NEW JERSEY SECOND AMENDMENT SOCIETY VS. DIVISION OF STATE POLICE, ETC. (L-1143-11, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2033-15T1

NEW JERSEY SECOND AMENDMENT
SOCIETY,

Plaintiff-Appellant,

v.

DIVISION OF STATE POLICE OF THE
NEW JERSEY DEPARTMENT OF LAW AND
PUBIC SAFETY,

Defendant-Respondent.
____________________________________

Argued October 30, 2017 – Decided June 19, 2018

Before Judges Messano and Vernoia.

On appeal from the Superior Court of New
Jersey, Law Division, Mercer County, Docket
No. L-1143-11.

Richard M. Gutman argued the cause for
appellant.

Daniel M. Vannella, Deputy Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General, attorney; Lisa
A. Puglisi, Assistant Attorney General, of
counsel; Daniel M. Vannella, on the brief).

PER CURIAM
 Plaintiff New Jersey Second Amendment Society appeals from

an order finding defendant New Jersey State Police's (NJSP)

production of a redacted version of its Firearms Applicant

Investigation Guide (Guide) complied with the requirements of the

Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and

dismissing the complaint. We affirm in part, vacate in part and

remand for further proceedings.

I.

We detailed the facts in our initial decision in his matter,

N.J. Second Amendment Soc'y v. Div. of State Police of the N.J.

Dep't of Law & Pub. Safety, No. A-2103-11T3, A-2396-11T3 (App.

Div. May 14, 2015) (slip. op. at 4-8), and briefly summarize the

facts pertinent to this appeal. In 2011, plaintiff served the

NJSP with an OPRA request for production of "the most recent

version" of the Guide. The NJSP distributes the Guide to State

Police officers and municipal police departments throughout New

Jersey to aid in the investigation of "firearms-related

applications" and enforcement of "the State's firearms regulations

in a uniform and standardized manner."

The NJSP denied plaintiff's request, asserting the Guide was

exempt from disclosure under OPRA pursuant to a proposed

regulation, N.J.A.C. 13:1E-3.2(a) (2011), which was implemented

on November 3, 2010, pursuant to then-Governor Chris Christie's

2 A-2033-15T1
Executive Order No. 47.1 See Exec. Order No. 47 (Nov. 3, 2010),

42 N.J.R. 2830(a) (Dec. 6, 2010). The regulation exempted from

OPRA's definition of government records all "[s]tandard

[o]perating [p]rocedures and training materials," N.J.A.C. 13:1E-

3.2(a)(1) (2011), and "[r]ecords which may reveal . . . an agency's

surveillance, security or investigative techniques or procedures

. . . ," N.J.A.C. 13:1E-3.2(a)(3) (2011).

Plaintiff filed a verified complaint challenging the NJSP's

denial, and the Law Division subsequently determined the NJSP

properly denied access to the Guide and dismissed the complaint.

Three days later, N.J.A.C. 13:1E-3.2(a) (2011), which had been

adopted by the Department of Law and Public Safety (LPS), became

effective. 43 N.J.R. 3188(b) (Dec. 5, 2011). Plaintiff appealed

the order dismissing the complaint.

In our decision on appeal, we explained that following the

complaint's dismissal, LPS proposed amendments to N.J.A.C. 13:1E-

3.2(a) (2011) because "paragraph a(1) of the [r]egulation 'd[id]

not clearly express the purpose for which it was promulgated – to

serve the public interest in protecting the confidentiality of

[LPS's] law enforcement and legal services functions.'" N.J.

1
The Executive Order stated the proposed rule, and others, "shall
be and shall remain in full force and effect pending their adoption
as final rules pursuant to the provisions of the Administrative
Procedure Act," N.J.S.A. 52:14B-1 to -31. Exec. Order No. 47.

3 A-2033-15T1
Second Amendment Soc'y, slip op. at 6 (second and third alteration

in original) (quoting 45 N.J.R. 2023(a) (Sept. 3, 2013)). We

explained LPS intended the amendments "to clarify that not all

[LPS] standard operating procedures and training materials are

considered confidential." Ibid. (alteration in original) (quoting

45 N.J.R. 2023(a)). The amendments therefore limited the OPRA

exemption to only those standard operating procedures and training

materials that "may reveal an agency's investigative . . . or

operational techniques, measures, or procedures which, if

disclosed, would create a risk to the safety of persons [or]

property, . . . or compromise an agency's ability to effectively

conduct investigations . . . ." Id. at 6-7 (emphasis in original)

(quoting 45 N.J.R. 2023(a)).

