The Supreme Court of New Jersey has ruled that individual fields of data from electronically stored public records are subject to disclosure under the Open Public Records Act.
The justices ruled unanimously that the fields of sender, recipient, subject and date from emails sent by the police chief and municipal clerk in Galloway Township are themselves public records. They overturned an Appellate Division ruling that said providing such data to a records requester would constitute creation of a new document, which would exceed the requirements of OPRA.
“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 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,” Justice Barry Albin wrote for the court.
Government records are defined in OPRA as both paper documents and information electronically stored, and the request by plaintiff John Paff was for clearly defined records that were stored electronically, Albin wrote. Furthermore, Galloway conceded that the information sought could be produced within minutes, the court said.
Paff, an open government activist, requested the fields of sender, recipient, date and subject from every email sent by the municipal clerk and police chief in Galloway between June 3 and 17, 2013. He did not ask for the content in the body of the messages. Paff included in his request a copy of a template that Galloway provided him for another records request, with headings for sender, recipient, date and subject, but the town denied his request.
Beginning in 2011, Galloway’s practice was to provide email logs in response to OPRA requests, but it discontinued the practice a year later, after issuing about 100 such logs. The change came after the town asked the Government Records Council whether it was obligated to provide such logs, which were not routinely maintained and had to be created in response to requests. The GRC replied that courts have held that a records custodian is not required to create new records in response to an OPRA request.
A trial judge ruled in Paff’s favor, but the Appellate Division reversed. At the Supreme Court, Paff argued that a database search did not create a new record, but retrieved a record from storage. Ruling for Paff, the justices said the GRC’s guidance was not entitled to deference. The justices remanded the case to the trial court to consider whether any statutory exemptions to OPRA should bar access to the information sought or whether redactions are necessary.
Walter Luers, a solo practitioner in Clinton who represented Paff, called the decision a “paradigm shift.” He said requesters of electronically maintained government records have faced an uphill battle for access but the Supreme Court’s decision properly puts the burden on municipalities to provide access. Luers said the decision would make it easier to obtain metadata, such as the number of times a word processing document has been edited, where technology is available to easily obtain the information sought, he said.
The ruling extends to other areas the practice that has long applied to OPRA requests for employee salary information, where a government employee would run a report to extract the requested information from a database, Luers said.
“This makes any document or database fair game. I think it’s pretty clear, if the government agency can run a report, they have to run it,” Luers said.
The lawyer for Galloway, Michael Fitzgerald of Fitzgerald & McGroarty in Linwood, was not available for comment.