Association for Governmental Responsibility, Ethics and Transparency v. Borough of Mantoloking

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2395-22

ASSOCIATION FOR

GOVERNMENTAL APPROVED FOR PUBLICATION

RESPONSIBILITY, ETHICS May 13, 2024

AND TRANSPARENCY,

APPELLATE DIVISION

Plaintiff-Appellant,

v.

BOROUGH OF MANTOLOKING,

MUNICIPAL CLERK OF THE

BOROUGH OF MANTOLOKING,

and CUSTODIAN OF RECORDS,

Defendants-Respondents.

Argued January 30, 2024 – Decided May 13, 2024

Before Judges Rose, Smith and Perez Friscia (Judge

Smith dissenting).

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).

The 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 to 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

A-2395-22

2

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 quasi-criminal 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 (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.

At 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.

A-2395-22

3

2C: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

(1963), and Giglio v. United States, 405 U.S. 150 (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

1

During oral argument before the motion judge in the present matter, Leahey

explained the conflict. Although a portion of the transcript is indiscernible, we

glean from the record the conflict pertained to Burke's neighbor.

A-2395-22

4

you under common law immunity as an officer of the court."2 Apparently

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

2

Although the record reveals the transcript of the August 22, 2022 hearing was

provided to the motion judge in the present matter, it was not supplied as part of

the record on appeal. See R. 2:5-4(a); see also R. 2:6-1(a)(1)(I). Following our

request, AGREAT made the transcript available to us.

3

It is unclear from the transcript whether both Burkes were present at the

hearing and, if so, whether Leahey handed the email to Burke or his son. We

did not reference the November 17 email in our prior opinion.

A-2395-22

5

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.

A-2395-22

6

Immediately 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

4

Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973). A Vaughn index

provides detailed justifications for the refusal to disclose documents claimed

privileged. See Paff v. Div. of Law, 412 N.J. Super. 140, 161 n.9 (App. Div.

2010).

A-2395-22

7

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.

La 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."

5

Paff v. N.J. Dep't of Labor, 392 N.J. Super. 334, 341 (App. Div. 2007)

(requiring a public agency to produce a sworn statement detailing certain

information concerning its search for records in response to an OPRA request).

A-2395-22

8

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 behalf, Burke filed a two-

count verified complaint and order to show cause seeking relief via a summary

action pursuant to Rule 4:67-1(a). AGREAT challenged defendants' denial of

its request under OPRA and the common law right of access.

Defendants answered, asserted various defenses, and filed Leahey's

January 27, 2023 certification explaining the circumstances surrounding the

November 17 email.6 Leahey asserted, in pertinent part:

1. I was appointed as the [c]onflict [m]unicipal

[p]rosecutor for the Borough of Mantoloking for the

6

Although the Leahey certification was filed with the trial court, the parties did

not include the document in their appellate appendices. See R. 2:5-4(a); see also

R. 2:6-1(a)(1)(A). Following our request during oral argument, defendants

provided us the certification.

A-2395-22

9

purposes of representing the [S]tate in the matter of

State v. Burke.

2. I do not practice municipal law full time. I maintain

a private law practice in which I concentrate on real

estate transactions, family law, estate law[,] and

municipal court work.

3. The State v. Burke matter has been unusually

complex and particularly contentious due to the lengthy

history between the [d]efendant, Mr. Burke[,] and the

[c]omplainant that goes well beyond the event in

Mantoloking, and involves several different litigation

matters in the Superior Court and Appellate Division.

4. A witness in this matter had a previous criminal

incident expunged from his record and the [d]efendant

Mr. Burke desired to utilize the subject matter of the

expungement and the expungement itself to impeach

the witness.

5. I reached out to a colleague to generally discuss his

experience with the handling of expungements in

[m]unicipal [c]ourt. I did not bill the Borough . . . for

the receipt or review of this email, or any of my

conversations with my friend. . . .

6. During the Law Division motion[,] . . . I had the

email in my hand and Mr. Burke asked to see it. I

handed him my copy of the email with the sender's

name/email address crossed out.

7. Mr. Burke has a copy of this document in its entirety,

he only wants the name or email address of my friend,

presumably to subject my friend to harassment or to

involve my friend in litigation in some way.

A-2395-22

10

During summary proceedings before the motion judge on March 3, 2023,

the parties maintained their positions regarding production of the November 17

email.7 Burke acknowledged not every email between a prosecutor – municipal

or State – and a colleague that memorialized advice was subject to disclosure

under OPRA. Arguing "everything depends on context," Burke noted the email

at issue was presented in court with "a self-serving redaction that meets no

exemption."8

Immediately following argument, the motion judge rendered an oral

decision briefly addressing the governing law pursuant to OPRA and the

common law. Referencing the contents of the November 17 email, the judge

noted "it appears to . . . cite . . . the [expungement] statutes with comments on

how to approach this matter in court." Finding the email was "sent as advice,"

the judge concluded the email "was a private communication" that "does not

come within a government record definition" under OPRA. In reaching his

7

We glean from the March 3, 2023 transcript that oral argument was continued

from a prior date. The parties did not provide the transcript of the first argument.

8

AGREAT also argued it was entitled to the email communications between

Leahey and Weingroff, which were the subject of its initial OPRA request.

Because AGREAT does not renew that argument on appeal, it is deemed waived.

See State v. Shangzhen Huang, 461 N.J. Super. 119, 125 (App. Div. 2018), aff'd

o.b., 240 N.J. 56 (2019); see also Pressler and Verniero, Current N.J. Court

Rules, cmt. 5 on R. 2:6-2 (2024).

