scheeler v. west cape may

Custodian Statement of InformationHarry B. Scheeler, Jr. v. Borough of West Cape May GRC Complaint No. 2014-143

State of New Jersey Government Records Council

Statement of Information Form

This form is to be used by Records Custodians as their response to a complaint filed with the Government Records Council (GRC) alleging the unlawful denial of a request to access government records under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 et seq. An offer to mediate this complaint has been denied by one or more of the parties, or mediation has not resolved the complaint, and the matter is now within the GRCs jurisdiction. The GRC will conduct an investigation as part of the adjudication of the matter. The Custodian or the Custodians Legal Counsel may complete the Statement of Information. However, the Records Custodian (or alleged Records Custodian) must sign the Statement of Information. The GRC will also consider any legal briefs, additional documentation or information submitted with the Statement of Information. The signed Statement of Information must be returned to:

Government Records Council In care of Samuel A. Rosado, Esq.

101 South Broad Street P.O. Box 819

Trenton, NJ 08625-0819 Phone: (609) 292-7932 Fax: (609) 633-6337

E-mail: [email protected] The Statement of Information must be received no later than five (5) business days from your receipt of this form. Failure to comply with this deadline may result in the GRC adjudicating this complaint based only on the information submitted in the Denial of Access Complaint by the requestor of the records. Please note that by signing the Statement of Information, the Custodian (or alleged Custodian) is certifying that a copy will be provided to the Complainant simultaneously with it being provided to the GRC. IMPORTANT: Do not provide any records or excerpts of records that the Custodian claims is privileged or not accessible to the public under OPRA. A general description of the records content will be sufficient.

DEFINITIONS: Records request or request refers to the formal OPRA request on which the complaint is based; Requestor or Complainant refers to the person who made the request on which this complaint is based; Agency refers to the public agency or subdivision of that agency to which the records request was directed; and Records Custodian or Custodian refers to the individual charged by the agency with the responsibility for fulfilling the request for records on which this complaint is based.


PART 1: CONTACT INFORMATION

1. GRC Complaint Number: 2014-143

2. Name of Complaint: Harry B. Scheeler, Jr.

3. Name of (Alleged) Custodian: Elaine L. Wallace

Job Title of Custodian: Municipal Clerk

4. Custodians Public Agency: Borough of West Cape May

Address: 732 Broadway

West Cape May, NJ 08204

Phone: (609) 884-1005 ext. 100

Fax: (609) 898-0888

E-mail: [email protected]

5. Name of Custodians Legal Counsel: Frank L. Corrado, Esq.

Address: 2700 Pacific Avenue

Wildwood, NJ 08260

Phone: (609) 729-1333

Fax: (609) 522-4927

E-mail: [email protected]


5. PART 2: ABOUT THE DENIAL OF ACCESS COMPLAINT 6. Attach a copy of the OPRA records request upon which this Complaint is based. Please

mark this attachment Item 6. See attached Item 6 7. Indicate the date on which the Custodian received the OPRA records request upon which this

complaint is based. (If the Custodian did not receive an OPRA records request, simply indicate None received.)

November 12, 2013

8. Indicate the date on which the Custodian responded to the OPRA records request upon which

this complaint is based. Provide all written documentation supporting the Custodians response. If you use additional pages to respond, please mark each page Item 8. (If the Custodian did not respond to the OPRA records request, simply indicate No response was given.)

November 12, 2013

9. In keeping with the GRCs statutory mandate to investigate alleged denial of access

complaints pursuant to N.J.S.A. 47:1A-7.e. and the courts instruction that all Custodians responding to denial of access complaints provide a document index containing certain information to the GRC pursuant to its decision in John Paff v. NJ Department of Labor, 392 N.J. Super. 334 (App.Div. 2007), the Custodian must provide the document index table below. The document index table is required in the table format presented below. Please mark the table Item 9.

(A) List of all records

responsive to Complainants OPRA request

(include the number of

pages for each record).

(B) List the Records

Retention Requirement and

Disposition Schedule for each records responsive

to the Complainants OPRA request

(C) List of all records

provided to Complainant, in their entirety or with redactions

(include the date such records were

provided).

(D) If records were disclosed with

redactions, give a general nature

description of the redactions.

(E) If records

were denied in their

entirety, give a general

nature description of

the record.

(F) List the legal

explanation and statutory citation for the denial of access to records in their entirety

or with redactions.

Example: Closed session minutes for the May 15, 2006 Council Meeting

Records Retention Requirement:

Must be retained by agency

permanently. Disposition Schedule:

May be archived only (destruction

Closed session minutes provided with redactions on June 20, 2007 (3

business days after receiving the

OPRA request).

Redactions were made only to

delete the discussion of the Council members

regarding the personnel matter

of Jane Doe.

N/A N.J.S.A. 47:1A-9.a. (allows

exemptions from disclosure

contained in other state statutes to

apply under OPRA) and

N.J.S.A. 10:4-12


not allowed)

(allows governing bodies to exclude the public from discussions of

personnel matters).

For more clarification of the information required in the document index in table format:

A. An itemized list of all records responsive to the Complainants OPRA request that were made, maintained, kept on file or received by your agency on the date of the request, regardless of whether you deem such records are exempt from disclosure.