We further noted the amended N.J.A.C. 13:1E-3.2(a), which

became effective April 7, 2014, provides in pertinent part as

follows:

[T]he following records shall not be
considered government records subject to
public access pursuant to [OPRA]:

. . . .

2. Records, including standard operating
procedures, manuals, and training materials,
that may reveal . . . an agency's
surveillance, security, tactical,
investigative, or operational techniques,
measures, or procedures, which, if disclosed,
would create a risk to the safety of persons,

4 A-2033-15T1
 property, electronic data, or software, or
compromise an agency's ability to effectively
conduct investigations;

[Id. at 7-8 (emphasis added) (quoting N.J.A.C.
13:1E-3.2(a)(2)).]

We observed the Law Division considered plaintiff's request

for the Guide under N.J.A.C. 13:1E-3.2(a) (2011), which included

a blanket exemption from OPRA's definition of government records

for all standard operating procedures, id. at 8, and noted that

where a government entity "asserts an exemption, OPRA clearly

favors the production of redacted government records," id. at 13

(citing N.J.S.A. 47:1A-5(g)). We therefore reversed the order

dismissing the complaint and remanded for the trial court to

conduct a hearing to determine "whether [the amended] section a(2)

of [N.J.A.C. 13:1E-3.2] applies to exempt the Guide from OPRA's

definition of a government record and whether the Guide should be

produced in redacted form." Ibid.

Following the remand, the NJSP provided the Guide to plaintiff

with the following portions redacted: (1) a section titled

"Investigation" and five sections titled "Investigation of the

Applicant," each of which detail investigatory procedures for

various firearms-related applications;2 (2) the Firearms

2
We have been provided with the redacted and unredacted versions
of the Guide provided to the trial court. The redacted

5 A-2033-15T1
Investigation Report Form 407 (the Form) and the accompanying

description of the procedure for completing and utilizing the Form

during an investigation; and (3) Attachments A, B and C, consisting

of two letters and one memorandum from the Attorney General's

office that include general legal guidance pertaining to firearms

permit processing. More particularly, Attachment A is a January

24, 1996 letter from a Deputy Attorney General to a Piscataway

Police Department detective. Attachment B is an undated and

unsigned letter to a Deputy Attorney General. Attachment C is a

May 26, 2000 memorandum from a Deputy Attorney General to the Unit

Head of the NJSP Firearms Investigation Unit.

On remand, the court conducted an in camera review of the

redacted and unredacted versions of the Guide. The court also

considered a certification from NJSP Lieutenant Glenn Ross3

"Investigation" paragraphs are contained in the Guide's "General
Information" section. The redacted paragraphs titled
"Investigation of the Applicant" are respectively contained in the
Guide's "Firearms ID Cards," "Permit to Purchase," "Duplicate ID
Cards," "Permit to Carry," and "Police Applicants ID Cards"
sections. The redacted Firearms Investigation Report Form 407 and
a description of the procedures for completing and utilizing the
Form during an investigation are included in the Guide's "Firearms
Investigation Report" section.
3
The court was also presented with the certification of NJSP
Lieutenant Darryl L. Williams, who is assigned to the Firearms
Investigation Unit. Williams's certification also explains the
NJSP's redactions to the Guide and the manner in which disclosure
of the redacted information in the sections titled "Investigation"

6 A-2033-15T1
explaining the NJSP limited its redactions of the Guide to "only

. . . the steps . . . implemented when conducting the actual

investigation of firearms applicants, the forms used solely for

the investigation itself, and attorney-client privileged"

correspondence which "provid[ed] legal advice on certain issues

related to firearms law."

