Records of Public Law School Clinics Are Not Subject to Open Public Records Act

Sussex Commons Assocs., LLC v. Rutgers, the State University, 210 N.J. 531 (2012).  Rutgers, the State University of New Jersey, and its two law schools are unquestionably subject to the Open Public Records Act, N.J.S.A. 47:1A-1 to -13 (“OPRA”), as the Supreme Court observed in this case.  The question here was whether records of a clinic at Rutgers-Newark Law School are subject to OPRA.  In an opinion by Chief Justice Rabner, the Court concluded that the clinic was not covered by OPRA.  Justice Albin filed a concurring opinion contending that the clinic should be subject to OPRA, but that the records sought in this case were not “government records” under OPRA and/or fell under statutory exemptions to disclosure.  Therefore, Justice Albin believed, the documents sought need not have been turned over by the clinic.

The Rutgers Environmental Law Clinic (“RELC”) represented, pro bono, opponents of a proposed 90-store outlet mall to be developed by plaintiff Sussex Commons Associates (“Sussex”).  Sussex sued some of those opponents for tortious interference.  Sussex served an OPRA request on Rutgers, seeking eighteen separate categories of documents.  After Rutgers denied the requests, Sussex filed an OPRA lawsuit against Rutgers and RELC.  Thereafter, Rutgers provided information to Sussex relating to its OPRA Request No. 1.  Sussex then served OPRA demands for sixteen more categories of documents.

The Law Division ruled that RELC was exempt from OPRA.  The “unique hybrid nature” of law school clincs called for an exemption “to protect the unique and valuable function the law school clinics provide in both education and jurisprudence,” and because a contrary result would make clients hesitate to use the clinics if disclosure were required.

The Appellate Division reversed in a published opinion.  416 N.J. Super. 537 (App. Div. 2010).  That court found RELC indistinguishable, for OPRA purposes, from any other program offered by the law school.  The panel rejected any blanket exemption for RELC.  The Supreme Court granted certification and allowed a number of amici curiae to participate.  These included the legal clinics of both Rutgers-Newark and Rutgers-Camden Law Schools, who were represented at oral argument by the Dean of Rutgers-Newark Law School, John J. Farmer, Jr.

The Chief Justice’s opinion focused on the need to apply the intent of the Legislature in determining whether RELC was subject to OPRA.  After recapping some of the history of both OPRA and Rutgers University (the latter may be of particular interest to those who are following the proposed reconfiguration of higher education in New Jersey), the opinion observed that “courts have not adopted a bright-line rule that treats Rutgers as an arm of the state for all purposes.”  Instead, courts have resolved questions as to whether particular statutes apply to Rutgers “by considering both the purposes of the general program and the purposes of the Rutgers legislative charter.”

There was no indication, Chief Justice Rabner stated, that the Legislature “intended to apply OPRA to teaching clinics that function like private law firms as they serve individual clients.”  OPRA’s goal is “to promote the public interest by granting citizens access to documents that record the workings of government in some way.”  But clinical legal programs do not perform any “government functions.”  Instead, “they teach law students how to practice law and represent clients.”  As a result, “case-related records would not shed light on the operation of government or expose misconduct or wasteful government spending.”

The Court also found support for its result in In re Determination of Executive Commission on Ethical Standards, 116 N.J. 216 (1989).  That case, which pre-dated OPRA, held that clinical law professors at Rutgers were not “State employees” for purposes of the Conflicts of Interest Law, N.J.S.A. 52:13D-12 to -27.  The Legislature drafted OPRA with full knowledge of that decision but did not overturn it.

Not only would subjecting RELC to OPRA not advance legislative intent, it would harm RELC and other legal clinics.  Clients would hesitate to be represented by clinics if the clinics’ documents could be exposed to their adversaries.  The clinics would become “less like the practice of law,” undermining their very purpose.  Clinics would also face “additional, and perhaps vexatious, OPRA requests in the future,” diverting their resources away from the educational and client representation functions that are their primary reason for being.

Finally, the Court rejected Sussex’s argument for disclosure of RELC’s documents under the common law right of access.   “Because clinical law professors at public law schools do not act as public officers or conduct official business when they represent private clients at a law school clinic, the common law right of access does not extend to records maintained in that setting.”

A ruling in favor of RELC was the right result.  OPRA is not served by requiring a legal clinic to turn over protected materials to its adversary merely because that clinic is at a public law school.   Chief Justice Rabner noted the absurdity of the contrary result:  “public law schools would be subject to disclosure of their records, [but] private law school programs would not.”