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State of NJ - Government Records Council Email Grc

2002-35

- Final Decision and Order
- Consolidating and Amending Findings and Recommendations
- Findings and Recommendation of Executive Director

Final Decision and Order

Linda Ellen Fisher
Complainant
v.
New Jersey Institute of Technology,
Custodian of Record

GRC Complaint No. 2002-35

Decision Issued: June 12, 2003
Decision Effective: June 12, 2003


At its June 12, 2003 public meeting, the Government Records Council considered Complaint #2002-35 filed pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 et seq. This complaint alleges a denial of access to a recent invoice from outside counsel to NJIT. NJIT provided a copy of an invoice dated July 9, 2002 for services rendered in connection with Haynes v. NJIT, Docket No. ESX-L-422-98 but redacted information from the description of services claimed to be attorney-client privileged. The custodian's attorney asserts that the redactions concerned a telephone call to an unidentified person "made to determine the direction of a pending litigation matter" and that the communication would be "used to formulate strategic decision[s] on how to proceed with an on-going appeal."

The Council considered the Complaint, the custodian's Statement of Information and attachments, submissions from the requester dated July 24, 2002, October 30, 2002, November 21, 2002, February 7 and 18, 2003, and March 6, 7,9,11 and 28, 2003; submissions from the custodian dated July 22 and 31, 2002, February 4, 2003 and March 10, 2003; and the Executive Director's Findings and Recommendations dated March 13, 2003 and June 12, 2003.

By affirmative vote of four council members on June 12, 2003, the Council adopts and incorporates herein the June 12, 2003 Findings and Recommendations of the Executive Director and hereby finds that the custodian's redactions contain material subject to the attorney-client privilege; that the redactions are lawful pursuant to N.J.S.A. 47:1A-1.1; and finds that the custodian did not waive the attorney-client privilege by failing to assert the privilege in its original response to the OPRA request. The Council hereby denies the requester's application for attorney's fees and dismisses the Complaint.

A copy of this Decision shall be provided to the requestor, the custodian, and all counsel of record.

/s/ Vincent 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

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Consolidating and Amending Findings and Recommendations

(Consolidating and Amending Findings and Recommendations of March 13, 2003)

 

Linda Ellen Fisher
Complainant
v.
New Jersey Institute of Technology,
Custodian of Record

GRC Complaint No. 2002-35

Decision Issued: June 12, 2003

Relevant Record(s) Requested: Most recent attorney's bill or invoice from an outside private attorney hired by New Jersey Institute of Technology (NJIT)
Request made: July 8, 2002
Custodian: Holly Stern, Associate General Counsel and Assistant Vice President, for Marlene Waltz, Custodian
Request granted with redactions: July 8, 2002
GRC Complaint filed: August 28, 2002


Executive Director's Recommendation

This complaint involves a request for a copy of a recent invoice to NJIT from outside counsel. The custodian provided an invoice with redactions intended to protect attorney-client privileged communications. The requestor challenged the custodian on the purposes for the redactions. The matter went through informal discussions by the parties, mediation, an attempt at settlement by GRC staff, and the filing of extensive submissions and replies. The custodian's attorney claims the redactions are necessary to protect the legal strategy of NJIT in on-going litigation.

The Executive Director finds that the requestor in its Complaint made various claims:

  • the custodian did not state the written reasons for the redactions in the initial response;
  • the custodian has failed to meet its burden of proof to show that the redacted information is attorney/client privileged;
  • the redacted material was so brief that it could be waived without revealing litigation strategy;
  • by revealing that part of the text noting that a conversation occurred, the privilege was waived for the remaining redacted material; and,
  • a detailed explanation of the redacted information is necessary for the Council to reach a conclusion.

The Executive Director finds that under the specific facts of this case none of the requestor's claims have merit. It is recommended that the Council find that the material redacted from the invoice is attorney client privileged, that the custodian has not waived the privilege by providing access to other portions of the invoice, and therefore the redactions are lawful under OPRA. Thus, it is recommended that the application for attorney fees be denied because the requestor did not obtain a final decision from the Council granting access to the record, and that the complaint be dismissed.

Statements of Facts

Requester sought, among other items, "the most recent attorney's bill or invoice from an outside private attorney" hired by NJIT.

