Law School Clinic Case Files Not Subject to Open Records Law
On July 5, 2012, the Supreme Court of New Jersey held in Sussex Commons Assocs., LLC v. Rutgers, the State University that records of clinical cases at public law schools are not subject to the Open Public Records Act (OPRA).
New Jersey Supreme Court Chief Justice Stuart Rabner, in writing the majority opinion of the Court, described the Rutgers Environmental Litigation Clinic, (RELC):
A clinical legal education program at Rutgers Law School-Newark that provides pro bono legal assistance to clients on environmental matters. Rutgers legal clinics operate like a law firm in office space that is accessible only to the clinics. The clinics serve an important educational function by providing an opportunity for law students to perform “hands-on” legal work on actual cases. In 1996, the American Bar Association began to require that accredited law schools offer such programs. Today, clinical legal programs are an accepted part of legal education and provide legal services to clients who lack the resources to hire an attorney.
In 2004, the clinic represented the Coalition to Protect Our Land,
Lakes and Watersheds and the Citizens for Responsible Development at Ross’ Corner (CRDRC). CRDRC filed suit in opposition to a plan of Sussex Commons Associates, LLC (Sussex) to develop an outlet mall. Sussex Commons then filed a lawsuit against the Chelsea Property Group alleging that Chelsea tortiously interfered with Sussex Commons’ attempts to secure tenants for the proposed mall.
In the course of the litigation, Sussex Commons moved to amend its complaint against Chelsea to name four individuals, including officers of the Coalition and CRDRC, as co-conspirators, sought broader discovery of the individuals, and also sought to discover communications between Chelsea’s counsel and the RELC.
The trial court denied Sussex’s motion to amend, finding that Sussex Commons was using the threat of legal action to chill the exercise of First Amendment rights by citizens opposed to the mall, and determined that although Sussex was entitled to know if Chelsea’s attorneys were assisting the RELC, the substance of any communications between them was privileged. Sussex submitted a request in accordance with the OPRA to Rutgers University requesting eighteen categories of documents relating to the RELC. Rutgers denied the requests. Sussex then sued Rutgers University, the RELC, and the Custodian of Records alleging that it was entitled to the records under OPRA and the common law right of access.
The trial court ruled that the RELC was exempt from OPRA and dismissed the complaint. The New Jersey Appellate Division Court reversed, ruling that Rutgers University was subject to OPRA, that the University included the law school, and that the Clinic was part of the law school. As a result, the appellate court concluded that the Clinic met OPRA’s definition of a public agency.
The Supreme Court held that records related to cases at public law school clinics are not subject to OPRA. The ruling included client-related how to save money on car repairs documents or clinical case files, as well as requests for information about the development and management of litigation.
While the court held that OPRA applies to Rutgers University and its law schools as regards records about public aspects of its programs, the case under consideration concerned whether records related to clinical cases at public law school clinics are subject to OPRA. In In re Determination of Executive Commission on Ethical Standards, 116 N.J. 216 (1989), the Court found that Rutgers’ clinical professors were not “State employees” for purposes of the New Jersey Conflicts of Interest Law, and were not barred from representing private clients before State agencies; The rationale of In re Executive Commission on Ethical Standards applies here.
The decision also stated that because clinical legal programs do not perform any government functions, but instead teach law students how to practice law and represent clients, public access to documents related to clinic cases would not further the purposes of OPRA.
The possibility of disclosure, however, would have real consequences for clinical education and would require clinics to divert attention and resources away from training students and serving clients to respond to OPRA requests. Even if documents were protected under one of OPRA’s exemptions, law school clinics would still have to shoulder the administrative burden of preparing for, responding to, and possibly litigating over each item requested. The consequences are likely to harm the operation of public law clinics and, by extension, the legal profession and the public. Applying OPRA to the RELC and similar clinical programs would also lead to the following absurd result: public law school clinics would be subject to disclosure of their records, and private law school programs would not. Nothing suggests that the Legislature intended those results when it enacted OPRA, and the Court does not believe the Legislature meant to harm clinical legal programs when it drafted that important law.
The Sussex Commons discovery also sought RELC records under the common law right of access. The court held that because clinical 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.
Mike Roberts lives in the Pacific Northwest and writes predominately on the legal aspects of record retrieval. He routinely uses medical records retrieval services to best help his clients.