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RESOUNDING WIN FOR GOVERNMENT TRANSPARENCY

Tuesday, June 27th, 2017 | Mary Gallagher
OPRA-elec-LOC

A unanimous decision by the New Jersey Supreme Court has overturned a lower court holding that would have allowed the government to deny access to vast swathes of information kept on its computers. https://www.judiciary.state.nj.us/attorneys/assets/opinions/supreme/a_88_15.pdf

The lower court had interpreted the state Open Public Records Act, aka OPRA, as mandating public access only to discrete records and not to information per se.

On June 20, the Supreme Court in Paff v. Galloway, labeled that an “overly constrictive reading of OPRA cannot be squared with [its] objectives or statutory language.”

It held that information electronically stored in government computers constitutes a government record, and that public entities can be required to disclose such information and even to gather together scattered pieces of it, if the request is clearly stated and the process requires no analysis or research.

The case involved a request by John Paff, an open government advocate, for certain fields of information from emails exchanged between Galloway Township’s municipal clerk and its police chief during a two-week period in 2013. Paff sought only the “sender,” “recipient,” “date,” and “subject” for each email.

Galloway acknowledged that the emails in their entirety were public records and thus subject to disclosure under OPRA but refused to provide a list or log with the selected information Paff had requested on the ground that no such record existed and OPRA did not require it to create one.

Though Galloway, which is located in Atlantic County, had granted similar requests in the past, it had ceased to do so and cited, in support of its new policy, informal guidance obtained from the Government Records Council.

Paff challenged the denial and prevailed in the trial court, based in part on testimony from Galloway’s own IT Specialist that providing the fields of information requested was not a burden and would consume no more than two to three minutes of time.

The Appellate Division reversed, agreeing with Galloway that a list of the information from the various email fields would have been a new document and was therefore not a public record under OPRA.

The Supreme Court granted Paff’s request for review and amicus status for four groups backing his position: the American Civil Liberties Union of New Jersey, Electronic Frontier Foundation, New Jersey Press Association, and Reporters Committee for Freedom of the Press.

Amici siding with Galloway were the New Jersey League of Municipalities, State Association of the Chiefs of Police and the Institute of Local Government Attorneys.

The Court unequivocally rejected the contention by the Township of Galloway that culling information from its databases and providing it in the form of a log or list amounted to the creation of a new public record and thus went beyond what OPRA requires.

Justice Barry Albin’s opinion pointed out that OPRA defines government records as consisting 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.”

Consequently, “electronically stored information extracted from an email is not the creation of a new record or new information; it is a government record.”

The Justices observed that OPRA requests must be well-defined so that the records custodian knows precisely what is sought without having to do any subjective analysis or research and that Paff’s request met that standard.

They also found that the GRC guidance was not entitled to any deference.

Further, although the concerns raised by the police chief that the email log could compromise investigations or investigatory techniques or result in an unwarranted invasion of privacy were legitimate, they did not go to the threshold question of whether the information was a government record subject to disclosure but to whether it fell within an exception or exemption to disclosure.

If Galloway wanted to deny the request on such grounds, it would have to present evidence and arguments to the trial court, and give Paff the opportunity to respond and it would bear the burden of proof to justify such denial, wrote Albin.

Representing Paff in the case was Walter Luers, a solo practitioner from Clinton who specializes in OPRA and OPMA (Open Public Meetings Act) cases and serves as Vice-President of the New Jersey Foundation for Open Government.

 

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