B. State the agencys Records Retention Period (in years) and Destruction Schedule (in

years) for each record responsive to the request as established and approved by the New Jersey Department of Treasury, Records Management Services.

C. Of the records responsive to the request, indicate which records, if any, were provided to

the Complainant, in their entirety or with redactions, and the dates such records were provided.

D. Of the records responsive to the request and provided to the Complainant with redactions,

give a general nature description of the redactions.

E. Of the records responsive to the request, and not provided to the Complainant in their entirety, give a general nature description of the record.

F. Specifically state the legal explanation and statutory citation (to OPRA or other law that

applies) for such denial based on a public agencys burden of proving that all denials of access are authorized by law pursuant to N.J.S.A. 47:1A-6 and the courts instruction to provide same in John Paff v. NJ Department of Labor, 392 N.J. Super. 334 (App.Div. 2007).

See attached Item 9 10. Specifically describe the search undertaken to satisfy the records request upon which this

complaint is based. All 2013 legal bills received as of 11/12/13 were pulled, copied and provided to requestor.

11. Specifically state the last date on which documents that may have been responsive to the

request were destroyed in accordance with the Records Destruction Schedule established and approved by New Jersey Department of Treasury, Records Management Services.

No documents responsive to this complaint have been destroyed.


ITEM 6


ITEM 9

(A)

List of all records

responsive to Complainants OPRA request

(include the number of

pages for each record).

(B) List the Records

Retention Requirement and

Disposition Schedule for each records responsive

to the Complainants OPRA request

(C) List of all records

provided to Complainant, in their entirety or with redactions

(include the date such records were

provided).

(D) If records were disclosed with

redactions, give a general nature

description of the redactions.

(E) If records

were denied in their

entirety, give a general

nature description of

the record.

(F) List the legal

explanation and statutory citation for the denial of access to records in their entirety

or with redactions.

Legal Bill of March 12, 2013; General File

Records Retention Period and

Disposition: Must be kept 6

years. May then be destroyed.

Legal Bill of March 12, 2013; General File provided on

November 12, 2013 with redactions

(same day OPRA request received).

Redactions were made to delete items that are

protected by the attorney client

privilege or that showed the Boroughs

strategy in an ongoing lawsuit,

including: witness names,

experts, information sources, etc.

N/A N.J.S.A. 47:1A-1.1 exempts from

access information on

legal bills protected by the attorney client privilege and

N.J.S.A. 47:1A-9 allows


contained in other state statutes or

embodied in any executive or legislative

privilege or grant of confidentiality established under

state law. Legal Bill of March 12, 2013; Monthly Meeting




Legal Bill of March 12, 2013; Monthly Meeting provided on November 12,

2013 with redactions (same

day OPRA request received).

N/A N/A N/A

Legal Bill of March 12, 2013; Sixth Street




Legal Bill of March 12, 2013; Sixth

Street provided on November 12, 2013

with redactions (same day OPRA request received).

N/A N/A N/A


Legal Bill of April 30, 2013; General File




Legal Bill of April 30, 2013; General File provided on

















state law. Legal Bill of April 30, 2013; Monthly Meeting




Legal Bill of April 30, 2013; Monthly Meeting provided on November 12,



N/A N/A N/A

Legal Bill of May 21, 2013; General File




Legal Bill of May 21, 2013; General File provided on














contained in other state statutes or embodied in any

executive or legislative


state law.


Legal Bill of May 21, 2013; Monthly Meeting




Legal Bill of May 21, 2013; Monthly Meeting provided on November 12,



N/A N/A N/A

Legal Bill of July 12, 2013; General File




Legal Bill of July 12, 2013; General File provided on

















state law. Legal Bill of July 12, 2013; Monthly Meeting




Legal Bill provided on November 12,



N/A N/A N/A

Legal Bill of August 19, 2013; General File




Legal Bill of July 12, 2013; Monthly Meeting provided on November 12,














contained in other state statutes or embodied in any


executive or legislative


state law. Legal Bill of August 19, 2013; Monthly Meeting




Legal Bill of August 19, 2013; Monthly Meeting

provided on November 12, 2013


N/A N/A N/A

Legal Bill of October 4, 2013; Monthly Meeting




Legal Bill of October 4, 2013; Monthly Meeting

provided on November 12, 2013


N/A N/A N/A

Legal Bill of October 4, 2013; General File




Legal Bill of October 4, 2013;

General File provided on

















state law.


ITEM 12

This request was the subject of an identical OPRA request by Willow Creek Farm to the borough, and the boroughs response to that request was identical to its response to Mr. Scheeler. Willow Creek Farm filed a superior court complaint challenging the provision of redacted legal bills. On February 3, 2014, Judge James Savio rejected Willow Creeks claim that OPRA did not permit the redaction of legal bills to remove material protected by the attorney-client and work product privileges. Copies of the complaint, answer, brief of WCM and order of Judge Savio are attached to this response to provide the factual and legal basis for the boroughs position in this matter. Exhibits have been omitted, but can be supplied if needed.

