Public bodies often struggle with requests for records in which third parties may claim a confidentiality interest. This problem may come up when a third party asserts a proprietary or investigatory interest in a record, and it occurs most frequently where a record contains information that may affect a person’s privacy interests. These requests present the custodian with a dilemma: under OPRA, the custodian must respect the privacy or confidentiality interest of any person, but the custodian typically is not able to explain the confidentiality arguments of that person.

The courts have not definitively said what procedure the custodian should follow when confronted with this situation. The Appellate Division has suggested that the party with the confidentiality interest should be given notice of the request (see, for example, Gannett v. Middlesex County), but the court has never expressly mandated this, nor has it explained precisely how the request should be handled by the public body after this notice is provided.

Hopefully, the Supreme Court will soon provide guidance on these issues. During oral argument this past January in IMO NJ State Fireman’s Assn Obligation to Provide Relief Applications, a pending case involving OPRA’s privacy exemption, the justices spent a lot of time discussing what procedure a custodian should follow when a third party has a privacy interest in the requested record. The fact that these questions came up doesn’t guarantee that they will be answered in the Court’s opinion, but it seems likely that the Court will deal with the procedural issues in some fashion.