Ross certified the redacted materials and standards describe

uniform investigatory procedures and "reveal exactly how the

investigations are to be conducted, and what steps to take and

even in what specific order." The redacted portions explain the

investigators' "sources of information when conducting an

investigation," identifies the "types of databases" utilized, and

specifies "what parts of the databases to access, and at what

points in time during the investigation to do so." Ross also

explained that the redacted portions of the Guide "show exactly

what types of information the investigator is to derive from the

applicant and" how to address "different responses" from the

applicant and "the applicant's references."

According to Ross, disclosure of the redacted portions of the

Guide "would provide the same detailed insight into how the

and "Investigation of Applicant," and those describing the Form,
will interfere with law enforcement's ability to effectively
investigate firearms permit applications.

7 A-2033-15T1
investigations are conducted to those who are being investigated"

and interfere with law enforcement's ability to "to weed out

applicants who are attempting to circumvent the firearms laws."

He explained that disclosure of the redacted investigative

techniques, references to databases, and indicators investigators

are directed to consider when speaking with applicants and their

references would permit those being investigated "to circumvent

[the] procedures or manipulate the investigative process."

Ross further stated that a firearms applicant investigation

report is confidential under N.J.A.C. 13:54-1.15,4 and disclosure

of its contents would reveal investigator work product, including

the manner in which an investigation is conducted, and what

information was and is being sought from various sources. Ross

opined that releasing the Form, and the accompanying redacted

materials describing the procedure for completing the Form, would

result in disclosure of investigatory techniques that would aid

applicants seeking to circumvent and manipulate the investigatory

process.

4
In pertinent part, N.J.A.C. 13:54-1.15 states that "any
background investigation conducted . . . of any applicant for a
permit, firearms identification card license, or registration
. . . is not a public record and shall not be disclosed to any
person not authorized by law . . . ."

8 A-2033-15T1
 Ross explained the purpose of the firearms permit applicant

investigatory process is to protect public safety. He stated that

disclosure of the redacted investigatory techniques and procedures

would "compromise [the] agency's ability to effectively conduct

investigations" and "increase the risk that those seeking to

unlawfully obtain firearms would succeed in doing so."

In its oral opinion, the court accepted Ross's unrebutted

representations and found disclosure of the redacted sections of

the Guide would provide "a precise roadmap into the entire

investigation of a firearms application" to those with an "intent

to circumvent the law." The court determined disclosure of the

redacted investigative techniques created a risk to public safety.

The court also rejected plaintiff's contention there was a waiver

of the attorney-client privilege as to the letters and memorandum

from the Attorney General's office, finding there was no evidence

they were publicly distributed or otherwise made publicly

available. The court determined the redacted portions of the

Guide were exempt from disclosure under N.J.A.C. 13:1E-3.2(a)(2),

and entered an order dismissing the complaint.

Plaintiff appealed and presents the following arguments for

our consideration:

9 A-2033-15T1
POINT I

OPRA REQUIRES THAT REDACTIONS BE MINIMIZED AND
JUSTIFIED[.]

POINT II

[THE] TRIAL COURT . . . ERRED IN DENYING ACCESS
TO ALL OF THE GUIDE'S INFORMATION REGARDING
INVESTIGATORY PROCEDURES.

A. Contrary to the Appellate Division's
instruction[s] to minimize redactions, the
trial court . . . erred by permitting NJSP to
redact all portions of the Guide regarding
investigative procedures as if the defunct
blanket exemption for all investigative
procedures were still in effect[.]

B. [The] [t]rial court . . . disregarded the
Appellate Division's suggestion that
publicly-available information be
disclosed[.]

1. [The] [t]rial court . . . failed to consider
that the redacted Firearms Application
Investigation Report form is currently
available to the world on NJSP's website[.]

2. [The] [t]rial court decision failed to
consider that the other redacted investigative
information includes publicly-available
information.

C. [T]he [t]rial court . . . erred by accepting
a conclusory assertion of harm[.]

POINT III

[THE] [T]RIAL COURT . . . ERRED IN RULING THAT
NJSP'S DISTRIBUTION OF THE GUIDE'S ATTACHMENTS
A, B, AND C TO POLICE DEPARTMENTS THROUGHOUT
THE STATE AND POSTING ON NJSP'S WEBSITE DID
NOT WAIVE NJSP'S ATTORNEY-CLIENT PRIVILEGE[.]

