A recent unpublished Appellate Division opinion, Wilde v. Boro of West Cape May, breaks no new ground, but serves as a reminder that in OPRA litigation, judges ordinarily must conduct an in camera inspection of documents claimed to be privileged.
The OPRA request asked for correspondence and legal bills. The Borough produced redacted documents, claiming that the redactions were for material protected by attorney-client and work product privileges. Without reviewing the documents in question in unredacted form, the trial judge upheld the redactions.
Unsurprisingly, the Appellate Division remanded the case to the trial judge, ordering him to conduct an in camera review of the documents to determine if the redactions were proper. The law is absolutely clear that such a review must be undertaken whenever records are redacted under OPRA and there is a dispute over whether the claim of confidentiality applies.
The opinion also mentions, but does not further discuss, the fact that in producing the redacted documents in response to the OPRA request, the public body did not provide the requestor with an explanation of the redactions. Custodians should be aware that OPRA requires that the response to a request must provide some explanation of the basis for withholding or redacting a record. As the Appellate Division said, in an opinion issued a few weeks ago, the explanation need not be detailed; only an indication of the applicable OPRA exemption is required.