Colin G. Bell, Esquire Attorney 10 # 018552005 HANKIN SANDMAN & PALLADINO Counsellors at Law a Professional Corporation 30 South New York Avenue Atlantic City, New Jersey 08401 (609) 344-5161 Attorneys for Plaintiff

Barbara Bray Wilde, SUPERIOR COURT OF NEW JERSEY LAW DIVISION

Plaintiff, CAPE MAY COUNTY DOCKET NO.:

v. Civil Action

Borough of West Cape May, VERIFIED COMPLAINT

Defendant.

Plaintiff Barbara Bray Wilde ("Wilde"), by and through undersigned counsel, by way

of Verified Complainant against the Defendant Borough of West Cape May ("WCM"), says as follows:

PARTIES

1. Wilde is an individual residing at 168 W. Stevens Street, West Cape May,

New Jersey.

2. Defendant Borough of West Cape May is a municipality and political

subdivision of the State of New Jersey having a principal place of business at 732

Broadway, Cape May, New Jersey 08204.

Hankin, Sandman & Palladino

Page 1 of 8

COUNT I

(Violation of N.J.S.A. 47:1A-1 et seq.)

1. On August 16, 2013, Wilde submitted several requests for records to WCM

pursuant to the Open Public Records Act, N.J.S.A. 47: 1A-1 et seq. (UOPRA") for the production of certain correspondence and records. A true and correct copy of that request

is annexed hereto as Exhibit A (the "Correspondence Requests").

2. On that same date, Wilde also submitted a request for bills submitted by the

borough solicitor and his firm to WCM as well as WCM payments to him and his firm. A

true and correct copy of that request is annexed hereto as Exhibit B (the "Bill Request").

3. WCM consolidated the Correspondence Requests and treated them

collectively as one request. See Exhibit C, a true and correct copy of a September 10,

2013 email from WCM Municipal Clerk Elaine Wallace to Wilde related to Correspondence

Requests.

4. On September 10, 2013, WCM provided its purported response to the both

the Correspondence Requests and the Bill Request. See Exhibit C and Exhibit 0, a true

and correct copy of a September 10, 2013 email from WCM Municipal Clerk Elaine

Wallace to Wilde related to the Bill Request.

The Deficient Response to the Correspondence Requests

5. In response to the Correspondence Requests, WCM produced 99 pages of

documents that are either totally or partially redacted. A true and correct copy of each of

the redacted pages produced in response to the Correspondence Requests is annexed

hereto as Exhibit E.


Page 2 of 8

6. Despite the redactions, WCM failed to produce a privilege or redaction log

or any other written explanation of which OPRA exception or exceptions authorized the

redactions.

7. Moreover, on several pages, including pages 1-2, 9,11,15, and 93, portions

of the responsive documents have been redacted without any notice or explanation. See

Exhibit E, at p1-2, 9, 11, 15 and 93.

8. Pages 10, 12-14, 28 of Exhibit E have been marked "redacted" or "partially

redacted" without any indication of which OPRA exception or exceptions authorize the

redaction of the materials.

9. While several pages which are marked "privileged" and either fully or partially

redacted appear to be attorney-client communications (although not denominated as such by WCM), numerous pages bearing that designation are not attorney-client communications:

A. Pages 35 and 60 are emaHs from the WCM Clerk Elaine Wallace to

Greg Neil, a Lower Township code official, (at his personal email address) regarding a meeting and do not fall under the attorney-client privilege.

B. Page 58 is an email from WCM Clerk Elaine Wallace to Gary

Playford, a Lower Township code official, regarding a meeting and

does not fall under the attorney-client privilege.


Page 3 of 8

C. Pages 59, 60, 64, 65 are email conversations between WCM Clerk

Elaine Wallace and "Paul Mulligan," the subject matter of which appears to be redacted and does not fall under the attorney-client

privilege.

D. Page 72 is an email conversation between WCM Clerk Elaine

Wallace and Norman Roach, a code official, and does not fall under

the attorney-client privilege.

E. Page 73 is an email between WCM Clerk Elaine Wallace and Gary

Playford and does not fall under the attorney-client privilege.

F. Page 74 is an email between WCM Clerk Elaine Wallace and WCM

Mayor Pam Kaithern and does not fall under the attorney-client

privilege.

G. Pages 85-88 contain emails from WCM Clerk Elaine Wallace, the

recipient(s) and subject matter of which are redacted pursuant to "privilege," however, given that extent of the redactions it is impossible

to tell if the same is subject to the attorney-client privilege. H. Pages 95-96 and 98 contains an email from WCM Clerk Elaine

Wallace to herself, and does not fall under the attorney-client

privilege.


Page 4 of 8

The Deficient Response to the Bill Request

10. In response to the Bill Request, WCM submitted numerous pages of billings

from WCM solicitor's firm, 41 pages of which have deletions for which no privilege log nor

written explanation of applicable OPRA exception(s) was provided. See Exhibit F, a true and correct copy of the documents produced in response to the Bill Request which contain

deletions.1

11. While presumably WCM is asserting attorney-client and/or work-product

privilege as the basis for failing to provide this information, many of the deletions do not

appear to even facially be protected by those privileges:

A. Nun1erous entries have redacted to withhold the identity of the person or

person with whom the attorney spoke to or met with, which information is not

protected by privilege. See ~ Exhibit F, at p11-14, 18-23,25-41.

B. Numerous other entries have been redacted to withhold the subject matter

of the work performed by the attorney (see ~ Exhibit F, at p17 -21,25-26)

which is essential to determining if any privilege is actually applicable.

