2003-66

Final Decision

At its February 27, 2004 public meeting, the Government Records Council ("Council") considered the February 23, 2004 Findings and Recommendations of Executive Director and all related documentation submitted by the parties.

The Council voted to adopt the entirety of said Findings and Recommendations. The Council dismissed the complaint finding that access was properly withheld to the document at issue under the provisions of N.J.S.A. 47:1A-1.1 ("OPRA"), which states "A government record shall not include the following information, which is deemed to be confidential for the purposes of P.L.1963, c.73 (N.J.S.A. 47: 1A-1 et seq.) as amended and supplemented: any record within the attorney-client privilege."

Vincent P. Maltese, Chairman
Government Records Council

I attest the foregoing is a true and accurate record of the Government Records Council.

Virginia Hook, Secretary
Government Records Council

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Findings and Recommendations of the Executive Director

Relevant Records Requested:

1. Review letter sent to the Borough Attorney from the Township Administrator
2. Review plans dated October 27, 2000
3. RSIS Standard in Baker Cannonball Run

Request Made:  No dated provided
Response Made: April 22^nd and 23^rd, 2003
Custodian: Pompton Lakes Borough Clerk, Carol Kehoe
GRC Complaint Filed: June 4, 2003

Executive Director's Recommendation

This Open Public Records Act ("OPRA") Complaint filed June 4, 2003 alleges denial of OPRA request to the Borough of Pompton Lakes seeking to inspect a letter from the Pompton Lakes Borough Administrator to the Pompton Lakes Borough Board of Adjustment Attorney.  In addition, the request included review of plans dated October 27, 2000 and the RSIS standard for Baker Cannonball Run. 

The record reflects in the OPRA request, the requester did receive access to the plans dated October 27, 2000 and also received a letter from the Pompton Lakes Borough Engineer regarding the RSIS standard for Baker Cannonball Run.  The custodian stated, however, that access to the letter from the Borough Administrator to the Borough Attorney was denied alleging it is not public information as it is considered "attorney-client" privilege due to potential litigation.  The custodian also alledges that a Board of Adjustment Attorney would include all attorneys or attorneys hired for special cases. 

The custodian affirms in the Statement of Information that the letter is subject to "attorney-client privilege," therefore exempt from OPRA. 

The Executive Director respectfully recommends that the Council dismiss the complaint because:

1. N.J.S.A. 47:1A-1.1 ("OPRA") states "A government record shall not include the following information, which is deemed to be confidential for the purposes of P.L.1963, c.73 (N.J.S.A. 47: 1A-1 et seq.) as amended and supplemented: any record within the attorney-client privilege."

Legal Analysis

The custodian has invoked the attorney-client privilege.  Under the Open Public Records Act (OPRA), a government record shall not include that which is deemed confidential for the purposes of OPRA.  Specifically deemed confidential is "...any record within the attorney-client privilege.  This paragraph 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."  N.J.S.A. 47:1A-1.1.  In the instant case the record sought is a letter from the Borough Administrator seeking a legal opinion from the Zoning Board of Adjustment attorney.  The nature of the letter was not disclosed except that the certified SOI states that the letter: ...ask[ed] for a legal interpretation".  Given the nature of the letter and the exemptions provided under N.J.S.A. 47:1A-1.1, this case should be dismissed.  It is not within the GRC’s jurisdiction to pierce the attorney-client privilege.  No further legal analysis is needed.

Documents Reviewed

The following documents have been submitted in full to the members of the Government Records Council and/or designee concerning this case:

• No date provided- Requester OPRA request
• April 22, 2003 - Custodians OPRA request response
• April 23, 2003 - Custodian denial of access to letter from Borough Administrator to Borough Attorney 
•  June 4, 2003 - Denial of Access Complaint
• June 9, 2003 - Offer for Mediation to requester and custodian
• June 26, 2003 - Custodian Agreement to Mediate
• July 1, 2003 - Requester Agreement to Mediate
• January 29, 2004 - Statement of Information to custodian
• February 18, 2004 - Follow up letter and another Statement of Information to custodian with deadline of February 19, 2004
• February 19, 2004 - Statement of Information

Conclusion

The Executive Director respectfully recommends that the Council dismiss the complaint because:

1. N.J.S.A. 47:1A-1.1 ("OPRA") states "A government record shall not include the following information, which is deemed to be confidential for the purposes of P.L.1963, c.73 (C.47: 1A-1 et seq.) as amended and supplemented: any record within the attorney-client privilege."

_________________________

Paul F. Dice
Acting Executive Director
Government Records Council

Dated:  February 23, 2004

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