Reporters, researchers, and regular folks should have an easier time getting access to electronic data held by New Jersey public entities as a result of a Tuesday state Supreme Court decision definitively calling information stored electronically “government records.”
In what one lawyer called a “very significant” decision, the court unanimously held that the state’s 16-year-old Open Public Records Act, which guarantees people the right to most government records, covers requests for information taken from emails, provided releasing it would not intrude on privacy rights or run afoul of any of the other 30 or so exemptions in the law. The court’s ruling reversed an appellate decision that had, for a time, made it harder to get such information, said John Paff, a well-known public records advocate who was the plaintiff in the case.
In its decision, the court described its reasoning in the strongest terms. Justice Barry Albin wrote, “An informed citizenry is essential to a well-functioning democracy.”
But it went further, clarifying what has long been a reason governmental bodies have used to deny requests: that information requested does not exist in any specific record and OPRA only guarantees the public access to records. Requests still need to be well-defined, but as long as they are, they should be fulfilled even if the information is not in a specific document.
“With respect to electronically stored information by a municipality or other public entity, we reject the Appellate Division’s statement that ‘OPRA only allows requests for records, not requests for information,’” Albin wrote. “That position cannot be squared with OPRA’s plain language or its objectives in dealing with electronically stored information.”
The New Jersey Press Association, Reporters Committee for the Freedom of the Press, Electronic Frontier Foundation, and New Jersey chapter of the American Civil Liberties Union had all joined the case and argued that “information extracted from a computer database — whether called a list, a log, or a response to a request — is not new information or a new record, but a government record, as defined by OPRA.”
“This is a very significant ruling, as more and more government records are kept electronically,” said Thomas Cafferty, longtime counsel to the New Jersey Press Association. “This makes it clear that government records are not only pdf versions of documents kept electronically, but also all the information stored electronically, as in databases.”
A strange beginning
This case was somewhat odd from the start. Paff, who submits hundreds of requests for information across the state each year, mostly to test how well officials are following the law, in June 2013 asked Galloway Township for the fields known as sender, recipient, date, and subject from two weeks worth of emails from the township clerk and police chief. The township had provided full emails in the past and had provided similar logs of data in the past, but this time, it declined Paff’s request, saying that extracting only certain fields of information from those emails would require it to create a new record, which OPRA does not mandate.
The clerk based that decision at least in part on guidance it got from the Government Records Council, the body created to decide disputes over public records denials. The GRC told the township it was not “required to create new records in response to an OPRA request,” but also cautioned that its guidance did “not constitute legal advice or a final decision.” People can seek help from the GRC for free, but can appeal its decisions to Superior Court, or go directly to the courts. In his opinion, Albin said definitively that GRC decisions do not create any precedent for the courts.
A Superior Court judge had ruled Paff’s request appropriate, but an Appellate Division panel had reversed that ruling, saying OPRA only requires the disclosure of records, not information, and that it was giving “substantial deference” to the GRC’s guidance.
‘Not entitled to deference’
C.J. Griffin, a lawyer with Pashman Stein Walder Hayden who works on OPRA issues, said the Supreme Court “reminded lower courts that the Government Records Council’s decisions are not entitled to deference, which is an argument I have seen many public agencies making lately in trial courts.”
While this case centered around Paff’s attempt to get only certain information from emails, lawyers and advocates said the language of the ruling should make it easier to get all kinds of information, stored electronically in databases, for instance.
As Albin wrote, “A document is nothing more than a compilation of information — discrete facts and data. By OPRA’s language, information in electronic form, even if part of a larger document, is itself a government record. Thus, electronically stored information extracted from an email is not the creation of a new record or new information; it is a government record.”
Calling the decision a “significant victory, Paff said the ruling “removes some of the ambiguity” that records custodians have been reading into OPRA. Governmental officials “are looking for anything they can use to deny a request,” he said. Now it’s clear that the database is a record and that requests to query a database must be fulfilled.
‘A big win’
Griffin called the ruling “a big win” and said the decision is especially important because the appellate ruling had been a setback for the cause of open public records.
“Since the Appellate Division’s decision, I have seen public agencies trying to deny access to things like accounts payable reports and other data that they may not keep in hard copy but which clearly should be accessible under OPRA,” Griffin said. “OPRA expressly says that a ‘government record’ includes ‘electronically stored information,’ but the Appellate Division essentially held that agencies were not obligated to retrieve electronically stored information to respond to a request. The Supreme Court reversed that holding, applying the plain language of the statute and recognizing that times have changed and that public agencies rely upon computers and databases to store information now.”
Arguing that giving out the email header information Paff requested could violate privacy rights and endanger police investigations were amici briefs from the New Jersey State Association of Chiefs of Police, New Jersey State League of Municipalities, and New Jersey Institute of Local Government Attorneys. The Supreme Court ruled that before giving out the information, the records custodian should take those concerns into account and could refuse to provide information on emails that would violate those exemptions to OPRA.
(Disclosure: C.J. Griffin represents NJ Spotlight on OPRA issues, but does not collect a fee for her services.)