Ass'n for Governmental Resp. v. Mantoloking

316 A.3d 928

478 N.J.Super. 470

ASSOCIATION FOR GOVERNMENTAL RESPONSIBILITY, ETHICS AND TRANSPARENCY, Plaintiff-Appellant,

v.BOROUGH OF MANTOLOKING, Municipal Clerk of the Borough of Mantoloking, and Custodian of Records, Defendants-Respondents.

DOCKET NO. A-2395-22

Superior Court of New Jersey, Appellate Division.

Argued January 30, 2024

Decided May 13, 2024

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2729-22.

Donald Francis Burke argued the cause for appellant (Law Office of Donald F. Burke, attorneys; Donald Francis Burke and Donald Francis Burke, Jr., on the briefs).

Robin La Bue argued the cause for respondents (Rothstein, Mandell, Strohm, Halm & Cipriani, attorneys; Robin La Bue, on the brief).

Before Judges Rose, Smith and Perez Friscia (Judge Smith dissenting).

₄₇₇The opinion of the court was delivered by

ROSE, J.A.D.

This appeal presents a novel issue, requiring us to determine whether the New Jersey Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, or the common law right of public access, mandates disclosure of an attorney’s identity when the attorney renders legal advice to a colleague or friend about an ongoing prosecution. In the present matter, a municipal prosecutor sought counsel from an attorney who, in turn, rendered advice via email ₄₇₈to the prosecutor’s personal account. The prosecutor, in turn, disclosed the contents of the email in open court and provided a printed copy of the email to the defense, but redacted the sender’s name and email address. The municipality thereafter denied a government records request for the unredacted email.

Plaintiff Association for Governmental Responsibility, Ethics, and Transparency (AGREAT) now appeals from the March 3, 2023 Law Division order denying its order to show cause to compel production of the email requested from defendants Borough of Mantoloking, its clerk, and its custodian of records (collectively, defendants). The motion judge concluded the email did not fall within OPRA’s definition of a government record. We affirm the order under review and further hold the email is not subject to disclosure under the common law. We also conclude, even if the email were a government record, the work product privilege and confidentiality exemptions under N.J.S.A. 47:1A-9(b) weight against disclosure.

I.

This appeal has its genesis in a quasicriminal municipal court action against Donald F. Burke, Sr., counsel for AGREAT in the present matter. To give context to the issues raised on appeal, we summarize the nature of those proceedings from our prior decision reversing the Law Division’s interlocutory discovery order and remanding the matter to the municipal court. See State v. Burke, No. A-0503-22, 2023 WL 4618488 (App. Div. July 19, 2023) (slip op. at 1-19).

In October 2020, Jakob Weingroff filed a citizen’s complaint in Mantoloking Municipal Court alleging Burke had committed various traffic infractions during their verbal altercation the prior month. Id. at 2. The complainant and defendant were not strangers; the bad blood between them emanated from "an ongoing property dispute" involving the men and their family members. Ibid.

₄₇₉At the time of the incident, Weingroff had resigned from his employment as a New Jersey State Police (NJSP) trooper. Id. at 3 n.1. Previously charged criminally with fourth-degree falsifying or tampering with records, N.J.S.A. 20:21-4, and administratively with misconduct regarding the same unspecified incident, Weingroff was admitted into the pretrial intervention (PTI) program in 2018, and voluntarily forfeited his employment with the NJSP. Ibid.

In view of a conflict of interest, Elizabeth J. Leahey was appointed prosecutor in the municipal matter.¹ Burke pled not guilty to the traffic violations and sought discovery of Weingroff’s prior employment, disciplinary, and "related criminal records." Id. at 2. After the State denied Burke’s request, Burke moved to dismiss the complaint and compel discovery of Weingroff’s records, arguing they were discoverable under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Id. at 3-5. The municipal court denied Burke’s application and issued a protective order barring discovery of the requested records. Id. at 6-8.

The Law Division granted Burke leave to appeal from the municipal court’s order. Id. at 8. During oral argument on August 22, 2022, Leahey stated Weingroff "recently revealed" the charges had been expunged in June 2020. Id. at 9. Seemingly concerned about the ramifications of disclosing the existence of the expungement order, Leahey stated, "I am revealing this information to you under common law immunity as an officer of the court."²

₄₈₀Apparently addressing Donald F. Burke, Jr., who represented his father at the hearing, Leahey elaborated:

I just want to remind you that any information relating to an expunged report, arrest record, or PTI are not admissible at trial, under N.J.S.A. 2C:52-27. And that any adversary who knowingly reveals the existence of the arrest, the conviction, or related legal proceedings of note in open court with the knowledge that they are expunged is in violation of RPC 8.4.

