SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2033-15T1

NEW JERSEY SECOND AMENDMENT

SOCIETY, 

Plaintiff-Appellant, 

v. 

DIVISION OF STATE POLICE OF THE 

NEW JERSEY DEPARTMENT OF LAW AND 

PUBIC SAFETY, 

Defendant-Respondent.

____________________________________

Argued October 30, 2017 – Decided June 19, 2018

Before Judges Messano and Vernoia.

On appeal from the Superior Court of New 

Jersey, Law Division, Mercer County, Docket 

No. L-1143-11.

Richard M. Gutman argued the cause for

appellant.

Daniel M. Vannella, Deputy Attorney General, 

argued the cause for respondent (Christopher 

S. Porrino, Attorney General, attorney; Lisa 

A. Puglisi, Assistant Attorney General, of 

counsel; Daniel M. Vannella, on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." 

Although it is posted on the internet, this opinion is binding only on the 

parties in the case and its use in other cases is limited. R. 1:36-3.
2 A-2033-15T1

Plaintiff New Jersey Second Amendment Society appeals from 

an order finding defendant New Jersey State Police's (NJSP) 

production of a redacted version of its Firearms Applicant 

Investigation Guide (Guide) complied with the requirements of the 

Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and 

dismissing the complaint. We affirm in part, vacate in part and 

remand for further proceedings.

I.

We detailed the facts in our initial decision in his matter, 

N.J. Second Amendment Soc'y v. Div. of State Police of the N.J.

Dep't of Law & Pub. Safety, No. A-2103-11T3, A-2396-11T3 (App. 

Div. May 14, 2015) (slip. op. at 4-8), and briefly summarize the 

facts pertinent to this appeal. In 2011, plaintiff served the 

NJSP with an OPRA request for production of "the most recent 

version" of the Guide. The NJSP distributes the Guide to State 

Police officers and municipal police departments throughout New 

Jersey to aid in the investigation of "firearms-related

applications" and enforcement of "the State's firearms regulations 

in a uniform and standardized manner." 

The NJSP denied plaintiff's request, asserting the Guide was

exempt from disclosure under OPRA pursuant to a proposed 

regulation, N.J.A.C. 13:1E-3.2(a) (2011), which was implemented 

on November 3, 2010, pursuant to then-Governor Chris Christie's
3 A-2033-15T1

Executive Order No. 47.1 See Exec. Order No. 47 (Nov. 3, 2010), 

42 N.J.R. 2830(a) (Dec. 6, 2010). The regulation exempted from 

OPRA's definition of government records all "[s]tandard 

[o]perating [p]rocedures and training materials," N.J.A.C. 13:1E3.2(a)(1) (2011), and "[r]ecords which may reveal . . . an agency's 

surveillance, security or investigative techniques or procedures

. . . ," N.J.A.C. 13:1E-3.2(a)(3) (2011). 

Plaintiff filed a verified complaint challenging the NJSP's 

denial, and the Law Division subsequently determined the NJSP 

properly denied access to the Guide and dismissed the complaint. 

Three days later, N.J.A.C. 13:1E-3.2(a) (2011), which had been 

adopted by the Department of Law and Public Safety (LPS), became 

effective. 43 N.J.R. 3188(b) (Dec. 5, 2011). Plaintiff appealed 

the order dismissing the complaint. 

In our decision on appeal, we explained that following the 

complaint's dismissal, LPS proposed amendments to N.J.A.C. 13:1E3.2(a) (2011) because "paragraph a(1) of the [r]egulation 'd[id] 

not clearly express the purpose for which it was promulgated – to 

serve the public interest in protecting the confidentiality of

[LPS's] law enforcement and legal services functions.'" N.J.

 

1 The Executive Order stated the proposed rule, and others, "shall 

be and shall remain in full force and effect pending their adoption 

as final rules pursuant to the provisions of the Administrative 

Procedure Act," N.J.S.A. 52:14B-1 to -31. Exec. Order No. 47.
4 A-2033-15T1

Second Amendment Soc'y, slip op. at 6 (second and third alteration 

in original) (quoting 45 N.J.R. 2023(a) (Sept. 3, 2013)). We 

explained LPS intended the amendments "to clarify that not all 

[LPS] standard operating procedures and training materials are 

considered confidential." Ibid. (alteration in original) (quoting 

45 N.J.R. 2023(a)). The amendments therefore limited the OPRA 

exemption to only those standard operating procedures and training 

materials that "may reveal an agency's investigative . . . or 

operational techniques, measures, or procedures which, if 

disclosed, would create a risk to the safety of persons [or] 

property, . . . or compromise an agency's ability to effectively 

conduct investigations . . . ." Id. at 6-7 (emphasis in original) 

(quoting 45 N.J.R. 2023(a)).

