Friday, December 30, 2011

A custodian's duty to properly explain redactions

Sometimes, records custodians redact (i.e. black out) information from a document but don't say why the matter is redacted.  This makes it impossible to determine whether the redaction is reasonable and was legally done.

Since I experience the same problems with many different custodians, I find it useful to maintain boilerplate language that I can cut and paste into my letters to those custodians. Here's some boilerplate language that I use when objecting to an OPRA response that does not sufficiently explain why certain matters were redacted.

Dear Custodian:

I am receipt of your correspondence of [date] which accompanied the redacted [describe record].

In your correspondence, you stated that the reason for the redaction was that the redacted text was "privileged." For the reasons stated below, I believe that simply stating "privileged" does not comply with the Open Public Records Act (OPRA). Accordingly, I consider this request still open and offer you an extension until [date] to provide me with either unredacted (or more narrowly redacted) responsive records and/or an explanation that properly justifies any redactions that you feel are legitimate.

OPRA, specifically N.J.S.A. 47:1A-5(g), requires records custodians, when denying access to a record in whole or part, to inform the requestor of “the specific basis” for the denial. Beyond stating the “specific basis” for each suppression, the custodian is required to “produce specific reliable evidence sufficient to meet a statutorily recognized basis for confidentiality.” Courier News v. Hunterdon County Prosecutor’s Office, 358 N.J. Super. 373, 382-83 (App. Div. 2003). Further, he or she must explain each suppression in a manner that “without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.” Paff v. New Jersey Department of Labor, Board of Review, 379 N.J. Super. 346, 354-55 (2005) (quoting R. 4:10-2(e)) (emphasis in original).  More recently, the Appellate Division reaffirmed its commitment to this principle in Burke v. Brandes, 429 N.J. Super. 169, 178 (App. Div. 2012).

These cases prescribe how custodians are to explain and justify the redactions they make to records and are legaly binding. I have no desire to burden your agency's taxpayers with the costs of a lawsuit. Rather, I write to encourage you (with the help of your agency's attorney) to reconsider the way you've explained the redactions you made to the records I requested. Please let me know the results of your review by the extension date set forth above.

Sincerely,

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