At some point during the hearing, Leahey handed the defense³ a copy of the email at issue, with the sender’s name and email address redacted. The subject line of the email states, "Lizzy – please review this." Dated November 17, 2021, the email provides, verbatim:

Lizzy – Two things:

First, The information related to the expunged arrest and PTI is not admissible at trial: Here is the statute:

2C:52-27. Effect of expungement

Unless otherwise provided by law, if an order of expungement is granted, the arrest, conviction and any proceedings related thereto shall be deemed not to have occurred, and the petitioner may answer any questions relating to their occurrence accordingly, except as follows:

a. The fact of an expungement, sealing or similar relief shall be disclosed as provided in section 2C:52-8b.

b. The fact of an expungement of prior charges which were dismissed because of the person’s acceptance into and successful completion of a supervisory treatment or other diversion program shall be disclosed by said person to any court that is determining the propriety of accepting said person into a supervisory treatment or other diversion program for subsequent criminal charges;

------------------------------------------------

Second, if your adversary knowingly reveals this in open court he himself is guilty of a d/p offense as well as an ethics violation RPC 8.4(b).

Remind him of this statute in open court on Thursday!!!

N.J.S.A. 2C:52-30 – Except as otherwise provided in this chapter, any person who reveals to another the existence of an arrest, conviction or related legal proceeding with knowledge that the records and information pertaining thereto have been expunged or sealed is a disorderly person. Notwithstanding the provisions of section 2C:43-3, the maximum fine which can be imposed for violation of this section is $200.00.

₄₈₁Immediately following oral argument, the court denied Burke’s motion. Id. at 10. We granted Burke leave to appeal from the August 22, 2022 order and reversed, concluding Burke "demonstrated both good cause and a compelling need for the subject records" under N.J.S.A. 2C:52-19. Id. at 17-18.

The following month, AGREAT made an OPRA request via email to the Borough clerk for "communications between Elizabeth Leahey and Jakob Weingroff … includ[ing] all emails, text messages and other forms of communication electronically maintained or hard copy." AGREAT provided Leahey’s Gmail address and Weingroff’s Hotmail address "[f]or ease in searching," but noted "they may have used others." AGREAT also requested a Vaughn⁴ index.

One month later, following email exchanges with the Borough clerk that are not relevant here, AGREAT submitted a second OPRA request specifically seeking the November 17 email. The clerk responded within two days, noting "there are no responsive documents." Reproducing portions of the November 17 email in another email to the Borough clerk, the following day AGREAT replied: "Please ask Ms. Leahey for this email and all emails in the chain which I assume she has overlooked."

Thereafter, the Borough’s attorney, Robin La Bue, sent an email to AGREAT, stating the requestor’s second OPRA request was, denied because the November 17 email did not meet the definition of a public document under OPRA. See N.J.S.A. 47:1A-1.1. AGREAT replied within hours, contending the Borough’s position was "baseless" and the email "must be disclosed" both under OPRA and the common law. On behalf of AGREAT, Burke sent a detailed memorializing letter to the Borough’s counsel the next day.

₄₈₂La Bue denied Burke’s ensuing request for a Paff⁵ certification, asserting an affidavit was not required "for every OPRA request" and "the document [wa]s not being withheld under a claim of privilege." La Bue elaborated: "The requested document is a private email from a private attorney to another private attorney appointed as conflict prosecutor by the Borough of Mantoloking. Emails that she sends or receives within the scope of her representation of the State as prosecutor are public documents. Private emails are not."

In his response, Burke claimed the November 17 email "is plainly a government record because the subject matter [concerns] State v. Burke," the municipal matter assigned to Leahey as the Borough’s conflict attorney. Citing the threatening nature of the email, Burke contended: "The requested email goes to the heart of OPRA." Burke further noted OPRA makes "no carveout for a public official using her personal email account." Instead, "the statute turns on whether a public official is communicating in the cour[se] of the public official’s ‘official business.’ " See N.J.S.A. 47:1A-1.1.

Having reached an impasse, on AGREAT’s...