We further noted the amended N.J.A.C. 13:1E-3.2(a), which 

became effective April 7, 2014, provides in pertinent part as 

follows:

[T]he following records shall not be 

considered government records subject to 

public access pursuant to [OPRA]:

. . . .

2. Records, including standard operating 

procedures, manuals, and training materials, 

that may reveal . . . an agency's 

surveillance, security, tactical, 

investigative, or operational techniques, 

measures, or procedures, which, if disclosed, 

would create a risk to the safety of persons, 
5 A-2033-15T1

property, electronic data, or software, or 

compromise an agency's ability to effectively 

conduct investigations;

[Id. at 7-8 (emphasis added) (quoting N.J.A.C. 

13:1E-3.2(a)(2)).] 

We observed the Law Division considered plaintiff's request 

for the Guide under N.J.A.C. 13:1E-3.2(a) (2011), which included 

a blanket exemption from OPRA's definition of government records 

for all standard operating procedures, id. at 8, and noted that 

where a government entity "asserts an exemption, OPRA clearly 

favors the production of redacted government records," id. at 13 

(citing N.J.S.A. 47:1A-5(g)). We therefore reversed the order 

dismissing the complaint and remanded for the trial court to 

conduct a hearing to determine "whether [the amended] section a(2) 

of [N.J.A.C. 13:1E-3.2] applies to exempt the Guide from OPRA's 

definition of a government record and whether the Guide should be 

produced in redacted form." Ibid.

Following the remand, the NJSP provided the Guide to plaintiff

with the following portions redacted: (1) a section titled 

"Investigation" and five sections titled "Investigation of the 

Applicant," each of which detail investigatory procedures for

various firearms-related applications;

2 (2) the Firearms 

 

2 We have been provided with the redacted and unredacted versions 

of the Guide provided to the trial court. The redacted 
6 A-2033-15T1

Investigation Report Form 407 (the Form) and the accompanying

description of the procedure for completing and utilizing the Form 

during an investigation; and (3) Attachments A, B and C, consisting 

of two letters and one memorandum from the Attorney General's 

office that include general legal guidance pertaining to firearms 

permit processing. More particularly, Attachment A is a January 

24, 1996 letter from a Deputy Attorney General to a Piscataway 

Police Department detective. Attachment B is an undated and 

unsigned letter to a Deputy Attorney General. Attachment C is a 

May 26, 2000 memorandum from a Deputy Attorney General to the Unit 

Head of the NJSP Firearms Investigation Unit.

On remand, the court conducted an in camera review of the 

redacted and unredacted versions of the Guide. The court also

considered a certification from NJSP Lieutenant Glenn Ross3

 

"Investigation" paragraphs are contained in the Guide's "General 

Information" section. The redacted paragraphs titled

"Investigation of the Applicant" are respectively contained in the 

Guide's "Firearms ID Cards," "Permit to Purchase," "Duplicate ID 

Cards," "Permit to Carry," and "Police Applicants ID Cards"

sections. The redacted Firearms Investigation Report Form 407 and 

a description of the procedures for completing and utilizing the 

Form during an investigation are included in the Guide's "Firearms 

Investigation Report" section.

3 The court was also presented with the certification of NJSP 

Lieutenant Darryl L. Williams, who is assigned to the Firearms 

Investigation Unit. Williams's certification also explains the 

NJSP's redactions to the Guide and the manner in which disclosure 

of the redacted information in the sections titled "Investigation"
7 A-2033-15T1

explaining the NJSP limited its redactions of the Guide to "only 

. . . the steps . . . implemented when conducting the actual 

investigation of firearms applicants, the forms used solely for 

the investigation itself, and attorney-client privileged" 

correspondence which "provid[ed] legal advice on certain issues 

related to firearms law." 