In a July 22 letter to the requestor, NJIT Associate General Counsel Holly Stern provided a copy of an invoice from the law firm of Wiener Lesniak. The July 9, 2002 invoice contained a description of the case for which services were rendered (Haynes v. NJIT, Docket No. ESX-L-4222-98), the name of the attorney providing the services, the firm's hourly rate, the number of hours, the bill amount and notation of a carbon copy to NJIT's insurance company, United Educators, Chevy Chase Maryland. The entire description of the services rendered was redacted under a claim of "privileged attorney work product."

By letter dated July 24, the requestor's attorney demanded the custodian provide an unredacted description of services rendered because the information was neither confidential attorney work product nor privileged attorney client communication. On July 31, the custodian replied that the redactions reflected "privileged communications and legal strategies." Revelation of such material," the custodian claimed, would "place the university in a position where our adversaries would be able to discern our legal theories and strategy."

The GRC Complaint was filed August 28, 2002. Mediation was unsuccessful in resolving the dispute. On October 30, the requestor's counsel supplemented the Complaint arguing that the custodian waived the attorney client privilege by not asserting that defense in its July 22, 2002 response to the OPRA request; that the custodian had provided no information, such as a Vaughn Index, for the Council to deduce that the information being withheld related to a confidential litigation strategy; and that the custodian had failed to justify the withholding of access as required by N.J.S.A. 47:1A-6.

Requestor's counsel also noted that the material redacted amounted to less than three and one-half inches of type and that it was unlikely that text so brief would reveal a litigation strategy. Requestor's counsel attached numerous examples of other attorney invoices received from other public entities in response to his OPRA request. Counsel claimed that many attorneys disclosed the description of their services, and that others redacted only privileged material.

On November 18, 2002, the custodian filed a Statement of Information reiterating that access to the information would compromise the privilege and provide access to litigation strategy. The custodian also noted that OPRA specifically rendered privileged any record "within the attorney client privilege." OPRA further states that this exception shall not be construed as exempting from access attorney or consultant bills or invoices except that such bills or invoices may be redacted to remove any information protected by the attorney client privilege.

The requestor's attorney replied on November 21 reiterating his earlier arguments.

In January 2003, the GRC contacted the Custodian in an effort to settle the matter. By letter dated February 4, 2003, the custodian provided the requestor the portion of the description of services rendered that the custodian believed would preserve the confidentiality of the privileged communication. The custodian carefully noted that the material was being provided in an attempt to amicably resolve the matter. The description of services reads:

"Telephone conference with [redacted] re: status of [redacted] decision [redacted]"

The custodian stated that the name of the recipient of the telephone call and subject matter of the inquiry had been redacted to protect the attorney-client privilege.

By letter dated February 7, 2002, the requestor's attorney advised the custodian that the requestor rejected NJIT's "offer to disclose seven words but not the name of the recipient and the subject matter of the inquiry." The attorney alleged that NJIT had waived the attorney-client privilege with respect to the seven words disclosed.

After the Executive Director's Preliminary Findings and Recommendation was issued and before the GRC scheduled a hearing in this matter, the custodian's attorney sent a letter dated March 10 to both the GRC and the requestor, claiming that the "telephone call was made to determine the direction of a pending litigation matter" and that the outcome of the telephone call "would be used to formulate strategic decisions on how to proceed in an on-going appeal." As such, the redactions related to NJIT's strategy in the on-going litigation and are therefore, subject to the attorney-client privilege and not accessible under OPRA. The requestor filed letters disagreeing with the certain conclusions of the Executive Director and with the custodian's position.

The Executive Director's March 13, 2003 Findings and Recommendation recommended that the Council find that the redactions in the invoice were subject to the attorney client privilege and lawful pursuant to N.J.S.A. 47:1A-1.1 and that, as a result, the complaint should be dismissed. It was also found that the custodian has not waived the privilege by not asserting the defense in its original response to the OPRA complaint. The Council did not act on the matter at the March 13, 2003 meeting, but asked the parties to provide comments on the Findings and Recommendation so they might be considered at a later meeting.

The requestor's attorney submitted a March 28, 2003 letter to the Council noting certain alleged factual misstatements in the Findings and Recommendation. He argued that his client should be granted access to the redacted information because the custodian has failed to satisfy its burden under OPRA of demonstrating that the redacted information constitutes confidential attorney-client information. The requestor's attorney argued that his client is a prevailing party under OPRA because his client won something significant, because there is a causal relationship between the filing of the Complaint and the release of the previously redacted information, and because there was a basis under the law for his client's Complaint.

