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.