A-2395-22

11

decision, the judge found the email: "was maintained on [Leahey's] private

server"; "was maintained as between two colleagues"; and "was not maintained

as a public record."

Before us, AGREAT reprises its argument that the unredacted November

17 email, which "directed a municipal prosecutor to threaten an adversary with

criminal and ethics charges for requesting relevant, exculpatory information," is

subject to disclosure under OPRA and the common law right of access.

AGREAT further claims, as a member of the public who engaged in email

communications with a municipal prosecutor concerning her official duties, the

sender had no reasonable expectation of privacy in the disclosure of his name

and email address. AGREAT also argues the motion judge failed to evaluate

the requestor's common law claims, and the balancing test enunciated by the

Court in Loigman v. Kimmelman, 102 N.J. 98, 113 (1986), weighs in favor of

disclosure.

Defendants counter the email neither falls within the definition of a

government record under OPRA nor is subject to disclosure under the common

law. In the alternative, defendants argue even if the November 17 email were

construed as a government record, "the sender has a reasonable expectation of

privacy under N.J.S.A. 47:1A-1." Additionally, although prior to the present

A-2395-22

12

litigation La Bue expressly stated the email was not "withheld under a claim of

privilege," defendants now claim the email is protected under the work product

privilege. In reply, AGREAT asserts any privilege was waived when the

prosecutor "used a redacted version" of the November 17 email in court and

provided it to the defense.

II.

We commence our review with well-settled principles. "New Jersey law

recognizes two distinct procedures by which individuals and entities may seek

an order compelling the disclosure of public records." Gannett Satellite Info.

Network, LLC v. Township of Neptune, 254 N.J. 242, 248 (2023). The first

cause of action is a claim under OPRA. Ibid. "The second cause of action . . .

is a claim pursuant to the common law, in which the requestor is not limited to

the categories of information subject to disclosure under OPRA." Id. at 249

(citing Rivera v. Union Cnty. Prosecutor's Off., 250 N.J. 124, 143 (2022)). We

employ the same de novo review of a trial court's legal conclusions concerning

access to public records under OPRA and the common law right of access.

Drinker Biddle & Reath LLP v. N.J. Dep't of L. & Pub. Safety, 421 N.J. Super.

489, 497 (App. Div. 2011).

A-2395-22

13

A.

OPRA's history and purpose have been well chronicled by our Supreme

Court and need not be reiterated here. Kovalcik v. Somerset Cnty. Prosecutor's

Off., 206 N.J. 581, 588 (2011) (citing Mason v. City of Hoboken, 196 N.J. 51,

64-67 (2008)); see also Libertarians for Transparent Gov't v. Cumberland

County, 250 N.J. 46, 54 (2022) (citing Burnett v. County of Bergen, 198 N.J.

408, 421 (2009)). Suffice it to say, "[t]he Legislature passed OPRA in 2001 to

replace the then-existing Right to Know Law, L. 1963, c. 73, which 'did not keep

pace with the vast technological advances that changed the ways citizens and

public officials communicate and store information.'" Simmons v. Mercado, 247

N.J. 24, 38 (2021) (quoting Paff v. Galloway Township, 229 N.J. 340, 352

(2017)). And we are guided by the statute's driving force – "access to public

records fosters transparency, accountability, and candor." Libertarians, 250 N.J.

at 59.

To achieve its purpose, OPRA "broadly defin[es] 'government records,'

N.J.S.A. 47:1A-1.1, and . . . publicly declar[es] that they shall be accessible,

N.J.S.A. 47:1A-1." Kovalcik, 206 N.J. at 588. OPRA's definition of a

government record thus includes

any paper, written or printed book, document, drawing,

map, plan, photograph, microfilm, data processed or

A-2395-22

14

image processed document, information stored or

maintained electronically or by sound-recording or in a

similar device, or any copy thereof, that has been made,

maintained or kept on file in the course of his or its

official business by any officer, commission, agency or

authority of the State or of any political subdivision

thereof, including subordinate boards thereof, or that

has been received in the course of his or its official

business by any such officer, commission, agency, or

authority of the State or of any political subdivision

thereof, including subordinate boards thereof. The

terms shall not include inter[]agency or intra[]agency

advisory, consultative, or deliberative material.

[N.J.S.A. 47:1A-1.1.]

"The public's right to disclosure, while broad, is not unlimited." Bozzi v.

City of Jersey City, 248 N.J. 274, 284 (2021). Indeed, "OPRA itself makes plain

that 'the public's right of access [is] not absolute.'" Kovalcik, 206 N.J. at 588

(alteration in original) (quoting Educ. L. Ctr. ex rel. Abbott v. N.J. Dep't of

Educ., 198 N.J. 274, 284 (2009)). Accordingly, "OPRA exempts numerous

categories of documents and information from disclosure." Ibid. For example,

OPRA provides "all government records shall be subject to public access unless

exempt" under the act, another statute, regulation, court rule, or federal law,

N.J.S.A. 47:1A-1, -9(a), or claim of privilege or confidentiality, N.J.S.A. 47:1-

9(b); see also R. 7:7-7(d) (protecting from disclosure "discovery of a party's

work product, consisting of internal reports, memoranda or documents made by

A-2395-22

15

that party or by that party's attorney or agents, in connection with the

investigation, prosecution or defense of the matter" in municipal matters).

