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2003-72

- Final Decision
- Findings and Recommendations of the Acting Executive Director

Final Decision

James Edwards,
Complainant
v.
Jersey City Municipal Utilities Authority,
Custodian of Record

Complaint No. 2003-72
Decision Issued: February 27 2004
Decision Effective: March 11, 2004

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 said findings. Therefore, the Council dismissed the complaint finding that:

  1. The Custodian met its burden of showing that the redactions in the Booth memorandum, and the entire McManimon and Carr memoranda.properly invoked the exception for attorney-client privilege to deny access under N.J.S.A. 47:1A-1.1 of OPRA.
  2. The certification of the Custodian adequately explained why the Kallen memorandum was not supplied. 
  3. A "Vaughn Index" is unnecessary as the custodian met its burden in showing the privileged nature of information and documents in this matter.
  4. The custodian violated the requirements of OPRA in failing to respond to the request within a seven business day time period.  The custodian responded on September 23, 2002 and provided over 300 pages documents responsive to the request.  The delay in response was not "knowing and willful" under the OPRA statute and no fine is warranted.
  5. The June 11, 2003 response of the JCMUA to the Requestor's April and May 2003 telephonic requests for reconsideration of his claims also does not provide a basis for a fine, since there currently are no time requirements for a response to a request for reconsideration, nor does an oral demand for documents constitute an OPRA request subject to the seven-day deadline.
  6. Since all the challenged denials of access are soundly based in law and fact, and the requestor was not represented no issues of attorney's fees are warranted. 

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 Acting Executive Director

James Edwards                                                 GRC Complaint No.  2003-72
Complainant
    v.
Jesey City Municipal Utilities Authority
Custodian of Records

Relevant Records Requested: All records in the custody of Jersey City Municipal Utilities Authority relating to the proposed sewer hookup fee controversy.
Custodian: Mark Curtis
Request Made: September 6, 2002
Response Made: September 23, 2002
GRC Complaint filed: June 9, 2003

Recommendations of Acting Executive Director

In this case the Requestor sought copies of:

  1. An unredacted memorandum dated May 30, 2002 from former JCMUA financial agent Jay Booth to the JCMUA Board of Commissioners ("Booth memorandum");
  2. A memorandum prepared by JCMUA Bond Counsel, Edward J.  McManimon,  III, Esq., ("McManimon memorandum") to the JCMUA Chief Financial Officer, which was copied to Jay Booth and attached to the Booth memorandum;
  3. A memorandum dated May 30, 3002 from JCMUA Purchasing Agent Kevin Carr to JCMUA counsel Mark Curtis, Esq., concerning pending litigation ("Carr memorandum"); and
  4. A memorandum prepared by Assistant Corporation Counsel Nora Kallen addressed to former Corporation counsel Alexander Booth, Jr., ("Kallen memorandum"). 
  5. The Requestor seeks to have the GRC require that the JCMUA provide a "Vaughn Index" of all documents for which privilege is claimed, with reasons for the assertion of privilege. 
  6. The Requestor seeks to have the JCMUA fined, specifically for the allegedly knowing and willful failure to provide a timely response to his April and May 2003 telephonic requests for reconsideration of the custodian's September 23, 2002 response to the original OPRA request.
  7. The unrepresented Requestor also seeks attorney’s fees to compensate him for the time he, a non-attorney, personally spent pursuing the OPRA requests to the JCMUA.

The requestor received approximately 300 pages of documents responsive to the request and the custodian withheld approximately five pages of material claimed to be privileged. 

The Custodian asserted that the redacted portions of the Booth memorandum, and the McManimon and  Carr memoranda all are exempt from disclosure pursuant to attorney-client privilege.  The Kallen memorandum cannot be provided because it cannot be found among the files of the JCMUA or the files turned over to its current attorneys from the former counsel who allegedly received the memorandum from the Jersey City Law Department.  In addition, the Custodian noted that a "Vaughn Index" would be redundant in this case, because the claims of privilege were listed and explained in the two responses provided to the Requestor on September 23, 2002 and June 11, 2003.  Counsel for the JCMUA argued further that no fine should be granted because the Requestor seeks a penalty against the JCMUA, which cannot itself be fined under OPRA.  The JCMUA contended that the Custodian responded to the OPRA request in good faith by turning over approximately 300 pages of documents, and withholding fewer than five pages of material for which detailed and legally justifiable explanations were provided on two separate occasions.  Finally, the Custodian argued that since the Requestor does not assert that he received advice of counsel, he did not incur legal fees compensable pursuant to OPRA.

