Ever file an OPRA request for email correspondence and feel there is stuff you’re not getting? Wouldn’t it be nice to see a log of email communications to know for sure? A trial court ruled the log is a public document, but the town appealed, and now things are heating up on both sides. – NJFOG
UPDATE: The Appellate Division reversed the lower court ruling and used such broad language in its opinion as to block access to a wide range of electronic records. The plaintiff appealed to the NJ Supreme Court, which has agreed to take the case.
(from John Paff’s NJ Open Government Notes blog)
On October 27, 2014, I blogged about the New Jersey State Association of Chiefs of Police (“NJSACOP”) entering as an amicus curiae or “friend of the court” into Galloway Township’s appeal of a trial court’s ruling that I am entitled to logs showing the sender, recipient, date and subject line of each e-mail sent by a specific government employee during a specified period of time.
Recently, four other organizations have also sought to participate in the case: the New Jersey State League of Municipalities, the New Jersey Institute of Local Government Attorneys, the American Civil Liberties Union of New Jersey and the Electronic Frontier Foundation. The League and Institute filed a joint brief which is on-line here and the ACLU’s and Foundation’s joint brief is on-line here.
The League and Institute argue that while e-mails themselves are public records, a log of those e-mails “does not exist in a natural state, cannot be retrieved as is, but can only come into existence or be created by the operation of a computer to produce a log . . .” Accordingly, they argue, a log of e-mails “does not fit within the definition of a ‘government record’ as set forth in [OPRA].”
The ACLU and EFF brief takes issue with Galloway Township’s “remarkable contention that ‘computer data does not constitute a government record'” and notes that “since the vast majority of government information is stored on computers, this argument (if adopted) would effectively destroy the right of New Jersey’s citizenry to gain access to public information.” The ACLU/EFF brief goes on to argue:
Members of the public – who, lest we forget, ultimately pay for this technology – should be granted access to the same tools that public agencies use every day – specifically the ability to request a search of its electronic records for specific terms (or, here, the preparation an e-mail log). Especially in this information age, any other result would effectively eviscerate the public’s rights.