It’s not very often we hear from our State’s Supreme Court on cases involving the Open Public Records Act (“OPRA”). On June 20, 2017, the New Jersey Supreme Court in Paff v. Galloway Township expanded the scope of 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.
In June 2013, John Paff made an OPRA request under N.J.S.A. 47:1A-1 et seq. to Galloway Township (“Township”) seeking fields of information from all emails sent by the Township Clerk and the Township Police Chief for a specific two-week period. Paff sought an itemized list of the following categories of information in each email: “sender,” “recipient,” “date,” and “subject” – often referred to as an email log. He provided the Township with an email log produced by the Township in response to a similar request six months earlier. The Township denied Paff’s OPRA request explaining that only the emails were government records subject to disclosure, not the embedded information. The Township, like many public entities, took the position that the information sought by Paff by way of an email log would require it to create a new government record, which it is not obligated to do under OPRA.
After the Township denied the OPRA request, Paff initiated a complaint in the New Jersey Superior Court. The trial court ordered the production of the field information, reasoning that N.J.S.A. 47:1A-1.1 defines a “government record” as “information stored or maintained electronically.” In contrast, the Appellate Division reversed, concluding that OPRA requires only the production of the emails and not the information electronically stored. Unfortunately for the Township, the Supreme Court disagreed with the Appellate Division and reversed, reasoning that the Appellate Division narrowly interpreted OPRA contrary to its objectives or statutory language.
Pertinent to the Supreme Court’s analysis were the following facts. First, between 2011 and 2012, the Township routinely produced email logs approximately 100 times. Second, the Township’s technology allowed it to produce the fields of information within a few minutes which demonstrated no significant technological burden. Third, the Township’s Clerk contacted the Government Records Council (“GRC”) seeking clarification whether it could deny email log requests on the basis that it did not maintain such logs and is not requested to create records under OPRA. The GRC responded that while its guidance did not “constitute legal advice,” the GRC and the Courts have held that public entities are not required to create new records.
The Supreme Court viewed the issue as one of statutory interpretation and agreed with the trial court that OPRA defines a “government record” as “information stored or maintained electronically.” The Court further reasoned that the Legislature did not define government records as only documents or files maintained electronically – rather the key word is information. Specifically, the Supreme Court found:
A document is nothing more than a compilation of information — discrete facts and data. By OPRA’s language, information in electronic form, even if part of a larger document, is itself a government record. Thus, electronically stored information extracted from an email is not the creation of a new record or new information; it is a government record.
The Supreme Court also rejected the Township’s reliance on the GRC’s guidance, explaining that the Courts are not required to defer the GRC’s analysis and further, that the GRC informed the Township that its guidance should not be construed as legal advice.
As a result of the Supreme Court’s decision, public entities will likely face an increase in requests for email logs which they can no longer deny on the basis that it is a creation of a new document. However, the entity must still analyze whether any of OPRA exemptions or exceptions prevent disclosure. Further, they must determine whether any redactions are required.
