Emails to or from public officials or public employees or their agents that discuss or relate to public business are public records that are subject to the Open Public Records Act. Although emails are usually treated like other documents, there some special rules that apply to emails.
First, how emails are requested is important. Every request for emails should (we’ll discuss why I say “should” instead of “must” in a moment) identify (1) the sender or recipient; (2) a date range; and (3) a subject matter. So, a valid OPRA request for emails would go something like: “All emails from the Mayor to any member of the Borough Council regarding the Main Street Redevelopment Project that were sent between January 1, 2012 and February 15, 2012.” This example identifies a sender, sets a reasonable date range and identifies a subject matter. You can also add search terms, such as: “All emails from the Mayor to any member of the Borough Council regarding the Main Street Redevelopment Project or containing the words ‘redevelopment’ that were sent between January 1, 2012 and February 15, 2012.” Notice also that I said “from the Mayor”. Technically, emails from the Borough Council to the Mayor would not be captured by my sample OPRA request, so you could add “to or from”.
So, why did I use “should” instead of “must”? The criteria I set forth above is the Government Records Council’s definition of a proper OPRA request for emails. If your OPRA request meets the criteria set forth above, the GRC will probably enforce your OPRA request.
However, as faithful readers of this blog know, the GRC is not the only place where a person can enforce their OPRA rights. The other forum is Superior Court. At this time, there are no published Superior Court cases that address specifically what constitutes a valid request for email addresses. In my experience, I have successfully compelled disclosure of public agency emails when the request only specified a sender or recipient and a date range – no subject matter. Such a result can depend on the individual Superior Court judge who hears your case.
Second, the public agency may object to the scope of your OPRA request. One common objection is that your OPRA request requires the records custodian to conduct “research,” not “search” for a document. But if you’ve identified the three elements we discussed above, the Records Custodian has to conduct a “search” for emails. You’re not asking for “research” if you’ve specifically identified the sender or recipient, subject matter and date range.
Third, the public agency may demand a special service charge for copies of the documents. A special service charge is warranted if fulfillment of your OPRA request would require an extraordinary amount of time or effort or special expertise (such as a computer specialist). One way to get avoid this roadblock is to narrow your OPRA request. Did you request six months of emails? Narrow it to two months. Did you request all emails between the Mayor and Council? Narrow it down to all emails between two individuals.
Fourth, some of the emails you requested may be privileged, perhaps because they contain material that is advisory, deliberative or consultative. That means that emails that discuss an issue before a decision has been made about that issue are not, in general, subject to public disclosure. (Of course, if such a discussion is happening at the Mayor/Council level, query whether such discussions should be taking place in private in the first place). Sometimes, public agencies want you to pay for legal review of these records for privilege by outside counsel who are paid hundreds of dollars per hour. At this time, both the Government Records Council and the Superior Court have held that the requestor does not have to pay for attorney review for privilege.
Finally, it doesn’t matter if public officials use their personal email accounts or personal computers to conduct public business. Such use of private email is NOT a bar to access. If the Mayor uses his or her personal email to conduct public business, then those emails are subject to OPRA.
If you think you’ve been improperly denied access to emails, contact the Government Records Council, NJFOG (email@example.com) or the author directly (firstname.lastname@example.org).