Custodian Statement of InformationHarry B. Scheeler, J r. v. Borough of West Cape May GRC Complaint No.

2014-143

State of New Jersey
Government Records Council
Statement of Information Form

This form is to be used by Records Custodians as their response to a complaint filed with the
Government Records Council (GRC) alleging the unlawful denial of a request to access
government records under the Open Public Records Act (OPRA), N.J .S.A. 47:1A-1 et seq.

An offer to mediate this complaint has been denied by one or more of the parties, or mediation
has not resolved the complaint, and the matter is now within the GRCs jurisdiction. The GRC
will conduct an investigation as part of the adjudication of the matter. The Custodian or the
Custodians Legal Counsel may complete the Statement of Information. However, the Records
Custodian (or alleged Records Custodian) must sign the Statement of Information. The GRC
will also consider any legal briefs, additional documentation or information submitted with the
Statement of Information.

The signed Statement of Information must be returned to:

Government Records Council
In care of Samuel A. Rosado, Esq.
101 South Broad Street
P.O. Box 819
Trenton, NJ 08625-0819
Phone: (609) 292-7932
Fax: (609) 633-6337
E-mail: Samuel.Rosado@dca.state.nj.us

The Statement of Information must be received no later than five (5) business days from
your receipt of this form. Failure to comply with this deadline may result in the GRC
adjudicating this complaint based only on the information submitted in the Denial of Access
Complaint by the requestor of the records.

Please note that by signing the Statement of Information, the Custodian (or alleged
Custodian) is certifying that a copy will be provided to the Complainant simultaneously
with it being provided to the GRC.

IMPORTANT: Do not provide any records or excerpts of records that the Custodian claims is
privileged or not accessible to the public under OPRA. A general description of the records
content will be sufficient.







DEFINITIONS: Records request or request refers to the formal OPRA
request on which the complaint is based; Requestor or Complainant refers
to the person who made the request on which this complaint is based;
Agency refers to the public agency or subdivision of that agency to which
the records request was directed; and Records Custodian or Custodian
refers to the individual charged by the agency with the responsibility for
fulfilling the request for records on which this complaint is based.
Custodian Statement of InformationHarry B. Scheeler, J r. v. Borough of West Cape May GRC Complaint No. 2014-143


PART 1: CONTACT INFORMATION
1. GRC Complaint Number: 2014-143

2. Name of Complaint: Harry B. Scheeler, J r.
3. Name of (Alleged) Custodian: Elaine L. Wallace

J ob Title of Custodian: Municipal Clerk
4. Custodians Public Agency:

Borough of West Cape May
Address: 732 Broadway
West Cape May, NJ 08204

Phone: (609) 884-1005 ext. 100
Fax: (609) 898-0888
E-mail: ewallace@westcapemay.us

5. Name of Custodians Legal Counsel: Frank L. Corrado, Esq.

Address: 2700 Pacific Avenue
Wildwood, NJ 08260

Phone: (609) 729-1333
Fax: (609) 522-4927
E-mail: fcorrado@capelegal.com


Custodian Statement of InformationHarry B. Scheeler, J r. v. Borough of West Cape May GRC Complaint No. 2014-143

5. PART 2: ABOUT THE DENIAL OF ACCESS COMPLAINT

6. Attach a copy of the OPRA records request upon which this Complaint is based. Please
mark this attachment Item 6.

See attached Item 6

7. Indicate the date on which the Custodian received the OPRA records request upon which this
complaint is based. (If the Custodian did not receive an OPRA records request, simply
indicate None received.)

November 12, 2013

8. Indicate the date on which the Custodian responded to the OPRA records request upon which
this complaint is based. Provide all written documentation supporting the Custodians
response. If you use additional pages to respond, please mark each page Item 8. (If the
Custodian did not respond to the OPRA records request, simply indicate No response was
given.)

November 12, 2013

9. In keeping with the GRCs statutory mandate to investigate alleged denial of access
complaints pursuant to N.J .S.A. 47:1A-7.e. and the courts instruction that all Custodians
responding to denial of access complaints provide a document index containing certain
information to the GRC pursuant to its decision in J ohn Paff v. NJ Department of Labor, 392
N.J . Super. 334 (App.Div. 2007), the Custodian must provide the document index table
below. The document index table is required in the table format presented below. Please
mark the table Item 9.

(A)
List of all
records
responsive to
Complainants
OPRA request
(include the
number of
pages for each
record).
(B)
List the Records
Retention
Requirement and
Disposition
Schedule for each
records responsive
to the
Complainants
OPRA request
(C)
List of all records
provided to
Complainant, in
their entirety or
with redactions
(include the date
such records were
provided).
(D)
If records were
disclosed with
redactions, give
a general nature
description of
the redactions.
(E)
If records
were denied
in their
entirety, give
a general
nature
description of
the record.
(F)
List the legal
explanation and
statutory citation
for the denial of
access to records
in their entirety
or with
redactions.
Example:
Closed session
minutes for the
May 15, 2006
Council Meeting
Records Retention
Requirement:
Must be retained by
agency
permanently.
Disposition
Schedule:
May be archived
only (destruction
Closed session
minutes provided
with redactions on
J une 20, 2007 (3
business days after
receiving the
OPRA request).
Redactions were
made only to
delete the
discussion of the
Council members
regarding the
personnel matter
of J ane Doe.
N/A N.J .S.A. 47:1A-
9.a. (allows
exemptions from
disclosure
contained in other
state statutes to
apply under
OPRA) and
N.J .S.A. 10:4-12
Custodian Statement of InformationHarry B. Scheeler, J r. v. Borough of West Cape May GRC Complaint No. 2014-143

not allowed)

(allows governing
bodies to exclude
the public from
discussions of
personnel
matters).



For more clarification of the information required in the document index in table format:

A. An itemized list of all records responsive to the Complainants OPRA request that were
made, maintained, kept on file or received by your agency on the date of the request,
regardless of whether you deem such records are exempt from disclosure.

B. State the agencys Records Retention Period (in years) and Destruction Schedule (in
years) for each record responsive to the request as established and approved by the New
J ersey Department of Treasury, Records Management Services.

