What is probably the most significant case in years affecting public access to government records and information was argued before the New Jersey Supreme Court on Feb. 28.
Unless the lower court decision Paff v. Galloway is reversed, members of the public will have diminished access under New Jersey’s Open Public Records Act (OPRA) to the vast quantities of information stored electronically in government computers.
The case is viewed as so critical to the public right of access to electronic data that it has drawn the participation of an international data rights group, the Electronic Frontier Foundation (EFF), whose mission is defending civil liberties in the digital realm.
At issue is an OPRA request for all emails sent during a two week period in June 2013 by the Township Clerk and Chief of Police of Galloway Township in Atlantic County. The requestor, John Paff, a longtime advocate for government transparency, did not seek the emails in their entirety but only a log or list of the sender, recipient, date, and subject for each of them.
Galloway did not dispute that the emails themselves are government records subject to OPRA, which broadly defines them as including “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.”
But the town denied Paff’s request on the ground that it did not maintain such a list or log and that OPRA did not require it to create one.
In the past, the town had provided information in that type of format.
With the hiring of a new township clerk –the position charged with responding to OPRA requests– the town decided to end what it characterized as an informal and voluntary practice of providing such lists or logs. To confirm its position, it filed an OPRA request with the Government Records Council (GRC) seeking a list of GRC emails and was denied on the ground that the GRC had no responsive records –i.e., no list or log of the emails– and impliedly did not have to make one.
Paff sued Galloway over the denial of his request and won in the trial court.
Judge Nelson Johnson of Atlantic County Superior Court ruled in June 2014 that the emails were government records within the OPRA definition, which includes “information stored or maintained electronically.” that is made, maintained and kept on file.
“By logical/reasonable extension, a log or list of emails that can be easily prepared is likewise within the ambits of that definition,” Johnson wrote.
Testimony from a Galloway computer technician that it would take him only two or three minutes to create the log sought by Paff convinced Johnson that doing so entailed no significant burden.
On appeal, however, a three-judge panel of the Appellate Division reversed, stating “We hold that OPRA does not require the creation of a new government record that does not exist at the time of a request, even if the information sought to be included in the new government record is stored or maintained electronically in other government records.”
In their precedential April 2016 opinion, the judges agreed with Galloway that complying with the request required creation of a new record and that Galloway was not obligated to do so.
They rejected the argument that the information requested was subject to disclosure as metadata about the emails, saying the log was not metadata even though extracted from it.
Nor were they swayed by OPRA’s requirement to provide copies of government records “in the medium requested” if kept that way, or to convert the records to the medium requested “or provide a copy in some other meaningful medium,” saying the provision did not change the definition of government record.
Even if creating the log would not be much effort, once it was generated, redacting any information excluded under OPRA “could require substantial effort,” as might preparing the same sort of log or list in response to similar requests in the future,” said the appellate court.
In agreeing to hear the case, the New Jersey Supreme Court defined the issue as whether OPRA requires production of “electronically stored information about emails (name of sender, recipient, date and subject) sent by certain public employees over a specified period of time.”
As in the Appellate Division, amici curie for both sides took part.
Joining EFF in siding with Paff was the New Jersey Press Association and the American Civil Liberties Union—New Jersey, while the New Jersey State League of Municipalities, the New Jersey Institute of Local Government Attorneys and the New Jersey State Association of Chiefs of Police weighed in on the side of Galloway.
The San Francisco-based EFF argued, in its joint brief with the ACLU-NJ, that OPRA was meant to update the prior law for the digital age by creating a new category of government record, electronically stored information, and that the legislative action was nullified by the appeals court’s holding that OPRA cover only request for such records, not for the information contained in them.
In EFF’s view, the Appellate Division holding, if not overturned, would cause significant damage to the public right to know in New Jersey at a time when almost all government information is stored electronically. Members of the public would only get access if they could identify a document or other type of record in which the information is stored. Alternatively, they would have to request the entire database, thereby imposing a greater burden on the government to review and redact any information exempted under OPRA, along with potential expense to the requestor in the form of special service charges that are authorized by the law where a request imposes a heavy burden.
