Friday, March 14, 2014

Mount Arlington's compliance with New Jersey's e-mail retention requirements.

I e-mailed the following letter to Mount Arlington Borough's (Morris County) Mayor and Council today.
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March 14, 2014

Hon. Arthur R. Ondish, Mayor and members of the
Mount Arlington Borough Council
419 Howard Blvd
Mount Arlington, NJ 07856        (via e-mail only )
           
Dear Mayor Ondish and Council Members:

I write both individually and in my capacity as Chairman of the New Jersey Libertarian Party’s Open Government Advocacy Project to learn whether Mount Arlington Borough has an e-mail retention policy that will ensure that official e-mails are retained and archived consistent with State guidelines.

This inquiry was prompted by a story on nj.com entitled "Prosecutor warns Mt. Arlington: Stop talking about public issues behind closed doors" by Louis C. Hochman.  Within the story is a scan of a redacted e-mail from December 2, 2013 that was authored by Councilwoman Paula Danchuk.

I note that most of recipients of Danchuk's e-mail (and all of the elected officials) have what appear to be personal, non-municipal e-mail addresses with companies such as optonline.net or msn.com. For example, Borough Council Member John Windish’s e-mail address is listed as johnw76072@msn.com which is apparently Windish's personal e-mail address.

Compare the Mount Arlington Council’s e-mail directory to Vineland’s in Cumberland County.  If you click on the e-mail link for any of the Vineland City Council members, you will be given their “Vinelandcity.org” e-mail address, which is part of the municipality’s domain rather than a personal e-mail address.

The fact that Mount Arlington's elected officials use their personal e-mail addresses concerns me because it leaves open the possibility that the Mayor and Council may be sending and receiving e-mails that are “government records” in accordance with the Open Public Records Act (OPRA)  but which are not being properly retained and archived by the Borough administration. (As you are probably aware, e-mails on an elected official's personal computer are government records subject to disclosure under the Open Public Records Act.  See Donal Meyers v. Borough of Fair Lawn, GRC Case No. 2005-127)

My concern is this: Suppose that Councilman Windish, whose term of office expires on December 31, 2015, decides not to seek reelection and moves out-of-state.  What if a member of the public, in early 2016, requests a copy of an official e-mail that Councilman Windish sent or received prior to December 31, 2015, when he still held elected office?  Would the Borough Clerk be able to produce the requested e-mails from the Borough’s own files, or would she need to track down former Councilman Windish and ask him to produce the e-mails from his own files in order to satisfy the records request?  If it’s the latter, then what would the Borough Clerk do if former Councilman Windish’s computer had since crashed or if the e-mails were otherwise not available? 

Vineland would not have this problem because e-mails that are sent or received by Vinelandcity.com e-mail addresses are presumably preserved on the City’s server.  So, Vineland’s clerk could retrieve any requested e-mails from the City’s server without having to contact the Council member who sent or received those e-mails.

As you are probably aware, Mount Arlington Borough must comply with the New Jersey Division of Archives and Records Management's “Circular Letter No. 03-10-ST” entitled, “Managing Electronic Mail: Guidelines And Best Practices” which, among other things, makes the Borough responsible for a) archiving e-mails and ensuring that the e-mail system is reliable enough to meet state and federal “Rules of Evidence” requirements (Sec. 2.6); b) ensuring that e-mails are “indexed in an organized and consistent pattern” (Sec. 2.7); and c) setting forth “agency procedures” so that employees can “understand and carry out their role in managing e-mail.” (Sec. 2.8). 

Since it appears that the Mount Arlington Mayor and Council members are likely communicating official business via their personal e-mail accounts, I am having difficulty understanding how they are compliant with the Circular Letter.  I ask that you please discuss this matter at your April 1, 2014 Council meeting.

Thank you for your attention to this matter.  I look forward to hearing from you.

Sincerely,

John Paff, Chairman
New Jersey Libertarian Party's
Open Government Advocacy Project
P.O. Box 5424
Somerset, NJ  08875
Voice: 732-873-1251
Fax: 908-325-0129
e-mail: paff@pobox.com

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