Appraisal Reports Must Be Produced

by: Anthony F. Della Pelle
16 Sep 2010

 The Appellate Division of the New Jersey Superior Court has released a published opinion in Tractenberg v. Twp. of West Orange, ___ N.J. Super. ___ (App. Div. 2010), which required the Township of West Orange  to release an unredacted copy of an appraisal report prepared for the Township’s Council following an OPRA request by the plaintiff. The plaintiff filed an action in the Superior Court after his OPRA request was denied in 2007. The trial court ordered that the Township release a redacted copy of the appraisal report removing the portions which were not purely factual based on OPRA’s “deliberative process exemption” in N.J.S.A. 47:1A-1.1. It found that the attorney-client privilege and attorney work product doctrine did not apply, nor did the need for confidentiality under the common law. Both parties appealed the trial court’s decision.

Relying on the Supreme Court’s opinion in Education Law Center v. New Jersey Dept. of Educ., 198 N.J. 274 (2009), decided five months after the trial court’s decision, the Appellate Division held that appraisal reports are not subject to the deliberative process exemption when they have not been used in the decision making process, and because disclosure of an appraisal report will not reveal deliberations that occurred during the decision making process. Relying on the second prong in Education Law Center, the Appellate Division in the West Orange matter noted that the facts of presented by the parties do not indicate that the appraisal reports do not provide any policy recommendations, will not expose the Township’s deliberative thought-processes, and will only provide factual data for the Township’s consideration. Finally, the court also rejected the Township’s argument that the attorney-client privilege applied as well as OPRA’s competitive advantage exception. The court found there was no expectation that the report would remain private, and there is no expectation of litigation established by the facts in the record. Additionally, the parties have not engaged in negotiations for the property and they are not expected to occur in the near future. A copy of the Appellate Division’s opinion can be found here. The Appellate Division’s ruling may also impact parties’ disclosure requirements in property tax appeals. For information concerning property tax appeals, visit McKirdy & Riskin’s New Jersey Property Tax Law Blog.

The author wishes to acknowledge the assistance of Cory K. Kestner, Esq., of McKirdy & Riskin, PA, in the preparation of this article.