10 A-2033-15T1
 A. NJSP did not even attempt to satisfy its
burden of proving that the Guide it
distributed to numerous police departments
omitted Attachments A, B, and C[.]

B. NJSP did not even attempt to satisfy is
burden of proving that the editions of the
Guide it previously posted on its website
omitted Attachments A, B, and C[.]

II.

A "trial court's determinations with respect to the

applicability of OPRA are legal conclusions subject to de novo

review." K.L. v. Evesham Twp. Bd. of Educ., 423 N.J. Super. 337,

349 (App. Div. 2011) (quoting O'Shea v. Twp. of W. Milford, 410

N.J. Super. 371, 379 (App. Div. 2009)). "Our standard of review

is plenary with respect to [a court's] interpretation of OPRA and

its exclusions." Gilleran v. Twp. of Bloomfield, 440 N.J. Super.

490, 497 (App. Div. 2015), rev'd on other grounds, 227 N.J. 159

(2016): accord Brennan v. Bergen Cty. Prosecutor's Office, ___

N.J. ___, ___ (2018). We employ those standards in considering

application of N.J.A.C. 13:1E-3.2(a)(2) to the redacted Guide.

See Klawitter v. City of Trenton, 395 N.J. Super. 302, 318 (App.

Div. 2007) (noting "the interpretation of . . . regulations . . .

is a purely legal issue, which we consider de novo").

In enacting OPRA, the Legislature intended "to maximize

public knowledge about public affairs in order to ensure an

informed citizenry and to minimize the evils inherent in a secluded

11 A-2033-15T1
process." Mason v. City of Hoboken, 196 N.J. 51, 64 (2008)

(quoting Asbury Park Press v. Ocean Cty. Prosecutor's Office, 374

N.J. Super. 312, 329 (Law Div. 2004)). OPRA mandates 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 . . . shall be construed in

favor of the public's right of access[.]" N.J.S.A. 47:1A-1.

The right of access to government records under OPRA is not

absolute. Kovalcik v. Somerset Cty. Prosecutor's Office, 206 N.J.

581, 588 (2011). "That conclusion rests on the fact that OPRA

exempts numerous categories of documents and information from

disclosure." Ibid. Among those categories are exemptions for

"any record within the attorney-client privilege . . .; [and]

security measures and surveillance techniques which, if disclosed,

would create a risk to the safety of persons, property, electronic

data or software . . . [.]" N.J.S.A. 47:1A-1.1. In addition, "an

exemption from a right of public access to a government record can

be established . . . by [an] administrative rule . . . ." Slaughter

v. Gov't Records Council, 413 N.J. Super. 544, 550 (App. Div.

2010) (quoting Mason, 196 N.J. at 65); see also N.J.S.A. 47:1A-

9(a).

12 A-2033-15T1
 Here, we consider whether the redacted portions of the Guide

are exempt from disclosure under N.J.A.C. 13:1E-3.2(a)(2) as

"investigative, or operational techniques, measures or procedures,

which, if disclosed, would . . . compromise [the NJSP's] ability

to effectively conduct [firearms permit] investigations," as

required by our remand.

III.

We first turn to whether the redacted sections of the Guide

titled "Investigation" and "Investigation of the Applicant," and

the Form and Guide materials describing the procedure for

completing and utilizing the Form are exempt from OPRA disclosure.

Confidentiality in investigative techniques is "vital not only

because it serves to protect government sources of information,

but also because it enhances the effectiveness of investigative

techniques and procedures." N. Jersey Media Grp., Inc. v. Bergen

Cty. Prosecutor's Office, 447 N.J. Super. 182, 203 (App. Div.

2016). This is precisely the underlying purpose of N.J.A.C. 13:1E-

3.2(a)(2). See 45 N.J.R. 2023(a) (stating that the purpose of

N.J.A.C. 13:1E-3.2(a)(2) is to protect the confidentiality of

records which, if disclosed, would compromise an agency's

investigatory process).