Ross certified the redacted materials and standards describe 

uniform investigatory procedures and "reveal exactly how the 

investigations are to be conducted, and what steps to take and 

even in what specific order." The redacted portions explain the 

investigators' "sources of information when conducting an

investigation," identifies the "types of databases" utilized, and 

specifies "what parts of the databases to access, and at what 

points in time during the investigation to do so." Ross also 

explained that the redacted portions of the Guide "show exactly 

what types of information the investigator is to derive from the 

applicant and" how to address "different responses" from the 

applicant and "the applicant's references." 

According to Ross, disclosure of the redacted portions of the 

Guide "would provide the same detailed insight into how the 

 

and "Investigation of Applicant," and those describing the Form,

will interfere with law enforcement's ability to effectively 

investigate firearms permit applications. 
8 A-2033-15T1

investigations are conducted to those who are being investigated" 

and interfere with law enforcement's ability to "to weed out 

applicants who are attempting to circumvent the firearms laws." 

He explained that disclosure of the redacted investigative 

techniques, references to databases, and indicators investigators 

are directed to consider when speaking with applicants and their 

references would permit those being investigated "to circumvent 

[the] procedures or manipulate the investigative process." 

Ross further stated that a firearms applicant investigation 

report is confidential under N.J.A.C. 13:54-1.15,4 and disclosure 

of its contents would reveal investigator work product, including 

the manner in which an investigation is conducted, and what 

information was and is being sought from various sources. Ross 

opined that releasing the Form, and the accompanying redacted 

materials describing the procedure for completing the Form, would 

result in disclosure of investigatory techniques that would aid 

applicants seeking to circumvent and manipulate the investigatory 

process.

 

4 In pertinent part, N.J.A.C. 13:54-1.15 states that "any 

background investigation conducted . . . of any applicant for a 

permit, firearms identification card license, or registration 

. . . is not a public record and shall not be disclosed to any 

person not authorized by law . . . ."
9 A-2033-15T1

Ross explained the purpose of the firearms permit applicant 

investigatory process is to protect public safety. He stated that 

disclosure of the redacted investigatory techniques and procedures 

would "compromise [the] agency's ability to effectively conduct 

investigations" and "increase the risk that those seeking to 

unlawfully obtain firearms would succeed in doing so."

In its oral opinion, the court accepted Ross's unrebutted 

representations and found disclosure of the redacted sections of 

the Guide would provide "a precise roadmap into the entire 

investigation of a firearms application" to those with an "intent 

to circumvent the law." The court determined disclosure of the

redacted investigative techniques created a risk to public safety. 

The court also rejected plaintiff's contention there was a waiver

of the attorney-client privilege as to the letters and memorandum 

from the Attorney General's office, finding there was no evidence 

they were publicly distributed or otherwise made publicly

available. The court determined the redacted portions of the 

Guide were exempt from disclosure under N.J.A.C. 13:1E-3.2(a)(2), 

and entered an order dismissing the complaint. 

Plaintiff appealed and presents the following arguments for 

our consideration: 
10 A-2033-15T1

POINT I

OPRA REQUIRES THAT REDACTIONS BE MINIMIZED AND 

JUSTIFIED[.]

POINT II

[THE] TRIAL COURT . . . ERRED IN DENYING ACCESS 

TO ALL OF THE GUIDE'S INFORMATION REGARDING 

INVESTIGATORY PROCEDURES.

A. Contrary to the Appellate Division's 

instruction[s] to minimize redactions, the 

trial court . . . erred by permitting NJSP to 

redact all portions of the Guide regarding 

investigative procedures as if the defunct 

blanket exemption for all investigative 

procedures were still in effect[.]

B. [The] [t]rial court . . . disregarded the 

Appellate Division's suggestion that 

publicly-available information be 

disclosed[.]

1. [The] [t]rial court . . . failed to consider 

that the redacted Firearms Application 

Investigation Report form is currently 

available to the world on NJSP's website[.]

2. [The] [t]rial court decision failed to 

consider that the other redacted investigative 

information includes publicly-available 

information.

C. [T]he [t]rial court . . . erred by accepting 

a conclusory assertion of harm[.]

POINT III

[THE] [T]RIAL COURT . . . ERRED IN RULING THAT 

NJSP'S DISTRIBUTION OF THE GUIDE'S ATTACHMENTS 

A, B, AND C TO POLICE DEPARTMENTS THROUGHOUT 

THE STATE AND POSTING ON NJSP'S WEBSITE DID 

NOT WAIVE NJSP'S ATTORNEY-CLIENT PRIVILEGE[.]
11 A-2033-15T1

A. NJSP did not even attempt to satisfy its 

burden of proving that the Guide it 

distributed to numerous police departments 

omitted Attachments A, B, and C[.]

