Which of the following cannot be used as a basis for immediate denial of an OPRA request?

The basis for immediate denial of an OPRA (Open Public Records Act) request hinges on the status and maintenance of the records in question. Records that are "in use" are not in themselves exempt from disclosure under OPRA. This means that even if records are actively being utilized, it does not provide an automatic basis for denial. OPRA aims to promote transparency and provide access to government records, and the fact that records are currently in use does not contravene that principle.

On the other hand, the other options present valid grounds for denial. Records protected by attorney-client privilege are inherently confidential and thus may be withheld from disclosure. Similarly, records that are not maintained by the public agency cannot be provided because there is no obligation to create records that don’t exist. Lastly, records that are marked confidential by the government can also be denied as they fall under exemptions meant to protect sensitive information. Each of these categories presents a clear rationale for immediate denial, contrasting with the status of records marked as "in use," which is not a valid reason for denying access under OPRA.