C. Of the records responsive to the request, indicate which records, if any, were provided to
the Complainant, in their entirety or with redactions, and the dates such records were
provided.

D. Of the records responsive to the request and provided to the Complainant with redactions,
give a general nature description of the redactions.

E. Of the records responsive to the request, and not provided to the Complainant in their
entirety, give a general nature description of the record.

F. Specifically state the legal explanation and statutory citation (to OPRA or other law that
applies) for such denial based on a public agencys burden of proving that all denials of
access are authorized by law pursuant to N.J .S.A. 47:1A-6 and the courts instruction to
provide same in J ohn Paff v. NJ Department of Labor, 392 N.J . Super. 334 (App.Div.
2007).

See attached Item 9

10. Specifically describe the search undertaken to satisfy the records request upon which this
complaint is based.

All 2013 legal bills received as of 11/12/13 were pulled, copied and provided to requestor.

11. Specifically state the last date on which documents that may have been responsive to the
request were destroyed in accordance with the Records Destruction Schedule established
and approved by New J ersey Department of Treasury, Records Management Services.

No documents responsive to this complaint have been destroyed.
Custodian Statement of InformationHarry B. Scheeler, J r. v. Borough of West Cape May GRC Complaint No. 2014-143


ITEM 6






























Custodian Statement of InformationHarry B. Scheeler, J r. v. Borough of West Cape May GRC Complaint No. 2014-143


ITEM 9

(A)
List of all
records
responsive to
Complainants
OPRA request
(include the
number of
pages for each
record).
(B)
List the Records
Retention
Requirement and
Disposition
Schedule for each
records responsive
to the
Complainants
OPRA request
(C)
List of all records
provided to
Complainant, in
their entirety or
with redactions
(include the date
such records were
provided).
(D)
If records were
disclosed with
redactions, give
a general nature
description of
the redactions.
(E)
If records
were denied
in their
entirety, give
a general
nature
description of
the record.
(F)
List the legal
explanation and
statutory citation
for the denial of
access to records
in their entirety
or with
redactions.
Legal Bill of
March 12, 2013;
General File
Records Retention
Period and
Disposition:
Must be kept 6
years. May then be
destroyed.
Legal Bill of March
12, 2013; General
File provided on
November 12, 2013
with redactions
(same day OPRA
request received).
Redactions were
made to delete
items that are
protected by the
attorney client
privilege or that
showed the
Boroughs
strategy in an
ongoing lawsuit,
including:
witness names,
experts,
information
sources, etc.
N/A N.J .S.A. 47:1A-
1.1 exempts from
access
information on
legal bills
protected by the
attorney client
privilege and
N.J .S.A. 47:1A-9
allows
exemptions from
disclosure
contained in other
state statutes or
embodied in any
executive or
legislative
privilege or grant
of confidentiality
established under
state law.
Legal Bill of
March 12, 2013;
Monthly Meeting
Records Retention
Period and
Disposition:
Must be kept 6
years. May then be
destroyed.
Legal Bill of March
12, 2013; Monthly
Meeting provided
on November 12,
2013 with
redactions (same
day OPRA request
received).
N/A N/A N/A
Legal Bill of
March 12, 2013;
Sixth Street
Records Retention
Period and
Disposition:
Must be kept 6
years. May then be
destroyed.
Legal Bill of March
12, 2013; Sixth
Street provided on
November 12, 2013
with redactions
(same day OPRA
request received).
N/A N/A N/A

Custodian Statement of InformationHarry B. Scheeler, J r. v. Borough of West Cape May GRC Complaint No. 2014-143

Legal Bill of
April 30, 2013;
General File
Records Retention
Period and
Disposition:
Must be kept 6
years. May then be
destroyed.
Legal Bill of April
30, 2013; General
File provided on
November 12, 2013
with redactions
(same day OPRA
request received).
Redactions were
made to delete
items that are
protected by the
attorney client
privilege or that
showed the
Boroughs
strategy in an
ongoing lawsuit,
including:
witness names,
experts,
information
sources, etc.
N/A N.J .S.A. 47:1A-
1.1 exempts from
access
information on
legal bills
protected by the
attorney client
privilege and
N.J .S.A. 47:1A-9
allows
exemptions from
disclosure
contained in other
state statutes or
embodied in any
executive or
legislative
privilege or grant
of confidentiality
established under
state law.
Legal Bill of
April 30, 2013;
Monthly Meeting
Records Retention
Period and
Disposition:
Must be kept 6
years. May then be
destroyed.
Legal Bill of April
30, 2013; Monthly
Meeting provided
on November 12,
2013 with
redactions (same
day OPRA request
received).
N/A N/A N/A
Legal Bill of
May 21, 2013;
General File
Records Retention
Period and
Disposition:
Must be kept 6
years. May then be
destroyed.
Legal Bill of May
21, 2013; General
File provided on
November 12, 2013
with redactions
(same day OPRA
request received).
Redactions were
made to delete
items that are
protected by the
attorney client
privilege or that
showed the
Boroughs
strategy in an
ongoing lawsuit,
including:
witness names,
experts,
information
sources, etc.
N/A N.J .S.A. 47:1A-
1.1 exempts from
access
information on
legal bills
protected by the
attorney client
privilege and
N.J .S.A. 47:1A-9
allows
exemptions from
disclosure
contained in other
state statutes or
embodied in any
executive or
legislative
privilege or grant
of confidentiality
established under
state law.

Custodian Statement of InformationHarry B. Scheeler, J r. v. Borough of West Cape May GRC Complaint No. 2014-143

Legal Bill of
May 21, 2013;
Monthly Meeting
Records Retention
Period and
Disposition:
Must be kept 6
years. May then be
destroyed.

