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Opacity versus Transparency: Redactions In OPRA Responses
By George M. Morris on February 21, 2018

Parker McCay attorney and statewide public records lecturer George Morris shares his thoughts on the effect of redacting public records on Boards of Education in this entry of the Public Schools and Education blog.

There’s nothing as disheartening as getting a school paper or test back covered in red ink, cross-outs, and triply-underlined comments to “See me!” Likewise, recipients of a public entity’s response to a request under the Open Public Records Act or the common law right of access don’t like to see broad swaths of black ink and redactions. Often, the result is time and money spent in defending an OPRA lawsuit over such redactions.

While there are valid and legitimate circumstances when information may be withheld in OPRA responses, New Jersey school districts need to be careful just how thick their black markers are when redacting public records -- over-zealous redactions could land your district in legal hot water and potentially cost your taxpayers thousands of dollars in attorney’s fees.

Litigation was recently filed against a New Jersey school district that responded to a local newspaper’s OPRA request for the district’s legal bills by redacting nearly the entire description for each and every entry in those invoices.

OPRA is clear that, unless specifically exempted, all records made and/or maintained by a public entity – including Boards of Education – are subject to public disclosure. Although the attorney-client privilege is a basis for withholding documents and information from public disclosure, such as invoice entries in a legal bill from the Board’s attorney, a school district’s records custodian can’t simply redact out every description in the invoice and claim attorney-client privilege. (Of course, the Board’s attorney also needs to be careful in what to put in the invoice descriptions too and generally should never put privileged information in the invoices to begin with, as an ounce of prevention.)

While it is too early to say whether the district in question might still prevail with its defenses, there seems to be a distinct possibility that the district could pay dearly for stepping over the fine line between providing a reasonable opportunity for the public to watch and inspect the process of governing with the need to protect matters protected by the attorney-client privilege. Keep in mind that a prevailing party in an OPRA lawsuit is entitled to have their attorney’s fees paid by the losing public entity.

As such, school officials and record custodians need to be cognizant of their dual responsibilities to protect privileged information while still providing access to public documents. School districts keeping a strict eye on their bottom lines are urged to use extreme caution when redacting documents, so the taxpayers aren’t left to foot the bill because a Court determined that the redactions were unreasonable or excessive.

For more information, contact the attorneys in Parker McCay’s Public Schools and Education Department.

The content of this post is for informational purposes only and should not be construed as legal advice or legal opinion. You should consult a lawyer concerning your specific situation and any specific legal question you may have.

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