11th Jul 2017
JUNE 30, 2017
GOVERNMENT RECORDS UNDER OPRA: WHETHER ELECTRONCALLY STORED INFORMATION EXTRACTED FROM AN EMAIL IS A GOVERNMENT RECORD
New Jersey Supreme Court, in Paff v Galloway Twp., No. 077692, 2017 WL 2644470 (N.J., June 20, 2017), recently addressed the scope of a public entity’s obligation to disclose electronically stored information in accordance with the New Jersey Open Public Records Act (“OPRA”), N.J.S.A. 47:1A-1 et seq. The Court reasoned that electronically stored information extracted from an e-mail does not amount to the unbridled creation of a new record or new information. Instead, the Court ruled that the production of electronically stored information extracted from an e-mail is a government record subject to disclosure under OPRA.
OPRA provides that: “…government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions[.]” N.J.S.A. 47:1A-1. OPRA defines a “government record” as:
any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file in the course of … official business … or that has been received in the course of … official business…
N.J.S.A. 47:1A-1.1 (emphasis added).
Moreover, OPRA excludes twenty-one (21) distinct categories of information from the definition of a government record, N.J.S.A. 47:1A–1.1, thereby “significantly reduc[ing] the universe of publicly-accessible information.” MAG Entm’t, LLC v. Div. of Alcoholic Beverage Control, 375 N.J. Super. 534, 546 (App. Div. 2005) (internal citations omitted). OPRA imposed upon a Government Records Custodian the duty to prove that a denial of access to records is lawful pursuant to N.J.S.A. 47:1A-6.
In Paff, the plaintiff filed a request with Galloway Township’s Records Custodian for specific information in emails sent by two (2) public officials over a two (2) week period. From those emails, he sought only information contained within the following fields: “sender,” “recipient,” “date,” and “subject” and did not request the content of the e-mails. The Township denied the request, contending that only the e-mails, as opposed to specific information embedded within them, were “government records” subject to disclosure under OPRA. Notably, the Township had conceded that it would take only two (2) to three (3) minutes to print the requested log of information, but it argued that printing out that data in the format of a log would be creating a new record.
The trial court held that the Township should have provided such a list utilizing the metadata of “sender/receiver” e-mail times and noted that creating such a list would require little effort on the part of the Township. The Appellate Division reversed, concluding that OPRA required only the production of the e-mails—not the information stored within them—because OPRA does not require the creation of records or research to be done to fulfill OPRA requests.
In a unanimous decision issued on June 20, 2017, the Court reversed the Appellate Division, holding that under OPRA, “information in electronic form, even if part of a larger document, is itself a government record [and that] electronically stored information extracted from an email is not the creation of a new record or new information” and is therefore a government record under OPRA.
The Court’s Paff decision affirms that the public is generally entitled to metadata stored in government databases, subject to the imposition of a service charge if extraction of the requested data requires “a substantial amount of manipulation or programming of information technology.” Additionally, such metadata would still be subject to any applicable OPRA exemptions or recognized confidentiality privileges. To that end, the Court in Paff remanded the matter for a full determination of whether the sought e-mail logs could be exempt from public access pursuant to any applicable exemption or privilege (e.g., attorney-client privilege, ongoing investigations, citizens’ privacy concerns).
Please be advised that our firm is available to provide additional guidance regarding the implication of the Court’s Paff decision. If you have any questions regarding the application of this decision, please contact our offices