In addition, "a public agency has a responsibility and an obligation to

safeguard from public access a citizen's personal information with which it has

been entrusted when disclosure thereof would violate the citizen's reasonable

expectation of privacy." N.J.S.A. 47:1A-1. As our Supreme Court has

recognized, "OPRA's legislative history . . . offers direct support for a balancing

test that weighs both the public's strong interest in disclosure with the need to

safeguard from public access personal information that would violate a

reasonable expectation of privacy." Burnett, 198 N.J. at 427. "To balance

OPRA's interests in privacy and access," the Court adopted the factors

previously established in Doe v. Poritz, 142 N.J. 1 (1995):

(1) the type of record requested; (2) the information it

does or might contain; (3) the potential for harm in any

subsequent nonconsensual disclosure; (4) the injury

from disclosure to the relationship in which the record

was generated; (5) the adequacy of safeguards to

prevent unauthorized disclosure; (6) the degree of need

for access; and (7) whether there is an express statutory

mandate, articulated public policy, or other recognized

public interest militating toward access.

[Ibid. (quoting Doe, 142 N.J. at 88).]

A-2395-22

16

B.

"The common law right of access remains a distinct basis upon which to

access public records." In re N.J. Firemen's Ass'n Obligation to Provide Relief

Applications Under Open Pub. Records Act, 230 N.J. 258, 280 (2017); see also

Michelson v. Wyatt, 379 N.J. Super. 611, 624 (App. Div. 2005) (stating the

common law right "has not been limited by OPRA"). A "public record" under

the common law is

required by law to be kept, or necessary to be kept in

the discharge of a duty imposed by law, or directed by

law to serve as a memorial and evidence of something

written, said, or done, or a written memorial made by a

public officer authorized to perform that function, or a

writing filed in a public office.

[In re N.J. Firemen's Ass'n Obligation, 230 N.J. at 281

(quoting Nero v. Hyland, 76 N.J. 213, 222 (1978)).]

Thus, the essential elements of a public record have been summarized as "a

written memorial . . . made by a public officer," who is "authorized by law to

make it." Ibid.; see also Rivera, 250 N.J. at 143-44.

Our Supreme Court has long deemed documents public records when they

"were created by, or at the behest of, public officers in the exercise of a public

function." Keddie v. Rutgers, 148 N.J. 36, 50 (1997); see also Bergen Cnty.

Improvement Auth. v. N. Jersey Media Grp., 370 N.J. Super. 504, 518 (App.

A-2395-22

17

Div. 2004) (affirming the trial court's decision that audited financial reports

prepared by a private party were government records under the common law

right of access because they were prepared at the request of the public entity and

created "to facilitate [its] oversight responsibilities as the license holder for [a]

public hospital").

"However, concluding that a document is a 'public record' under the

common law, is only the first step in the analysis." Bergen Cnty. Improvement

Auth., 370 N.J. Super. at 519. "'To gain access to this broader class of materials,

the requestor must make a greater showing than OPRA requires,' namely, '(1)

the person seeking access must establish an interest in the subject matter of the

material; and (2) the citizen's right to access must be balanced against the

[government]'s interest in preventing disclosure.'" Gannett, 254 N.J. at 257

(quoting N. Jersey Media Grp., Inc. v. Township of Lyndhurst, 229 N.J. 541,

578 (2017)).

As to the first prong, "[t]he requisite interest necessary to accord a

plaintiff standing to obtain copies of public records may be either 'a wholesome

public interest or a legitimate private interest.'" Educ. L. Ctr., 198 N.J. at 302

(quoting Higg-A-Rella, Inc. v. County of Essex, 141 N.J. 35, 47 (1995)).

A-2395-22

18

Regarding the second prong's balancing test, the court must consider the "six

non-exclusive factors" set forth by the Court in Loigman:

(1) the extent to which disclosure will impede agency

functions by discouraging citizens from providing

information to the government; (2) the effect disclosure

may have upon persons who have given such

information, and whether they did so in reliance that

their identities would not be disclosed; (3) the extent to

which agency self-evaluation, program improvement,

or other decision[-]making will be chilled by

disclosure; (4) the degree to which the information

sought includes factual data as opposed to evaluative

reports of policymakers; (5) whether any findings of

public misconduct have been insufficiently corrected

by remedial measures instituted by the investigative

agency; and (6) whether any agency disciplinary or

investigatory proceedings have arisen that may

circumscribe the individual's asserted need for the

materials.

[Gannett, 254 N.J. at 257 (quoting Loigman, 102 N.J.

at 113).]

III.

A.

Against these guiding principles, we first consider whether the November

17 email is a government record under OPRA.

As a preliminary matter, we reject defendants' contention that "Leahey did

not receive the email in her official capacity as a municipal prosecutor." The

parties do not dispute that Leahey disclosed the contents of the email in court

A-2395-22

19

during the prosecution of State v. Burke and furnished a redacted copy to the

defense. Although the email was sent to Leahey's personal account and, as the

motion judge found, "maintained on her private server," we are persuaded

OPRA's broad reach can include emails concerning government business, sent

to or from personal accounts of government officials – if the emails fall within

the definition of government records. Indeed, the Government Records Council

(GRC) has so held. See Meyers v. Borough of Fair Lawn, GRC Complaint No.

2005-127 (May 11, 2006); see also Demitroff v. Buena Vista Township, GRC

Complaint No. 2018-27 (January 7, 2020) (holding a government record

maintained on a mayor's personal Facebook page is subject to disclosure but

does not render the entire personal Facebook page subject to disclosure).

