Sunday, May 23, 2010

Loss in Supreme Court

On May 19, 2010, the New Jersey Supreme Court denied a request to review a March 5, 2010 Appellate Division decision holding that the New Jersey Attorney General's unpublished, written opinions transmitted to state agencies are attorney-client privileged communications and thus exempt from disclosure under the Open Public Records Act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).

I was the plaintiff and appellant in the case, and was ably represented by Richard Gutman of Montclair. All of the filings in the case, from the trial court, the Appellate Division and the Supreme Court are in one 25 MByte file available for download here.

State agencies, such as the Department of Community Affairs, rely upon the Attorney General's opinions, known as Administrative Agency Advice (AAA) letters, as interpretations of the statutes and regulations that the agencies apply and enforce.

The AAA letters are, in essence, a body of law that state agencies use to enforce statutes and regulations. Mr. Gutman argued that the AAA letters were not made in professional confidence or in the course of an attorney-client relationship. He 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.

He also 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, he 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."

Unfortunately, the Supreme Court declined to review the Appellate Division's decision.

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