NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3007-08T13007-08T1

JOHN PAFF,

Plaintiff-Appellant/

Cross-Respondent,

v.

DIVISION OF LAW,

Defendant-Respondent/

Cross-Appellant.

________________________________________________________________

Argued January 19, 2010 - Decided

Before Judges Baxter, Alvarez and Coburn.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1800-08.

Richard Gutman argued the cause for appellant/cross-respondent.

Lewis A. Scheindlin, Assistant Attorney General, argued the cause for respondent/cross-appellant (Anne Milgram, Attorney General, attorney; Nancy Kaplen, Assistant Attorney General, of counsel; Mr. Scheindlin, on the briefs).

The opinion of the court was delivered by

BAXTER, J.A.D.

This appeal requires us to determine the scope of the attorney-client privilege. In particular, we are called upon to decide whether unpublished Administrative Agency Advice (AAA) letters issued by the Division of Law (Division), which interpret the statutes and regulations the Division's administrative agency clients are required to apply and enforce, are "government records" for purposes of the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and therefore available to the public. We answer that question in the negative because we are satisfied that the AAAs are a "record within the attorney-client privilege," N.J.S.A. 47:1A-1.1, and therefore not subject to public access under OPRA.

We reject plaintiff's contention that the AAAs themselves are not privileged and consequently the judge erred by denying his request for a list of the topics of all AAAs issued since 2002. Therefore, because plaintiff's only argument in support of his right to the subject matter list is the lack of any privilege, we affirm the judge's denial of plaintiff's request for the subject matter index.

In its cross-appeal, the Division challenges a portion of the judge's December 17, 2008 order that required it to provide a list of the date and docket number of each unpublished AAA, the agency requesting it and the attorney who prepared it. We agree with the Division that because the more limited index the judge ordered the Division to provide is derived solely from materials that are themselves privileged, the judge erred by ordering the Division to provide such a list. That being so, the judge's conclusion that plaintiff was a prevailing party entitled to counsel fees was in error. Moreover, the judge's order -- which required the Division to provide plaintiff with a list that did not include the subject matter of the AAAs -- resulted in providing plaintiff with a document he did not want and could not use. Considering plaintiff a prevailing party was, under such circumstances, an erroneous conclusion. We thus reverse on the cross-appeal and remand for the entry of an order vacating both paragraph 2 of the December 17, 2008 order and the February 18, 2009 order that awarded plaintiff a $7,780 attorney's fee as a prevailing party.

I.

On April 22, 2008, plaintiff John Paff submitted both a common law and an OPRA request to the Division of Law for "a roster or listing that shows . . . the date, author, the recipient and topic of all Agency Advice Letters [from] January 1, 2002 through the current date." Before addressing the legal issues raised by this appeal, we pause to describe the function of AAAs. As we discuss later in this opinion, the Attorney General, acting through the Division of Law, is the "sole legal adviser" for all state agencies, boards and authorities, and is also responsible for "interpret[ing] all statutes and legal documents" for those clients. N.J.S.A. 52:17A-4(e). One of the methods by which the Division discharges that statutory responsibility is by issuing legal opinions, known as Administrative Agency Advice letters, whenever a State agency requests legal advice. New Jersey Department of Law and Public Safety, Division of Law Handbook (Handbook) 10-11 (Sept. 2006). As the Handbook explains, "[b]y providing sound legal opinions to our clients in a timely manner, we will assist our clients by avoiding unnecessary litigation or by prevailing in legal challenges to their actions or policies." Id. at 10.

The Handbook explains the difference between AAA Formal Opinions and the unpublished AAAs that are the subject of this appeal. The former have been deemed "so significant as to warrant broad circulation," which is "accomplished via a release to the press, distribution to public officials and county law libraries, and publication in the New Jersey Law Journal and New Jersey Lawyer." Id. at 13. However, unless an AAA is designated as a formal opinion and released to the press, "the opinion is a confidential document protected by the attorney-client privilege." Id. at 14. In such circumstances, "copies of the opinion should not be disseminated to any person or entity other than the requesting agency and members of the Division of Law staff except with the approval of AAG Bender." Ibid. Both unpublished and published AAAs are assigned a subject matter designation and docket number, and are stored on an electronic database that can be accessed on the Division's intranet by deputy attorneys general. Ibid. The Handbook reminds all users of the intranet that "it should be presumed that all opinions, except formal Attorney General opinions, are attorney-client privileged." Ibid.

