On November 14, 2013, Cape May County Superior Court Judge Nelson C. Johnson dismissed a lawsuit filed by a Wildwood private detective alleging that Middle Township Clerk Kimberly Krauss violated his rights under the Open Public Records Act (OPRA) and the common law right of access.

In his complaint (Wilson v. Middle Township, et al, Docket No. CPM-L-291-13), filed on June 24, 2013, private detective Albert F. Wilson, represented by Christopher Gillin-Schwartz, Esq., of Barry, Corrado & Grassi, P.C. of Wildwood, challenged Krauss’ April 29, 2013 letter of denial, which included a table that identified six e-mails by date, sender, recipient and subject line, and claimed that all six e-mails were entirely exempt from disclosure due to the attorney-client privilege.  In his brief, Gillin-Schwartz argued that Krauss’ table did “not provide descriptions sufficient to justify the claim of privilege” and that “the existence of attorney client privilege . . . cannot be demonstrated simply by including the prosecutor and solicitor in the list of e-mail recipients.”

Krauss and Middle Township, represented by William J. Kaufmann, Esq. of Cafiero & Balliette of Wildwood, conceded that the Township had, on July 8, 2013, released two of the previously withheld e-mails to Wilson.  As to the four remaining e-mails, Kaufmann argued that the table Krauss provided to Wilson was sufficient.  Kaufmann analogized the four e-mails to the parties to the e-mail being “physically all together in a room at the same time and [saying] to each other the exact same things that were said in the e-mails.”  He argued that the discussion, which “concerned an on-going municipal court prosecution, the strategy being employed by the Municipal Prosecutor and whether or not a meeting with the defendant and its attorney should occur” would have been covered by the privilege.  Since e-mail is a “virtual conference room,” he argued that the e-mails should have the same protections afforded to an in-person conversation.

Judge Johnson placed his findings of fact and conclusions of law on the record in open court on October 31, 2013.  (Anyone interested in hearing Judge Johnson’s findings and conclusions may order a compact disc from the court offices.)  His written order, prepared by Kaufmann, shows that he dismissed Wilson’s complaint “without attorney’s fees” and ordered that Wilson pay the out of pocket court costs (not including attorney fees) incurred by the Township and Krauss.

Documents from the case are on-line here.

Chairman of the New Jersey Libertarian Party's Open Government Advocacy Project. Please send all comments to [email protected]