete." He further noted that Epstein subsequently "recast and reformed his request to include all the attorneys' bills for all the clients [the Board's attorneys] were working on, not just M.G." The judge concluded "[t]hat would have to be a completely new request[.]" He noted, nevertheless, that the Board, "in good faith, began compiling documents and sending them to  Epstein to respond to his request as best as [it] understood him." He concluded "the responses were adequate, in good faith, [and] based upon [Epstein's] ever-changing request for documents."
As to the June 30 request, the judge detailed the Board's responses that the documents were not available for production under OPRA because it did not possess them or they were protected under attorney-client privilege and work product. He explained that he conducted an in camera review of each of the six documents in the OPRA2 request. Judge Orlando generally detailed the nature of each document and the factual and legal basis for his conclusion that the Board properly declined M.G. access to each of these documents under OPRA because they are protected by attorney-client and work-product privileges, and are not government records as defined in the statute.
On appeal, M.G. argues:
THE TRIAL COURT ERRED BY RULING THAT THE "THREE PAGE COMPUTER RUNOFF" PROVIDED ON JUNE 29, 2011 WAS RESPONSIVE TO ¶ 1 OF PLAINTIFF'S JUNE 25, 2011 RECORDS REQUEST.
THE TRIAL COURT ERRED BY RULING THAT ¶¶ 2, 3, AND 4 OF THE JUNE 25, 2011 REQUEST WERE TOO VAGUE TO CONSTITUTE A VALID REQUEST.
THE TRIAL COURT ERRED REGARDING EASTERN'S FAILURE TO PROVIDE THE 1ST QUARTER 2011 RECORDS.
THE TRIAL COURT ERRED BY FINDING THAT THE RECORDS IDENTIFIED IN PLAINTIFF'S JUNE 30, 2011 REQUEST COULD NOT BE DISCLOSED.
i. Records in Eastern's Attorney's File.
ii. Work Product.
iii. Documents Allegedly in Plaintiff's Possession.
iv. Advisory, Consultative and Deliberative Records.
THE MATTER SHOULD BE REMANDED FOR A DETERMINATION OF COSTS AND ATTORNEY FEES.
A "trial court's determinations with respect to the applicability of OPRA are legal conclusions subject to de novo review." K.L. v. Evesham Twp. Bd. of Educ., 423 N.J. Super. 337, 349 (App. Div. 2011), certif. denied, 210 N.J. 108 (2012). Thus, no deference is afforded to the trial court's findings. Newark Morning Ledger Co. v. N.J. Sports & Exposition Auth., 423 N.J. Super. 140, 159 (App. Div. 2011). See also Drinker Biddle & Reath LLP v. N.J. Dep't of Law and Pub. Safety, 421 N.J.
Super. 489, 497 (App. Div. 2011) (quoting MAG Entm't, LLC v. Div. of Alcoholic Beverage Control, 375 N.J. Super. 534, 543 (App. Div. 2005) ("We review de novo the issue of whether access to public records under OPRA and the manner of its effectuation are warranted."). "We also conduct plenary review of the trial court's legal conclusion that a privilege exempts the requested records from disclosure." K.L., supra, 423 N.J. Super. at 349.
We are not persuaded by any of M.G.'s arguments, which are the same as those raised in the trial court. Based on our review of the record, we reach the same conclusions as Judge Orlando. We are satisfied he properly applied the law, and thoroughly explained his factual and legal conclusions for each of his rulings. Accordingly, we affirm substantially for the reasons set forth in Judge Orlando's comprehensive oral decision. We add the following brief comments.
M.G. essentially concedes in his reply brief that he confused the issue by seeking in OPRA1 only records pertaining to the Board's defense of his federal case, namely, "invoices since 12/16/09," which is what the custodian provided, and then apparently sought to broaden the scope to include other matters handled by the law firm for the Board. The computer run and the attorney contract were sufficient to satisfy the specific request for documents relating to M.G. because there were no vouchers, invoices or purchase orders specifically involving M.G. Records pertaining to services by the law firm for the Board unrelated to M.G. are clearly not relevant to M.G.'s federal action or his OPRA request.
M.G. has not demonstrated that the Board's three-page computer run was not responsive to his OPRA1 request. The Board represents the bill run it provided was complete at the time of the request. Its attorney certified the "January 1, 2011 to June 30, 2011 legal services invoices had not yet been prepared by me until after the June 25, 2011 and June 30, 2011 OPRA requests." Upon review of the detailed billing statement for the first quarter of 2011, we found no billing entries that appear to relate to M.G. There are two entries for the second quarter of 2011 which appear to relate to this case. The first contains entries ranging from April 5, 2011 to June 29, 2011 and references hearings before Judge Kugler and a settlement agreement with timing in line with the events surrounding the M.G. litigation. The second entry is related to the OPRA1 and OPRA2 requests, which obviously could not have accrued prior to the OPRA requests. The Board provided M.G. the bills available at the time of the request. The second quarter had not closed and entries for that section continued beyond the relevant June 25, 2011 OPRA1 request. Furthermore, in response to OPRA0, the Board provided a response including a similar date range (June 12, 2010 OPRA0 request, response dated June 17, 2010, and bill printout dating to December 16, 2009).