Analysis of Prevailing Party Claim

Based on advice we have received from the Division of Law, attorney fees may be awarded only where the requestor has obtained a final decision from the GRC that the record in question must be disclosed. OPRA and relevant case law do not support an award of attorney's fees where the requested record is released after a complaint is filed with the GRC but before a final administrative determination is rendered.

In support of this conclusion, New Jersey follows the general rule that each litigant bears their own counsel fees, except in those situations specifically designated by statute or court rule. North Bergen Rex Transport, Inc. v. Trailer Leasing Co., 158 N.J. 561, 569 (1999). OPRA [N.J.S.A. 47:1A-6 and 47:1A-7(f)] contains such an exception to the general rule; it provides that a "requestor who prevails in any proceeding shall be entitled to a reasonable attorney's fee."

The statute indicates that a requestor has prevailed, for purposes of receiving attorney fees, only where he receives a favorable adjudication from a court or the GRC. OPRA, at . N.J.S.A. 47:1A-6, permits a requestor to challenge a custodian's denial of access by filing a complaint with either the Superior Court or the GRC. This section of the statute further states:

"If it is determined that access has been improperly denied, the court or agency head shall order that access be allowed. A requestor who prevails in any proceeding shall be entitled to reasonable attorney's fees."

OPRA makes the authority of the GRC in making these decisions clear. After expressly empowering the GRC to render final decisions regarding access to a record [N.J.S.A. 47:1A-7(e)], N.J.S.A. 47:1A-7(f) reiterates that a requestor who prevails in a GRC proceeding is entitled to a reasonable attorneys fee.

It is significant that the statutory authorization (N.J.S.A. 47:1A-6) for attorney fee awards immediately follows the sentence that provides that a court or the GRC shall issue an order requiring access if it determines that access has been improperly denied. This indicates intent to link the two concepts. Accordingly, we construe OPRA as permitting an attorney fee award only in cases where the GRC has issued an order determining that access was improperly denied.

This conclusion is consistent with case law construing all similar attorneys fee-shifting statutes. In Buckhannon Bd. and Care Home v. West Virginia Dept. of Health & Human Res., 532 U.S 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001), the United States Supreme Court held that a plaintiff is not a prevailing party under the Fair Housing and Americans with Disabilities Acts, and therefore is not entitled to attorney fees, without obtaining a judicial ruling. The Court expressly repudiated the "catalyst theory," under which a party is considered prevailing for fee purposes as long as its litigation caused the defendant to change the challenged policy. The Court rejected the notion that a settlement between litigants, even where the plaintiff obtains the relief sought in his complaint, is sufficient to support an award of prevailing party attorney fees. Instead, it stated that only "enforceable judgments on the merits and court-ordered consent decrees create the 'material alteration of the legal relationship of the parties' necessary to permit an award of attorney's fees." 121 S.Ct. at 1840 (citation omitted).

Although Buckhannon dealt specifically with two federal statutes, the lower courts have consistently determined that the rejection of the catalyst theory by the United States Supreme Court applies to all statutes that provide attorney fees to the prevailing party. As stated by the Third Circuit, "We read Buckhannon to reject the catalyst theory whole hog." John T. v. Delaware County Int., 318 F.3d 545, 561 (3d. Cir. 2003). The courts have held that, pursuant to Buckhannon, a Federal Freedom of Information Act (FOIA) plaintiff is entitled to fees only where he is awarded relief by a court judgment or court-ordered consent decree.

This construction of FOIA is particularly significant in that the New Jersey Supreme Court has relied on the federal courts' interpretation of FOIA in construing New Jersey's public record statute. See, e.g., Loigman v. Kimmelman, 102 N.J. 98, 106 (1986). Indeed, FOIA and OPRA share the same legislative policy in favor of presumptive public access to government records. See N.J.S.A. 47:1A-1; Union of Needletrades, supra, 202 F.Supp.2d at 282. Thus, it is appropriate to follow the FOIA cases and conclude that OPRA does not incorporate the catalyst theory with regard to attorney fees.