Until 1966, the Division published its informal AAAs, but ceased that practice thereafter. Contained in plaintiff's appendix are examples of unpublished AAAs issued after 1966, and for which Division clients waived the attorney-client privilege by releasing the AAAs to the public or posting them on agency websites. Those informal AAAs for which the agency waived the privilege include opinions issued to the Department of Community Affairs (DCA) on whether corporations and partnerships bidding on public contracts are required to specify the names of each individual who holds more than a ten percent interest in the corporation or partnership; whether a contractor who provides goods and services to a local contracting unit or school district is required to provide the same proof of valid business registration issued by the Department of Revenue as are those who contract with State agencies; and whether local government units may utilize bank, travel and entertainment credit cards to purchase goods and services.

Similarly, the Election Law Enforcement Commission (ELEC) posted on its website fifty-two informal opinions issued to ELEC by the Division between 1998 and 2008 on a wide variety of topics, of which five such informal AAAs are contained in plaintiff's appendix. Those five address whether specified organizations are prohibited from making political contributions.

Last, plaintiff's appendix includes ten informal AAAs issued by the Division to DCA in 1991, which DCA has released to the public. All ten provide advice on whether various local officials were required to file the financial disclosure statements required by the then recently-enacted Local Government Ethics Law, N.J.S.A. 40A:9-22.6.

The number of published formal AAAs has declined dramatically between 1949 and 2008, the last year for which data is contained in the record. Published AAAs averaged sixty-two per year between 1949 and 1962, but dropped to an average of five per year between 1962 and 1973. Between 1973 and 1978, the number increased to an average of twenty-four per year before decreasing to an average of six per year between 1981 and 1986. Between 1986 and 2008, only twelve formal AAAs were issued, all prior to 1996. None have been issued since. In contrast, based on the docket numbers of which he is aware, plaintiff contends that approximately 200 informal AAAs are sought and issued each year.

In its response to plaintiff's OPRA request for a list of the topics of all informal AAAs issued since 2002, the Division initially stated that a list showing only the date and author might be discoverable under OPRA, but it needed additional time to consider the legal issue of whether such a list could be disclosed. However, before the Division completed its consideration of that first request, denominated request W35654, plaintiff submitted a second OPRA request, designated W36369, for "all indexes of Attorney General's memorandum opinions, informal opinions, administrative agency advice letters and/or any other Attorney General opinions other than formal opinions." Plaintiff explained that he was not requesting the Division to provide him with copies of the publicly-available indexes of the formal opinions issued by the Attorney General.

On June 5, 2008, the Division of Law's custodian of records notified plaintiff that both of his requests were denied on the basis of the confidentiality afforded by the attorney-client privilege. With regard to W35654, the first request, which sought a list from 2002 to the present of the date, author, recipient and topic of legal advice, the custodian explained that although the Division had initially offered to provide the dates and author of each opinion, "[u]pon further legal review, we have determined that the attorney-client privilege requires that any roster or listing of advice rendered to our clients be entirely confidential." At the same time, the custodian informed plaintiff that the Division also declined to provide the actual AAAs for the same reason, namely the attorney-client privilege.

Shortly thereafter, on July 17, 2008, plaintiff filed a complaint in the Law Division challenging the Division's denial of his OPRA requests. The complaint sought, under OPRA and the common law, an order granting plaintiff access in unredacted form to all "Attorney General AAA and/or 'Informal' opinion rosters/listings and indexes." Plaintiff did not seek copies of the actual AAAs. He sought only a list showing the topic, or subject matter, of each AAA. The Division sought dismissal of plaintiff's complaint.

The judge held that the attorney-client privilege protects the AAAs from disclosure. She also held that the same privilege prohibits access to a list of the topic or subject matter of AAAs, but that the attorney-client privilege did not preclude disclosure of the name of the author of each AAA, the date of issuance, the docket number and the client requesting and receiving the opinion. Consequently, by order of December 17, 2008, she directed the Division to provide plaintiff with such a list. Considering plaintiff to be a prevailing party under OPRA, the judge issued a supplemental order on February 18, 2009 awarding plaintiff $7,780 in attorney's fees.

On appeal, plaintiff contends that the December 17, 2008 order that denied his OPRA request for a list of the topics and subjects of all informal AAAs issued since 2002 constitutes reversible error because: 1) "[b]oth OPRA and the attorney-client privilege require that the privilege be narrowly interpreted and that the Division bear the burden of proof"; and 2) "[t]he attorney-client privilege does not apply to Executive Branch Secret Law."

II.

