No Right of Access Under OPRA to Unfiled Discovery in NJDEP Litigation But Right of Access May Exist Under Common Law

Last month, in Drinker Biddle & Reath, L.L.P. v. New Jersey Department of Law and Public Safety, Division of Law, the Appellate Division held that un-filed discovery in an environmental lawsuit brought by the New Jersey Department of Environmental Protection was not subject to access pursuant to New Jersey’s Open Public Records Act (“OPRA”) . But the Court also found that access to such information could be compelled under the common law, depending on whether the plaintiff’s need for disclosure outweighed the State’s need for confidentiality, and remanded the matter to the trial court to conduct the appropriate balancing test.

Drinker submitted an OPRA request to the NJDEP for transcripts of expert depositions taken during the NJDEP’s litigation, none of which had been filed with the Court. The NJDEP denied the request, relying upon Estate of Frankl v. Goodyear Tire & Rubber Co., which held that un-filed discovery was not accessible under either New Jersey Court Rule 4:10-3 or Hammock v. Hoffmann-La Roche, Inc. Drinker then sued, alleging a violation of OPRA and the common-law right of access.

In denying the OPRA claim for access, the Court relied on N.J.S.A. 47:1A-9(b), which exempts from access any government record as to which any grant of confidentiality has been previously established or recognized by judicial case law. Because pre-OPRA case law had established or recognized the confidentiality of un-filed discovery materials, the Appellate Division concluded that OPRA did not require access to such materials.In addressing the common-law right of access, the Court reached a different conclusion. Applying the common-law analysis, the Court determined (i) that the un-filed transcripts were common law public records and (ii) that Drinker had the requisite interest in the records, noting that the interest required by the common law can be either a public interest or a legitimate private interest. The third part of the common-law analysis requires a Court “to balance the Plaintiff’s interest in information against the public interest in confidentiality ….” Southern N.J. Newspapers, Inc. v. Twp. of Mt. Laurel. Since the trial court failed to properly consider and balance these respective interests, the Court remanded the matter for the trial judge to conduct the appropriate balancing test.

Using the common law to obtain government records, specifically records exempt under OPRA, is not a novel proposition. In The Home News v. State of New Jersey Department of Health, et al., the New Jersey Supreme Court held that the fact that a government record was not accessible under the predecessor statute to OPRA, the Right to Know Law, was not dispositive of whether there is a common-law right to inspect a government record. Rather, such an exemption weighs “very heavily” in the balancing process under the common law as a determination of the need for confidentiality.

Drinker’s applicability as a vehicle to obtain un-filed discovery is limited, however. It applies only when such documents meet the common-law test of a public record, that is, a record made or maintained by public officers in the exercise of their public functions. It will not, then, apply to forms of un-filed discovery which do not qualify as common-law public records.

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