B. NJSP did not even attempt to satisfy is 

burden of proving that the editions of the 

Guide it previously posted on its website 

omitted Attachments A, B, and C[.]

II.

A "trial court's determinations with respect to the 

applicability of OPRA are legal conclusions subject to de novo 

review." K.L. v. Evesham Twp. Bd. of Educ., 423 N.J. Super. 337, 

349 (App. Div. 2011) (quoting O'Shea v. Twp. of W. Milford, 410 

N.J. Super. 371, 379 (App. Div. 2009)). "Our standard of review 

is plenary with respect to [a court's] interpretation of OPRA and 

its exclusions." Gilleran v. Twp. of Bloomfield, 440 N.J. Super. 

490, 497 (App. Div. 2015), rev'd on other grounds, 227 N.J. 159 

(2016): accord Brennan v. Bergen Cty. Prosecutor's Office, ___ 

N.J. ___, ___ (2018). We employ those standards in considering

application of N.J.A.C. 13:1E-3.2(a)(2) to the redacted Guide.

See Klawitter v. City of Trenton, 395 N.J. Super. 302, 318 (App. 

Div. 2007) (noting "the interpretation of . . . regulations . . . 

is a purely legal issue, which we consider de novo").

In enacting OPRA, the Legislature intended "to maximize 

public knowledge about public affairs in order to ensure an 

informed citizenry and to minimize the evils inherent in a secluded 
12 A-2033-15T1

process." Mason v. City of Hoboken, 196 N.J. 51, 64 (2008) 

(quoting Asbury Park Press v. Ocean Cty. Prosecutor's Office, 374 

N.J. Super. 312, 329 (Law Div. 2004)). OPRA mandates that 

"government records shall be readily accessible for inspection, 

copying, or examination by the citizens of this State, with certain 

exceptions, for the protection of the public interest, and any 

limitations on the right of access . . . shall be construed in 

favor of the public's right of access[.]" N.J.S.A. 47:1A-1. 

The right of access to government records under OPRA is not 

absolute. Kovalcik v. Somerset Cty. Prosecutor's Office, 206 N.J. 

581, 588 (2011). "That conclusion rests on the fact that OPRA 

exempts numerous categories of documents and information from 

disclosure." Ibid. Among those categories are exemptions for 

"any record within the attorney-client privilege . . .; [and] 

security measures and surveillance techniques which, if disclosed, 

would create a risk to the safety of persons, property, electronic 

data or software . . . [.]" N.J.S.A. 47:1A-1.1. In addition, "an 

exemption from a right of public access to a government record can 

be established . . . by [an] administrative rule . . . ." Slaughter 

v. Gov't Records Council, 413 N.J. Super. 544, 550 (App. Div. 

2010) (quoting Mason, 196 N.J. at 65); see also N.J.S.A. 47:1A9(a). 
13 A-2033-15T1

Here, we consider whether the redacted portions of the Guide 

are exempt from disclosure under N.J.A.C. 13:1E-3.2(a)(2) as 

"investigative, or operational techniques, measures or procedures, 

which, if disclosed, would . . . compromise [the NJSP's] ability 

to effectively conduct [firearms permit] investigations," as 

required by our remand.

III.

We first turn to whether the redacted sections of the Guide 

titled "Investigation" and "Investigation of the Applicant," and 

the Form and Guide materials describing the procedure for 

completing and utilizing the Form are exempt from OPRA disclosure. 

Confidentiality in investigative techniques is "vital not only 

because it serves to protect government sources of information, 

but also because it enhances the effectiveness of investigative 

techniques and procedures." N. Jersey Media Grp., Inc. v. Bergen 

Cty. Prosecutor's Office, 447 N.J. Super. 182, 203 (App. Div. 

2016). This is precisely the underlying purpose of N.J.A.C. 13:1E3.2(a)(2). See 45 N.J.R. 2023(a) (stating that the purpose of 

N.J.A.C. 13:1E-3.2(a)(2) is to protect the confidentiality of 

records which, if disclosed, would compromise an agency's 

investigatory process).