When reviewing a trial court's grant of summary

judgment, this court applies the same standard the trial court applied. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). The legal conclusions of the trial court are reviewed de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Because the issues upon which this appeal is based, namely the applicability of the attorney-client privilege, are primarily legal, we review the Law Division's conclusions de novo.

Plaintiff argues that the subject matter list of the AAAs that he requested should have been disclosed because the AAAs themselves are not protected under the attorney-client privilege. The Division maintains that because the AAAs are protected from disclosure by the attorney-client privilege, it stands to reason that the subjects of the AAAs are protected legal advice that are likewise protected from disclosure.

The Open Public Records Act, under which plaintiff seeks relief, provides that:

government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions, for the protection of the public interest, and any limitations on the right of access accorded by P.L. 1963, c. 73 (C. 47:1A-1 et seq.) as amended and supplemented, shall be construed in favor of the public's right of access.

[N.J.S.A. 47:1A-1.]

However, OPRA expressly exempts from the definition of a government record "any record within the attorney-client privilege." N.J.S.A. 47:1A-1.1. Thus, if the AAAs are a "record within the attorney-client privilege," they are confidential documents and beyond OPRA's reach. Ibid.

The attorney-client privilege has been codified in New Jersey, by both statute and rule, the terms of which are identical. The statute and rule provide, in relevant part:

[C]ommunications between lawyer and his client in the course of that relationship and in professional confidence, are privileged, and a client has a privilege (a) to refuse to disclose any such communication, and (b) to prevent his lawyer from disclosing it, and (c) to prevent any other witness from disclosing such communication if it came to the knowledge of such witness (i) in the course of its transmittal between the client and the lawyer, or (ii) in a manner not reasonably to be anticipated, or (iii) as a result of a breach of the lawyer-client relationship, or (iv) in the course of a recognized confidential or privileged communication between the client and such witness. The privilege shall be claimed by the lawyer unless otherwise instructed by the client or his representative.

[N.J.S.A. 2A:84A-20(1); N.J.R.E. 504.]

The purpose of the attorney-client privilege is "'to encourage clients to make full disclosure to their attorneys.' The policy underlying this privilege is to promote full and free discussion between a client [and his] attorney . . . . [I]t is essential that a client be able to protect his discussions with his attorney from disclosure." Macey v. Rollins Envtl. Servs. (N.J.), Inc., 179 N.J. Super. 535, 539 (App. Div. 1981) (quoting Fisher v. United States, 425 U.S. 391, 403, 96 S. Ct. 1569, 1577, 48 L. Ed.2d 39, 51 (1976)).

Despite the importance of the privilege, it should be construed strictly:

Since the recognition of the privileged communication between attorney and client rests in the suppression of the truth the privilege should be strictly construed in accordance with its object. The privilege is an anomaly and ought not to be extended. The rule of privilege, having a tendency to prevent the full disclosure of the truth, ought to be construed strictly.

[In re Selser, 15 N.J. 393, 405-06 (1954) (internal quotations and citations omitted).]

It is well-settled that there exists an attorney-client relationship between the Division and the state agencies to which it provides legal advice. This relationship is codified in N.J.S.A. 52:17A-4, which states that the Division shall

[a]ct as the sole legal adviser, attorney or counsel, notwithstanding the provisions of any other law, for all officers, departments, boards, bodies, commissions and instrumentalities of the State Government in all matters other than those requiring the performance of administrative functions entailing the enforcement, prosecution and hearing of issues as imposed by law upon them; and represent them in all proceedings or actions of any kind which may be brought for or against them in any court of this State; and shall likewise interpret all statutes and legal documents, inspect and approve contracts and titles and otherwise control their legal activities.

[N.J.S.A. 52:17A-4(e).]

Plaintiff argues that "when the Attorney General issues written opinions to government officials and agencies, she usually is not functioning as does a private attorney in an attorney-client relationship." Obviously, such a contention was squarely rejected by the Legislature when it enacted N.J.S.A. 52:17A-4. New Jersey courts have also rejected the position plaintiff has advanced, and have repeatedly held that the attorney-client privilege is fully applicable to communications between a state agency and its attorney. For example, in Payton v. New Jersey Turnpike Authority, 148 N.J. 524, 550-51 (1997), the Court held that a unit of State government, such as the Turnpike Authority, is a "client" for purposes of the attorney-client privilege, and consequently any legal advice rendered by retained counsel in connection with the plaintiff's sexual harassment complaint against the Turnpike Authority fell within the attorney-client privilege and was shielded from disclosure. In contrast, where the attorney is not providing legal advice, but is merely performing "nonlegal duties" such as conducting an investigation, the attorney-client privilege otherwise available to a state agency will be deemed inapplicable. Ibid. The Court remanded for an in camera inspection of the documents to determine if they were protected by the privilege. Id. at 551-52.