Legal Bill of May
21, 2013; Monthly
Meeting provided
on November 12,
2013 with
redactions (same
day OPRA request
received).
N/A N/A N/A
Legal Bill of J uly
12, 2013;
General File
Records Retention
Period and
Disposition:
Must be kept 6
years. May then be
destroyed.
Legal Bill of J uly
12, 2013; General
File provided on
November 12, 2013
with redactions
(same day OPRA
request received).
Redactions were
made to delete
items that are
protected by the
attorney client
privilege or that
showed the
Boroughs
strategy in an
ongoing lawsuit,
including:
witness names,
experts,
information
sources, etc.
N/A N.J .S.A. 47:1A-
1.1 exempts from
access
information on
legal bills
protected by the
attorney client
privilege and
N.J .S.A. 47:1A-9
allows
exemptions from
disclosure
contained in other
state statutes or
embodied in any
executive or
legislative
privilege or grant
of confidentiality
established under
state law.
Legal Bill of J uly
12, 2013;
Monthly Meeting
Records Retention
Period and
Disposition:
Must be kept 6
years. May then be
destroyed.
Legal Bill provided
on November 12,
2013 with
redactions (same
day OPRA request
received).
N/A N/A N/A
Legal Bill of
August 19, 2013;
General File
Records Retention
Period and
Disposition:
Must be kept 6
years. May then be
destroyed.
Legal Bill of J uly
12, 2013; Monthly
Meeting provided
on November 12,
2013 with
redactions (same
day OPRA request
received).
Redactions were
made to delete
items that are
protected by the
attorney client
privilege or that
showed the
Boroughs
strategy in an
ongoing lawsuit,
including:
witness names,
experts,
information
sources, etc.
N/A N.J .S.A. 47:1A-
1.1 exempts from
access
information on
legal bills
protected by the
attorney client
privilege and
N.J .S.A. 47:1A-9
allows
exemptions from
disclosure
contained in other
state statutes or
embodied in any
Custodian Statement of InformationHarry B. Scheeler, J r. v. Borough of West Cape May GRC Complaint No. 2014-143

executive or
legislative
privilege or grant
of confidentiality
established under
state law.
Legal Bill of
August 19, 2013;
Monthly Meeting
Records Retention
Period and
Disposition:
Must be kept 6
years. May then be
destroyed.
Legal Bill of
August 19, 2013;
Monthly Meeting
provided on
November 12, 2013
with redactions
(same day OPRA
request received).
N/A N/A N/A
Legal Bill of
October 4, 2013;
Monthly Meeting
Records Retention
Period and
Disposition:
Must be kept 6
years. May then be
destroyed.
Legal Bill of
October 4, 2013;
Monthly Meeting
provided on
November 12, 2013
with redactions
(same day OPRA
request received).
N/A N/A N/A
Legal Bill of
October 4, 2013;
General File
Records Retention
Period and
Disposition:
Must be kept 6
years. May then be
destroyed.
Legal Bill of
October 4, 2013;
General File
provided on
November 12, 2013
with redactions
(same day OPRA
request received).
Redactions were
made to delete
items that are
protected by the
attorney client
privilege or that
showed the
Boroughs
strategy in an
ongoing lawsuit,
including:
witness names,
experts,
information
sources, etc.
N/A N.J .S.A. 47:1A-
1.1 exempts from
access
information on
legal bills
protected by the
attorney client
privilege and
N.J .S.A. 47:1A-9
allows
exemptions from
disclosure
contained in other
state statutes or
embodied in any
executive or
legislative
privilege or grant
of confidentiality
established under
state law.







Custodian Statement of InformationHarry B. Scheeler, J r. v. Borough of West Cape May GRC Complaint No. 2014-143


ITEM 12


This request was the subject of an identical OPRA request by Willow Creek Farm to the
borough, and the boroughs response to that request was identical to its response to Mr. Scheeler.

Willow Creek Farm filed a superior court complaint challenging the provision of redacted legal
bills. On February 3, 2014, J udge J ames Savio rejected Willow Creeks claim that OPRA did
not permit the redaction of legal bills to remove material protected by the attorney-client and
work product privileges.

Copies of the complaint, answer, brief of WCM and order of J udge Savio are attached to this
response to provide the factual and legal basis for the boroughs position in this matter. Exhibits
have been omitted, but can be supplied if needed.