Violations of OPRA

12. By way of the foregoing conduct, including, but not limited to, failing to

disclose the full contents of all responsive documents, failing to provide a privilege log,

failing to provide a written explanation of OPRA exceptions, and improperly asserting

attorney-client privilege, WCM has violated OPRA. See also The New Jersey Open Public

Record Act-Handbook for Records Custodians, 5th Ed (New Jersey Government Records

IThe yellow highlights identifying the deletions have been supplied.


Page 5 of 8

Council), a true and correct copy of which is annexed hereto as Exhibit G, at p17 -18 (requiring records custodian to identify the legal basis for every redaction in writing).

WHEREFORE, Plaintiff Barbara Bray Wilde demands judgment as follows:

A. Ordering WCM to immediately produce all records responsive to the

August 16, 2013 Open Public Records Act Requests or provide an

appropriate privilege log asserting valid privileges or exceptions to

OPRA.

B. Awarding her attorney's fees and costs pursuant to N.J.S.A. 47:1A-6.

C. Granting such other and further relief as the Court may deem just and

proper.

NOTICE OF DESIGNATION OF TRIAL COUNSEL

PLEASE TAKE NOTICE that, pursuant to R.4:2S-4, Colin G. Bell, Esquire is hereby

designated as trial counsel in the above-captioned litigation on behalf of the law firm of

HANKIN SANDMAN & PALLADINO, P.C.

CERTIFICATION PURSUANT TO RULE 4:5-1

The undersigned, Colin G. Bell, Esquire, certifies on behalf of the above-named

Plaintiff, Barbara Bray Wilde, as follows:

1. I am an attorney-at-law in the State of New Jersey and am a member of the

law firm of HANKIN SANDMAN & PALLADINO, P.C., attorneys for Plaintiff, Barbara Bray

Wilde.

2. The matter in controversy in this case is not the subject of any other action pending in any Court or of a pending Arbitration proceeding contemplated at this time,


Page 6 of 8

other than Barbara Bray Wilde and Willow Creek Winery, Inc. v. Borough of West Cape

May and Mayor Pam Kaithern, 1:12-cv-06329 (D.N.J) and Borough of West Cape May v Willow Creek Winery, (Cape May Board of Agricultural Development).

3. There are no other parties who should be joined in this action at this time. 4. I certify that the foregoing statements made by me are true. I am aware that

if any of the foregoing statements made by me are wilfully false, I am subject to punishment.

HANKIN SANDMAN & PALLADINO

BY:Dated: October 14, 2013 ~--=-:::::=-----7~ COLIN G. BELL, ESQUIRE I Attorneys for the Plaintiff, Barbara Bray Wilde


Page 7 of8

VERIFICATION

I, Barbara Bray Wilde, of tuBage, hereby verify as follows:

1. I am the Plaintiff in the above-captioned matter,'.

2. I have read the allegations of the Verified Co~,pfaint and state the

allegations set forth in the Complaint are accurate and true.

3. I certify that the foregoing statements made b1. me are true. I am

aware that if any of the statements made byrne are wilfully fallse, I am subject to ,

I punishment.

Dated: October ..-b., 2013

Hankin. Sandman & Palladino

Page 8 of8

FRANK L. CORRADO, ESQUIRE Attorney ID No. 022221983 BARRY, CORRADO & GRASSI, P.C. 2700 Pacific Avenue Wildwood, NJ 08260 (609) 729-1333 Fax: (609) 522-4927 Attorneys for Defendant

BARBARA BRAY WILDE,

Plaintiff,

vs.

BOROUGH OF WEST CAPE MAY,

Defendant.

SUPERIOR COURT OF NEW JERSEY LAW DIVISION CAPE MAY COUNTY DOCKET NO. CPM-L-517-13

Civil Action

ANSWER TO VERIFIED COMPLAINT

Defendant the Borough of West Cape May hereby answers

plaintiff's complaint in this matter in accordance with its

numbered paragraphs as follows:

PARTIES

1.-2. Admitted.

COUNT I

1.-4. Admitted.

5. Admitted, except that West Cape May later supplied

complete copies of two redacted documents that were inadvertently

redacted in error.

6. Denied as stated. Although West Cape May did not

provide a privilege log with the redacted documents, it

subsequently provided plaintiff with a privilege log conforming

to OPRA requirements.

7 . Denied as stated. See answer to Paragraph 6.

8 Denied as stated. See answer to Paragraph 6.

9 . Denied.

10. Denied as stated. See answer to Paragraph 6.

11. Denied.

12. Denied.

WHEREFORE, West Cape May demands judgment in its favor and against plaintiff, together with costs, fees and all other

appropriate relief.

BARRY, CORRADO & GRASSI, P.C.

DATED: ESQUIRE

CERTIFICATION

It is hereby certified that there are other known actions or arbitrations relating to this action. Those proceedings are:

1) the borough's Right to Farm Complaint against Willow Creek Winery challenging the winery's practice of holding weddings and other "life events" on the ground that those events violate both its Deed of Easement and it Right to Farm Act approvals;

2) Willow Creek Winery's petition to the County Agricultural 2

Development Board, opposed by the borough, for a Site Specific Agricultural Management Practice permitting it to hold "life events" on the ground that they are a permitted "agriculture-related activity"; and

3) Ms. Wilde's pending federal lawsuit, Willow Creek Winer Inc. and Barbara Bray Wilde v. Borough of West Cape May, New Jersey and Mayor Pam Kaithern, Civ. No. 1:12-cv-0629, U.S. District Court for the District of New Jersey, alleging that the borough has violated her civil rights by opposing certain winery operations.

