2002-39

Final Decision

At its September 11, 2003 public meeting, the Government Records Council considered Complaint No. 2002-39 filed pursuant to the Open Public Records Act, N.J.S.A. 47:1A-1 et seq., challenging the custodian's failure to provide access to the most recent invoice from outside counsel.

The custodian provided access to a June 26, 2002 invoice from Jeffrey R. Surenian, Esq. for services rendered in on-going litigation but redacted the description of services on the ground it constituted attorney-client privileged material that was exempt from access under N.J.S.A. 47:1A-1.1. The custodian provided access to non-privileged segments of the redacted material on June 26, 2002. After communication between requestor and custodian and inquiry between Council staff and the custodian's attorney, access was provided to all remaining redacted material on or about August 20, 2003 on the grounds the underlying litigation was concluded and the need for redaction had been "obviated."

The Council considered the requestor's complaint and attachments: the custodian's Statement of Information and attachments; communications on behalf of the requestor dated July 23, October 30 2002 and January 11, March 9, April 3 and May 19, 2003; communications on behalf of the custodian dated July 10 and August 9, 2002 and January 8, March 17, May 19, August 12 and 20, 2003; GRC staff communications dated August 11, 2003; the Preliminary Findings and Recommendation of the Acting Executive Director dated March 5, 2003; and the Findings and Recommendations of the Acting Executive Director dated September 8, 2003 that:

• Access had been provided to the government record sought;
• The custodian did not knowingly and willfully violate OPRA;
• The requestor was not a "prevailing party," and therefore,
• That the complaint should be dismissed.

By affirmative vote of five Council members at its September 11, 2003 meeting, the Council voted to adopt and incorporate the Director's September 8, 2003 Findings and Recommendation and dismiss the complaint.

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

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Findings and Recommendation of Executive Director

Relevant Record(s) Requested: most recent attorney's bill or invoice from an outside private attorney hired by the Township of Fairfield
Request made: July 8, 2002
Custodian: Patricia Fahy, Clerk
Request denial: July 17, 2002
GRC Complaint filed: August 30, 2002

This complaint involves the disclosure of an attorney fee voucher that was initially disclosed with redactions. Over the course of the investigation, and through correspondence between the parties and the Council, the custodian revealed additional while maintaining other redactions. At issue were the justifications for the use of the attorney client privilege, a subsequent claim of the advisory, consultative, and deliberative exception by the custodian, and the challenge to the privilege presented by the disclosure of information to a legal adversary.

The custodian recently produced the full, unredacted invoice. Because the custodian has voluntarily disclosed the requested record, the requestor is not a prevailing party for the purposes of awarding attorney fees under OPRA. Although the custodian and custodian counsel was less than thorough in complying with the OPRA requirements for providing an explanation why information was redacted from the requested record, there is no evidence to support a finding that the custodian knowingly and willfully violated OPRA.

Under these circumstances, the Executive Director recommends that this complaint be dismissed.

Statements of Facts

Requestor sought, among other items, "the most recent attorney's bill or invoice from an outside private attorney hired by the Township of Fairfield.
In a July 10 2002, letter to the requestor, the custodian offered to provide a redacted copy of an invoice dated June 26, 2002 for services rendered by Jeffrey R. Surenian, Esq. of "Lomell Law Firm" in Toms River in connection with Sterling v. Fairfield, currently in litigation. The invoice contained an internal file number, eight dates in May on which services were rendered, the attorney's initials ("JRS"), the time expended by this special counsel and the bill for each service. The custodian redacted the entire description of the services rendered on all dates, claiming the Township was "in on-going litigation."

By letter dated July 23, 2002, the requestor's attorney asked the custodian's attorney to state the specific reasons for the redaction, to describe the material redacted, and rejected the claim that the attorney-client privilege justified the redactions.

By letter dated August 9, 2002, the custodian's attorney, David Paris, advised the requestor that the redacted material included a description of the work performed in representation of the Township in litigation, which was withheld pursuant to the attorney-client privilege and OPRA.

The Denial of Access Complaint was filed August 30, 2002. On September 3 2002, the custodian's attorney wrote the GRC asking that the matter go into mediation. Mediation was unsuccessful and the matter proceeded to adjudication.

In a Statement of Information filed October 29, 2002, the custodian claimed that the complaint was frivolous and the claims and requested relief were without factual basis. He argued that attorney bills of active litigation could be redacted to protect attorney-client privilege pursuant to OPRA. He asserted that the Township would be at a severe disadvantage in litigation if it was required to disclose the services performed by its counsel, information that would not be accessible from a non-public entity litigant.

On October 30, 2002, the requestor supplemented its complaint, alleging that that the custodian waived the attorney client privilege by not asserting that defense in its initial response to the OPRA request; that the custodian had provided no information for the Council to deduce that the information being withheld related to material commonly considered attorney-client privileged; and that the custodian had failed to justify denial of access as required by N.J.S.A. 47:1A-6. Custodian counsel provided numerous examples of invoices from other public entities' counsel, claiming that where the description of services contains privileged information, the agency redacts the privileged material and provides access to the remainder of the document.

In late December 2002, the GRC contacted the parties to determine whether settlement of the matter was possible. In response to this communication, custodian's counsel provided the requestor's attorney an amended invoice attached to a January 8, 2003 letter.

In the letter, the custodian's counsel stated that the services rendered were in connection with negotiation of a settlement between the Township and a litigation adversary, which was not yet finalized. Nevertheless, services described on four dates were revealed in their entirety. The other entries were revealed but had some information redacted. Counsel noted that the redacted material was:

1. "…identities of Township representatives dealing with the attorney;
2. …the subject matter of discussions held by Township representatives and opposing counsel with legal counsel for the Township; [and]
3. …the subject matter of other forms of communications between Township attorney and Township representatives."

By letter dated January 11, 2003, the requestor's attorney alleged the Township had failed to prove that the exemption based on ongoing litigation is valid under the law; that the custodian's claim of privilege based on settlement negotiations was untimely and, therefore, waived; that Fairfield had not established how disclosure of the redacted information would compromise the negotiations or other privileged communications; that discussions with opposing counsel were not attorney-client privileged; that the identities of Township personnel speaking to the attorney were not privileged; and that only the substance of a communication would be privileged, but not the subject matter. Requestor's counsel stated that access to the full invoice should be required because OPRA was enacted, in part, to provide access to bills and contracts to see what work was being performed at public expense.

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