N.J. Supreme Court: Law school clinics' case records are not public documents

no-mall.JPGTwo Frankford citizen groups, represented by Rutgers University Law Clinic, opposed the development of a mall by a Sussex County developer. The state's top court has ruled that Rutgers may keep its records private.

TRENTON — The developer of an outlet mall in Sussex County can't get records from a Rutgers University law clinic that represented two groups seeking to block its construction, the state Supreme Court ruled Thursday.

The ruling says the Rutgers Environmental Law Clinic, a training ground for Rutgers law students that handles cases for little or no cost, is not subject to the state’s public records law.

The decision was praised by the law school and environmentalists who said it would combat "witch hunts" against those seeking help to protect the environment. The developer’s attorney said the developer should have been allowed to see who was behind the opposition to the project, which has won local approval but has yet to be built.

The fight grew out of an attempt by Sussex Commons Associates to learn whether attorneys for its competitor to the construction of a shopping mall at Ross’ Corner in Frankford Township were helping the environmental law clinic in its opposition to the project.

Kevin D. Kelly, an attorney for Sussex Commons, said his client wanted to know how much money and resources was devoted to the fight against the project and where that assistance was coming from.

In May 2006, Sussex Commons submitted an Open Public Records Act request to Rutgers University asking for documents of the school or the law clinic in 18 categories, including copies of bills from the law clinic to one of the opposition groups, Citizens for Responsible Development at Ross’ Corner and documents pertaining to payments the group made to the law clinic.

Four months later, after Rutgers denied the request, Sussex Commons filed suit against the school, the law clinic and the university’s custodian of records. After a trial judge sided with the school, a state appeals court panel in 2010 said "the clinic is indistinguishable from any other academic program offered by the law school" as it pertains to the open records law. The Supreme Court reversed that Thursday.

"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," Chief Justice Stuart Rabner wrote.

Rutgers officials said they feared public release of documents through the the public records act would undermine the effectiveness of the clinic and would give private institutions not subject to OPRA a distinct advantage.

"We are pleased that the court recognized the history and special status of Rutgers University as the state university as well as the nature and importance of clinical legal education," said John Farmer Jr., dean of Rutgers Law School. "We are particularly gratified that the court recognized the threat to the integrity of our judicial system and the unique disadvantages our clinics and clients would have faced if OPRA were held to apply."

Kelly said there was no dispute that Sussex Commons was entitled to the financial information it requested and noted his client never sought information that is automatically protected by the attorney-client privilege.

"Congratulations to them," Kelly said. "To the extent they were worried about any interference with their operations, it never really was an issue."

Jeff Tittel, director of the NJ chapter of the Sierra Club, said the ruling protects the public from being sued for opposing development projects.

"It now means that environmental and citizen groups can be represented by law clinics connected to universities without fear of witch hunts or harassing lawsuits," Tittel said.

Previous coverage:

Rutgers legal clinic's records are subject to open records, N.J. appeals court rules

Plan for Sussex County's first outlet mall moves forward after out-of-court settlement

Sussex County mall plan clears land-use board

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