ColinG. Bell, Esquire
Attorney10# 018552005
HANKINSANDMAN&PALLADINO
CounsellorsatLaw
aProfessionalCorporation
30 South NewYorkAvenue
AtlanticCity, NewJersey08401
(609)344-5161
AttorneysforPlaintiff
BarbaraBrayWilde, SUPERIORCOURTOF NEWJERSEY
LAWDIVISION
Plaintiff, CAPEMAYCOUNTY
DOCKETNO.:
v.
CivilAction
BoroughofWestCapeMay,
VERIFIEDCOMPLAINT
Defendant.
PlaintiffBarbaraBrayWilde("Wilde"),byandthroughundersignedcounsel,byway
ofVerifiedComplainantagainsttheDefendantBoroughofWestCapeMay("WCM"),says
asfollows:
PARTIES
1. Wilde isan individualresiding at168W. StevensStreet,WestCapeMay,
NewJersey.
2. Defendant Borough of West Cape May is a municipality and political
subdivision of the State of New Jersey having a principal place of business at 732
Broadway, CapeMay, NewJersey08204.
Hankin,Sandman& Palladino
Page1of8
COUNTI
(Violation ofN.J.S.A.47:1A-1 etseq.)
1. OnAugust16,2013,WildesubmittedseveralrequestsforrecordstoWCM
pursuant to the Open Public Records Act, N.J.S.A. 47:1A-1 et seq. (UOPRA") for the
productionofcertaincorrespondenceandrecords. Atrueandcorrectcopyofthatrequest
isannexed heretoas ExhibitA (the"CorrespondenceRequests").
2. Onthatsamedate,Wildealsosubmittedarequestforbillssubmittedbythe
boroughsolicitorand hisfirm toWCMaswellasWCMpaymentsto him and hisfirm. A
trueandcorrectcopyofthatrequestisannexedheretoas ExhibitB (the"BillRequest").
3. WCM consolidated the Correspondence Requests and treated them
collectivelyasonerequest. SeeExhibitC, atrueand correctcopyofaSeptember10,
2013emailfromWCM MunicipalClerkElaineWallacetoWilderelatedtoCorrespondence
Requests.
4. On September10,2013,WCMprovideditspurportedresponsetotheboth
theCorrespondenceRequestsandtheBillRequest. SeeExhibitCandExhibit0,atrue
and correct copy of a September 10, 2013 email from WCM Municipal Clerk Elaine
WallacetoWilderelatedtotheBill Request.
TheDeficientResponsetotheCorrespondenceRequests
5. In responsetotheCorrespondenceRequests,WCMproduced99pagesof
documentsthatareeithertotallyorpartiallyredacted. Atrueandcorrectcopyofeachof
theredacted pagesproduced in responsetotheCorrespondenceRequests isannexed
heretoasExhibitE.
Hankin,Sandman& Palladino
Page2of8
6. Despitethe redactions, WCMfailed toproduceaprivilege orredaction log
oranyotherwritten explanation ofwhich OPRAexception orexceptions authorized the
redactions.
7. Moreover,onseveralpages,includingpages1-2,9,11,15,and93,portions
oftheresponsivedocumentshavebeenredactedwithoutanynoticeorexplanation. See
ExhibitE, atp1-2, 9, 11, 15and 93.
8. Pages 10, 12-14,28ofExhibitEhavebeenmarked"redacted"or"partially
redacted" withoutany indication ofwhich OPRA exception orexceptions authorize the
redactionofthematerials.
9. Whileseveralpageswhicharemarked"privileged"andeitherfullyorpartially
redactedappeartobeattorney-clientcommunications(althoughnotdenominatedassuch
by WCM), numerous pages bearing that designation are not attorney-client
communications:
A. Pages35and 60areemaHsfrom theWCMClerkElaineWallaceto
Greg Neil, a Lower Township code official, (at his personal email
address)regardingameetinganddonotfallundertheattorney-client
privilege.
B. Page 58 is an email from WCM Clerk Elaine Wallace to Gary
Playford, a LowerTownship code official, regarding ameeting and
doesnotfall undertheattorney-clientprivilege.
Hankin,Sandman& Palladino
Page3of8
C. Pages 59, 60, 64, 65 areemailconversations betweenWCM Clerk
Elaine Wallace and "Paul Mulligan," the subject matter of which
appears to be redacted and does notfall underthe attorney-client
privilege.
D. Page 72 is an email conversation between WCM Clerk Elaine
Wallaceand Norman Roach, acodeofficial,anddoesnotfallunder
theattorney-clientprivilege.
E. Page 73 is anemail betweenWCM Clerk ElaineWallaceand Gary
Playfordanddoesnotfall undertheattorney-clientprivilege.
F. Page74is anemailbetweenWCM ClerkElaineWallaceandWCM
Mayor Pam Kaithern and does not fall under the attorney-client
privilege.
G. Pages 85-88 contain emailsfrom WCM Clerk Elaine Wallace, the
recipient(s) and subject matter ofwhich are redacted pursuant to
"privilege,"however,giventhatextentoftheredactionsitisimpossible
totell ifthesameissubjecttotheattorney-clientprivilege.
H. Pages 95-96 and 98 contains an email from WCM Clerk Elaine
Wallace to herself, and does not fall under the attorney-client
privilege.
Hankin,Sandman& Palladino
Page4of8
The DeficientResponsetotheBill Request
10. InresponsetotheBillRequest,WCMsubmittednumerouspagesofbillings
fromWCMsolicitor'sfirm,41 pagesofwhichhavedeletionsforwhichnoprivilegelognor
writtenexplanationofapplicableOPRAexception(s)wasprovided. SeeExhibitF, atrue
andcorrectcopyofthedocumentsproducedinresponsetotheBillRequestwhichcontain
deletions.1
11. While presumably WCM is asserting attorney-client and/or work-product
privilegeasthebasisforfailing toprovidethisinformation, manyofthedeletionsdonot
appeartoevenfaciallybe protectedbythoseprivileges:
A. Nun1erous entries have redacted to withhold the identity ofthe person or
personwithwhomtheattorneyspoketoormetwith,whichinformationisnot
protectedbyprivilege. See ExhibitF, atp11-14, 18-23,25-41.
B. Numerousotherentrieshavebeenredactedtowithholdthesubjectmatter
oftheworkperformedbytheattorney(see ExhibitF, atp17-21,25-26)
whichisessentialtodeterminingifanyprivilegeisactuallyapplicable.
ViolationsofOPRA
12. By way ofthe foregoing conduct, including, but not limited to, failing to