There are no known parties who should be joined with respect to the matter in controversy.

BARRY, CORRADO & GRASSI, P.C. ~"" ....

DATED: I DESIGNATION OF TRIAL COUNSEL

TAKE NOTICE that Frank L. Corrado, Esquire is hereby designated as trial counsel in the above captioned litigation for the firm of Barry, Corrado & Grassi, P.C., pursuant to R. 4:25-1.

BARR'Y.'l,CORRAD~RASSI, P.C.

~tt/D RANK Li CORRADO, ESQUIRE

/ /

CERTIFICATION OF SERVICE

I certify that a copy of the within Answer was served within the time prescribed by R. 4:6.

~, ' RY} & GRASSI, P.C.

CONFIDENTIAL PERSONAL IDENTIFYERS

I certify that confidential personal identifiers have been redacted from documents now submitted to the court, and will be

3

redacted from all documents submitted in the future in accordance with R. 1:38-7(b).

CORRADO & GRASSI, P.C.

DATED:

4

FRANK L. CORRADO, ESQUIRE Attorney ID No. 022221983 BARRY, CORRADO & GRASSI, P.C. 2700 Pacific Avenue Wildwood, NJ 08260 (609) 729-1333 Fax: (609) 522-4927 Attorneys for Defendant

BARBARA BRAY WILDE,

Plaintiff,

vs.


Defendant.


Civil Action

BRIEF IN OPPOSITION TO PLAINTIFF'S ORDER TO SHOW CAUSE AND REQUEST FOR SUMMARY RELIEF

I. INTRODUCTION AND SUMMARY OF ARGUMENT

This is an OPRA case. Plaintiff Barbara Wilde, owner of

the Willow Creek Winery, says West Cape May failed properly to

respond to OPRA requests for 1) borough correspondence involving

the winery; and 2) copies of the borough solicitor's bills. 1

The matter is before the Court for summary disposition on

order to show cause. N.J.S.A. 47:1A-6; R. 4:67-l(a), -2. Wilde

asks the Court to order West Cape May to produce unredacted

copies of all documents she requested, or a privilege log for

withheld documents; and to reimburse her attorney's fees.

West Cape May opposes that request. For the reasons that

follow, the Court should reject Wilde's claims in their entirety

and dismiss her complaint.

Plaintiff's submission ignores the single most salient fact

in this case: the three pending legal actions between plaintiff

and the borough. The pendency of these actions justifies the

borough's assertion of attorney-client and work-product

privilege as a basis for redacting its OPRA responses.

II. STATEMENT OF FACTS

Barbara Wilde is the owner of Willow Creek Winery in West

Cape May. In 2003, in return for a payment of $890,000, Wilde

deeded all non-agricultural rights in the winery property to

Cape May County. See Exhibit A, Deed of Easement.

In 2009, the Cape May County Agricultural Development Board

granted Wilde final approval to construct the winery under the

state Right to Farm Act, N.J.S.A. 4:1C-1 et s See Exhibit B,

CADB Resolution 1-09. That approval entitled the winery to

2

engage in "agricultural activities" without conventional local

zoning and planning approval under the Municipal Land Use Law.

The borough and plaintiff dispute whether the winery may,

consistently with its Deed of Easement and the Right to Farm

Act, host weddings, anniversaries, and similar "life events"

without obtaining local zoning and planning approval. The

borough says both the Right to Farm Act and the Deed of Easement

prohibit such activities; plaintiff claims they are

"agricultural marketing activities" protected by the Right to

Farm Act and permitted by its Deed of Easement.

This dispute has prompted three legal actions: 1) the

borough's complaint against the winery, pursuant to N.J.S.A.

4:1C-10.l, alleging that the winery is violating its Deed of

Easement and right-to-farm approvals; 2) the winery's petition,

pursuant to N.J.A.C. 2:76-2.3, for a "site-specific agricultural

management practice" permitting it to hold "life events"; and 3)

Wilde's federal lawsuit, alleging that the borough and its mayor

violated Wilde's civil rights by opposing the winery's

operation. See Exhibits C, D, and E.

On August 16, 2013, Wilde submitted four 1 OPRA requests to

the borough. The first three asked for copies of various

1 Ms. Wilde submitted five other OPRA requests that day. All have been responded to, and none are at issue in this lawsuit.

3

correspondence regarding Willow Creek Winery. The fourth was a

request for two-and-a-half years of bills from the borough

solicitor.

West Cape May responded to those requests on September 10.

It produced 247 pages of correspondence and 163 pages of legal

bills. The borough redacted portions of some documents to

excise material protected by the attorney-client and work-

product privileges.

In particular, the borough redacted information about the

three legal proceedings involving plaintiff and the borough,

including information in the solicitor's bills about work

performed in connection with those matters.

