OPRA Does Not Require Public Entities to Create Records Not Already in Existence

By:  Sanmathi (Sanu) Dev

In a published decision dated April 18, 2016, the New Jersey Appellate Division in Paff v. Galloway Township, 444 N.J. Super. 495 (App. Div. 2016) upheld a public entity’s denial of an Open Public Records Act (“OPRA”) request for email logs, finding that OPRA creates no obligation on the public entity to create new records that do not already exist.  Plaintiff submitted an OPRA request to Galloway Township (“Township”) for an itemized list showing the sender, recipient, date, and subject of all emails sent by the Township’s Clerk and Chief of Police for a certain time period.  It is important to note that Plaintiff requested logs of the emails, which did not exist at the time the OPRA request was made, rather than the actual emails.  After the Township denied the request, Plaintiff sued in Superior Court seeking to compel the Township create and provide the email logs.

While the OPRA statute broadly defines a “government record,” to which a member of the public has access, the statute in no way mandates that a public entity create a record or document. The Courts have routinely denied OPRA requests for information, as opposed to a request for a specific government record. The Appellate Division reasoned that the metadata sought by Plaintiff in the form of email logs containing the sender, recipient, etc. of the email constituted information and not a record. Notwithstanding the fact that the information sought was stored or maintained electronically in other government records, namely the emails, the logs themselves are not government records because they would need to be newly created solely in response to a request for information and did not exist prior to the OPRA request.

The Appellate Division rejected Plaintiff’s arguments that it required little effort for the Township to generate the email logs based on its technology and that the Township previously implemented an informal policy of creating these logs in response to certain OPRA requests. Even if a public entity has the technical capacity to create the information or had a past practice of creating the logs, these factors are not compelling because nothing under OPRA requires the creation of new government records after an OPRA request is submitted.

The bottom line – an OPRA request, by definition, must seek a specific government record. If the OPRA request asks for information and necessitates the public entity to create a new document that was not in existence before the request was made, the public entity may deny the request, absent any internal policy.