Does a government record that is exempt from disclosure retain its confidentiality when it has been unintentionally disclosed to a requestor or other individual? This question comes up when a document is mistakenly released, or when someone in an agency leaks information. Usually a record is considered to have lost its confidentiality after it has been disclosed to a member of the public, but an agency can take steps to preserve confidentiality when an unintended disclosure occurs.

The Appellate Division recently issued an unpublished opinion which shows how the Attorney General’s Office dealt with this type of situation and made efforts to preserve the confidentiality of the previously-released records.

The appeal involved a challenge by a State Police trooper to a decision by the Attorney General’s Office (OAG) not to defend him in a civil suit. In 2012, before the appeal was filed, State Police “Review Sheets” were leaked by an an unknown person to the trooper’s attorney. The OAG notified the attorney that these records were covered by the deliberative process privilege and should not be disclosed to others, and demanded that they be returned to the agency. The attorney refused to do so and publicly filed them in federal court, in a related suit.

The OAG filed a motion in federal court to prohibit the further disclosure of the Review Sheets. Although the federal court granted this motion, the trooper nevertheless sought to use these documents in his Appellate Division case, in effect arguing that the prior disclosure had made them public records.

The Appellate Division framed the issue as whether the OAG had intentionally waived the documents’ confidentiality. The court, relying in part on OPRA case law, determined that the Review Sheets contained opinions and recommendations and therefore were confidential under the deliberative process privilege. The court concluded that the OAG had not waived the privilege, even though the documents had been released.

The key to the court’s decision was its determination that the OAG did not intentionally waive the privilege; instead, the release of the documents was unauthorized and inadvertent. In this regard, the court noted that the OAG had “promptly and reasonably” notified the trooper’s attorney of its objection to disclosure of the records, and had moved in federal court to preserve their confidentiality.

The court ordered that the trooper return the Review Sheets to the State and refrain from further disclosure of their contents.