And if the burden of complying is great enough—if it would “substantially disrupt agency operations”—that could provide justification to deny the request altogether, failing agreement on a “reasonable solution.” For want of a few keystrokes, access could be lost altogether.
The appellate ruling also sacrifices, at least where the public is concerned, a useful computer tool—the search and retrieve function—which facilitates the handling of the vast troves of electronic data that now exist.
At the oral argument before the Supreme Court, Paff’s lawyer, Walter Luers, cited a 1996 case, Board of Education of Newark v. New Jersey Department of the Treasury, which addressed the issue of whether agencies could be required to cull information from databases. There, the Court allowed a request that required the agency to run a computer program to retrieve the information sought, characterizing the request not as the creation of a new record but as the “selective copying” of a database. It was decided under the predecessor law but Luers argued that it governed the analysis.
The Justices seemed puzzled by Galloway’s reluctance to provide the list of emails when there was no question that it would have had to turn over the emails themselves to the extent they did not fall within an OPRA exemption, such as criminal investigatory records.
Justice Walter Timpone called it “odd” that Galloway preferred to turn over hundreds of records on a flash drive rather than the limited information requested by Paff.
The Court agreed with Galloway, however, that providing only the limited data fields requested by Paff did not remove the need for review and possibly redaction. But that review and redaction process was separate from the threshold question of whether the list qualified as a government record.
“The only issue before us is whether it is a government record,” with any questions of privilege to be dealt with later, remarked Justice Barry Albin. Chief Justice Stuart Rabner agreed that questions about reviewing and redaction should be dealt with on remand.
Galloway’s lawyer, Michael Fitzgerald, called the list sought by Paff an attractive “research tool” and contended that providing it would “cross a line” under OPRA, opening the door to similar requests that might prove far more burdensome.
Fitzgerald and amici urged that a bright line rule was essential for records custodians. The line they wanted would deem Paff’s request the creation of a new record and deny it as such.
The justices seemed open to the idea of a differently drawn line, one that would allow electronic database searches under OPRA when simple search terms would suffice and there was no need for subjective analysis or a judgment call to determine what information was responsive.
When the Justice suggested that the emails within Paff’s request could be pulled up and then everything redacted but the sender, recipient, date and subject line fields that Paff wanted, Fitzgerald said that was not possible with Galloway’s email archiving system.
That led Justice Faustino Fernandez-Vina to ask Fitzgerald whether the application of OPRA should depend on what kind of computer system a government entity uses.
There was discussion of the role of the GRC, with Luers arguing that the Appellate Division gave improper deference to its position. OPRA expressly states that GRC decisions “have no value as precedent” for cases that are initiated in court.
There are several other OPRA cases also awaiting decision by the Court, two of which concern police conduct.
In North Jersey Media Group, Inc. v. Township of Lyndhurst, a judge ordered access to police records regarding a high-speed chase and fatal shooting of a black man suspected of stealing an SUV but was reversed on appeal in June 2015. It was argued before the Court in November.
The other is Paff v. Ocean County Prosecutor’s Office, where the Court will decide whether the video recording of an arrest from a police car falls within the “criminal investigatory records” exemption from disclosure and if it does not, whether it can be withheld anyway based on the arrestee’s privacy-based objection. The Court granted certification in December and has not yet heard oral argument.
Some of the more significant rulings by the Supreme Court regarding OPRA are: O’Boyle v. Longport (2014), holding that when lawyers representing private persons and entities share privileged materials and communications with government lawyers the materials do not lose their protection and become public records subject to disclosure under OPRA; Asbury Park Press v. Monmouth County (2010), prohibiting secret settlements of sexual harassment suits against government entities; Burnett v. Bergen County (2009), requiring a commercial entity seeking millions of pages of land title records for inclusion in paid, electronic databases to bear the $460,000 cost for the county clerk to first redact Social Security numbers to protect against identity theft; and Mason v. City of Hoboken (2008), setting a 45-day deadline for filing OPRA suits and applying the catalyst theory for fee awards to prevailing plaintiffs.
NJ Appleseed 