Monthly Archives: June 2017

Supreme Court Restores Access to Electronically Stored Information

Last year, in Paff v. Township of Galloway, 444 N.J. Super. 495 (App. Div. 2016), the Appellate Division issued a rather shocking decision —in essence, the court held that even though OPRA includes electronically stored information is in the definition of “government records,” an agency has no obligation to extract that data because it would be “creating a new record.”

Mr. Paff’s request involved a log of emails that included the “to,” “from,” “subject,” and “date.” The agency admitted that it could print the log and it would take only two to three minutes to do so, but it argued that printing out that data in the format of a log would be creating a new record.   Since Paff v. Township of Galloway was issued, we have seen public agencies try to argue that they do not have to print payroll reports, accounts receivables reports, and other common reports from their databases because doing so would be “creating a new record.”

Thankfully, in a unanimous decision, the Supreme Court of New Jersey restored OPRA access to electronically stored information. The Court held that “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 a 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.” The Court noted that OPRA contemplates the “programming of information technology,” and that this is precisely what is required to extract the electronic information that Mr. Paff sought.

The Supreme Court also found that the Appellate Division erred in giving the Government Record Council’s (GRC) guidance to the Township of Galloway “substantial deference.” In fact, the Court reminded lower courts that the GRC’s decisions and guidance are not entitled to any deference, let alone substantial deference. This is important because too often agencies try to convince lower courts that they must follow what the GRC says, even though the OPRA statute states otherwise.

In today’s world, there are fewer and fewer records that exist only in paper form and much information is now stored electronically in databases and accounting programs. The Supreme Court’s decision ensures that the public is entitled to access such electronically stored information, just as OPRA says.

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Email Searches Must Include Search of Township Server and Personal Email Boxes

Pashman Stein Walder Hayden recently secured a victory in Matt Mills v. Township of Monroe, a case that challenged the sufficiency of a public agency’s search for emails responsive to an OPRA request.

In this case, Mr. Mills requested emails sent to or from various township employees and officials relating to the township’s EMS services. After the township responded to the request and produced emails, Mr. Mills noticed that not everything was produced. After he followed up, the township produced more emails, but Mr. Mills was still aware of other emails that were not produced. This included emails from one township councilman’s private email account. After Mr. Mills once again followed up, he still felt certain that not all emails were produced. Ultimately, he filed a request to the County and found that there were even more emails from one councilman in particular, but that were not produced by the township. At that point, Mr. Mills filed suit against the township.

This case presented a frequent problem that occurs: all too frequently, Records Custodians permit employees to search their own email boxes when a request for e-mails comes in. This creates several potential problems. First, an individual employee may not even know how to correctly search their email boxes for responsive emails. Second, a search of an individual’s email box on their local desktop will not recover emails that they may have deleted as a matter of course. Third, if the individual employee has emails that are incriminating or embarrassing, they may opt not to produce them.   The problem is exacerbated when a public employee uses their personal emails to conduct government business, as the Custodian has no control over those email accounts and items deleted from the personal account (such as yahoo or gmail) may not be recoverable from a server.

The Honorable Georgia M. Curio, A.J.S.C., found the township violated OPRA by failing to properly search for responsive emails. She found that a proper search must include a search of the township’s email server, so as to ensure that even emails that were deleted from local inboxes would be recovered. She ordered the township to conduct a new search of the township server, to produce all of the emails that are found, and to submit a sworn certification that describes the search and the township’s records retention policy. Because it was clear that at least some of the officials used private accounts to conduct government business, the judge ordered each individual named in the OPRA requests to perform searches of their private email accounts and to submit sworn certifications about their searches.

NJ Advance Media has covered Mr. Mills’ victory.  Additionally, the South Jersey Times wrote an editorial encouraging public agencies to stay away from private email use.