Friday, March 5, 2010

Appellate Division rules against OPRA requestor

In a March 5, 2010 published opinion, the Appellate Division ruled that the New Jersey Attorney General's unpublished, written opinions transmitted to state agencies are attorney-client privileged communications and thus exempt from disclosure under the Open Public Records Act (OPRA). Agencies rely upon these opinions, known as Administrative Agency Advice (AAA) letters, as interpretations of the statutes and regulations that the agencies apply and enforce. I am the plaintiff and appellant in the case, represented by Richard Gutman of Montclair.

The Appellate Division also ruled that the trial court erred by ordering the Attorney General's office to provide me with a list of AAA letters showing the date of the AAA, its docket number, the agency requesting it and the attorney who prepared it. Consequently, the trial court's award of Mr. Gutman's attorney fees was reversed since I was no longer the "prevailing party" in the suit.

The AAA letters are, in essence, a body of law that state agencies use to enforce statutes and regulations. We argued that the AAA letters were not made in professional confidence or in the course of an attorney-client relationship. We also argued that citizens who are subject to an agency's jurisdiction have a right, under the common law, to access the legal opinions that guide the agency's interpretations of the regulations it applies and enforces.

We argued that there was a distinction between a government lawyer representing a client in litigation and that same lawyer formulating law that will be applied to others. In support of this argument, we cited two federal appeals court decisions. Yet, the Appellate Division elected to "part company" with the federal appeals court and held instead that "so long as the attorney is providing legal advice in some form, the privilege will apply."

The Appellate Division's opinion is on-line here. The briefs that were filed in the trial court are on-line here and the 162-page file that contains the exhibits before the trial court are on-line here.

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