But documents do not constitute government records under OPRA

"merely because they were 'made' by a government official." O'Shea v. W.

Milford Bd. of Educ., 391 N.J. Super. 534, 538 (App. Div. 2007). In O'Shea,

the West Milford Board of Education received a request for, among other

documents, the meeting minutes from the Board's executive session. Id. at 536.

The request provided "[i]f the minutes of the executive session are not [on] audio

tape, I am requesting a copy of the original handwritten notes." Ibid. (alterations

in original). The Board informed the requestor there were no recordings and

A-2395-22

20

declined to provide any handwritten notes, stating "they [were] not government

records." Id. at 536-37. The GRC ultimately agreed with the Board, and we

affirmed. Id. at 537.

We concluded, "While the Secretary's job includes the responsibility to

record the proceedings of the Board, . . . that responsibility is carried out by

preparing the minutes." Id. at 538. The Board Secretary's handwritten notes

"jotted down as a memory aid to assist in preparing the formal minutes, are [not]

a public record merely because they were 'made' by a government official." Ibid.

Otherwise, "every yellow-sticky note penned by a government official to help

him or her remember a work-related task would be a public record. Such absurd

results were not contemplated or required by OPRA." Id. at 539.

As a municipal prosecutor, Leahey was charged with representing the

Borough and "handling all phases of the prosecution of an offense, including but

not limited to discovery, pretrial and post-trial hearings, motions, [and]

dismissals." N.J.S.A. 2B:25-5(a). Somewhat analogous to the Secretary's notes

at issue in O'Shea, the contents of the November 17 email furthered Leahey's

duties and responsibilities by serving as an aid in court during her argument

against Burke's motion for Weingroff's expunged records. Stated another way,

Leahey's argument before the judge was her work-related task while the email

A-2395-22

21

served as an aid in formulating that argument. See State v. Washington, 256

N.J. 136, 164 (2024) (recognizing the well-established premise that a prosecutor

has a "duty to adequately prepare for trial"); In re Segal, 130 N.J. 468, 480

(1992) ("Because the State is the municipal prosecutor's client, a failure to

discharge the obligations of his [or her] office is a violation of a prosecutor's

professional responsibility to represent the client diligently.").

We recognize the November 17 email did not memorialize Leahey's

thought processes as did the Secretary's notes in O'Shea. Instead, the email set

forth her colleague's knowledge and advice about the expungement statutes. As

the trial court stated during colloquy with counsel, the November 17 email was

akin to "a script on how to make an argument" with citation to the pertinent

statutes. Had Leahey iterated the contents of the email in open court instead of

turning over the document, the defense would not have been entitled to Leahey's

source of her argument or the name of the colleague who rendered advice as to

how to frame that argument vis-à-vis the statutes. In our view, the disclosure of

the contents of the email memorializing the sender's advice, name, and email

address does not transform the document into a government record.

A further analogy can be drawn from the statute's definition of a

government record, which excludes from its terms "inter[]agency or

A-2395-22

22

intra[]agency advisory [or] consultative . . . material." N.J.S.A. 47:1A-1.1; see

also Educ. L. Ctr., 198 N.J. at 285 (recognizing when the deliberative process

privilege is invoked, a governmental entity may "'withhold documents that

reflect advisory opinions, recommendations, and deliberations comprising part

of a process by which governmental decisions and policies are formulated '")

(quoting In re Liquidation of Integrity Ins. Co., 165 N.J. 75, 83 (2000)). If the

Legislature intentionally excluded advisory and consultative material between

or among agencies from the statutory definition, how then would an email

memorializing legal advice between colleagues be deemed a government

record?

Our dissenting colleague misconstrues our application of the "consultative

. . . material" exclusion set forth in the statutory definition of a government

record. We recognize the November 17 email does not fall squarely within any

exception to the government record definition under OPRA. We do not – and

need not – conclude there exists any sort of agency relationship between Leahey

and the sending attorney. We therefore disagree with our colleague that the

sender's identity is necessary "[t]o conduct a proper analysis under OPRA." We

simply note the Legislature intentionally shielded from disclosure consultative

materials between and among public agencies by exempting those materials

A-2395-22

23

from the definition of a government record. By analogy, that protection suggests

an email memorializing legal advice among colleagues is not a government

record.

We therefore conclude the November 17 email is not a government record

as defined in N.J.S.A. 47:1A-1.1 and, as such, the sender's name and address are

not subject to disclosure under OPRA. Accordingly, we need not address the

Doe balancing test. See 142 N.J. at 88. For the sake of completeness, however,

we have considered the Doe factors and conclude the sending attorney's

reasonable expectation of privacy favors non-disclosure.

Perceiving the email contents as a threat by directing the prosecutor,

AGREAT contends the name and email address of the sender is "necessary for

public oversight" and consonant with OPRA's purpose (factors six and seven).

Even assuming these factors favored disclosure, the remaining factors do not.

The requested record is a single email from an unknown colleague of a

municipal prosecutor, sent in response to the prosecutor's general request for

advice in an "unusually complex and particularly contentious" assignment in a

quasi-criminal municipal matter (factor one). The substance of the email

provides statutory citation and the sender's advice, all of which has been

A-2395-22

24

disclosed to AGREAT's counsel, save for the sending attorney's identity and

email address (factor two).