disclosethefull contents ofall responsive documents, failing to provide aprivilege log,
failing to provide a written explanation ofOPRA exceptions, and improperly asserting
attorney-clientprivilege,WCMhasviolatedOPRA. SeealsoTheNewJerseyOpenPublic
RecordAct-HandbookforRecordsCustodians,5
th
Ed(NewJerseyGovernmentRecords
ITheyellowhighlightsidentifyingthedeletionshavebeensupplied.
Hankin,Sandman& Palladino
Page5of8
Council), a true and correct copy ofwhich is annexed hereto as ExhibitG, at p17-18
(requiring recordscustodiantoidentifythe legal basisforeveryredaction inwriting).
WHEREFORE,PlaintiffBarbaraBrayWildedemandsjudgmentasfollows:
A. OrderingWCMtoimmediatelyproduceall recordsresponsivetothe
August 16, 2013 Open Public RecordsAct Requests orprovide an
appropriate privilege log asserting valid privileges or exceptions to
OPRA.
B. Awardingherattorney'sfeesandcostspursuanttoN.J.S.A.47:1A-6.
C. GrantingsuchotherandfurtherreliefastheCourtmaydeemjustand
proper.
NOTICEOFDESIGNATIONOF TRIALCOUNSEL
PLEASETAKENOTICEthat,pursuanttoR.4:2S-4,ColinG. Bell,Esquireishereby
designated astrial counsel in theabove-captioned litigation on behalfofthe lawfirm of
HANKIN SANDMAN & PALLADINO, P.C.
CERTIFICATIONPURSUANTTORULE4:5-1
The undersigned, Colin G. Bell, Esquire, certifies on behalfofthe above-named
Plaintiff, Barbara BrayWilde, asfollows:
1. Iaman attorney-at-lawintheStateofNewJerseyandamamemberofthe
lawfirmofHANKINSANDMAN& PALLADINO, P.C.,attorneysforPlaintiff, BarbaraBray
Wilde.
2. Thematterin controversyin thiscase is notthesubjectofanyotheraction
pending in any Court orofa pending Arbitration proceeding contemplated atthis time,
Hankin,Sandman& Palladino
Page6of8
otherthan Barbara BrayWildeand WillowCreekWinery, Inc.v. BoroughofWestCape
Mayand MayorPam Kaithern, 1:12-cv-06329(D.N.J)and BoroughofWestCape Mayv
WillowCreekWinery, (CapeMayBoard ofAgriculturalDevelopment).
3. Thereare nootherpartieswhoshould bejoinedin thisactionatthistime.
4. Icertifythattheforegoingstatementsmadebymearetrue. Iamawarethat
if any of the foregoing statements made by me are wilfully false, I am subject to
punishment.
HANKINSANDMAN& PALLADINO
BY:
Dated:October14,2013
~ = : : : : : = 7 ~
COLIN G. BELL, ESQUIRE
I
Attorneysforthe Plaintiff, BarbaraBrayWilde
Hankin,Sandman& Palladino
Page7of8
VERIFICATION
I,BarbaraBrayWilde, oftuBage, herebyverifyasfollows:
1. IamthePlaintiffintheabove-captionedmatter,'.
2. Ihave read theallegations ofthe Verified and statethe
allegations setforthintheComplaintareaccurateandtrue.
3. Icertifythattheforegoing statements madeb1. me aretrue. I am
aware that ifany ofthe statements made byrne are wilfully fallse, I am subject to
,
I
punishment.
Dated: October..-b.,2013
Hankin.Sandman& Palladino
Page8of8
FRANK L. CORRADO, ESQUIRE
Attorney ID No. 022221983
BARRY, CORRADO & GRASSI, P.C.
2700 Pacific Avenue
Wildwood, NJ 08260
(609) 729-1333 Fax: (609) 522-4927
Attorneys for Defendant
BARBARA BRAY WILDE,
Plaintiff,
vs.
BOROUGH OF WEST CAPE MAY,
Defendant.
SUPERIOR COURT OF NEW JERSEY
LAW DIVISION
CAPE MAY COUNTY
DOCKET NO. CPM-L-517-13
Civil Action
ANSWER TO VERIFIED
COMPLAINT
Defendant the Borough of West Cape May hereby answers
plaintiff's complaint in this matter in accordance with its
numbered paragraphs as follows:
PARTIES
1.-2. Admitted.
COUNT I
1.-4. Admitted.
5. Admitted, except that West Cape May later supplied
complete copies of two redacted documents that were inadvertently
redacted in error.
6. Denied as stated. Although West Cape May did not
provide a privilege log with the redacted documents, it
subsequently provided plaintiff with a privilege log conforming
to OPRA requirements.
7 . Denied as stated. See answer to Paragraph 6.
8 Denied as stated. See answer to Paragraph 6.
9 . Denied.
10. Denied as stated. See answer to Paragraph 6.
11. Denied.
12. Denied.
WHEREFORE, West Cape May demands judgment in its favor and
against plaintiff, together with costs, fees and all other
appropriate relief.
BARRY, CORRADO & GRASSI, P.C.
DATED:
ESQUIRE
CERTIFICATION
It is hereby certified that there are other known actions or
arbitrations relating to this action. Those proceedings are:
1) the borough's Right to Farm Complaint against Willow
Creek Winery challenging the winery's practice of holding
weddings and other "life events" on the ground that those events
violate both its Deed of Easement and it Right to Farm Act
approvals;
2) Willow Creek Winery's petition to the County Agricultural
2
Development Board, opposed by the borough, for a Site Specific
Agricultural Management Practice permitting it to hold "life
events" on the ground that they are a permitted "agriculture-
related activity"; and
3) Ms. Wilde's pending federal lawsuit, Willow Creek Winer
Inc. and Barbara Bray Wilde v. Borough of West Cape May, New
Jersey and Mayor Pam Kaithern, Civ. No. 1:12-cv-0629, U.S.
District Court for the District of New Jersey, alleging that the
borough has violated her civil rights by opposing certain winery
operations.
There are no known parties who should be joined with respect
to the matter in controversy.
BARRY, CORRADO & GRASSI, P.C.
....
DATED:
I
DESIGNATION OF TRIAL COUNSEL
TAKE NOTICE that Frank L. Corrado, Esquire is hereby
designated as trial counsel in the above captioned litigation for
the firm of Barry, Corrado & Grassi, P.C., pursuant to R. 4:25-1.
P.C.

