The N.J. Department of Agriculture was the object of much derision recently for denying an OPRA request for a dolphin autopsy report on the basis of the exemption for information related to a medical diagnosis or evaluation–in other words, stating that it was protecting an animal’s expectation of privacy. The State subsequently released the report, saying the OPRA denial had been incorrect.

Why is this silly situation of interest to all records custodians? Because it provides a reminder of what a custodian should do when confronted with a request for a record that a third party claims is confidential.

In the dolphin case, the Department performed the autopsy report under an agreement with an organization called the Marine Mammal Stranding Center, which asked the Department not to release its findings publicly. It’s fair to assume that the custodian was attempting to accommodate the Center’s interest in confidentiality when he initially denied the OPRA request.

Public bodies often receive requests for records in which third parties may claim a confidentiality interest. When this occurs, and there is no other applicable OPRA exemption, the custodian should not simply deny the request. Instead, the custodian should notify the third party of the OPRA request, and give it the opportunity to initiate legal action to preclude potential release of the record in question.

This procedure appropriately places the burden on the party with the actual interest in preventing disclosure of the record. That party, rather than the public body, should have to articulate to the public why it believes a record in the possession of the government should not be released. And if the requestor disputes the claim of confidentiality, the public body will not need to be actively involved in the litigation between the requestor and the third party.