West Cape May did not initially include a privilege log

with its responses. Neither plaintiff nor her counsel contacted

the borough informally about this omission. Instead, on October

15, plaintiff filed this lawsuit and hand-delivered a copy to

the borough solicitor.

plaintiff's counsel.

See Exhibit F, filing letter from

Immediately upon being notified that it had failed to

furnish a privilege log, the borough compiled and provided

plaintiff's counsel with privilege logs for both the

correspondence and the legal bills. See Exhibit G, October 23,

4

2013, letter from Corrado to Bell, with logs attached; Exhibit

H, Certification of Elaine Wallace.

III. ARGUMENT

OPRA requires public agencies to make government records

available to the public. N.J.S.A. 47:1A-1 et seq. The statute

defines "government record" broadly, but exempts various

categories of documents from disclosure.

Those exemptions include "any record within the attorney-

client privilege." The statute expressly extends this exemption

to privileged material contained in legal bills:

This paragraph [exempting attorney-client privileged material] shall not be construed as exempting from access attorney or consultant bills or invoices except that such bills or invoices ma be redacted to remove any information protected by the attorney-client privilege.

N.J.S.A. 47:1A-1.1 (emphasis supplied)

In addition, OPRA "does not abrogate or erode ... any

privilege or grant of confidentiality ... established or

recognized by ... court rule." N.J.S.A. 47:1A-9(b). Accordingly,

material protected by the work-product privilege, as defined in

R. 4:10-2(c), is also exempt from OPRA disclosure. O'Boyle v.

Bor. of Longport, 426 N.J. Super. 1, 9 (App. Div.), certif.

granted, 212 N.J. 431 (2012).

5

When a public entity is engaged in litigation, information

about its manner of handling that litigation is generally exempt

from OPRA disclosure. For example, an entity's communications

with its attorney in litigation matters - even when transmitted

by a "necessary intermediary" - are confidential, and protected

by the attorney-client privilege. Tractenberg v. Tp. of West

Orange, 416 N.J. Super. 354, 376 (App. Div. 2010).

Similarly, the work-product privilege extends broad

protection against disclosure to material that would otherwise

disclose "the mental impressions, conclusions, opinions or legal

theories of an attorney or any other representative of a party

concerning the litigation," as well as material prepared "in

anticipation of litigation." R. 4:10-2(c).

"The doctrine recognizes the need for an attorney to work

with a certain degree of privacy, free from unnecessary

intrusion by opposing parties and their counsel." LaPorta v.

Gloucester Ct . Bd. of Chosen Freeholders, 340 N.J. Super. 254,

260 (App. Div. 2001), quoting Hickman v. Taylor, 329 U.S. 495,

510-11 (1947). "If a document is protected work product under

R. 4:10-2(c), it is also protected from disclosure under OPRA."

Gannett N.J. Ptrs., LP v. Cty. of Middlesex, 379 N.J. Super.

205, 218 (App. Div. 2005).

6

Significantly, plaintiff's submission in this matter fails

to mention any of the three pieces of litigation now pending

between her and the borough.

When a public entity redacts material from a government

record, OPRA requires the records custodian to "indicate the

specific basis" for the redaction. N.J.S.A. 47:1A-5(g). When

an entity redacts privileged material, it should "describe the

nature of the documents ... not produced or disclosed in a manner

that, without revealing the information itself privileged or

protected, will enable other parties to assess the applicability

of the privilege or protection." Paff v. N.J. Dep't of Labor,

379 N.J. Super. 346, 354 (App. Div. 2005), citing R. 4:10-2(e).

Applied to plaintiff's OPRA requests, these principles

compel the Court to dismiss plaintiff's complaint.

A. West Cape May Has Provided a Privilege Log That Comports With OPRA's Requirements.

Plaintiff claims the borough failed to provide a privilege

log indicating the reason for each of its redactions on the

furnished documents. While initially that was so, the borough

promptly rectified this omission when it was called to its

attention.

The borough has provided a log for the redacted

communications and a separate log for the redacted bills. These

7

logs indicate the nature of each redaction and privilege

claimed. The communications log describes the document at

issue, the sender and the recipient. The legal bill log

provides the date and page of the redaction as well as the basis

therefore.

In paragraphs 7 and 8 of its complaint, plaintiff complains

specifically about redactions on pages 1-2, 9, 10, 11, 12-14,

15, 28 and 93 of Exhibit E to its submission. The borough

correspondence log addresses each of those redactions and

provides the information plaintiff seeks. 2

The purpose of a privilege log is two-fold: it facilitates

a tribunal's review of ostensibly privileged records, and it

provides the party seeking disclosure with as much information

as possible to use in presenting its case. Fisher v. Division

of Law, 400 N.J. Super. 61, 76 (App. Div. 2008).

The logs produced by the borough satisfy both purposes.

They contain the information necessary to explain the basis for

the redaction and allow an assessment of its validity by both

the plaintiff and the Court.

2 In addition, when it provided the logs, the borough provided a revised page 1, which restored certain mistakenly redacted material. See Exhibit F.

8

Nor should the borough be penalized because it did not

initially provide the log. The omission was inadvertent, and

rectified immediately upon its being called to the borough's

attention. Plaintiff has suffered no prejudice thereby, and now

has the information she needs to challenge any claim of

privilege made.