The Requestor contended that the JCMUA waived its right to assert the attorney-client privilege regarding the McManimon memorandum, and the redacted excerpts in the Booth memorandum, by providing copies of that material to Jay Booth, who then conveyed a copy to the Commissioners of the JCMUA.  With regard to the Carr memorandum, the Requestor argued that it is not subject to attorney-client privilege because it was not written by an attorney, but by an employee of the JCMUA, and was merely addressed to that organization's attorney.  The Requestor also challenged the credibility of the Custodian's assertion that no copy of the Kallen memorandum can be found in the files of the JCMUA and its current counsel.  The Requestor argued that a "Vaughn Index" is necessary, and that if he prevailed on his challenge to the denial of access, the JCMUA should be fined for unsuccessfully asserting claims of attorney-client privilege regarding the Booth, McManimon and Carr memoranda, and inability to locate the Kallen memorandum.  The Requestor contended that the imposition of a fine and   grant attorney's fees, regardless of whether or not he actually incurred counsel fees, both would further what he perceives as a Legislative intention to discourage entities subject to OPRA from attempting to utilize the exemptions contained in the statute.

The Acting Executive Director respectfully recommends the Council find that the complaint should be dismissed because:

  1. The Custodian met its burden of showing that the redactions in the Booth memorandum, and the entire McManimon and Carr memoranda.properly invoked the exception for attorney-client privilege to deny access under N.J.S.A. 47:1A-1.1 of OPRA.
  2. The certification of the Custodian adequately explained why the Kallen memorandum was not supplied.
  3. A "Vaughn Index" is unnecessary as the custodian met its burden in showing the privileged nature of information and documents in this matter.
  4. The custodian violated the requirements of OPRA in failing to respond to the request within a seven business day time period. The custodian responded on September 23, 2002 and provided over 300 pages documents responsive to the request. The delay in response was not "knowing and willful" under the OPRA statute and no fine is warranted.
  5. The June 11, 2003 response of the JCMUA to the Requestor's April and May 2003 telephonic requests for reconsideration of his claims also does not provide a basis for a fine, since there currently are no time requirements for a response to a request for reconsideration, nor does an oral demand for documents constitute an OPRA request subject to the seven-day deadline.
  6. Since all the challenged denials of access are soundly based in law and fact, and the requestor was not represented no issues of attorney's fees are warranted.

Legal Analysis

The JCMUA properly denied access to the redactions from the Booth memorandum, the McManimon memorandum, and  the Carr memorandum, based upon the assertions of attorney-client privilege.  N.J.S.A. 47:1A-1.1 provided that any record within the attorney-client privilege is not a government record.  "The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law . . . Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice."  Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 682, 66 L.Ed. 2d 584 (1980). 

New Jersey Rule of Evidence 504(3) provides that a "communication made in the course of a relationship between lawyer and client shall be presumed to have been made in professional confidence unless knowingly made within the hearing of some person whose presence nullified the privilege."  Further, "{I}f the purpose of the communication is to aid the attorney in giving advice to his client or to prepare for litigation, then the privilege applies."  Hannan v. St. Joseph's Hospital & Med. Center, 318 N.J. Super. 22, 27 (App. Div. 1999).  Additionally, the comment to Rule of Professional Conduct 1.6, which addresses a lawyer's ethical obligations to a client regarding confidentiality of information, explicitly applies to all information relating to the representation, whatever the source, including matters communicated to the attorney in confidence by the client and its employees and agents acting in the course of their duties.  Macey v. Rollins Environmental Services, Inc., 179 N.J. Super. 535, 540 (App. Div. 1981).

Application of these legal principles establish that the  JCMUA properly asserted claims of attorney-client privilege.  The (1) redactions from the Booth memorandum of references to the McManimon memorandum, and (2) that memorandum itself, concerned legal advice given to the JCMUA by its Bond Counsel.  The provision of the McManimon memorandum to Booth while he was the Financial Advisor of the JCMUA did not constitute the knowing release of the memorandum to a "third party," creating a waiver of the privilege.  Booth was a paid, contractual agent of the JCMUA, and, as such, was privy to legal advice relating to the matters, which he was hired to handle for the JCMUA.  Similarly, conveyance of the McManimon memorandum to the Commissioners of the JCMUA did not constitute a release of the memorandum to a "third party," creating a waiver of the privilege, because the Commissioners are officers of the JCMUA, and, as such, are privy to legal advice relating to the matters for which they are responsible.  Moreover, even if Booth had conveyed the McManimon memorandum to a third party after he had been released from his contract with the JCMUA, this unilateral action without the knowledge and consent of the JCMUA would not create a waiver of the attorney-client privilege. 