Analysis and Conclusion

The record originally provided the requester was an invoice for legal services rendered by outside counsel in connection with on-going litigation. The custodian originally redacted the entire description of legal services rendered on the grounds that the material redacted was attorney-client privileged. The requester objected to the redactions on the grounds that the custodian provided no proof that the redactions contained privileged material and claimed the privilege had been waived because no written reasons for the redactions were provided in the original response.

The custodian has produced requested records with a limited number of redactions. The invoice text references a telephone conference, but redacts information relating to the specific subject matter of the conference and information indicating to whom the telephone call was made. In a March 10, 2003, letter, the custodian's attorney has stated that "the telephone call was made to determine the direction of a pending litigation matter," and that "the outcome of the telephone call would be used to formulate strategic decision on how to proceed with an ongoing appeal".

The custodian further stated that, "the redacted material cannot be judged in isolation, but as a part of a series of events revealing the university's strategic efforts to defend against the lawsuit. NJIT submits that such communication, involving strategy concerns, is confidential information protected by the attorney-client privilege."

New Jersey statutory law, case law and attorney ethical obligations define the parameters of the attorney-client privilege, which is intended to protect communications between a lawyer and client and information relating to that representation. Under this specific set of facts, the Executive Director recommends that the Council find that the redactions appearing in the invoice contain attorney-client privileged material and that, therefore, the redactions are lawful pursuant to N.J.S.A. 47:1A-1.1.

Furthermore, the Executive Director recommends that the Council reject the requester's claim that by not raising the attorney/client privilege in its initial response, the custodian waived the attorney/client privilege. The privilege has not been waived because:

  • OPRA permits the custodian to submit any statement or information concerning the complaint that the custodian wishes. N.J.S.A. 47:1A-7(e);
  • New Jersey law provides that waiver of the attorney/client privilege does not occur unless there is an intentional and deliberate relinquishment of the right;

Further, buttressing this conclusion are the following facts:

  • In the initial July 22, 2002 response, the custodian's attorney asserted that the redactions were privileged due to the attorney work product. The custodian's attorney asserted the attorney-client privilege as a basis for the redactions in July 31, 2002, February 4, 2003, and March 10, 2003 letters and in the custodian's Statement of Information and evidenced no intention of relinquishing the privilege; and
  • New Jersey Courts have found that as the attorney/client privilege belongs to the client, failure of an attorney to claim the privilege, alone, does not result in a waiver of the privilege.

The Executive Director also rejects the allegation that the custodian has revealed the content of privileged communications by divulging words in the description of services that show a conversation occurred on a particular date. There is no statute or case that suggests that any statutory privilege attaching to the content of any communication is waived merely by revealing the fact a communication occurred.

The Executive Director also rejects the contention that the custodian had provided no information, such as a Vaughn Index, for the Council to deduce that the information being withheld related to a confidential litigation strategy and the custodian has failed to justify the withholding of access as required by N.J.S.A. 47:1A-6. In this case, the custodian's attorney has stated that the "telephone call was made to determine the direction of a pending litigation matter" and that the outcome of the telephone call "would be used to formulate strategic decisions on how to proceed in an on-going appeal." It is clear that the redactions are related to NJIT's strategy in the on-going litigation and are therefore, subject to the attorney-client privilege and not accessible under OPRA.

With regard to whether the requester is a prevailing party, the Council has received advice from the Division of Law stating that attorney fees may be awarded only where the requestor has obtained a final decision from the GRC that the record in question must be disclosed. Applying this advice in this case, the Executive Director finds that the request for attorney fees should be denied; as the requester did not obtain a final decision from the Council that the record in question must be disclosed.

In conclusion, the Executive Director recommends that: the Council find that the material redacted from the invoice is attorney-client privileged and is lawful under N.J.S.A. 47:1A-1.1, the custodian has not waived the privilege, and that the application for attorney fees should be denied because the requester did not obtain a final decision from the Council granting access to the record. Thus, the Complaint should be dismissed.