The parties do not dispute that the redacted portions of the 

Guide describing specific investigatory procedures for various 
14 A-2033-15T1

firearms applications are "investigative techniques" under 

N.J.A.C. 13:1E-3.2(a)(2). Rather, plaintiff contends the NJSP has 

not met its burden of showing that disclosure of the investigative 

techniques would "compromise [its] ability to effectively conduct 

[firearms] investigations" under N.J.A.C. 13:1E-3.2(a)(2). We 

disagree.

"The law . . . places the burden on the public agency to 

prove that it appropriately denied a request," Brennan, ___ N.J. 

at ___ (citing N.J.S.A. 47:1A-6), and that its denial is authorized 

by law, Paff v. Ocean Cty. Prosecutor's Office, 446 N.J. Super. 

163, 178 (App. Div.) (citing N.J.S.A. 47:1A-6), certif. granted, 

228 N.J. 403 (2016). Generally, "[u]nder OPRA, a public agency 

seeking to restrict the public's right of access to government 

records must produce specific reliable evidence sufficient to meet 

a statutorily recognized basis for confidentiality." Courier News 

v. Hunterdon Cty. Prosecutor's Office, 358 N.J. Super. 373, 382-

83 (App. Div. 2003).

The N.J.A.C. 13:1E-3.2(a) exemption adopted in 2014 was 

intended to include firearms application investigative techniques 

and procedures such as those encompassed in the redacted portions 

of the Guide. In its proposal for the 2014 amendments to N.J.A.C. 

13:1E-3.2(a), LPS expressly stated the exemption "covers . . . the 

standard operating procedure[s] for investigation of firearms 
15 A-2033-15T1

applications." 45 N.J.R. 2023(a). Thus, LPS recognized, as the 

motion court did here, that disclosure of firearms application 

investigative techniques and procedures created a risk to public 

safety and would compromise law enforcement's ability to 

effectively investigate firearms applications. 

In addition, on remand the NJSB submitted specific reliable 

evidence establishing that disclosure of the Guide's sections 

titled "Investigation," "Investigation of the Applicant," and the 

Form and the Guide materials describing the procedure for 

completing and utilizing the Form "would create a risk to the 

safety of persons, property, . . . or compromise [its] ability to 

effectively conduct investigations." N.J.A.C. 13:1E:3.2(a)(2). 

As the trial court observed, Ross provided a detailed and credible 

explanation that the redacted sections of the Guide detail the 

techniques, timing, information, data sources, and response 

strategies law enforcement officers are required to employ and 

follow in their investigations of individuals seeking various 

firearms permits. Moreover, although the court did not expressly 

rely on the Williams certification, it also provides evidential 

support for the court's findings. The certifications establish

that disclosing the redacted information would provide applicants 

being investigated with the ability to manipulate and circumvent 

the investigative process and, in doing so, interfere with law 
16 A-2033-15T1

enforcement's "ability to effectively conduct" firearm permit 

investigations. N.J.A.C. 13:1E-3.2(a)(2). 

We are therefore satisfied the credible evidence supports a

finding that the redacted sections of the Guide are exempt from 

disclosure under OPRA pursuant to N.J.A.C. 13:1E-3.2(a)(2). 

IV.

We are also not persuaded by plaintiff's contention the Form 

and Guide materials describing its completion and use should be 

disclosed because it is publically available on the internet. We 

have compared the version of the Form plaintiff contends is 

available on the internet with the current Form provided for our 

in camera review, and the two versions are different. Thus, the 

premise for plaintiff's contention – that the NJSP has made the 

current Form publically available – is erroneous. 

Plaintiff also argues that since the NJSP once made other 

versions of the Form publicly available, there is a diminished 

need for confidentiality. Plaintiff relies on language in Keddie 

v. Rutgers, State University, 148 N.J. 36, 50-52 (1997), where the 

Court addressed the effect of public disclosure of documents on 

the balancing of interests required to assess a request made under 

the common-law right of access to public records. Here, however, 

we are not required to conduct the balancing test the Court applied 

in Keddie because we consider only whether the redacted portions 
17 A-2033-15T1

of the Guide are exempt from disclosure under N.J.A.C. 13:1E3.2(a)(2). Id. at 49-50.

We reject plaintiff's assertion the NJSP "closed the barn 

door after the horse escaped," by removing a prior version of the 

Form from its homepage. As noted, plaintiff has not demonstrated

the current version of the Form is publicly available. Moreover, 

the mere fact that a prior, different version may be available 

does not diminish the NJSP's interest in keeping its current 

investigatory techniques confidential, nor does it diminish the 

applicability of N.J.A.C. 13:1E-3.2(a)(2)'s exemption to the 

current version.