The parties do not dispute that the redacted portions of the

Guide describing specific investigatory procedures for various

13 A-2033-15T1
firearms applications are "investigative techniques" under

N.J.A.C. 13:1E-3.2(a)(2). Rather, plaintiff contends the NJSP has

not met its burden of showing that disclosure of the investigative

techniques would "compromise [its] ability to effectively conduct

[firearms] investigations" under N.J.A.C. 13:1E-3.2(a)(2). We

disagree.

"The law . . . places the burden on the public agency to

prove that it appropriately denied a request," Brennan, ___ N.J.

at ___ (citing N.J.S.A. 47:1A-6), and that its denial is authorized

by law, Paff v. Ocean Cty. Prosecutor's Office, 446 N.J. Super.

163, 178 (App. Div.) (citing N.J.S.A. 47:1A-6), certif. granted,

228 N.J. 403 (2016). Generally, "[u]nder OPRA, a public agency

seeking to restrict the public's right of access to government

records must produce specific reliable evidence sufficient to meet

a statutorily recognized basis for confidentiality." Courier News

v. Hunterdon Cty. Prosecutor's Office, 358 N.J. Super. 373, 382-

83 (App. Div. 2003).

The N.J.A.C. 13:1E-3.2(a) exemption adopted in 2014 was

intended to include firearms application investigative techniques

and procedures such as those encompassed in the redacted portions

of the Guide. In its proposal for the 2014 amendments to N.J.A.C.

13:1E-3.2(a), LPS expressly stated the exemption "covers . . . the

standard operating procedure[s] for investigation of firearms

14 A-2033-15T1
applications." 45 N.J.R. 2023(a). Thus, LPS recognized, as the

motion court did here, that disclosure of firearms application

investigative techniques and procedures created a risk to public

safety and would compromise law enforcement's ability to

effectively investigate firearms applications.

In addition, on remand the NJSB submitted specific reliable

evidence establishing that disclosure of the Guide's sections

titled "Investigation," "Investigation of the Applicant," and the

Form and the Guide materials describing the procedure for

completing and utilizing the Form "would create a risk to the

safety of persons, property, . . . or compromise [its] ability to

effectively conduct investigations." N.J.A.C. 13:1E:3.2(a)(2).

As the trial court observed, Ross provided a detailed and credible

explanation that the redacted sections of the Guide detail the

techniques, timing, information, data sources, and response

strategies law enforcement officers are required to employ and

follow in their investigations of individuals seeking various

firearms permits. Moreover, although the court did not expressly

rely on the Williams certification, it also provides evidential

support for the court's findings. The certifications establish

that disclosing the redacted information would provide applicants

being investigated with the ability to manipulate and circumvent

the investigative process and, in doing so, interfere with law

15 A-2033-15T1
enforcement's "ability to effectively conduct" firearm permit

investigations. N.J.A.C. 13:1E-3.2(a)(2).

We are therefore satisfied the credible evidence supports a

finding that the redacted sections of the Guide are exempt from

disclosure under OPRA pursuant to N.J.A.C. 13:1E-3.2(a)(2).

IV.

We are also not persuaded by plaintiff's contention the Form

and Guide materials describing its completion and use should be

disclosed because it is publically available on the internet. We

have compared the version of the Form plaintiff contends is

available on the internet with the current Form provided for our

in camera review, and the two versions are different. Thus, the

premise for plaintiff's contention – that the NJSP has made the

current Form publically available – is erroneous.

Plaintiff also argues that since the NJSP once made other

versions of the Form publicly available, there is a diminished

need for confidentiality. Plaintiff relies on language in Keddie

v. Rutgers, State University, 148 N.J. 36, 50-52 (1997), where the

Court addressed the effect of public disclosure of documents on

the balancing of interests required to assess a request made under

the common-law right of access to public records. Here, however,

we are not required to conduct the balancing test the Court applied

in Keddie because we consider only whether the redacted portions

16 A-2033-15T1
of the Guide are exempt from disclosure under N.J.A.C. 13:1E-

3.2(a)(2). Id. at 49-50.

We reject plaintiff's assertion the NJSP "closed the barn

door after the horse escaped," by removing a prior version of the

Form from its homepage. As noted, plaintiff has not demonstrated

the current version of the Form is publicly available. Moreover,

the mere fact that a prior, different version may be available

does not diminish the NJSP's interest in keeping its current

investigatory techniques confidential, nor does it diminish the

applicability of N.J.A.C. 13:1E-3.2(a)(2)'s exemption to the

current version.5

V.

