594 JOURNAL OF LAW AND POLICY
Guided by the United States Supreme Court’s decision in
EPA v. Mink,^90 which held that factual material could be
“severed” and thus disclosed from otherwise privileged
documents, the court remanded the case and ordered an in
camera inspection of the documents, holding that “strictly
factual” contents be disclosed but that “matters of opinion or
conjecture” be entitled to a “higher degree of protection.”^91
In Bundy v. Sinopoli,^92 the court noted that the legislature
created a privilege for a hospital’s “utilization review
committee” reports^93 and also provided broad immunity for
participants’ statements made during the peer review process^94
yet also observed that “[t]he Legislature has not... provided
for a privilege regarding the information contained within the
Peer Review process.”^95 The court nonetheless held the
evaluations therein were “absolutely protected” under the
“common law” self-critical analysis doctrine enunciated under
Wylie and McClain.^96
Finally, the New Jersey Supreme Court in Payton scaled
back Wylie’s and Bundy’s broad interpretation of the privilege.
Payton, in the course of her sexual harassment suit, sought to
discover the minutes of the “executive session” her employer
convened in response to allegations of harassment.^97 The court
was confronted with two competing public interests, both of
which further the same goal of limiting incidents of sexual
harassment: “disclosure to ensure that employers maintain
effective sexual-harassment procedures and nondisclosure to
(^90) EPA v. Mink, 410 U.S. 73 (1973).
(^91) McClain, 492 A.2d at 1000.
(^92) Bundy v. Sinopoli, 580 A.2d 1101 (N.J. Super. Ct. Law Div. 1990).
(^93) These documents, resulting from peer review, are created as a
condition of receiving federal funding under the Social Security Act. See id.
at 1104. The privilege is embodied in N.J. STAT. ANN. § 2A:84A-22.8 (West
2011).
(^94) Bundy, 580 A.2d at 1106. This immunity protects participants from
defamation claims. See, e.g., Bainhauer v. Manoukian, 520 A.2d 1154 (N.J.
Super. Ct. App. Div. 1987).
(^95) Bundy, 580 A.2d at 1105.
(^96) Id. at 1106.
(^97) Payton v. N.J. Tpk. Auth., 691 A.2d 321, 325 (N.J. 1997).