In Collingswood Bd. of Ed. v. McLoughlin, the Board of Education confronted an OPRA issue that often comes up: how to handle an OPRA request for a record that appears to be a public record, but a third party claims that it is confidential.

The record in question was an investigatory report concerning the Board’s decision not to reappoint a coach, Joseph McLoughlin. McLoughlin notified the Board that his position was that the report was not a government record and that he would file suit to prevent its release. However, without waiting for such a suit to be brought, the Board filed a declaratory judgment action seeking a judgment that the report was a public record. Its own complaint stated that the report was disclosable under OPRA. The trial court agreed that the record had to be disclosed under OPRA.

The Appellate Division held that under the In Re Firemens Assn. opinion, a custodian may not file an OPRA declaratory judgment action, and it remanded to the trial court to calculate an additional attorney fee award that would cover the time spent by the requestors in litigating the declaratory judgment action.

This attorney fee award could have been avoided. As I’ve previously discussed (see this post), when a third party claims a confidentiality interest in a document that the custodian believes must be released under OPRA, the custodian should advise the party that the record will be released by a certain date, in order to give this party the opportunity to initiate legal action to prevent disclosure.

Following this procedure ensures that the litigation over the record, if any, is between the requestor and the party that actually claims confidentiality, and minimizes the litigation costs of the public body.