We next consider the court's finding that Attachments A, B

and C are exempt from disclosure because they are attorney-client

privileged communications. See N.J.S.A. 47:1A-1.1 (exempting

attorney-client privileged communications from the definition of

government records under OPRA).

5
We therefore deny plaintiff's motion (M-000183-16) to take
judicial notice of materials it contends are available on the
internet, or, in the alternative, to supplement the record with
such materials.

17 A-2033-15T1
 Plaintiff concedes the Attachments constitute attorney-

client privileged communications,6 see, e.g., Paff v. Div. of Law,

412 N.J. Super. 140, 154 (App. Div. 2010) ("[T]he attorney-client

privilege applies whenever confidential legal advice is rendered

to state agencies, whether by private counsel . . . or by the

Division [of Law] . . . ."), but argues the NJSP waived the

privilege by disseminating the Attachments with the Guide to police

departments throughout the State.

The attorney-client privilege is codified in N.J.S.A. 2A:84A-

20(1) and N.J.R.E. 504. The purpose of the attorney-client

privilege is "to encourage clients to make full disclosure to

their attorneys." Paff, 412 N.J. Super. at 150 (quoting Macey v.

Rollins Envtl. Servs. (N.J.), Inc., 179 N.J. Super. 535, 539 (App.

Div. 1981)). The attorney-client privilege is "ordinarily waived

when a confidential communication between an attorney and a client

is revealed to a third party." O'Boyle v. Borough of Longport,

218 N.J. 168, 186 (2014) (citation omitted).

In our view, the evidentiary record before the trial court

is insufficient to permit a determination of whether distribution

6
We are therefore not required to determine whether Attachments
A, B and C are in fact attorney-client privileged communications.
An issue not briefed on appeal is deemed waived. Jefferson Loan
Co. v. Session, 397 N.J. Super. 520, 525 n.4 (App. Div. 2008);
Zavodnick v. Leven, 340 N.J. Super. 94, 103 (App. Div. 2001).

18 A-2033-15T1
of Attachments A, B and C as part of the Guide to multiple law

enforcement agencies resulted in a waiver of the attorney-client

privilege. The court did not, however, determine the identity of

the client for each of the communications, see N.J.S.A. 2A:84A-

20(1); N.J.R.E. 504 (providing that the "client has [the]

privilege"); see also Paff, 412 N.J. Super. at 151 (finding the

State agency to which the Division of Law provides legal advice

is the client for purposes of determining the attorney-client

privilege), and did not consider or decide whether distribution

of each of the communications resulted in the client's waiver of

the privilege.

For those reasons, we remand for the court to determine

whether there was a waiver of the attorney-client privilege as to

the communications in Attachments A, B and C. If it determines

the privilege was waived as to any of the Attachments, the court

shall order disclosure of the Attachment.

The NJSP claims it did not waive the privilege by

disseminating the Attachments with the Guide because the

"execution and enforcement" of firearms laws are "responsibilities

shared between the NJSP and other, local law enforcement agencies."

The NJSP also asserts that such disclosures are regarded "as part

of the same client or co-clients, or as third parties with a common

interest in the enforcement of the State's firearms application

19 A-2033-15T1
laws," and relies on the New Jersey Supreme Court's decision in

O'Boyle, 218 N.J. at 185-88, and our decision in In re Grand Jury

Subpoenas Duces Tecum Served by Sussex County., 241 N.J. Super.

18 (App. Div. 1989).

The NJSP's reliance on Grand Jury Subpoenas, 241 N.J. Super.

at 32, is misplaced. In Grand Jury Subpoenas, a Sussex County

Freeholder publicly distributed a preliminary report prepared by

a private law firm the Sussex County Board of Freeholders retained

to serve as special counsel. Id. at 22. The report "contain[ed]

a thorough review of State statutes and regulations and ma[de]

various recommendations to correct the deficiencies found to exist

in the Adjuster's Office." Id. at 22-23.