5 

V.

We next consider the court's finding that Attachments A, B 

and C are exempt from disclosure because they are attorney-client 

privileged communications. See N.J.S.A. 47:1A-1.1 (exempting

attorney-client privileged communications from the definition of 

government records under OPRA). 

 

5 We therefore deny plaintiff's motion (M-000183-16) to take 

judicial notice of materials it contends are available on the 

internet, or, in the alternative, to supplement the record with 

such materials.
18 A-2033-15T1

Plaintiff concedes the Attachments constitute attorneyclient privileged communications,6 see, e.g., Paff v. Div. of Law, 

412 N.J. Super. 140, 154 (App. Div. 2010) ("[T]he attorney-client 

privilege applies whenever confidential legal advice is rendered 

to state agencies, whether by private counsel . . . or by the 

Division [of Law] . . . ."), but argues the NJSP waived the 

privilege by disseminating the Attachments with the Guide to police 

departments throughout the State. 

The attorney-client privilege is codified in N.J.S.A. 2A:84A20(1) and N.J.R.E. 504. The purpose of the attorney-client 

privilege is "to encourage clients to make full disclosure to 

their attorneys." Paff, 412 N.J. Super. at 150 (quoting Macey v. 

Rollins Envtl. Servs. (N.J.), Inc., 179 N.J. Super. 535, 539 (App. 

Div. 1981)). The attorney-client privilege is "ordinarily waived 

when a confidential communication between an attorney and a client 

is revealed to a third party." O'Boyle v. Borough of Longport, 

218 N.J. 168, 186 (2014) (citation omitted).

In our view, the evidentiary record before the trial court 

is insufficient to permit a determination of whether distribution 

 

6 We are therefore not required to determine whether Attachments

A, B and C are in fact attorney-client privileged communications. 

An issue not briefed on appeal is deemed waived. Jefferson Loan 

Co. v. Session, 397 N.J. Super. 520, 525 n.4 (App. Div. 2008);

Zavodnick v. Leven, 340 N.J. Super. 94, 103 (App. Div. 2001). 
19 A-2033-15T1

of Attachments A, B and C as part of the Guide to multiple law 

enforcement agencies resulted in a waiver of the attorney-client 

privilege. The court did not, however, determine the identity of 

the client for each of the communications, see N.J.S.A. 2A:84A20(1); N.J.R.E. 504 (providing that the "client has [the]

privilege"); see also Paff, 412 N.J. Super. at 151 (finding the 

State agency to which the Division of Law provides legal advice 

is the client for purposes of determining the attorney-client 

privilege), and did not consider or decide whether distribution 

of each of the communications resulted in the client's waiver of 

the privilege. 

For those reasons, we remand for the court to determine 

whether there was a waiver of the attorney-client privilege as to 

the communications in Attachments A, B and C. If it determines

the privilege was waived as to any of the Attachments, the court 

shall order disclosure of the Attachment. 

The NJSP claims it did not waive the privilege by 

disseminating the Attachments with the Guide because the 

"execution and enforcement" of firearms laws are "responsibilities 

shared between the NJSP and other, local law enforcement agencies." 

The NJSP also asserts that such disclosures are regarded "as part 

of the same client or co-clients, or as third parties with a common 

interest in the enforcement of the State's firearms application 
20 A-2033-15T1

laws," and relies on the New Jersey Supreme Court's decision in 

O'Boyle, 218 N.J. at 185-88, and our decision in In re Grand Jury 

Subpoenas Duces Tecum Served by Sussex County., 241 N.J. Super. 

18 (App. Div. 1989). 

The NJSP's reliance on Grand Jury Subpoenas, 241 N.J. Super. 

at 32, is misplaced. In Grand Jury Subpoenas, a Sussex County 

Freeholder publicly distributed a preliminary report prepared by 

a private law firm the Sussex County Board of Freeholders retained 

to serve as special counsel. Id. at 22. The report "contain[ed] 

a thorough review of State statutes and regulations and ma[de] 

various recommendations to correct the deficiencies found to exist 

in the Adjuster's Office." Id. at 22-23. 