Moreover, the potential for harm regarding further nonconsensual

disclosures is substantial. In our view, compelling disclosure of the name and

email address of attorneys who render advice to one another has the potential

for a chilling effect on the collegiate relationship among attorneys and their

private communications concerning their shared legal advice (factor three).

Additionally, although defendants did not articulate specific injury that would

result to the relationship between Leahey and the sender if his name and address

were disclosed – and defendants bear the burden of proof – it is clear from

Leahey's certification that the sender was a colleague and friend, whose name

and address she redacted before providing the November 17 email to Burke

(factor five). Finally, because Leahey redacted the sender's name and address,

there exists no other means to provide the requested record without disclosing

personal information (factor six).

B.

Nor are we convinced disclosure of the sending attorney's name and email

address is mandated under the common law right of public access. Simply

stated, the requested information is not "a written memorial . . . made by a public

A-2395-22

25

officer," who is "authorized by law to make it." In re N.J. Firemen's Ass'n

Obligation, 230 N.J. at 281 (quoting Nero, 76 N.J. at 222). Moreover, although

Leahey sought guidance from her friend and colleague, there is no evidence in

the record the email was made at her "behest." See Keddie, 148 N.J. at 50. We

therefore conclude the sending attorney's name and address is not a "public

record" under the common law.

Assuming otherwise for the sake of argument, in our view the balancing

test under the common law weighs in favor of non-disclosure. Against the

"contentious" nature of the municipal court proceedings, on this record, it is

difficult to conclude AGREAT's public interest is "wholesome" or its private

interest is "legitimate." See Educ. L. Ctr., 198 N.J. at 302. But even were we

to so conclude, we are not persuaded AGREAT's right to access is outweighed

by "the [Borough]'s interest in preventing disclosure." See Gannett, 254 N.J. at

257. Indeed, in light of the discrete request for disclosure of the sending

attorney's name and email address, the Loigman factors are not readily

applicable. See 102 N.J. at 113.

IV.

In view of our disposition, we need not reach defendants' belated claims

under the work product doctrine. Recognizing OPRA's strong public policy

A-2395-22

26

favoring broad public access to government records, however, we briefly

comment that even if the November 17 email were considered a government

record, the sender's information nevertheless would be shielded from disclosure

as work product under N.J.S.A. 47:1A-9(b).

Pursuant to N.J.S.A. 47:1A-9(b), OPRA does not "abrogate or erode any

executive or legislative privilege or grant of confidentiality . . . established or

recognized by the Constitution of this State, statute, court rule or judicial case

law, which privilege or grant of confidentiality may duly be claimed to restrict

public access" to a government record. Privileged or confidential records are

exempt from disclosure. The foundation of the work product privilege is the

recognized competing public policy interest in "bestow[ing] the confidentiality

needed to foster a client's best interests." O'Boyle v. Borough of Longport, 218

N.J. 168, 183 (2014).

As our Supreme Court has acknowledged, there is a well-established

"need for lawyers to 'work with a certain degree of privacy, free from

unnecessary intrusion by opposing parties and their counsel.'" Id. at 189

(quoting Hickman v. Taylor, 329 U.S. 495, 510 (1947)). Materials created in

anticipation of litigation at the direction of counsel are generally protected by

the work product privilege. See K.L. v. Evesham Twp. Bd. of Educ., 423 N.J.

A-2395-22

27

Super. 337, 354 (App. Div. 2011); Gannett N.J. Partners, LP v. County of

Middlesex, 379 N.J. Super. 205, 219 (App. Div. 2005) (deeming "County

Counsel's note to his secretary and her response to him . . . attorney work

product").

Moreover, in Gannett N.J. Partners, we observed the voluntary disclosure

of some documents under OPRA may constitute a waiver of the right to further

dispute the disclosure of other documents, but determined consideration of the

underlying confidentiality and privilege exemptions alleged for each withheld

document was warranted. 379 N.J. Super. at 213. "It has been recognized . . .

that not every disclosure constitutes a waiver of privilege." Laporta v.

Gloucester Cnty. Bd. of Chosen Freeholders, 340 N.J. Super. 254, 261 (App.

Div. 2001). Further, we have observed that "courts have interpreted [the waiver]

principle in a commonsensical way." Ibid. (alteration in original) (quoting In re

State Comm'n of Investigation, 226 N.J. Super. 461, 466 (App. Div. 1988)).

We recognize, in addressing the production of government records, it is

often necessary to balance the competing interests of disclosure against the

exemptions of privilege, confidentiality, and privacy. Indeed, in our view,

Leahey's in-court accommodation of her adversary's request to see the document

she read aloud, which contained the State's legal argument, does not pierce or

A-2395-22

28

waive the confidentiality of the sender's information. Otherwise, as we have

stated, the free-flowing exchange of information and advice between colleagues

– a cornerstone of the legal profession – would be stymied. Here, the recognized

work product privilege and confidentiality exemptions under N.J.S.A. 47:1A-

9(b) weigh against disclosure.

We are therefore unpersuaded that Leahey's in-court reading of the legal

arguments contained in the email and sharing of a redacted copy constituted a

waiver of the work product protection of the entire email, including the sender's

name and email address. See N.J.R.E. 530 (providing the "disclosure of any

part of the privileged matter" only waives work-product protection where

"waiver is intentional"; "the disclosed and undisclosed communications or

information concern the same subject matter"; and "they ought in fairness to be

considered together"). Assuming arguendo the first two prongs are satisfied,

unlike our dissenting colleague, we perceive nothing "inherently unfair" about

protecting the sender's name and email address from disclosure under the

circumstances of this case. Rather, such protection is in line with the strong

policy behind shielding attorney communications. We conclude the disclosure

of the contents of the email did not waive the undisclosed sender's name and

A-2395-22

29

email address, all of which constituted work product protected under N.J.S.A.

