In June 2017, the New Jersey Supreme Court in Paff v. Galloway Township expanded the scope of the Open Public Records Act (“OPRA”) to require public entities to produce information relating to the “sender,” “recipient,” “date,” and “subject” of emails even if that means the agency would need to create a new document. On January 12, 2018, the New Jersey Appellate Division continued to expand the right to electronically stored information under OPRA in the published decision Conley v. New Jersey Department of Corrections, Docket No. A-4754-14T3. The legal question before the Appellate Division in this case was whether data previously maintained by the New Jersey Department of Corrections (“DOC”) in the form of monthly reports is a government record when the DOC implemented a new data collection system in which the monthly reports were no longer generated.
Plaintiff Kevin Conley is an inmate at the New Jersey State Prison. In January 2014, he submitted an OPRA request to the DOC seeking copies of various monthly reports containing data that the DOC is statutorily required to maintain. The information at the center of this litigation was statistical grievance reports. Prior to January 2014, the DOC provided these reports to Plaintiff. In response to the January 2014 OPRA request, the DOC explained that it began using a new technology system in which the information sought is no longer generated in a monthly report and therefore not available. The DOC also explained that it is not obligated under OPRA to create a new document.
Plaintiff challenged the DOC’s denial before the Government Records Council (“GRC”), which found in favor of the DOC. The GRC agreed with the DOC’s argument that if “no responsive records exist, no unlawful denial of access occurred.”
Plaintiff then appealed to the Appellate Division, which reversed the GRC. In finding in favor of Plaintiff, the Appellate Division reasoned that a government record is information made, maintained, or received by a public agency in the course of its official business. It was undisputed that federal and state regulations required the DOC to keep statistical grievance information. Whether such information was stored as a hardcopy or electronic version was not of importance to the Appellate Division. It rejected the DOC’s argument that the manner in which the DOC chose to store the information dictates whether it is a government record. In emphasizing the public policy of transparency and openness, the Appellate Division ordered the DOC to provide the information sought by Plaintiff.
As a result of this case and Paff v. Galloway Township, public entities must be cautious in the way they respond to OPRA requests seeking information that is stored electronically as opposed to what we may have traditionally viewed as a government record.
