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that the PSA’s non-disclosure protections must yield to the
exceptions set forth in Christy.”^173 As for the inclusion of
subsection (k), the court reasoned that
[T]he Legislature appears to have adopted a dual
approach, i.e., (1) treating materials exclusively
developed under the PSA as subject to the PSA’s specific
confidentiality terms; and (2) treating other internal
materials that are not exclusively developed under the
PSA pursuant to the residual common-law standards set
forth in Christy or other law.”^174
The court thus held that “the PSA extends absolute
confidential protection to ‘all documents.. .’ developed
exclusively... through the PSA process.”^175 The court made
clear the privilege existed “regardless of a plaintiff’s asserted
need for disclosure and regardless of whether the documents
contain factual information in addition to subjective opinions.”^176
However, the court issued a crucial caveat:
If, however, such items have been created or developed
through some other “source or context,” then they are
obtainable under the criteria governing such alternative
situations.... Thus, if a participant in the PSA process
obtains facts or opinions from other sources or contexts,
such as peer-review material from the facility’s
continuous quality improvement program, those facts or
opinions are not transformed into inaccessible “PSA
materials.”....
The confidentiality of a particular fact or opinion
under the PSA therefore hinges upon an exclusivity test,
requiring the court to consider whether the item was
developed solely under the procedures set forth in the
PSA, or whether the item had an independent genesis.^177(^173) Applegrad II, 51 A.3d at 138.
(^174) Id. at 138–39.
(^175) Id. at 139 (quoting N.J. STAT. ANN. §§ 26:2H-12.25(f)–(g) (West
2007 & Supp. 2012)).
(^176) Id. at 123.
(^177) Id. at 139 (emphasis added).