47:1A-9(b).

* * * * *

We are cognizant that the circumstances presented in this appeal are

unique – an OPRA request limited to the name and email address of an attorney

by the attorney for the requestor, who also is the defendant in the underlying

quasi-criminal action and who perceives the contents of the disclosed

communication as a threat to quell his interrogation of a witness in that matter.

We take no position on AGREAT's contention that the November 17 was

threatening in nature or – as our dissent colleague suggests – that the municipal

prosecutor was improperly influenced by her colleague's advice. We simply

conclude the disclosure under OPRA or the common law right of access should

not be used as a sword to access shielded information. See N.J.S.A. 47:1A-9(b);

R. 7:7-7.

Affirmed.

A-2395-22

30

__________________________

SMITH, J.A.D., dissenting.

I submit that the public has a right to know if, and when, the prosecution

of one of our citizens has been improperly influenced. Based on this principle,

I respectfully disagree with the majority. I would find that the disputed email

sent to the municipal prosecutor is a government record under OPRA and would

not reach the common law right of access analysis. I would also hold, on these

unique facts, that while the email's sender has a reasonable expectation of

privacy, a Doe analysis warrants disclosure of the full, unredacted email,

including the name and email address of the sender.

"OPRA is designed to provide the public with 'ready access to government

records.'" Libertarians for Transparent Gov't v. Cumberland Cnty., 250 N.J. 46,

54 (2022) (quoting Burnett v. Cnty. of Bergen, 198 N.J. 408, 421 (2009)). "To

understand the meaning of [OPRA], we look for the Legislature's intent." Ibid.

(citing DiProspero v. Penn, 183 N.J. 477, 492-93 (2005)). "We begin with the

text of the statute because the language the Legislature chooses is 'generally

. . . the best indicator of [its] intent.'" Ibid. (quoting DiProspero, 183 N.J. at

492). "[OPRA] declares at the outset that 'all government records shall be

subject to public access unless exempt.'" Ibid. (quoting N.J.S.A. 47:1A-1).

The statute broadly defines a government record, while excluding

advisory and consultative material transmitted between agencies or within an

agency. See N.J.S.A. 47:1A-1.1 ("The terms shall not include inter[]agency or

intra[]agency advisory, consultative, or deliberative material.").

Any inquiry on this record must first resolve whether the disputed email

in question is a government record under OPRA. While I agree with the

majority's conclusion that Leahey, a public official, received the disputed email

and that it was used or maintained in the course of her prosecution of Burke, I

part ways with the conclusion that the email falls under the umbrella of excluded

"inter-agency or intra-agency advisory, consultative, or deliberative material."

When determining whether the statute's exclusion of "inter-agency or

intra-agency advisory, consultative, or deliberative material" acts to bar the

email's full contents, there are two related considerations: did Leahey waive the

work-product privilege when she disclosed the email in open court; and, can the

email be considered an inter- or intra-agency communication at all if we do not

know the identity of the sender.

As a first step, I consider the work-product implications presented by this

unusual record. Our jurisprudence recognizes that the work product privilege

can be waived. See Laporta v. Gloucester Cnty. Bd. of Chosen Freeholders, 340

A-2395-22

2

N.J. Super. 254, 261 (App. Div. 2001) ("waiver of privileges in general is

recognized in our rules of evidence"); see also O'Boyle v. Borough of Longport,

218 N.J. 168, 189 (2014) ("[I]n most instances, disclosure by an attorney of his

or her work product to a third-party functions as a waiver of the protection

accorded to an attorney's work product.").

For municipal court, the controlling work-product privilege rule is Rule

7:7-7.9 Subsection (a) of the rule, Scope, states that where "the government is

represented by the municipal prosecutor . . . , discovery shall be available to the

parties only as provided by this rule, unless the court otherwise orders."

Subsection (d), Documents Not Subject to Discovery, states:

This rule does not require discovery of a party's work

product, consisting of internal reports, memoranda or

documents made by that party or by that party's attorney

or agents, in connection with the investigation,

prosecution or defense of the matter. Nor does it

require discovery by the government of records or

statements, signed or unsigned, by defendant made to

defendant's attorney or agents.

9

Rule 7:7-7 differs somewhat from its companion civil rule, which assigns the

court a gatekeeping role for material deemed privileged. "[T]he court shall

protect against disclosure of the mental impressions, conclusions, opinions, or

legal theories of an attorney or other representative of a party concerning

litigation." R. 4:10(2)(c). Rule 7:7-7 does not assign such a role to the

municipal court.

A-2395-22

3

I submit that this rule does not readily accommodate the fact pattern presented

here, the State's strategic disclosure of certain privileged material while it

simultaneously withholds material it alone decides is harmful.

Next, N.J.R.E. 530 speaks to the work product privilege waiver question.

N.J.R.E. 530 tells us that disclosure of work product materials in a state

proceeding will "extend[] to an undisclosed communication" only where "(A)

the waiver is intentional; (B) the disclosed and undisclosed communications or

information concern the same subject matter; and (C) they ought in fairness to

be considered together." N.J.R.E. 530(c)(1)(A)-(C). Conversely, the rule also

states that disclosure of work product "does not operate as a waiver in a state

proceeding if: (A) the disclosure is inadvertent; (B) the holder of the privilege

or protection took reasonable steps to prevent disclosure; and (C) the holder

promptly took reasonable steps to rectify the error." N.J.R.E. 530(c)(2)(A)-(C).