RANK Li CORRADO, ESQUIRE
/
/
CERTIFICATION OF SERVICE
I certify that a copy of the within Answer was served within
the time prescribed by R. 4:6.

' RY} & GRASSI, P.C.
CONFIDENTIAL PERSONAL IDENTIFYERS
I certify that confidential personal identifiers have been
redacted from documents now submitted to the court, and will be
3
redacted from all documents submitted in the future in accordance
with R. 1:38-7(b).
CORRADO & GRASSI, P.C.
DATED:
4
FRANK L. CORRADO, ESQUIRE
Attorney ID No. 022221983
BARRY, CORRADO & GRASSI, P.C.
2700 Pacific Avenue
Wildwood, NJ 08260
(609) 729-1333 Fax: (609) 522-4927
Attorneys for Defendant
BARBARA BRAY WILDE,
Plaintiff,
vs.
BOROUGH OF WEST CAPE MAY,
Defendant.
SUPERIOR COURT OF NEW JERSEY
LAW DIVISION
CAPE MAY COUNTY
DOCKET NO. CPM-L-517-13
Civil Action
BRIEF IN OPPOSITION TO
PLAINTIFF'S ORDER TO SHOW
CAUSE AND REQUEST FOR SUMMARY
RELIEF
I. INTRODUCTION AND SUMMARY OF ARGUMENT
This is an OPRA case. Plaintiff Barbara Wilde, owner of
the Willow Creek Winery, says West Cape May failed properly to
respond to OPRA requests for 1) borough correspondence involving
the winery; and 2) copies of the borough solicitor's bills.
1
The matter is before the Court for summary disposition on
order to show cause. N.J.S.A. 47:1A-6; R. 4:67-l(a), -2. Wilde
asks the Court to order West Cape May to produce unredacted
copies of all documents she requested, or a privilege log for
withheld documents; and to reimburse her attorney's fees.
West Cape May opposes that request. For the reasons that
follow, the Court should reject Wilde's claims in their entirety
and dismiss her complaint.
Plaintiff's submission ignores the single most salient fact
in this case: the three pending legal actions between plaintiff
and the borough. The pendency of these actions justifies the
borough's assertion of attorney-client and work-product
privilege as a basis for redacting its OPRA responses.
II. STATEMENT OF FACTS
Barbara Wilde is the owner of Willow Creek Winery in West
Cape May. In 2003, in return for a payment of $890,000, Wilde
deeded all non-agricultural rights in the winery property to
Cape May County. See Exhibit A, Deed of Easement.
In 2009, the Cape May County Agricultural Development Board
granted Wilde final approval to construct the winery under the
state Right to Farm Act, N.J.S.A. 4:1C-1 et s See Exhibit B,
CADB Resolution 1-09. That approval entitled the winery to
2
engage in "agricultural activities" without conventional local
zoning and planning approval under the Municipal Land Use Law.
The borough and plaintiff dispute whether the winery may,
consistently with its Deed of Easement and the Right to Farm
Act, host weddings, anniversaries, and similar "life events"
without obtaining local zoning and planning approval. The
borough says both the Right to Farm Act and the Deed of Easement
prohibit such activities; plaintiff claims they are
"agricultural marketing activities" protected by the Right to
Farm Act and permitted by its Deed of Easement.
This dispute has prompted three legal actions: 1) the
borough's complaint against the winery, pursuant to N.J.S.A.
4:1C-10.l, alleging that the winery is violating its Deed of
Easement and right-to-farm approvals; 2) the winery's petition,
pursuant to N.J.A.C. 2:76-2.3, for a "site-specific agricultural
management practice" permitting it to hold "life events"; and 3)
Wilde's federal lawsuit, alleging that the borough and its mayor
violated Wilde's civil rights by opposing the winery's
operation. See Exhibits C, D, and E.
On August 16, 2013, Wilde submitted four
1
OPRA requests to
the borough. The first three asked for copies of various
1
Ms. Wilde submitted five other OPRA requests that day. All
have been responded to, and none are at issue in this lawsuit.
3
correspondence regarding Willow Creek Winery. The fourth was a
request for two-and-a-half years of bills from the borough
solicitor.
West Cape May responded to those requests on September 10.
It produced 247 pages of correspondence and 163 pages of legal
bills. The borough redacted portions of some documents to
excise material protected by the attorney-client and work-
product privileges.
In particular, the borough redacted information about the
three legal proceedings involving plaintiff and the borough,
including information in the solicitor's bills about work
performed in connection with those matters.
West Cape May did not initially include a privilege log
with its responses. Neither plaintiff nor her counsel contacted
the borough informally about this omission. Instead, on October
15, plaintiff filed this lawsuit and hand-delivered a copy to
the borough solicitor.
plaintiff's counsel.
See Exhibit F, filing letter from
Immediately upon being notified that it had failed to
furnish a privilege log, the borough compiled and provided
plaintiff's counsel with privilege logs for both the
correspondence and the legal bills. See Exhibit G, October 23,
4
2013, letter from Corrado to Bell, with logs attached; Exhibit
H, Certification of Elaine Wallace.
III. ARGUMENT
OPRA requires public agencies to make government records
available to the public. N.J.S.A. 47:1A-1 et seq. The statute
defines "government record" broadly, but exempts various
categories of documents from disclosure.
Those exemptions include "any record within the attorney-
client privilege." The statute expressly extends this exemption
to privileged material contained in legal bills:
This paragraph [exempting attorney-client
privileged material] shall not be construed
as exempting from access attorney or
consultant bills or invoices except that
such bills or invoices ma be redacted to
remove any information protected by the
attorney-client privilege.
N.J.S.A. 47:1A-1.1 (emphasis supplied)
In addition, OPRA "does not abrogate or erode ... any
privilege or grant of confidentiality ... established or
recognized by ... court rule." N.J.S.A. 47:1A-9(b). Accordingly,
material protected by the work-product privilege, as defined in
R. 4:10-2(c), is also exempt from OPRA disclosure. O'Boyle v.
Bor. of Longport, 426 N.J. Super. 1, 9 (App. Div.), certif.
granted, 212 N.J. 431 (2012).
5
When a public entity is engaged in litigation, information
about its manner of handling that litigation is generally exempt
from OPRA disclosure. For example, an entity's communications
with its attorney in litigation matters - even when transmitted
by a "necessary intermediary" - are confidential, and protected
by the attorney-client privilege. Tractenberg v. Tp. of West
Orange, 416 N.J. Super. 354, 376 (App. Div. 2010).
Similarly, the work-product privilege extends broad
protection against disclosure to material that would otherwise
disclose "the mental impressions, conclusions, opinions or legal
theories of an attorney or any other representative of a party
concerning the litigation," as well as material prepared "in
anticipation of litigation." R. 4:10-2(c).
"The doctrine recognizes the need for an attorney to work
with a certain degree of privacy, free from unnecessary
intrusion by opposing parties and their counsel." LaPorta v.
Gloucester Ct . Bd. of Chosen Freeholders, 340 N.J. Super. 254,
