In a matter of first impression, the New Jersey Supreme Court in O’Boyle v. Borough of Longport expressly adopted the common interest rule in New Jersey as articulated in LaPorta v. Gloucester County Board of Chosen Freeholders. Although previously addressed and analyzed by lower courts within New Jersey, the Court’s ruling clarifies the boundaries of the rule and offers guidance in resolving the scope of its application.
Mr. O’Boyle, a private citizen, filed several lawsuits against the Borough of Longport, planning and zoning members, and borough residents. A private attorney representing a planning and zoning board member and two borough residents sought to engage in a joint defense with the municipal attorney with respect to the lawsuits that Mr. O’Boyle had filed and might later file against their clients. To that end, the private attorney prepared and sent to the borough attorney a joint strategy memorandum and CDs containing a number of documents that had been selected by the private attorney. While the opinion is unclear whether a joint defense arrangement was ever consummated, the memorandum and the CDs were later returned to the private attorney, without the borough keeping copies.
Later, Mr. O’Boyle filed an OPRA request seeking, in part, the materials exchanged between the private attorney and the municipal attorney. The borough withheld the joint strategy memorandum and the documents on the accompanying CDs because, among other reasons, the documents were privileged. Mr. O’Boyle thereafter filed a verified complaint against the borough seeking access to the withheld documents under OPRA and New Jersey’s common law right of access. The trial court dismissed the case with prejudice, and the Appellate Division affirmed.