With these guidelines in place, I would consider the record, which shows

Leahey turned over the November 17, 2021 email voluntarily and intentionally.

This act simultaneously satisfies the first element of N.J.R.E. 530(c)(1) and

renders N.J.R.E. 530(c)(2) inapplicable. It follows that, under N.J.R.E.

530(c)(1), there are two issues to resolve: whether the disclosed and undisclosed

information (the substance of the disputed email and the name and email address

A-2395-22

4

of its sender, respectively) "concern the same subject matter"; and whether "they

ought in fairness to be considered together." N.J.R.E. 530(c)(1)(B), (C).

As to the disclosed and undisclosed information, only one document need

be scrutinized: the November 17, 2021 email. The name and the email address

of the sender provide the source of the "reminder" to Burke, a defendant facing

multiple charges in municipal court, that he could also be guilty of ethics

violations and perhaps charged with another crime. As Leahey certified, she

received the email from "a colleague" after reaching out to "generally discuss

his experience with the handling of expungement in Municipal Court" because

Leahey "do[es] not practice municipal law full time." As a form of

communication containing detailed legal advice, the identity of the person who

sent the email cannot be separated from its contents, or arbitrarily be said to

concern a separate subject matter. In court, Leahey laid a compelling foundation

for why the communication was being made. While the email's substance

clearly provided guidance to Leahey, the sender's identity is tied to the substance

and cannot be said to represent "different" subject matter.

Turning to the question of whether name and address of the sender and

the substance ought fairly to be considered together, Leahey's actions speak for

themselves. The municipal prosecutor's disclosure of the disputed email

A-2395-22

5

contents without revealing its sender is inherently unfair. After reading its

contents into the record, Leahey intentionally disclosed the email to Burke,

including its recommendation to "remind" him that the spectre of additional

ethics and criminal charges loomed. This targeted disclosure was to the State's

advantage, as it warned Burke away from using an anticipated strategy,

challenging the veracity of one of the State's witnesses, by threatening potential

additional prosecution. Leahey essentially used the work product privilege

waiver as a sword. Next, Leahey deployed the privilege as a shield, insulating

the identity of her "colleague" when she redacted the name and email address

from the document she turned over.

The unique facts here present a paradox, which complicates our fairness

analysis. To conduct a proper analysis under OPRA of whether the email is a

government record, the name and email address of the sender is required.

We have examined the scope of what constitutes a government record

under OPRA and whether the exception encompassing the deliberative process

privilege applies to bar recovery. See Bozzi v. City of Atl. City, 434 N.J. Super.

326, 336-39 (App. Div. 2014) (bid specifications for contract award by city

considered government records under OPRA and not "advisory, consultative, or

A-2395-22

6

deliberative material"). In cases like Bozzi, it is the deliberative content that is

at issue, and not the identity of the persons who engaged in the deliberation. 10

Because the sender's information was redacted, and their identity remains

unknown, we cannot know whether the advisory and consultative material in the

email was inter[] or intra[] agency. The majority makes this assumption, and

the record does not support it. It is equally possible that the material is neither.

I am satisfied that Leahey waived work product privilege, as to the entire email,

under Rule 7:7-7 and N.J.R.E. 530.

I conclude that the intra-agency and inter-agency exception to the

definition of a public record for purposes of OPRA under N.J.S.A. 47:1A-1

10

See also Educ. L. Ctr. v. N.J. Dep't of Educ., 198 N.J. 274, 299–300 (2009)

([I]ndividual documents may not be capable of being determined to be,

necessarily, deliberative material, or not, standing alone. A court must assess

such fact-based documents against the backdrop of an agency's deliberative

efforts in order to determine a document's nexus to that process, and its capacity

to expose the agency's deliberative thought-processes."); McGee v. Twp. of E.

Amwell, 416 N.J. Super. 602, 618 (App. Div. 2010) (concluding

sender/recipient's departure from public office did not preclude her emails from

protection by the "advisory, consultative, or deliberative" exception"); compare

In re Application for Med. Marijuana Alt. Treatment Ctr. for Pangaea Health &

Wellness, LLC, 465 N.J. Super. 343, 379 (App. Div. 2020) (holding Department

was not obligated to reveal the identities of the review committee members

under the exemption, but this was on the basis of knowing the communication

was between agency members).

A-2395-22

7

cannot apply to these facts, and further conclude that the disputed email is a

public record under OPRA.

Finding the entire email a public record, the next question involves the

privacy expectations of the sender. I would conclude the email's sender had a

reasonable expectation of privacy, based on the existence of the work product

privilege.

The record clearly demonstrates that the municipal prosecutor waived the

privilege. It follows that a balancing of "the statute's competing aims" of "ready

access to government records while safeguarding a citizen's reasonable

expectation of privacy" is in order. Brennan v. Bergen Cnty. Prosecutor's Off.,

233 N.J. 330, 340 (2018). To balance those interests, we apply the factors set

forth by the Supreme Court in Doe v. Poritz, 142 N.J. 1 (1995). 11

The type of record requested is Doe factor one. Plaintiff seeks the name

and email address of a person who contacted the Borough's conflict municipal

prosecutor to assist in the performance of official duties, in this case, the

11

As cited by the majority, they are: (1) the type of record requested; (2) the

information it does or might contain; (3) the potential for harm in any subsequent

nonconsensual disclosure; (4) the injury from disclosure to the relationship in

which the record was generated; (5) the adequacy of safeguards to prevent

unauthorized disclosure; (6) the degree of need for access; and (7) whether there

is an express statutory mandate, articulated public policy, or other recognized

public interest militating toward access. Doe, 142 N.J. at 88.