N.J.S.A. 47:1A-1.1 defines a "government record" to exclude "inter-agency or intra-agency advisory, consultative, or deliberative material." Confidential documents are excluded, specifically "any record within the attorney-client privilege." Ibid. Additionally, "[d]ocuments covered by the work-product privilege are exempt to the extent they are protected by N.J.S.A. 47:1A-9." Sussex Commons Assoc. LLC v. Rutgers, 210 N.J. 531, 542 (2012) (discussing the purpose of OPRA, to provide access to public records for the protection of the public interest, and the purpose of the Rutgers Law clinical legal program, which does not perform any government functions, and access to the clinical legal program case files would not shed light on the operations of government).
Although generally the purpose of the OPRA request is immaterial, the fact that the parties are involved in litigation is not to be ignored. Spectraserv, Inc. v. Middlesex Cnty. Utils. Auth., 416 N.J. Super. 565, 581 (App. Div. 2010). M.G. contends Tractenberg v. Township of West Orange, 416 N.J. Super. 354 (App. Div. 2010) supports the proposition that the documents are not work product and therefore should be disclosed. There, the township contended appraisals it sought to withhold were protected as work product and under attorney-client privilege. Id. at 376. We affirmed the trial court's finding that the appraisal was not authorized by the township attorney, and there were no communications between township officials and the township attorney about the appraisal, and therefore it was not protected under attorney-client privilege. Id. at 376-77. We further affirmed the finding that the appraisal was not produced in anticipation of litigation even though a contentious relationship existed between the parties. Id. at 374-75.
We explained, the attorney-client privilege applies to "confidential communication[s] 'between a lawyer and  client in the course of that relationship and in professional confidence[.]'" Id. at 375 (quoting N.J.R.E. 504(1) (last alteration in original)). This "privilege extends to communications between a public body and the attorney retained to represent it." Id. at 376. Attorney work product prepared in anticipation of litigation is exempt from disclosure under OPRA. Id. at 374-75. "The reasonableness of an attorney's anticipation of litigation is analyzed 'objectively by considering the factual context in which materials are prepared, the nature of the materials, and the expected role of the lawyer in ensuing litigation.'" Ibid. (quoting Miller v. V.B. Hunt Transp., Inc., 339 N.J. Super. 144, 149 (App. Div. 2001)).
In contrast, however, the present case contains documents precisely what are described in Tractenberg as work product and attorney-client privileged. They are nothing like an appraisal ordered by the township being withheld from a party with whom there is significant friction but no actual litigation. There is no question here that the Board's attorney drafted the documents, and they were prepared in the course of litigation.
M.G. attempts to avoid this problem by suggesting the attorney hired by the Board should be considered a board officer, and therefore Burnett v. County of Gloucester, 415 N.J. Super. 506, 517 (2010) applies, the letters written by the attorney become official Board business, and the ability to delegate letter-writing to attorneys would "provide grounds for impeding access to such documents." In Burnett, we found claim settlement agreements "made" by or on behalf of the Board to be government records subject to OPRA. Id. at 511-13. M.G., however, does not suggest how the attorney-client privilege or work product exceptions would affect his proposition, and the general proposition that Board-hired attorneys should be considered board members is unsupported by Burnett. He also cites no case law indicating that an attorney should be considered a board officer, and a letter written in the course of litigation is a far stretch from a settlement agreement signed at the conclusion of litigation.
M.G. also challenges the applicability of O'Shea v. West Milford Board of Education, 391 N.J. Super. 534, 538 (App. Div.), certif. denied, 192 N.J. 292 (2007) as limited only to handwritten notes. He concedes he is not entitled to handwritten notes jotted down as a memory aid, and specifically states he "is not seeking any notes that Eastern's lawyers may have jotted down in advance of preparing finalized records." However, he characterizes the documents requested as "finalized records, many of which were sent to Judge Kugler[,]" and, on this basis, seeks the letters referred to in ¶ 1 and ¶ 2 of the OPRA2 request. M.G.'s attempt to recharacterize these letters as "filed ex parte" is without merit, and he cites no legal basis for his claim that the privilege was waived by filing the documents with the court.
As the trial court correctly determined there was no OPRA violation, M.G. is not entitled to an award of attorney's fees or costs. A plaintiff is only entitled to fees if they are the "prevailing party," which M.G. clearly is not. Spectraserv, supra, 416 N.J. Super. at 583.