Similarly, in In re Grand Jury Subpoenas Duces Tecum Served by Sussex County, 241 N.J. Super. 18, 28 (App. Div. 1989), we held that "the [attorney-client] privilege is fully applicable to communications between a public body and an attorney retained to represent it." Specifically, we considered the situation of a law firm retained by a county Board of Freeholders as special counsel to "render 'professional legal services'" in connection with the functioning of the County Adjuster so as to "'bring [the practices] of the . . . Adjuster's Office into compliance with . . . current laws and regulations. . . .'" Id. at 22. We held that the attorneys who rendered that advice were entitled to assert the attorney-client privilege when subpoenaed to provide testimony before the grand jury that was investigating irregularities within the Adjuster's Office. Id. at 28-29.

Relying on a number of federal precedents, we held that so long as the attorneys rendered confidential legal advice, the government agency involved, namely the Board of Freeholders, was entitled to invoke the attorney-client privilege in the same fashion as any private individual or corporation because "many of the considerations which underlie application of the attorney-client privilege to corporations militate strongly in favor of its extension to public entities." Id. at 29 (internal citation omitted). We concluded that the attorney-client privilege applies because a governmental client has the same need as a corporation for assurance that legal advice provided by its attorneys will remain confidential. Ibid.

In applying the privilege to the relationship between an attorney and a government agency, we reasoned that a state agency has the same need for "sound legal advice" as a private client and that "the confidentiality of communications" between the government and its attorney is in the public interest:

The attorney-client privilege is thus deeply embedded in our jurisprudence and formed a part of the common law of England prior to the birth of this country. While the privilege was not originally embodied in either constitutional or statutory provisions, our Legislature ultimately codified it in N.J.S.A. 2A:84A-20. It presently appears in our Rules of Evidence. See [N.J.R.E. 504]. As we have pointed out, the privilege recognizes that sound legal advice . . . serves public ends and that the confidentiality of communications between client and attorney constitutes an indispensable ingredient of our legal system.

[Id. at 27-28 (internal citations and quotations omitted).]

The attorney-client privilege is of course "'limited to communications made to the attorney in his professional capacity.'" Id. at 30. (quoting United Jersey Bank v. Wolosoff, 196 N.J. Super. 553, 562 (App. Div. 1984)). "Stated . . . differently, the privilege accords the shield of secrecy" to administrative agencies whenever "confidential communications" are rendered "within the context of the strict relation of attorney and client." Ibid.

Less than two years ago, we reiterated the conclusion we reached two decades ago in Grand Jury Subpoenas, that the attorney-client privilege applies to the relationship between government agencies and their lawyers. In Fisher v. Division of Law, 400 N.J. Super 61, 65-66 (App. Div. 2008), we considered the service fees to be imposed for the processing of an OPRA request concerning the assignment of deputy attorneys general to the Government Records Council and concerning the Division of Law's representation of that state agency. We held that it was reasonable for the Division to assign responsibility for retrieval and review of e-mails and computer files responsive to the OPRA request to the deputy attorneys general who had prepared those records, not only because the attorneys could do so more efficiently than the Division's clerical employees, id. at 65, but also because the Division of Law "provides legal advice to other agencies of state government that is subject to the attorney-client privilege." Id. at 73 (internal citations omitted).

Thus, in light of Payton, Grand Jury Subpoenas and Fisher, it is beyond dispute that the attorney-client privilege applies whenever confidential legal advice is rendered to state agencies, whether by private counsel as in Payton and Grand Jury Subpoenas, or by the Division, as was the case in Fisher.

Thus, the issue in this appeal is not whether the attorney-client privilege exists between the Division and the state agencies that request unpublished AAAs, but whether the AAAs, or more specifically the subjects and topics of the AAAs, constitute attorney-client privileged communications.

Plaintiff contends that the AAAs are not privileged communications. He supports this argument with two federal cases, the first of which is Tax Analysts v. Internal Revenue Service, 117 F.3d 607 (D.C. Cir. 1997). In Tax Analysts, the plaintiff, a nonprofit corporation, brought an action under the Freedom of Information Act (FOIA), 5 U.S.C.A.