MARK Y. MOON v. COUNTY OF HUDSON HUDSON COUNTY BOARD OF CHOSEN FREEHOLDERS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3649-09T2

MARK Y. MOON,

Plaintiff-Appellant,

v.

COUNTY OF HUDSON, HUDSON

COUNTY BOARD OF CHOSEN

FREEHOLDERS and ALBERT SANTOS,

individually and in his

capacity as Clerk of the

Board of Chosen Freeholders,

Defendants-Respondents.

_____________________________

March 28, 2011

Submitted March 14, 2011 - Decided

Before Judges Reisner and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-0041-10.

Trenk, DiPasquale, Webster, Della Fera & Sodono, P.C., attorneys for appellant (Richard D. Trenk, of counsel; Mark Y. Moon and Scott J. Koplik, on the brief).

Florio & Kenny, L.L.P., attorneys for respondents (Edward J. Florio, of counsel; Christopher K. Harriott, on the brief).

PER CURIAM

Plaintiff appeals from an order dated March 8, 2010 denying his request for an unredacted copy of the transcript of a closed session meeting of the Hudson County Board of Chosen Freeholders (Board). We remand this matter to the trial court for reconsideration.

I

The case arose from a dispute over a publicly bid contract to provide medical services at the Hudson County Correctional Center. Plaintiff s client, CFG Health Systems, LLC (CFG), was the losing bidder. In a separate lawsuit, CFG successfully challenged the award to the winning bidder, Correctional Health Systems L.L.C.1 Plaintiff then made a request under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, seeking the transcript of a March 26, 2009 closed session, during which the Board had discussed the awarding of the contract. In response, the Board produced a redacted transcript of the closed session, contending that the redacted information was protected by the attorney-client privilege and was therefore exempt from disclosure under OPRA. Plaintiff filed suit claiming a right to the transcript under OPRA and under the common law.

The OPRA lawsuit was heard by a different judge than the one who decided the bidding litigation. At oral argument in the OPRA lawsuit, plaintiff contended that the Board went into a closed session without adopting the necessary resolution under the Open Public Meetings Act (OPMA). N.J.S.A. 10:4-13. Plaintiff did not present any legally competent evidence to support that contention. According to the trial judge s decision, however, after the motion hearing, the Board "conceded that no resolution was made." Plaintiff also argued that the Board waived any attorney-client privilege that might have existed, by later discussing the attorney s advice in open session.

The Board s counsel argued that the closed session transcript was protected from OPRA disclosure by the attorney-client privilege, and that the privilege had not been waived. The Board s counsel also asserted that a failure to adopt an appropriate OPMA resolution would not defeat the exception set forth in OPRA for attorney-client communications.

The Board provided the judge with the entire transcript of the closed session for in camera review. After reviewing the transcript in camera, the judge issued a written opinion dated February 16, 2010, concluding that the redacted transcript was protected by the attorney-client privilege. She further found that the privilege was not vitiated by the Board's failure to take a proper vote, pursuant to OPMA, before going into closed session.

The judge also found that "the substance" of the closed session was discussed in open public meetings that occurred in April 2009. However, in her decision, the judge did not address or decide plaintiff s argument that the discussion in the public portions of the meetings in April constituted a waiver of the attorney-client privilege.

II

On this appeal, plaintiff contends, as he did in the trial court, that the Board cannot claim the protections of any OPRA exception, including the attorney-client privilege, because it failed to follow the proper OPMA procedure for going into closed session. Plaintiff also argues that the Board waived the attorney-client privilege by discussing the attorney's advice in open sessions held on April 21 and 23, 2009.

We cannot conclude that the OPRA exception for attorney-client communications is vitiated by an agency's failure to comply with OPMA. This is so because OPRA contains its own exception for attorney-client privileged materials. N.J.S.A. 47:1A-1.1 specifically provides that "[a] government record shall not include the following information which is deemed to be confidential: . . . any record within the attorney-client privilege." Therefore, attorney-client privileged materials are not government records subject to disclosure under OPRA.

We also do not find Allan-Deane Corp. v. Township Of Bedminster, 153 N.J. Super. 114 (App. Div. 1977), persuasive on the OPMA issue. Allan-Deane did not involve a claim of attorney-client privilege. Rather, it concerned a joint meeting between members of different public agencies. We found that the meeting was subject to OPMA and therefore the record of the meeting should be publicly available. Allan-Deane does not hold that any violation of OPMA renders the minutes of a closed session meeting available to the public.

Here, there is no question that the Board had the right to meet in closed session to receive legal advice from its attorney. Given the recognized importance of the attorney-client privilege, we do not find disclosure of such otherwise privileged information to be an appropriate remedy, particularly when it is sought by an adversary in ongoing litigation. Nor does OPMA suggest that should be the result. N.J.S.A. 10:4-12 specifically provides that discussions of attorney-client advice may proceed in closed session, and N.J.S.A. 10:4-14 provides that the minutes of public meetings shall be made promptly available to the public "to the extent that making such matters public shall not be inconsistent with section 7 of this act [N.J.S.A. 10:4-12]." In fact, even when disclosure of the minutes of closed sessions would otherwise be required, there is an exception for attorney-client communications. See Payton v. New Jersey Tpk. Auth., 148 N.J. 524, 558 (1997).

However, as discussed below, we cannot decide the separate issue of whether the redacted portions of the transcript are in fact attorney-client privileged materials or whether the privilege was waived.

The trial judge s decision did not address or decide the merits of the waiver issue, and we could not decide the issue for the first time on this appeal even if we were so inclined. The transcripts of the April 21 and 23, 2009 open sessions provided to us reveal that some of the Board members discussed, with each other and with the Board s counsel, some advice that the attorney had previously provided to them. However, we do not have before us the unredacted transcript of the March 26 closed session, and therefore we do not know what legal advice was given at that session. Nor do we have any findings of fact or conclusions of law from the trial judge as to whether or to what extent the discussion in the April sessions disclosed the advice given in the closed session of March 26 and whether that operated to waive the privilege. Therefore, we remand this case to the trial judge to address the waiver issue.

1 That lawsuit, invalidating the award of the bid, gave rise to a separate appeal. CFG Health Systems, L.L.C. v. County of Hudson, No. A-2034-09 (App. Div. May 14, 2010).