/s/ Marc H. Pfeiffer, Acting Executive Director
Government Records Council

Dated: June 12, 2003

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Findings and Recommendation of Executive Director

Linda Ellen Fisher
Complainant
v.
New Jersey Institute of Technology,
Custodian of Record

GRC Complaint No. 2002-35

Decision Issued: March 13, 2003



Relevant Record(s) Requested: Most recent attorney's bill or invoice from an outside private attorney hired by New Jersey Institute of Technology (NJIT)
Request made: July 8, 2002
Custodian: Holly Stern, Associate General Counsel and Assistant Vice President, for Marlene Waltz, Custodian
Request granted with redactions: July 8, 2002
GRC Complaint filed: July 22, 2002

Executive Director's Preliminary Recommendation

This complaint involves a request for a copy of a recent invoice to NJIT from outside counsel. The custodian provided an invoice with redactions intended to protect attorney-client communications. The requester challenged the custodian on the purposes for the redactions. The matter went through informal discussions by the parties, mediation, and an attempt at settlement by GRC staff, and the filing of extensive submissions and replies. The custodian's attorney claims the redactions are necessary to protect the legal strategy of NJIT in on-going litigation.

The Executive Director finds that four claims were made by the requester: that the privilege was waived because the custodian failed to assert it in a timely fashion; that the redacted material was so brief that it could be waived without revealing litigation strategy; that by revealing part of the text that a conversation occurred, the privilege was waived for the remaining redacted material; and that a detailed explanation of the redacted information is necessary for the Council to reach a conclusion.
The Executive Director finds that under the specific facts of this case none of the requester's claims have merit. It is recommended that the Council find that the material redacted from the invoice is attorney client privileged, that the redactions from the attorney invoice are, therefore, lawful under N.J.S.A. 47:1A-1.1, and that the complaint be dismissed.

Statements of Facts

Requester sought, among other items, "the most recent attorney's bill or invoice from an outside private attorney" hired by NJIT.

In a July 22 letter to the requester, NJIT Associate General Counsel Holly Stern provided a copy of an invoice from the law firm of Wiener Lesniak. The July 9, 2002 invoice contained a description of the case for which services were rendered (Haynes v. NJIT, Docket No. ESX-L-4222-98), the name of the attorney providing the services, the firm's hourly rate, the number of hours, the bill amount and notation of a carbon copy to NJIT's insurance company, United Educators, Chevy Chase Maryland. Custodian and counsel, Holly Stern, Esq., redacted from the invoice the entire description of the services rendered, claiming it is "privileged attorney work product."

By letter dated July 24, the requester's attorney demanded the custodian provide an unredacted description of services rendered on the grounds that the information was neither confidential attorney work product nor privileged attorney client communication. On July 31, the custodian replied that the redactions reflected "privileged communications and legal strategies." Revelation of such material," the custodian claimed, would "place the university in a position where our adversaries would be able to discern our legal theories and strategy."

The GRC Complaint was filed August 28, 2002. Mediation was unsuccessful in resolving the dispute. On October 30, the requester's counsel supplemented the Complaint claiming that the custodian waived the attorney client privilege by not asserting that defense in its July 22, 2002 response to the OPRA request; that the custodian had provided no information, such as a Vaughn Index, for the Council to deduce that the information being withheld related to a confidential litigation strategy; and that the custodian had failed to justify the withholding of access as required by N.J.S.A. 47:1A-6.

Requester's counsel also noted that the material redacted amounted to less than three and on-half inches of type and that it was unlikely that text so brief would reveal a litigation strategy. Requester's counsel attached numerous examples of other attorney invoices received from other public entities in response to his OPRA request. Counsel claimed that many attorneys disclosed the description of their services, and that others redacted only privileged material.

On November 18, 2002, the custodian filed a Statement of Information reiterating that access to the information would compromise the privilege and provide access to litigation strategy. The custodian also noted that OPRA specifically rendered privileged any record "within the attorney client privilege." OPRA further states that this exception shall not be construed as exempting from access attorney or consultant bills or invoices except that such bills or invoices may be redacted to remove any information protected by the attorney client privilege.

The requester's attorney replied on November 21 reiterating his earlier arguments.

In January 2003, the GRC contacted the Custodian in an effort to settle the matter. By letter dated February 4, 2003, the custodian provided the requester the portion of the description of services rendered that the custodian believed would preserve the confidentiality of the privileged communication. The custodian carefully noted that the material was being provided in an attempt to amicably resolve the matter. The description of services reads:

"Telephone conference with [redacted] re: status of [redacted] decision [redacted]"
The custodian stated that the name of the recipient of the telephone call and subject matter of the inquiry had been redacted to protect the attorney-client privilege.

