Public Records Aren't Limited to Paper Documents, Rules New Jersey Supreme Court

by | June 21, 2017

By Jan Hefler

The New Jersey Supreme Court decided unanimously Tuesday that the public is entitled to view electronic data kept by local government agencies.

It reversed an appellate panel's finding that Galloway Township was not required to honor a request to provide a log of emails that were sent by the township police chief and clerk in 2013 because such a record would have to be electronically created. The state Open Public Records Act (OPRA) only requires the release of records, not information or data, the panel had said.

Open-records activist John Paff said he had asked for a log of the emails that were sent during a two-week period in June 2013 just to see how the town would respond. Paff requested an itemized list of the following categories of information in each email: "sender," "recipient," "date," and "subject."

For the last two decades, Paff, chairman of the New Jersey Libertarian Party's Open Government Advocacy Project, has filed numerous requests for public records in an effort to see how transparent local governments are. When he is denied, he often sues to get a ruling.

In its 27-page opinion, the high court said: "The Legislature declared in OPRA that 'government records shall be readily accessible for ... the citizens of this state, with certain exceptions, for the protection of the public interest, and any limitations on the right of access ... shall be construed in favor of the public's right of access.' ... OPRA broadly defines a 'government record,' making clear that government records consist of not only hard-copy books and paper documents housed in file cabinets or on shelves, but also 'information stored or maintained electronically' in a database on a municipality's server."

When the case went to trial, the town's IT specialist testified that retrieving the data would take about "two to three minutes," depending on the volume of emails that the search turned up. The data would include the sender, recipient, date, and subject.

After the Supreme Court ruling was released, Paff praised the decision and called the ramifications "huge."

"If the court would have affirmed the appellate panel's finding, it would have kept the public from accessing documents created in a digital world. ... Sometimes it takes a while for government to catch up with technology," he said.

The American Civil Liberties Union of New Jersey and the Electronic Frontier Foundation supported Paff in the litigation, while the New Jersey State Association of Chiefs of Police and the New Jersey State League of Municipalities filed briefs backing Galloway.

Galloway Mayor Don Purdy and Solicitor Michael J. Fitzgerald did not return texts and emails seeking comment.

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