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2002-34

- Final Decision
- Findings and Recommendation of Executive Director

Final Decision

Linda Ellen Fisher,                                     Complaint No. 2002-34
Complainant                                                Decision Issued: July 10, 2003
v.                                                                  Decision Effective: July 17, 2003

Township of Cedar Grove,
Custodian of Record


At its July 10, 2003 public meeting, the Government Records Council considered Complaint #2002-34 filed pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 et seq., against Cedar Grove Township seeking a copy of the most recent bill or invoice from outside counsel. The requestor challenged the custodian's claim that the text redacted from a May 17, 2002 invoice for services rendered by McElroy, Deutsch and Mulvaney, LLP contained attorney client privileged material exempt from access under OPRA.

The Council considered the Requestor's complaint; the Custodian's Statement of Information; communications on behalf of the Custodian dated August 14, 2002, April 9, 2003, March 5, 2003 and July 2, 2003; communications on behalf of the Requestor dated July 23, 2002, October 30, 2002, March 11 and 28, 2003 and July 3, 2003; and the Executive Director's Findings and Recommendations dated June 12, 2003 and July 10, 2003.

By affirmative vote of five Council members at its July 10, 2003 meeting, the Council voted to adopt and incorporate herein the Findings and Recommendations of the Executive Director dated July 10, 2003 and to dismiss the Complaint.

A copy of this Order shall be served on the requester, the custodian and all legal counsel of record.

/s/ Vincent P. Maltese, Chair
Government Records Council

I attest the foregoing is a true and accurate record of the Government Records Council.
/s/ Virginia Hook, Secretary
Government Records Council

Dated: July 16, 2003

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Findings and Recommendation of Executive Director

Linda Ellen Fisher,                                                       Complaint No. 2002-34
Complainant                                                
v.                                                                  

Township of Cedar Grove,
Custodian of Record


Relevant Record(s) Requested: most recent attorney's bill or invoice from an outside private attorney hired by the Township of Cedar Grove
Request made: July 14, 2002
Custodian: Kathleen Stutz, Clerk
Request denial: July 18, 2002
GRC Complaint filed: August 28, 2002

Executive Director's Supplemental Recommendation

These Findings and Recommendation supplement those initially made on June 12, 2003, and are based on a certification filed by the custodian's counsel. The certification provides additional explanation of the reason for the redactions. The Executive Director finds that these explanations provide elaboration of the claims initially made by the custodian and support the claim of attorney-privilege for text redacted from an attorney invoice. Since the redactions are lawful under OPRA, it is recommended that the case be dismissed.

Statements of Facts

This matter was initially addressed in Findings and Recommendations (F&R) of June 12, 2003, when after consideration by the Council, a two-two vote (one absent) resulted in no action by the Council on the F&R. The initial F&R recommended that the case be dismissed because the custodian had provided sufficient information explaining redactions claimed as attorney-client privilege.

As a result of the Council's deliberations during its public meeting the custodian's counsel has provided a certification dated July 2nd detailing the reasons for the redactions, and revealing additional information on the invoice. By letter dated July 3rd, the Requestor's attorney claims the explanation is inadequate and asks the Council to order access to the redacted text.

In summary, custodian's counsel asserts that redacted material constitutes privileged information "used to formulate strategic decisions on how to proceed."

Four entries on a single invoice are at issue.

April 3, 2002
The custodian's attorney asserts the redacted information contains "critical and sensitive legal theories and underpinning procedural strategies of the Township in the pending litigation, that was the subject of communications between the municipal attorney and his client on that date." He further claims that disclosure would reveal legal strategy and disclose the nature and extent of substantive attorney-client communications regarding the "formulation of the direction of the Township in a litigated matter."

In response, the requestor's attorney argues that because the documents described in the invoice have been filed with the court, the privilege is lost. He alleges that the "strategy" claimed to be confidential has already been revealed because that strategy was, simply put, to file the motion with the Court.

April 11 & 22, 2002
The custodian's attorney argues that the few words of redacted text describes the content of a letter and a telephone call to his client discussing specific legal strategies for the litigation, which is separate and distinct from the content of the motion and certification described in the April 3, 2002 entry. It is argued that "disclosure of this material would reveal legal strategy and disclose the nature and extent of substantive attorney-client communications" regarding the "formulation of the direction of the Township in a litigated matter."

The requester makes no specific argument with respect to these entries.

April 25, 2002
Custodian's counsel claims that the six words following the entry "Receipt of signed affidavit from Mr. Hamilton" redacted by the Custodian describes the "litigation" strategy of the Township. He claims that disclosing the information would reveal legal strategy and the nature and extent of substantive attorney-client communications regarding the "formulation of the direction of the Township in a litigated matter."

The requester argues that the legal theory of the case has been revealed in the motion papers filed with the Court.

Analysis and Conclusion

After review of the material and considering the precedents the Council has set in similar cases, it is found as follows with regard to each of the redactions:

April 3, 2002: The redacted material contains material that is attorney-client privileged in nature and that the redaction is lawful under OPRA.

April 11 & 22, 2002: The attorney's characterization or summary of these confidential communications with his client is, itself, confidential and are, therefore, lawful redactions under OPRA.

April 25, 2003: The redacted text reflects confidential attorney thought-processes and strategy that is privileged; that the client refuses to waive the privilege; and that the redactions are, therefore, lawful under OPRA.

Given that the three series of redactions are lawful under OPRA and that the client has elected not to waive the privilege, it is recommended that the complaint be dismissed.


/s/ Marc H. Pfeiffer, Acting Executive Director
Government Records Council
Dated: July 10, 2003

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