Monday, April 18, 2016

Significant OPRA loss in Appellate Division: Citizens are denied the benefits of data technology that government agencies routinely enjoy.

On April 18, 2016, the Appellate Division issued a published (thus precedential) ruling in the case of Paff v. Galloway Township, et al holding that a public agency is not obligated under OPRA to create a list showing the sender, recipient, date and subject lines of e-mails sent by a particular public official during a specific period of time.  This decision reverses Atlantic County Judge Nelson C. Johnson's June 10, 2014 decision that held to the contrary.

While the e-mails themselves (subject to necessary redactions) are public records, the three-judge panel held that public bodies are not required to create lists of e-mails because that would require them to create a new record, even if the effort in doing so is minimal.  The court acknowledged that "it would only take a few minutes to compile the list."

The court ruled:
Until [the Legislature amends OPRA], our holding — that OPRA does not require the creation of a new government record that does not yet 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 — should provide a clear demarcation line in this case, as well as future cases.
This is a far-reaching holding because it allows government agencies--many of which keep their most useful data electronically--to query their data to create custom reports that are useful to the agencies while relegating the public to get only the reports that the government has already seen fit to prepare.  As aptly stated by the Electronic Frontier Foundation, who appeared as an amicus curiae in the case,
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.

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