By letter dated February 7, 2002, the requester's attorney advised the custodian that the requester rejected NJIT's "offer to disclose seven words but not the name of the recipient and the subject matter of the inquiry." The attorney alleged that NJIT had actually disclosed the redacted material by disclosing portions of the description of services and waived the attorney client privilege.

The Custodian has identified the material redacted as (1) the name of a person to whom counsel spoke and (2) a case or decision bearing upon NJIT's strategy in litigating Haynes v, NJIT, Docket No. ESX-L-42222-98. The requester accepts this representation of the nature of the material redacted and alleges, instead, that the attorney client privilege does not apply to such information under any circumstance.

After the Executive Director's Preliminary Findings and Recommendation was issued and before the GRC scheduled a hearing in this matter, the custodian's attorney sent a letter dated March 10 to both the GRC and the requester, claiming that the "telephone call was made to determine the direction of a pending litigation matter" and that the outcome of the telephone call "would be used to formulate strategic decisions on how to proceed in an on-going appeal." As such, the redactions related to NJIT's strategy in the on-going litigation and are therefore, subject to the attorney-client privilege and not accessible under OPRA. The requester filed letters disagreeing with the certain conclusions of the Executive Director and with the custodian's position. In particular, the requester's attorney claimed that he had never been given notice that the redaction concerned discussion of a legal decision.

Analysis and Conclusion

The records originally provided the requester was an invoice for legal services rendered by outside counsel in connection with on-going litigation. The custodian originally redacted the entire description of legal services rendered on the grounds that the material redacted was attorney-client privileged. The requester objected to the redactions on the grounds that the custodian provided no proof that the redactions contained privileged material.

Noticing that the requester's counsel had submitted to the GRC and custodian examples of legal invoices received from other public entities that contained redactions more narrowly tailored than those done by NJIT, GRC staff contacted the custodian's attorney in this case and asked if the custodian would be willing to attempt to settle the case and tailor its redactions more narrowly. In response, NJIT provided the requester an invoice stating that NJIT's outside counsel had participated in a telephone conference regarding a legal decision. The custodian claimed that the identity of the person to whom its attorney spoke and the topic of discussion was attorney-client privileged.

Under this specific set of facts, the Executive Director concludes the following with regard to the claims of the requester:

  1. The information was neither confidential attorney work product nor privileged attorney client communication, and the material redacted was so brief that it was unlikely to reveal litigation strategy;
    • The requester has no basis for the claim, as the requester has not seen the unredacted record.

  2. The custodian waived the attorney client privilege by not asserting that defense in its July 22, 2002 response to the OPRA request.
    • The privilege has not been waived because:
      • Rule of Court 4:6-2 and -3 provide for waiver of certain legal defenses relating to in personam jurisdiction and does not apply to claims of attorney client privilege;
      • The Custodian articulated the attorney-client privilege in its July 31st letter to requester's attorney and its SOI filed November 18; and
      • New Jersey Courts have held that failure of an attorney to claim the privilege, alone, does not result in a waiver of the privilege.

  3. The custodian has revealed the content of privileged communications by divulging words in the description of services that show a conversation occurred on a particular date.
    • There is no statute or case that suggests that any statutory privilege attaching to the content of any communication is waived merely by revealing the fact a communication occurred.

  4. The custodian had provided no information, such as a Vaughn Index, for the Council to deduce that the information being withheld related to a confidential litigation strategy and the custodian has failed to justify the withholding of access as required by N.J.S.A. 47:1A-6.
    • The custodian's attorney has stated that the "telephone call was made to determine the direction of a pending litigation matter" and that the outcome of the telephone call "would be used to formulate strategic decisions on how to proceed in an on-going appeal." As such, the redactions are related to NJIT's strategy in the on-going litigation and are therefore, subject to the attorney-client privilege and not accessible under OPRA.

In conclusion, the Executive Director recommends that the Council find that the material redacted from the invoice is attorney-client privileged and that the redactions from this legal invoice are lawful under N.J.S.A. 47:1A-1.1 and that the Complaint should be dismissed.

/s/ Marc H. Pfeiffer, Acting Executive Director Government Records Council

Dated: March 13, 2003

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