There, we determined that the Freeholder's public release of 

the report did not constitute a complete waiver of the attorneyclient privilege between the firm and the Board because the report 

"did not expressly disclose communications made to [the firm] by 

the Board. Rather, it set forth the statutory and regulatory 

framework within which the Adjuster's Office must operate and 

provided preliminary recommendations designed to cure deficient 

past practices and procedures." Id. at 31-32. Thus, we held that 

the public release was merely a "limited disclosure" that did not 

constitute an "absolute and complete waiver" of the privilege. 

Id. at 31. We did not hold the documents themselves were protected 
21 A-2033-15T1

from further disclosure, but rather, that their dissemination did 

not result in a complete waiver of the privilege and thus the 

firm's attorneys were not required to testify to privileged 

information regarding their representation of the Board of 

Freeholders. Ibid.

Although we recognize that the Attorney General is "the sole 

legal adviser, attorney or counsel, . . . for all officers, 

departments, boards, bodies, commissions and instrumentalities of 

the State Government," Paff, 412 N.J. Super. at 151, it does not 

follow that the privilege is always preserved where State and 

municipal agencies share confidential attorney-client 

communications or information with one another. Thus, we are 

unconvinced the Court's holding in O'Boyle, 218 N.J. at 201,

supports the NJSP's assertion that the NJSP and local law 

enforcement agencies share a "common interest," and NJSP's 

dissemination of the Attachments to third parties — other law 

enforcement agencies — did not constitute a waiver of the 

privilege. 

In O'Boyle, the plaintiff sought documents exchanged between 

a private attorney representing a former Longport zoning and 

planning board member and the attorney representing the Longport 

municipality. Id. at 176. There, the private attorney prepared 

a "joint strategy memorandum and a compendium of documents . . . 
22 A-2033-15T1

and sent them to the municipal attorney" following an agreement 

"that they cooperate in the defense of current and anticipated 

litigation filed by [the plaintiff]." Id. at 176-77. 

The O'Boyle Court expressly adopted the three-pronged "common 

interest rule" as articulated in Laporta v. Gloucester County 

Board of Chosen Freeholders, 340 N.J. Super. 254, 262 (App. Div. 

2001). Id. at 198-99. Under this rule, a party may invoke a

common interest exception to waiver of the attorney-client 

privilege resulting from disclosure to third parties where: 

(1) the disclosure is made due to actual or 

anticipated litigation; (2) for the purpose 

of furthering a common interest; and (3) the 

disclosure is made in a manner not 

inconsistent with maintaining confidentiality 

against adverse parties. It is not necessary 

for actual litigation to have commenced at the 

time of the transmittal of information for the 

privilege to be applicable. 

[Id. at 190-91 (internal citations omitted) 

(quoting Laporta, 340 N.J. Super. at 262).]

The Court further noted that "communications need not only 

be among counsel for the clients[;] [c]ommunications between 

counsel for a party and an individual representative of a party 

with a common interest are also protected." Id. at 191 (quoting 

Laporta, 340 N.J. Super. at 262). The Court determined the 

documents sought by the plaintiff were exempt from OPRA disclosure 

under the first two Laporta prongs because the clients anticipated 
23 A-2033-15T1

future litigation from plaintiff and shared a common purpose: "to 

repel further legal challenges from a citizen who did not agree 

with the manner in which elected and appointed officials discharged 

their public duties." Id. at 199. 

The Court also determined that the manner in which the 

material was disseminated was "calculated to preserve its 

confidentiality" under the third Laporta prong because "[t]here 

[was] no evidence that the municipal attorney shared the material 

with anyone else." Id. at 200. The Court affirmed our

determination that the municipal residents and the former board 

member "shared a common interest that permitted non-disclosure of 

the withheld documents." Id. at 177, 201.

Here, the record is inadequate to determine if the 

circumstances surrounding the dissemination of one or more of the 

Attachments support application of the common interest exception 

to waiver of the attorney-client privilege under the Laporta

standard. We do not decide the issue and leave its resolution to 

the remand court. 

Accordingly, we vacate the Law Division's order determining

there was no waiver of the attorney-client privilege as to 

Attachments A, B and C.

Plaintiff's remaining arguments are without merit sufficient 

to warrant discussion in a written opinion. R. 2:11-3(e)(3)(E). 
24 A-2033-15T1

Affirmed in part, vacated in part, and remanded for further 

proceedings in accordance with this opinion. We do not retain 

jurisdiction.