260 (App. Div. 2001), quoting Hickman v. Taylor, 329 U.S. 495,
510-11 (1947). "If a document is protected work product under
R. 4:10-2(c), it is also protected from disclosure under OPRA."
Gannett N.J. Ptrs., LP v. Cty. of Middlesex, 379 N.J. Super.
205, 218 (App. Div. 2005).
6
Significantly, plaintiff's submission in this matter fails
to mention any of the three pieces of litigation now pending
between her and the borough.
When a public entity redacts material from a government
record, OPRA requires the records custodian to "indicate the
specific basis" for the redaction. N.J.S.A. 47:1A-5(g). When
an entity redacts privileged material, it should "describe the
nature of the documents ... not produced or disclosed in a manner
that, without revealing the information itself privileged or
protected, will enable other parties to assess the applicability
of the privilege or protection." Paff v. N.J. Dep't of Labor,
379 N.J. Super. 346, 354 (App. Div. 2005), citing R. 4:10-2(e).
Applied to plaintiff's OPRA requests, these principles
compel the Court to dismiss plaintiff's complaint.
A. West Cape May Has Provided a Privilege Log
That Comports With OPRA's Requirements.
Plaintiff claims the borough failed to provide a privilege
log indicating the reason for each of its redactions on the
furnished documents. While initially that was so, the borough
promptly rectified this omission when it was called to its
attention.
The borough has provided a log for the redacted
communications and a separate log for the redacted bills. These
7
logs indicate the nature of each redaction and privilege
claimed. The communications log describes the document at
issue, the sender and the recipient. The legal bill log
provides the date and page of the redaction as well as the basis
therefore.
In paragraphs 7 and 8 of its complaint, plaintiff complains
specifically about redactions on pages 1-2, 9, 10, 11, 12-14,
15, 28 and 93 of Exhibit E to its submission. The borough
correspondence log addresses each of those redactions and
provides the information plaintiff seeks.
2
The purpose of a privilege log is two-fold: it facilitates
a tribunal's review of ostensibly privileged records, and it
provides the party seeking disclosure with as much information
as possible to use in presenting its case. Fisher v. Division
of Law, 400 N.J. Super. 61, 76 (App. Div. 2008).
The logs produced by the borough satisfy both purposes.
They contain the information necessary to explain the basis for
the redaction and allow an assessment of its validity by both
the plaintiff and the Court.
2
In addition, when it provided the logs, the borough provided a
revised page 1, which restored certain mistakenly redacted
material. See Exhibit F.
8
Nor should the borough be penalized because it did not
initially provide the log. The omission was inadvertent, and
rectified immediately upon its being called to the borough's
attention. Plaintiff has suffered no prejudice thereby, and now
has the information she needs to challenge any claim of
privilege made.
This aspect of plaintiff's complaint is therefore moot, and
the Court should reject it.
B. Contrary to Plaintiff's Claim, West Cape May
Has Properly Asserted Attorney-Client or Work-
Product Privilege As To Withheld or Redacted
Correspondence.
Plaintiff next challenges the privilege designation of
certain redacted correspondence. In each case, the documents
were properly designated as either attorney-client or work-
product privileged, based in large part on the existence of
litigation (unmentioned by plaintiff) between the parties.
For example, plaintiff claims pages 35, 58, 59, 60, 64, 65,
72, 73 and 74 of its Exhibit E are not privileged because they
are emails from Elaine Wallace, the borough clerk, to various
borough officials. See complaint at paragraph 9(A)-(F).
But as the privilege log makes clear, these are emails in
which the clerk is simply transmitting documents received from
Allan Richardson, the borough's JIF-assigned attorney in the
9
civil rights lawsuit plaintiff has filed against the borough and
Mayor Kaithern. Those communications are attorney-client
privileged, and the privilege does not dissipate simply because
one borough official - the clerk - is transmitting them to
another.
3
See State v. Kociolek, 23 N.J. 400, 413 (1957).
Plaintiff complains that pages 85 through 88 of Exhibit E
are emails that do not delineate the basis for the redaction.
See complaint at paragraph 9(G). The log makes clear that these
are emails from the borough solicitor to the clerk regarding the
Willow Creek Winery litigation, and are therefore attorney-
client privileged.
Finally, plaintiff complains that three pages - 95-96 and
98 - of Exhibit E are emails from Elaine Wallace to herself.
See complaint at paragraph 9(H). But, again as the log makes
clear, the redacted portion of those email strings are
privileged communications from the borough attorney about
developments in the Willow Creek disputes. That the borough
clerk may have sent the emails to herself, for filing or other
organizational purposes, does not eliminate the privileged
3
If required, unredacted copies of these documents (and all
other documents produced) are available for the Court's in
camera review.
10
character of the attorney's comments. See generally Exhibit H,
Wallace Certification.
In sum, plaintiff's complaints about the redacted
correspondence lack merit and improperly ignore the existence of
litigation between the parties. The Court should reject
plaintiff's claims about these documents in their entirety.
C. OPRA Permits West Cape May to Redact Legal
Bills to Remove Information Protected by the
Attorney-Client And Work Product
Privileges.
Plaintiff next says the borough has improperly redacted its
legal bills. She claims the information contained in those
bills - particularly the identity of persons with whom the
solicitor communicated and the subject of those communications -
is unprivileged and must be disclosed in response to her OPRA
request.
The argument fails for several related reasons.
Privileged information does not lose its privileged
character merely because it is contained in a legal bill. "A
party may assert privilege under the attorney-client or work
product doctrine in certain information contained in legal
bills." Pizzo v. Gambee, 796 F. Supp. 2d 270, 272-73 (D. Mass.
2011) . The content of the material, not its form, determines
11
whether it is privileged. In re Grand Jury Subpoena, 123 F.3d
695, 699 (1st Cir. 1997).
Billing records are subject to the attorney-client
privilege "to the extent that they reveal litigation strategy
and/or the nature of the services performed." Fidelit and
Deposit Co. of Md. v. McCulloch, 186 F.R.D. 516, 523 (E.D. Pa.
1996); see Montgomery Cty. v. Microvote Corp., 175 F.3d 296, 304
(3d Cir. 1999); Chaury v. Gallerizzo, 174 F.3d 394, 403 (4th Cir.
1999). As the Ninth Circuit has held:
Correspondence, bills, ledgers, statements
and time records which also reveal the
motive of the client in seeking
representation, litigation strategy, or the
specific nature of the services provided,
