Application of Open Public Records Act to Electronic Data

by Christine Placide, Esq.

This memorandum addresses the application of the Open Public Records Act (OPRA) to electronic data included in government documents. This memorandum will explain the implications of the recent Appellate Division case John Paff v. Galloway Township, et al.

Impact

According to the holding of this case, information stored electronically by public agencies qualify as government records subject to disclosure. Records Custodians can no longer justify the denial of an OPRA request for email information by relying on Government Records Council determinations that a custodian is not required to create new records. However, certain personal information within government records are exempt from disclosure, for example a “credit card number, unlisted telephone number, or driver license number of any person” N.J.S.A. 47:1A-1.1. Moreover, when such a request is made the issue remaining is whether the disclosure of a citizen’s personal information raises significant privacy concerns such as unsolicited contact or whether the disclosure would “violate the citizen’s reasonable expectation of privacy. N.J.S.A. 47:1A-1. The statute directs records custodians to redact such personal information from documents that are disclosed pursuant to OPRA requests. N.J.S.A. 47:1A-5.

Under N.J.S.A. 47:1A-1 the factors to be applied under OPRA to balance competing interests in privacy of a citizen’s personal information and public access are:

(1) the type of record requested;

(2) the information it does or might contain;

(3) the potential for harm in any subsequent nonconsensual disclosure;

(4) the injury from disclosure to the relationship in which the record was generated;

(5) the adequacy of safeguards to prevent unauthorized disclosure;

(6) the degree of need for access; and

(7) whether there is an express statutory mandate, articulated public policy, or other recognized public interest militating toward access. Paff v. Ocean County Prosecutor’s Office, 446 N.J.Super. 163.

Synopsis of Case

On June 20th, 2017 in John Paff v. Galloway Township, (A-88-15) (077692) the New Jersey Supreme Court held that Under the Open Public Records Act (OPRA) N.J.S.A. 47:1A-1.1, “information in electronic form…is itself a government record.” Id. The Court ruled that government records are not merely limited to “hard-copy books and paper documents housed in file cabinets or shelves but also information stored or maintained electronically.” Ibid. In this case the requestor John Paff requested fields of information from emails sent by Galloway Township Chief Police and Clerk over a two-week period. Paff specifically requested an itemized list of information including the “sender, recipient, date, and subject” in the emails. Ibid. The Township Clerk denied Paff’s request based on the argument that “the Government Records Council (GRC) and courts have held that a custodian is not required to create new records in response to an OPRA request.” Ibid.

Paff’s complaint alleged that the Township’s denial violated both OPRA and the common law right of access. Neither the trial court, nor the Supreme Court chose to address Paff’s common law right of access, and although the Appellate Division rejected Paff’s argument that the common law right of access provided an alternative ground for approving his email log request, the Supreme Court stated that “its silence on this subject should not be construed as an endorsement of the Appellate Divisions dismissal of Paff’s common law claim.” Ibid. The Township relied on MAG Entertainment, LLC v. Division of Alcoholic Beverage Control, 375 N.J. Super. 534 (App.Div.2005) as a basis for denying an overly broad and burdensome OPRA request. However, the court notes that unlike MAG Entertainment, LLC v. Division of Alcoholic Beverage Control, Paff’s request for email production was confined to only a two-week period and provided enough specificity to comply with OPRA. The Court stated “the [Galloway Township] records custodian did not have to make a subjective judgment to determine the nature of the information covered by the request. The custodian simply had to search for, not research, the identity of the records requested.” Ibid.

Reversing the judgment of the Appellate Division, The Court held that “The Appellate Division’s overly constrictive reading of OPRA cannot be squared with the OPRA’s objectives or statutory language. OPRA recognizes that government records will constitute not only paper documents, but also information electronically stored. The fields of information covering “sender,” “recipient,” “date,” and “subject” in the emails sent by the Galloway Township Chief of Police and Clerk over a two-week period are government records under OPRA. Ibid. The Court did note that OPRA exceptions, exemptions, and redactions may apply and limit the information requested by Paff, but stated that this issue is for the trial court to determine.