Since OPRA’s enactment, it’s been understood that communications concerning government business are government records under OPRA, even though they were sent from, or to, the personal devices of government officials. This principle rests on the common sense basis that OPRA would have little meaning if public bodies could avoid its requirements by communicating through personal emails and texts, rather than governmental accounts.

But although the GRC has expressly adopted this principle (Meyers v. Fairlawn) and the Appellate Division has implicitly applied it, in a discovery matter involving public employees, no precedential court opinion had directly addressed this. The Appellate Division did so for the first time, in a recent published opinion, Assn for Govt Ethics etc. v. Boro of Mantoloking. In this case, the court expressly held (citing the above GRC ruling) that an email concerning government business, despite being sent to a municipal prosecutor’s personal account, was covered by OPRA.

The rest of the court’s opinion dealt with several other OPRA issues, but its holdings on these questions are of limited import because of the specific facts of the case, which are unlikely to come up again in future cases. Both the majority and dissenting opinions characterized this matter as presenting “unique” circumstances. I would go further and say the facts of this case are extremely odd.

In preparing for a prosecution, a municipal prosecutor sought counsel from another attorney about how to handle an issue in the case. The attorney sent the advice in an email to the prosecutor’s personal account. The prosecutor later read this email aloud, in court, and gave a printed copy of the email to the defense, but redacted the sender’s name and email address. The OPRA request sought the redacted identity of the attorney who sent the email.

The Appellate Division upheld the confidentiality of the requested information, for a variety of reasons. It analogized the situation to the confidentiality accorded to advisory, consultative and deliberative material; additionally determined that the attorney had a reasonable expectation of privacy in not having their identity disclosed; concluded that the common law did not warrant disclosure; and said that the information was also exempt under the privilege for an attorney’s work product.

In my view, this last point was the key issue in this matter. It’s clear that the email was subject to the work product privilege, as part of the prosecutor’s preparation for litigation. The dispositive question is whether the prosecutor waived this privilege by disclosing the email’s contents during the court proceeding. The majority opinion concluded the privilege had not been waived as to the identity of the sender of the email, while the dissent determined that the prosecutor did waive the privilege by her actions in court.

I suspect that when the Supreme Court decides this case–which is highly likely, since an appellate opinion with a dissent is appealable to the Supreme Court as of right–the Court will focus primarily on the work product privilege waiver issue. Hopefully, the Supreme Court’s opinion will also provide clear guidance concerning the application of OPRA to governmental communications sent to personal devices.