This aspect of plaintiff's complaint is therefore moot, and

the Court should reject it.

B. Contrary to Plaintiff's Claim, West Cape May Has Properly Asserted Attorney-Client or Work-Product Privilege As To Withheld or Redacted Correspondence.

Plaintiff next challenges the privilege designation of

certain redacted correspondence. In each case, the documents

were properly designated as either attorney-client or work-

product privileged, based in large part on the existence of

litigation (unmentioned by plaintiff) between the parties.

For example, plaintiff claims pages 35, 58, 59, 60, 64, 65,

72, 73 and 74 of its Exhibit E are not privileged because they

are emails from Elaine Wallace, the borough clerk, to various

borough officials. See complaint at paragraph 9(A)-(F).

But as the privilege log makes clear, these are emails in

which the clerk is simply transmitting documents received from

Allan Richardson, the borough's JIF-assigned attorney in the

9

civil rights lawsuit plaintiff has filed against the borough and

Mayor Kaithern. Those communications are attorney-client

privileged, and the privilege does not dissipate simply because

one borough official - the clerk - is transmitting them to

another. 3 See State v. Kociolek, 23 N.J. 400, 413 (1957).

Plaintiff complains that pages 85 through 88 of Exhibit E

are emails that do not delineate the basis for the redaction.

See complaint at paragraph 9(G). The log makes clear that these

are emails from the borough solicitor to the clerk regarding the

Willow Creek Winery litigation, and are therefore attorney-

client privileged.

Finally, plaintiff complains that three pages - 95-96 and

98 - of Exhibit E are emails from Elaine Wallace to herself.

See complaint at paragraph 9(H). But, again as the log makes

clear, the redacted portion of those email strings are

privileged communications from the borough attorney about

developments in the Willow Creek disputes. That the borough

clerk may have sent the emails to herself, for filing or other

organizational purposes, does not eliminate the privileged

3 If required, unredacted copies of these documents (and all other documents produced) are available for the Court's in camera review.

10

character of the attorney's comments. See generally Exhibit H,

Wallace Certification.

In sum, plaintiff's complaints about the redacted

correspondence lack merit and improperly ignore the existence of

litigation between the parties. The Court should reject

plaintiff's claims about these documents in their entirety.

C. OPRA Permits West Cape May to Redact Legal Bills to Remove Information Protected by the Attorney-Client And Work Product Privileges.

Plaintiff next says the borough has improperly redacted its

legal bills. She claims the information contained in those

bills - particularly the identity of persons with whom the

solicitor communicated and the subject of those communications -

is unprivileged and must be disclosed in response to her OPRA

request.

The argument fails for several related reasons.

Privileged information does not lose its privileged

character merely because it is contained in a legal bill. "A

party may assert privilege under the attorney-client or work

product doctrine in certain information contained in legal

bills." Pizzo v. Gambee, 796 F. Supp. 2d 270, 272-73 (D. Mass.

2011) . The content of the material, not its form, determines

11

whether it is privileged. In re Grand Jury Subpoena, 123 F.3d

695, 699 (1st Cir. 1997).

Billing records are subject to the attorney-client

privilege "to the extent that they reveal litigation strategy

and/or the nature of the services performed." Fidelit and

Deposit Co. of Md. v. McCulloch, 186 F.R.D. 516, 523 (E.D. Pa.

1996); see Montgomery Cty. v. Microvote Corp., 175 F.3d 296, 304

(3d Cir. 1999); Chaury v. Gallerizzo, 174 F.3d 394, 403 (4th Cir.

1999). As the Ninth Circuit has held:

Correspondence, bills, ledgers, statements and time records which also reveal the motive of the client in seeking representation, litigation strategy, or the specific nature of the services provided, such as researching particular areas of the law, fall within the privilege.

Clarke v. American Commerce Nat'l Bank, 974 F.2d 127, 129 (9th

Cir. 1992).

Similarly, the work product privilege protects information

in legal bills that, directly or indirectly, might reveal at

attorney's legal strategies or theories in a particular dispute.

The privilege extends to an attorney's "selection or

compilation" of material that, while not individually

privileged, would if taken together reveal his impressions,

conclusions or theories about a case, and accords it virtually

absolute protection against disclosure. See Spork v. Peil, 795

12

F.2d 312, 316 (3d Cir. 1985); see also Shelton v. American

Motors Corp., 805 F.2d 1323, 1328 (8th Cir. 1986).

That principle applies to the "selection or compilation" of

information represented by an attorney's bill. When litigation

is involved, such information may include the identity of

persons with whom the attorney spoke, the topics they discussed,

the documents reviewed and the issues researched. "These

descriptions necessarily reveal strategies, confidential

communications, and the thought processes behind the

representation." Hewes v. Langdon, 853 So. 2d 1237, 1249 (Miss.

2003).

Here West Cape May has redacted from its bills portions of

those entries that pertain to West Cape May's litigated disputes

with plaintiff and that would otherwise reveal with whom its

solicitor spoke, what he spoke to them about, when he spoke to

them, what documents he reviewed and what legal research he

performed. Absent those redactions, the bills would tell

plaintiff who the borough believes are important witnesses, what

the salient issues are, and how the borough intends to prosecute

or defend these cases. Both the attorney-client and the work

product privileges protect that information.

