Walter M.

Luers, LLC
Suite C203 23 West Main Street Clinton, New Jersey 08809 Telephone: 908.894.5656 Facsimile: 908.894.5729 wluers@luerslaw.com

Law Offices of

June 25, 2012

Walter M. Luers, Esq.* *Also admitted in New York

VIA ELECTRONIC ATTACHMENT Harlynne A. Lack, Esq. Government Records Council P.O. Box 819 Trenton, New Jersey 08625-0819 Re: Dear Ms. Lack: On behalf of Complainant Harry B. Scheeler, Jr., we write to amend his complaint pursuant to N.J.A.C. 5:105-2.3(h)(1). The purpose of this amendment is to add the claim that the Records Custodian violated the Open Public Records Act by improperly redacting the attorney invoices that were provided to Mr. Scheeler on May 18, 2012. An electronic copy of those invoices is included with this filing. The invoices appear to be redacted to shield the names of individuals with whom attorneys for the Township met or conference with. In some instances, the items reviewed by attorneys are also redacted. Finally, invoices from Roger Steedle, Esq. are almost completely redacted. The redactions include almost all of the services provided by Mr. Steedle, as well as the description of the matter. These redactions seem driven by an intense desire to shield the Townships legal work (funded by taxpayers) from independent inspection, rather than to shield legitimate communications between an attorney and the client. Legal Argument As the GRC knows, the Open Public Records Act (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 accorded [under OPRA] as amended and supplemented, shall be construed in favor of the publics right of access. Libertarian Party of Cent. New Jersey v. Murphy, 384 N.J. Super. 136, 139 (App. Div. 2006) (citing Scheeler v. Township of Galloway (Atlantic) GRC Complaint No. 2012-151

Harlynne A. Lack, Esq. Government Records Council Page 2 of 3 June 25, 2012 N.J.S.A. 47:1A-1). The purpose of OPRA is to maximize public knowledge about public affairs in order to ensure an informed citizenry and to minimize the evils inherent in a secluded process. Times of Trenton Publg Corp. v. Lafayette Yard Cmty. Dev. Corp., 183 N.J. 519, 535 (2005) (quoting Asbury Park Press v. Ocean County Prosecutors Office, 374 N.J. Super. 312, 329 (Law Div. 2004)). The burden of proof in any proceeding under OPRA is on the Records Custodian. N.J.S.A. 47:1A-6; Paff v. Township of Lawnside, GRC Complaint No. 2009155 (April 2010). There is no doubt here that the documents requested are public records. N.J.S.A. 47:1A-1.1 (broadly defining public records as any paper, written or printed . . . document . . . 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[.]). The Records Custodian claims that the redacted portions of the invoices are excluded from public inspection because they are privileged under the attorney/client privilege. Only communications between a lawyer and client in the course of the relationship and in professional confidence, are privileged[.] N.J.S.A. 2A:84A-20. The privilege is limited to those situations in which lawful legal advice is the object of the relationship. In re Gonnella, 283 N.J. Super. 509, 512, 570 A.2d 53, 54 (Law Div. 1989). Therefore, not every communication between a lawyer and her client is privileged; rather, only those communications that are in confidence and where lawful legal advice is given. Under New Jersey law, the attorney-client privilege . . . does not apply to insulate billings from disclosure. Hunterdon County Policemans Benevolent Association Local 188 v. Township of Franklin, 286 N.J. Super. 389, 394, 669 A.2d 299, 302 (App. Div. 1996) (affirming trial courts holding that billing records are not privileged and are, therefore, accessible under former Right-to-Know law). Rather, legal fee invoices are only privileged if they reveal client secrets or would reveal strategy. Mundane statements that appear in typical invoices, such as conference call with client or review and digest Smith deposition are not privileged. In the experience of this court, [attorney billings] will contain a few word description of the general category of the work performed, the number of hours required to perform the work, the date of the performance, and the total cost to the client. Id. (quoting lower court). In addition, no privilege would attach to the dates on which work occurred, who performed them, or the time spent on those tasks. Conclusion For the foregoing reasons, we ask that the GRC, in addition to reviewing the claims initially raised by Mr. Scheeler, conduct an in camera review of the requested invoices and order disclosure of those invoices without redactions and find that the Complainant is the prevailing party pursuant to N.J.S.A. 47:1A-6 and entitled to a reasonable attorneys fee.

Harlynne A. Lack, Esq. Government Records Council Page 3 of 3 June 25, 2012 Respectfully submitted,

Walter M. Luers

cc:

Daniel A. Davidow, Esq.