such as researching particular areas of the
law, fall within the privilege.
Clarke v. American Commerce Nat'l Bank, 974 F.2d 127, 129 (9th
Cir. 1992).
Similarly, the work product privilege protects information
in legal bills that, directly or indirectly, might reveal at
attorney's legal strategies or theories in a particular dispute.
The privilege extends to an attorney's "selection or
compilation" of material that, while not individually
privileged, would if taken together reveal his impressions,
conclusions or theories about a case, and accords it virtually
absolute protection against disclosure. See Spork v. Peil, 795
12
F.2d 312, 316 (3d Cir. 1985); see also Shelton v. American
Motors Corp., 805 F.2d 1323, 1328 (8th Cir. 1986).
That principle applies to the "selection or compilation" of
information represented by an attorney's bill. When litigation
is involved, such information may include the identity of
persons with whom the attorney spoke, the topics they discussed,
the documents reviewed and the issues researched. "These
descriptions necessarily reveal strategies, confidential
communications, and the thought processes behind the
representation." Hewes v. Langdon, 853 So. 2d 1237, 1249 (Miss.
2003).
Here West Cape May has redacted from its bills portions of
those entries that pertain to West Cape May's litigated disputes
with plaintiff and that would otherwise reveal with whom its
solicitor spoke, what he spoke to them about, when he spoke to
them, what documents he reviewed and what legal research he
performed. Absent those redactions, the bills would tell
plaintiff who the borough believes are important witnesses, what
the salient issues are, and how the borough intends to prosecute
or defend these cases. Both the attorney-client and the work
product privileges protect that information.
Plaintiff says OPRA requires legal bills to be disclosed in
full, and that no portions are privileged.
13
She cites Hunterdon
County PBA Local 188 v. Tp. of Franklin, 286 N.J. Super. 389
(App. Div. 1998), in support.
Hunterdon is inapposite. Contrary to plaintiff's claim,
that case did not involve an OPRA request; it involved a request
under the Right to Know Act, OPRA's superseded predecessor and
an entirely different statute, with entirely different
disclosure criteria. Compare L. 1963, c.73 (Right to Know Act)
with L. 2001, c. 404 (OPRA). See Serrano v. South Brunswick
Tp., 358 N.J. Super. 352, 363 (App. Div. 2003) .
4
The Right to Know Act contained no exemption for privileged
documents. By contrast (and as noted above), OPRA contains both
an express exemption for attorney-client privileged documents
(including privileged portions of attorney's bills) and an
exemption for material protected by the work-product privilege.
N.J.S.A. 47:1A-1.1; -9(b).
The request in Hunterdon did not involve any litigated
matter, and the municipality did not claim work-product
protection. Furthermore, the Hunterdon court conceded a bill
4
The Right to Know Act was codified at N.J.S.A. 47:1A-1 through
47:1A-4. The legislature replaced it precisely because it
failed to deal adequately with the complex issues posed by
requests for governmental records. See Transcript of Public
Hearing on Senate Bill Nos. 161, 351, 573 and 866 (March 20,
2000), available at
ht : I /Pubhear 03090 . PDF
14
might contain privileged material; it simply noted that, in its
experience, legal bills are "unlikelyn to contain confidential
information. See 286 N.J. Super. at 394-95.
Plaintiff's failure to account for her litigation with the
borough undermines her claim the borough has improperly
responded to her OPRA request for bills. Although generally the
purpose of the OPRA request is immaterial, the pendency of
litigation "is not a fact to be ignored.n Spectraserv, Inc. v.
Middlesex Cty. Utils. Auth., 416 N.J. Super. 565, 581 (App. Div.
2010). OPRA is not an "alternative to civil discovery.n MAG
Entertainment, LLC v. Div. of ABC, 375 N.J. Super. 534, 550
(App. Div. 2005).
This is particularly so when the work-product privilege is
involved. To the extent plaintiff claims she is entitled to the
"factual informationn in the bills, the doctrine requires her to
demonstrate that she has substantial need of that information
and cannot obtain it by other means. R. 4:10-2(c). Plaintiff
has not made that showing; and given the availability of
conventional discovery methods, she cannot.
In sum, to the extent municipal legal bills contain
material that is either attorney-client privileged, or whose
disclosure would unfairly alert an opposing party to a public
entity's litigation strategy, OPRA exempts that material from
15
disclosure. West Cape May's production of bills complies with
this principle. The Court should reject plaintiff's contrary
arguments.
IV. CONCLUSION
West Cape May has complied with OPRA. It has provided
plaintiff with a privilege log. It has properly redacted
material protected by the attorney-client and work-product
privileges from both the communications and the bills produced.
Plaintiff's contrary claims are without merit. In
particular, her position ignores her litigation with the
borough. Accordingly, for the foregoing reasons, the Court
should reject those claims in their entirety, dismiss
plaintiff's complaint, and enter judgment for the Borough of
West Cape May.
Dated: 12/23/13 Respectfully submitted,
BARRY, CORRADO & GRASSI, PC
16
FRANK L. CORRADO, ESQUIRE
Attorney ID No. 022221983
BARRY, CORHADO &: GRASSI, P.C.
2700 Pacific Avenue
Wildwood, NJ 08260
(609) 729-1333 Fax: (609) 522-4927
Attorneys for Defendant
BARBAHA BRAY WILDE,
Plaintiff,
vs.
BOROUGH OF WEST CAPE MAY,
Defendant.
SUPERIOR COURT OF NEW JERSEY
LAW DIVISION
CAPE MAY COUNTY
DOCKET NO. CPM-L-517-13
Civil Action
ORDER
This matter having come before the Court on January 17,
2014, for summary disposition on Order to Show Cause; in the
presence of Colin Bell, Esquire, attorney for plaintiff Barbara
Wilde, and Frank L. Corrado, Esquire, attorney for defendant West
Cape May; and the Court having reviewed the submissions of the
parties and having heard argument thereon; and for good cause
shown,
IT IS on this ____ day of a ~ u a ~ ~ { 2014, hereby ORDERED AND
DECREED as follows:
1. West Cape May's failure to produce a privilege log with
its initial production constitutes a violation of OPRA.
2. Because West Cape May provided the privilege log in
response to plaintiff's filed complaint, plaintiff is entitled to
legal fees limited solely to those fees associated with the
request for a privilege log. Within days of the date of
this order, plaintiff shall prepare and file a fee petition
limited solely to those fees. The Court will thereafter set a
briefing schedule and hearing date on that petition.
3. On all other issues raised by plaintiff's complaint and
accompanying submissions, the Court finds that no violations of
OPRA have occurred.
4. Accordingly, judgment is hereby entered in favor of West
Cape May and against plaintiff on all other issues raised by
plaintiff's submission, and with respect to those issues
plaintiff's complaint is dismissed with prejudice.
c--, P(7
v. \l
JAME}- .
2