Sussex Commons Associates, LLC v. Rutgers

Justice ALBIN,

concurring.

Rutgers, The State University is subject to the provisions of the Open Public Records Act (OPRA or Act), N.J.S.A. 47:1A-1 to - 13—a point no one disputes. Rutgers School of Law—Newark is a subdivision of the University, and the Rutgers Environmental Law Clinic (the Clinic) is an integral part of the law school. All three, to some extent or another, receive state funding.

Unlike the majority, I cannot discern anything within the framework or legislative history of OPRA suggesting that the Clinic does not fall within the sweep of the Act. However, that conclusion does not spell doom for the Clinic. OPRA only requires that the law school or Clinic disclose “government records,” and does not require disclosure of records that are exempt under the Act. In *550this case, the records sought by plaintiffs—other than those related to the Clinic’s funding—either do not fall within the definition of a government record or fall within an exempt category.1 I reach the same destination as the majority but by the pathway of a plain reading of the statute. Therefore, I concur with the majority that the Clinic does not have to comply with plaintiffs’ document request.

OPRA is a carefully crafted statutory scheme. On the one hand, it requires disclosure of documents that will shine light on the operations of government so that an informed citizenry can exercise oversight over elected and appointed officials and participate fully in the democratic process. See N.J.S.A. 47:1A-1 (setting forth legislative findings underpinning OPRA); Mason v. City of Hoboken, 196 N.J. 51, 64-65, 951 A.2d 1017 (2008). On the other hand, it exempts other documents from disclosure that would be inimical to the public interest or other important public values. See N.J.S.A. 47:1A-1.1 (exempting twenty-one categories of information from OPRA’s disclosure requirements). Thus, OPRA exempts from disclosure certain categories of documents in which the value of disclosure is outweighed by the need to maintain privacy or confidentiality.

The same exemptions that protect attorneys who are employed in some governmental capacity—county and municipal prosecutors, municipal public defenders, county and municipal counsel, and a host of other publicly funded lawyers—equally protect the Clinic and its lawyers. All records relating to the attorney-client and work-product privileges are exempt from disclosure. N.J.S.A. 47:1A-1.1 (including attorney-client privilege among categorical exemptions to OPRA); N.J.S.A. 47:lA-9 (stating that privileges granted by court rule which “may duly be claimed to restrict public access to a public record or government record” shall *551remain unaffected by OPRA); see R. 4:10-2(c) (describing attorney work-product privilege).

Significantly, the Clinic has further protections under OPRA. Because the Clinic is part of a university and law school— institutions of higher education—records falling within the pedagogical privilege are exempt from the definition of government record. See N.J.S.A. 47:1A-1.1. Moreover, OPRA’s definition of “government record” specifically excludes “deliberative material.” N.J.S.A. 47:1A-1.1. Under this carve-out, “a record, which contains or involves factual components, is entitled to deliberative-process protection when it was used in the decision-making process and its disclosure would reveal deliberations that occurred during that process.” Educ. Law Ctr. v. N.J. Dep’t of Educ., 198 N.J. 274, 280, 966 A.2d 1054 (2009).

Taken together, this passel of exemptions shield the Clinic from all of plaintiffs’ document requests, except for those related to funding. It bears mentioning that at oral argument before this Court, plaintiffs’ counsel was unable to identify any category of requested documents—unrelated to funding—not encompassed within one of the exemptions or privileges that allow for nondisclosure.

In summary, I find that not only does OPRA apply to the Clinic, but that it provides the Clinic with all the protection it needs to fulfill its special mission to its law students and cliente. I do not come to any different conclusion applying the common-law right of access. I respectfully concur with the result of the majority.

For reversal—Chief Justice RABNER and Justices LaVECCHIA, ALBIN, HOENS, and Judge WEFING (temporarily assigned)—5.

Not Participating—Justice PATTERSON—1.

Opposed—None.

Although funding-related records are generally subject to disclosure under OPRA, the University’s “records of pursuit of charitable contributions” are exempt, as are records that would reveal the identify of a donor whose gift to the University is conditioned upon remaining anonymous. N.J.S.A. 47:1A-1.1.