A-2395-22

8

prosecution of a citizen. I note that the Legislature has declared that "municipal

prosecutors are a critical component of New Jersey's system for the

administration of justice." N.J.S.A. 2B:25-1. That said, I respectfully submit

that, on these facts, the public has a substantial interest in learning who directed

and influenced this municipal court prosecution. The point is scalable, and I

respectfully submit, is an important general proposition. The public has a

substantial interest in knowing who directs and influences criminal court

proceedings in our state by offering a prosecutor scripts and arguments to use in

court. In considering this Doe factor, I take no position on whether such

influence is generally benign or malign. It is entirely possible, even likely, that

the legal advice comes from a licensed member of the bar or authorized legal

researcher who does not have a conflict of interest in this particular matter. The

public should simply be aware of the source and nature of such influence o nce

the work product privilege has been waived. I conclude this factor weighs in

favor of disclosure.

As to Doe factor two, the information contained in the record sought, the

Borough argues that the sender "was not participating in an inherently public

act, seeking to influence government decision making, or engaging in a dialogue

with public officials or employees about public business." I would reject that

A-2395-22

9

argument, as there in nothing in the record to evidence the sender's intent. More

significantly, the record does show that the sender emailed Leahey about a

municipal court matter that she was assigned due to a conflict, and the email

provided detailed advice on how to perform an element of her prosecutorial

function. I am not persuaded the Borough has demonstrated that factor two

weighs in favor of concealing the sender's identity.

Doe factor three is the potential for harm in any subsequent nonconsensual

disclosure. It is the Borough's burden to show the "denial of access is authorized

by law." N.J.S.A. 47:1A-6. Here, no such showing has been made. The

Borough briefly suggests that the potential harm may include "harassment and

litigation[,]" presumably by AGREAT, Burke, or their agents. But neither the

Borough nor Leahey provide any credible basis for this alleged harm outside of

their own speculation. See Paff v. N.J. Dep't of Lab., 392 N.J. Super. 334, 340

(App. Div. 2007) ("[S]tatements made by counsel in briefs are not an adequate

substitute for sworn statements made by parties."). The Borough has failed to

meet its burden, and I would conclude this factor weighs in favor of disclosure.

Doe factor four is the injury from disclosure to the relationship in which

the record was generated. The Borough argues that disclosure of the sender's

name and email address may chill communications between attorneys "for fear

A-2395-22

10

that their identities could be released[,] and they could be subject to legal action

or ethics charges resulting therefrom." The Borough supplies no evidence or

case law to support this proposition. The record shows the trial court addressed

this concern at the summary proceeding and concluded that "[it is] the obligation

of the officer of the court to research [advice] and make sure that it's reliable."

The disclosure of a legal research memo should not "chill" potential attorney

communications. Attorneys who, in good faith, prepare legal research

memoranda for their colleagues will clearly be protected by the work product

privilege. Only an intentional act of disclosure can defeat that privilege in the

municipal court context. I would conclude this factor weighs in favor of

disclosure.

Doe factor five is the adequacy of safeguards to prevent unauthorized

disclosure. Here there are no specific safeguards in place to prevent the

requestor from publishing this information. However, I conclude there is

minimal risk of harm as this is a single name and email at risk of being disclosed

rather than a dissemination of multiple citizens' social security numbers. See

Burnett v. Cnty. of Bergen, 198 N.J. 408, 434 (2009) ("Disclosure of the

unredacted records thus raises a number of risks. Nothing would prevent

plaintiff's paying customers from using the database for inappropriate purposes.

A-2395-22

11

. . . [or] prevent plaintiff from reselling its searchable database or placing it on

the Internet if its marketing approach were to change."). This factor weighs,

albeit slightly given the actual information at issue, in favor of non -disclosure.

Doe factor six is the degree or need for access. The Borough argues there

is no legitimate public purpose that would be served via disclosure of the

sender's name and email address. As referenced in the factor one analysis, the

public has an interest in knowing who influences municipal prosecutions, and I

would conclude factor six weighs in favor of disclosure.

Doe factor seven considers whether there is an express statutory mandate,

articulated public policy, or other recognized public interest militating toward

access. This analysis tracks factors one and six. The underlying rationale of

OPRA is to "inform the public about agency action." MAG Ent., LLC, 375 N.J.

Super. 534, 545 (App. Div. 2005). If an outside party influences municipal

prosecutions and the actions of the municipal prosecutor herself, the public has

a right to know who has exerted such influence on their municipal court's

"actions." I would conclude that factor seven favors disclosure.

In sum, a balancing of the Doe factors clearly favors disclosure.

I conclude, on this record, that the public's interest in transparency during

the prosecution of its citizens outweighs the sender's interest in privacy where

A-2395-22

12

the municipal prosecutor knowingly and voluntarily disclosed the substantive

portion of the email.

I respectfully disagree with my colleagues. I would reverse the trial court

and find that OPRA compels disclosure of the sender's name and email address.

A-2395-22

13