(3) The Carr memorandum also falls squarely within the attorney-client privilege.  Carr, an employee of the JCMUA, drafted the memorandum in response to a request for information from counsel for the JCMUA.  The Carr memorandum was a privileged communication between an agent of the client and its attorney to assist in the handling of pending litigation involving the JCMUA.

The JCMUA properly denied access to (1) the redacted portions of the Booth memorandum, (2) the McManimon memorandum, and (3) the Carr memorandum on the basis of attorney-client privilege.  In addition, with regard to (4) the Kallen memorandum, the Custodian certifies that this document does not currently exist in any available files of the JCMUA or its current attorneys.*  The Requestor provides no support for his supposition that the certification is inaccurate.  The Custodian cannot be required to provide material, which is not in its possession.

The request for (5) a "Vaughn Index" is denied.  Each claim of privilege is detailed and explained in the September 2002 and June 2003 letters from the Custodian.  The Requestor provides no reason to expect that a "Vaughn Index" would add any information to the consideration of this matter.  A "Vaughn Index" would, in these circumstances, be superfluous. 

The Requestor also challenges (6) the timeliness specifically of the JCMUA's response to his requests for reconsideration of the initial denial of access to the Booth, McManimon and Carr memoranda, and the failure to provide the Kallen memorandum.  The request for reconsideration apparently was made only in a number of telephone conversations approximately six months after the response to the initial request.  In the absence of a written request, and a rule providing deadlines for reconsideration, a fine would be inappropriate.

Since all of the challenged denials of access by the JCMUA are soundly based in law and fact, no issues of attorney’s fees arises. 

In the circumstances, the GRC declines to address the Requestor's contention that he personally should be entitled to compensation for the time he spent pursuing this matter, although he did not incur counsel fees. 

In conclusion, the Custodian properly invoked the exception for attorney-client privilege to deny access under OPRA to the (1) redactions in the Booth memorandum, and the entire (2) McManimon and (3) Carr memoranda.  Furthermore, (4) the certification of the Custodian adequately explains why the Kallen memorandum has not been supplied.  (5) A "Vaughn Index" is unnecessary in the circumstances of this matter, and neither (6) a fine nor (7) an award of attorney's fees is warranted.

Documents Reviewed
September 6, 2002 - Records Request
September 23, 2002 - Custodian's Response to Records Request
June 6, 2003 - Denial of Access Complaint Filed along with Exhibits
June 11, 2003 - Custodian Reaffirms Reasons for Not Disclosing Certain Documents
June 13, 2003 - Mediation Forms Submitted to Requestor and Custodian
June 13, 2003 - Email by Requestor to Forgo Mediation
July 21, 2003 - Statement of Information Form Sent to Custodian
August 4, 2003 - Statement of Information Submitted along with Exhibits
February 2, 2004 - Letter by Requestor to GRC Asking for a Motion to Expedite the Case

Conclusion

The Acting Executive Director respectfully recommends the Council find that the complaint should be dismissed because:

  1. The Custodian met its burden of showing that the redactions in the Booth memorandum, and the entire McManimon and Carr memoranda.properly invoked the exception for attorney-client privilege to deny access under N.J.S.A. 47:1A-1.1 of OPRA.
  2. The certification of the Custodian adequately explained why the Kallen memorandum was not supplied.
  3. A "Vaughn Index" is unnecessary as the custodian met its burden in showing the privileged nature of information and documents in this matter.
  4. The custodian violated the requirements of OPRA in failing to respond to the request within a seven business day time period.  The custodian responded on September 23, 2002 and provided over 300 pages documents responsive to the request.  The delay in response was not "knowing and willful" under the OPRA statute and no fine is warranted.
  5. The June 11, 2003 response of the JCMUA to the Requestor's April and May 2003 telephonic requests for reconsideration of his claims also does not provide a basis for a fine, since there currently are no time requirements for a response to a request for reconsideration, nor does an oral demand for documents constitute an OPRA request subject to the seven-day deadline.
  6. Since all the challenged denials of access are soundly based in law and fact, and the requestor was not represented no issues of attorney's fees are warranted. 

Paul F. Dice
Acting Executive Director
Government Records Council

Dated:  February 27, 2004


*Moreover, even if the Kallen memorandum were available for disclosure by the JCMUA, this document is exempt from disclosure under OPRA because it constitutes "inter-agency or intra-agency advisory, consultative, or deliberative material" pursuant to N.J.S.A. 47:1A-1.1.  See, Edwards v. City of Jersey City, GRC Docket No. 2002-71 (February 23, 2004).

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