Plaintiff says OPRA requires legal bills to be disclosed in

full, and that no portions are privileged.

13

She cites Hunterdon

County PBA Local 188 v. Tp. of Franklin, 286 N.J. Super. 389

(App. Div. 1998), in support.

Hunterdon is inapposite. Contrary to plaintiff's claim,

that case did not involve an OPRA request; it involved a request

under the Right to Know Act, OPRA's superseded predecessor and

an entirely different statute, with entirely different

disclosure criteria. Compare L. 1963, c.73 (Right to Know Act)

with L. 2001, c. 404 (OPRA). See Serrano v. South Brunswick

Tp., 358 N.J. Super. 352, 363 (App. Div. 2003) . 4

The Right to Know Act contained no exemption for privileged

documents. By contrast (and as noted above), OPRA contains both

an express exemption for attorney-client privileged documents

(including privileged portions of attorney's bills) and an

exemption for material protected by the work-product privilege.

N.J.S.A. 47:1A-1.1; -9(b).

The request in Hunterdon did not involve any litigated

matter, and the municipality did not claim work-product

protection. Furthermore, the Hunterdon court conceded a bill

4 The Right to Know Act was codified at N.J.S.A. 47:1A-1 through 47:1A-4. The legislature replaced it precisely because it failed to deal adequately with the complex issues posed by requests for governmental records. See Transcript of Public Hearing on Senate Bill Nos. 161, 351, 573 and 866 (March 20, 2000), available at ht : I /Pubhear 03090 . PDF

14

might contain privileged material; it simply noted that, in its

experience, legal bills are "unlikelyn to contain confidential

information. See 286 N.J. Super. at 394-95.

Plaintiff's failure to account for her litigation with the

borough undermines her claim the borough has improperly

responded to her OPRA request for bills. Although generally the

purpose of the OPRA request is immaterial, the pendency of

litigation "is not a fact to be ignored.n Spectraserv, Inc. v.

Middlesex Cty. Utils. Auth., 416 N.J. Super. 565, 581 (App. Div.

2010). OPRA is not an "alternative to civil discovery.n MAG

Entertainment, LLC v. Div. of ABC, 375 N.J. Super. 534, 550

(App. Div. 2005).

This is particularly so when the work-product privilege is

involved. To the extent plaintiff claims she is entitled to the

"factual informationn in the bills, the doctrine requires her to

demonstrate that she has substantial need of that information

and cannot obtain it by other means. R. 4:10-2(c). Plaintiff

has not made that showing; and given the availability of

conventional discovery methods, she cannot.

In sum, to the extent municipal legal bills contain

material that is either attorney-client privileged, or whose

disclosure would unfairly alert an opposing party to a public

entity's litigation strategy, OPRA exempts that material from

15

disclosure. West Cape May's production of bills complies with

this principle. The Court should reject plaintiff's contrary

arguments.

IV. CONCLUSION

West Cape May has complied with OPRA. It has provided

plaintiff with a privilege log. It has properly redacted

material protected by the attorney-client and work-product

privileges from both the communications and the bills produced.

Plaintiff's contrary claims are without merit. In

particular, her position ignores her litigation with the

borough. Accordingly, for the foregoing reasons, the Court

should reject those claims in their entirety, dismiss

plaintiff's complaint, and enter judgment for the Borough of

West Cape May.

Dated: 12/23/13 Respectfully submitted,

BARRY, CORRADO & GRASSI, PC

16

FRANK L. CORRADO, ESQUIRE Attorney ID No. 022221983 BARRY, CORHADO &: GRASSI, P.C. 2700 Pacific Avenue Wildwood, NJ 08260 (609) 729-1333 Fax: (609) 522-4927 Attorneys for Defendant

BARBAHA BRAY WILDE,

Plaintiff,

vs.


Defendant.


Civil Action

ORDER

This matter having come before the Court on January 17,

2014, for summary disposition on Order to Show Cause; in the

presence of Colin Bell, Esquire, attorney for plaintiff Barbara

Wilde, and Frank L. Corrado, Esquire, attorney for defendant West

Cape May; and the Court having reviewed the submissions of the

parties and having heard argument thereon; and for good cause

shown,

IT IS on this ____ day of Ba~ua~~{ 2014, hereby ORDERED AND

DECREED as follows:

1. West Cape May's failure to produce a privilege log with

its initial production constitutes a violation of OPRA.

2. Because West Cape May provided the privilege log in

response to plaintiff's filed complaint, plaintiff is entitled to

legal fees limited solely to those fees associated with the

request for a privilege log. Within days of the date of

this order, plaintiff shall prepare and file a fee petition

limited solely to those fees. The Court will thereafter set a

briefing schedule and hearing date on that petition.

3. On all other issues raised by plaintiff's complaint and

accompanying submissions, the Court finds that no violations of

OPRA have occurred.

4. Accordingly, judgment is hereby entered in favor of West Cape May and against plaintiff on all other issues raised by

plaintiff's submission, and with respect to those issues

plaintiff's complaint is dismissed with prejudice. c--, P(7 v. \l ~4:)

JAME}- . SAVIO~J.S.C.-

2

scheeler v. west cape may

Documents

records request

alleged records custodian

records custodians

records content

excerpts of records

alleged custodian

government records council

custodian claims