An email was a public record, but the attorney who sent it can remain anonymous, NJ court rules

Justices agree that legal advice sent to a government attorney is a public record but split over whether the sender can remain anonymous.

The public does not automatically have the right to know who provided legal advice to a government attorney, even when that advice is used in court, the New Jersey Supreme Court ruled in a case involving the competing interests of privacy and government transparency.

In a 5-2 decision, the justices allowed a municipality to conceal the identity of a private attorney whose advice was presented during a court proceeding, even though they agreed that the email containing the advice was a public record under New Jersey’s Open Public Records Act.

The case raises broader questions about how much the public is entitled to know about individuals who provide advice to officials conducting government business.

Writing for the majority, Justice Douglas M. Fasciale concluded that the attorney’s expectation of privacy outweighed the public interest in disclosure. But two dissenting justices argued that the attorney could no longer reasonably expect anonymity once the advice was introduced in open court.

The Oct. 29 ruling stems from a dispute in Mantoloking, an Ocean County borough, where a private lawyer serving as a municipal prosecutor sought advice from another attorney about whether expunged criminal records could be used in a traffic case.

The prosecutor received the advice through a private email account and later shared the email in court, but removed the sender’s name and email address.

When a government transparency organization requested the unredacted email, borough officials refused to release the identifying information, setting off a legal battle that eventually reached the state’s highest court.

The Supreme Court rejected the borough’s argument that the email was not a government record because it was received through a private account.

Fasciale wrote that the prosecutor was acting as an officer of the state when she received the advice, making the email subject to the Open Public Records Act. Public officials cannot shield communications from disclosure simply by conducting government business through private email accounts.

But the justices concluded that the attorney’s identity could still be withheld because of privacy protections under state law. The majority decided that the unidentified attorney had a reasonable expectation of privacy when providing confidential legal advice to a professional colleague. The attorney had no connection to the underlying traffic case and had previously provided legal assistance to the prosecutor, according to the decision.

Fasciale wrote that requiring the disclosure of attorneys’ identities in such circumstances could discourage lawyers from seeking advice from colleagues, a practice the court said serves the public interest.

The justices also considered whether revealing the attorney’s identity would serve a meaningful purpose. The underlying traffic case had already been dismissed, and the question about expunged criminal records was no longer at issue. The majority concluded that the identity of the lawyer who provided the advice was not essential to resolving the dispute.

“The email sender’s identity is not an essential fact, is not necessary for impeachment, and could not be used in any way to prove or disprove any claim in dispute,” Fasciale wrote.

The court also determined that the attorney’s name and email address were not protected by the legal doctrine that shields lawyers’ work prepared in anticipation of litigation. The majority relied on the attorney’s expectation of privacy, concluding that it outweighed the interest in disclosure under both OPRA and the common law right of access to public records.

The justices emphasized that their ruling was based on the unusual circumstances of the case and did not create a blanket exemption for the identities of people who communicate with government attorneys.

Justice Michael Noriega and Chief Justice Stuart Rabner disagreed with the majority’s conclusion that the sender’s identity could remain private after the email was used in open court.

Noriega argued that the prosecutor’s decision to disclose the email eliminated any reasonable expectation that the identity of its author would remain confidential.

He noted that the prosecutor could have summarized the legal advice in her own words rather than presenting the email itself.

Once the government voluntarily disclosed the document, Noriega wrote, it could not continue to withhold information identifying its source without another legally recognized reason for confidentiality.

The dissent also questioned the majority’s concern that disclosure would discourage attorneys from consulting with one another.

Noriega argued that private legal communications would remain protected unless an attorney chose to publicly disclose the advice while concealing its source.

He also challenged the majority’s reliance on the fact that the underlying case had ended, noting that the right to obtain records under OPRA generally does not depend on why someone requests them.

“Because OPRA’s purpose is to maximize transparency and public access to government records, and because no cognizable privacy interest justifies withholding the sender’s identity and email address on this record, I would require disclosure,” Noriega wrote.

The American Civil Liberties Union of New Jersey and Libertarians for Transparent Government participated in the Supreme Court case, arguing in favor of public access to the sender’s identity.

The case dates back to 2020, when former New Jersey State Trooper Jakob Weingroff filed a civilian complaint accusing Donald F. Burke Sr. of several motor vehicle violations.

Burke sought access to Weingroff’s criminal and disciplinary records because he suspected that the former trooper had a history of falsifying records, according to court records. A municipal judge denied the request, prompting Burke to appeal.

Because of a conflict of interest involving the municipal prosecutor, private attorney Elizabeth Leahey was appointed to represent Mantoloking in the proceedings. Before an appellate hearing, Leahey contacted a fellow attorney for advice about the admissibility of expunged criminal records.

During the hearing, Leahey informed the judge that Weingroff had said his criminal record was expunged. She then shared the advice she had received, including an explanation of the possible legal consequences of revealing expunged records. Leahey provided copies of the email to the judge and defense counsel but removed the sender’s identifying information.

The lower court upheld the denial of Burke’s request for the records. An appellate court later reversed that decision, finding that Burke had demonstrated a compelling need to inspect the records. The state subsequently dismissed the traffic charges against Burke.

While the case was still pending, the Association for Governmental Responsibility, Ethics, and Transparency, represented by Burke, sought the unredacted email through a public records request. Mantoloking officials denied the request, and a Superior Court judge upheld that decision, reasoning that the email was a private communication maintained on a private email server.

A divided appellate court agreed that the message was not a government record under OPRA or a public record under the common law.

But the Supreme Court found that it was a government record because Leahey received and maintained it while performing official duties.

Before issuing its decision, the justices ordered a judge to inspect the redacted information and provide additional details about the sender. That private review established that the attorney was not involved in the 2020 case.