requires that such confidential communications or the sources should not be divulged.” Matter of World Trade Ctr. Bombing Litig., 93 N.Y.2d 1, 8 (1999). That material, however, must be “extremely sensitive material” that has been under the “special shield of confidentiality.” Id.
In Ren Zheng Zheng v. Bermeo, 2014 NY Slip Op. 00979 (2d Dep’t 2/13/14), the Appellate Division finds that only an in camera examination of the documents as to which the privilege is claimed can justify the assertion of the public interest privilege. How else could the trial court make a determination on the merits and, even more critical, how can the Appellate Division review that determination on the record? Furthermore, the governmental entity must first be required to provide the court with a detailed privilege log under CPLR 3211, “’specify[ing] the nature of the contents of the [subject] documents, who prepared the records and the basis for the claimed privilege.’” Id., quoting Matter of Subpoena Duces Tecum to Jane Doe, 99 N.Y.2d 434, 442 (2003).
It would seem to be wise to carefully examine the privilege logs first, recalling that the privilege applies to communications (i) between and to public officers; (ii) in the performance of their duties; (iii) where public interest requires such confidentiality.