There, we determined that the Freeholder's public release of

the report did not constitute a complete waiver of the attorney-

client privilege between the firm and the Board because the report

"did not expressly disclose communications made to [the firm] by

the Board. Rather, it set forth the statutory and regulatory

framework within which the Adjuster's Office must operate and

provided preliminary recommendations designed to cure deficient

past practices and procedures." Id. at 31-32. Thus, we held that

the public release was merely a "limited disclosure" that did not

constitute an "absolute and complete waiver" of the privilege.

Id. at 31. We did not hold the documents themselves were protected

20 A-2033-15T1
from further disclosure, but rather, that their dissemination did

not result in a complete waiver of the privilege and thus the

firm's attorneys were not required to testify to privileged

information regarding their representation of the Board of

Freeholders. Ibid.

Although we recognize that the Attorney General is "the sole

legal adviser, attorney or counsel, . . . for all officers,

departments, boards, bodies, commissions and instrumentalities of

the State Government," Paff, 412 N.J. Super. at 151, it does not

follow that the privilege is always preserved where State and

municipal agencies share confidential attorney-client

communications or information with one another. Thus, we are

unconvinced the Court's holding in O'Boyle, 218 N.J. at 201,

supports the NJSP's assertion that the NJSP and local law

enforcement agencies share a "common interest," and NJSP's

dissemination of the Attachments to third parties — other law

enforcement agencies — did not constitute a waiver of the

privilege.

In O'Boyle, the plaintiff sought documents exchanged between

a private attorney representing a former Longport zoning and

planning board member and the attorney representing the Longport

municipality. Id. at 176. There, the private attorney prepared

a "joint strategy memorandum and a compendium of documents . . .

21 A-2033-15T1
and sent them to the municipal attorney" following an agreement

"that they cooperate in the defense of current and anticipated

litigation filed by [the plaintiff]." Id. at 176-77.

The O'Boyle Court expressly adopted the three-pronged "common

interest rule" as articulated in Laporta v. Gloucester County

Board of Chosen Freeholders, 340 N.J. Super. 254, 262 (App. Div.

2001). Id. at 198-99. Under this rule, a party may invoke a

common interest exception to waiver of the attorney-client

privilege resulting from disclosure to third parties where:

(1) the disclosure is made due to actual or
anticipated litigation; (2) for the purpose
of furthering a common interest; and (3) the
disclosure is made in a manner not
inconsistent with maintaining confidentiality
against adverse parties. It is not necessary
for actual litigation to have commenced at the
time of the transmittal of information for the
privilege to be applicable.

[Id. at 190-91 (internal citations omitted)
(quoting Laporta, 340 N.J. Super. at 262).]

The Court further noted that "communications need not only

be among counsel for the clients[;] [c]ommunications between

counsel for a party and an individual representative of a party

with a common interest are also protected." Id. at 191 (quoting

Laporta, 340 N.J. Super. at 262). The Court determined the

documents sought by the plaintiff were exempt from OPRA disclosure

under the first two Laporta prongs because the clients anticipated

22 A-2033-15T1
future litigation from plaintiff and shared a common purpose: "to

repel further legal challenges from a citizen who did not agree

with the manner in which elected and appointed officials discharged

their public duties." Id. at 199.

The Court also determined that the manner in which the

material was disseminated was "calculated to preserve its

confidentiality" under the third Laporta prong because "[t]here

[was] no evidence that the municipal attorney shared the material

with anyone else." Id. at 200. The Court affirmed our

determination that the municipal residents and the former board

member "shared a common interest that permitted non-disclosure of

the withheld documents." Id. at 177, 201.

Here, the record is inadequate to determine if the

circumstances surrounding the dissemination of one or more of the

Attachments support application of the common interest exception

to waiver of the attorney-client privilege under the Laporta

standard. We do not decide the issue and leave its resolution to

the remand court.

Accordingly, we vacate the Law Division's order determining

there was no waiver of the attorney-client privilege as to

Attachments A, B and C.

Plaintiff's remaining arguments are without merit sufficient

to warrant discussion in a written opinion. R. 2:11-3(e)(3)(E).

23 A-2033-15T1
 Affirmed in part, vacated in part, and remanded for further

proceedings in accordance with this opinion. We do not retain

jurisdiction.

24 A-2033-15T1