Tuesday, June 20, 2017

Supreme Court rules that fields of data extracted from e-mails are OPRA "government records."

In a unanimous decision issued today in John Paff v. Galloway Township, et al, the New Jersey Supreme Court held that under the Open Public Records Act (OPRA), "information in electronic form, even if part of a larger document, is itself a government record [and that] electronically stored information extracted from an email is not the creation of a new record or new information; it is a government record."

Thus, it appears that going forward, the public is generally entitled to information stored in government databases, subject to normal confidentiality constraints and payment of a service charge if extraction of the requested data requires “a substantial amount of manipulation or programming of information technology.”

In its ruling, the Court rejected the Appellate Division's April 18, 2016 opinion that held that for electronically stored information, “OPRA only allows requests for records, not requests for information.”  The Supreme Court held that the Appellate Division's "position cannot be squared with OPRA’s plain language or its objectives in dealing with electronically stored information."

The Supreme Court also ruled that courts are to grant no deference to decisions or information advice given by the New Jersey Government Records Council (GRC) except when the Appellate Division considers appeals of GRC decisions.  It also recognized that while "[i]t may take only two to three minutes for an IT Specialist to make accessible fields of information from two weeks of emails; it will take considerably longer for the Township Clerk and Chief of Police to determine whether the requested information in each email may intrude on privacy rights or raise public-safety concerns."  Accordingly, the Court remanded the matter back to the trial court to address any such confidentiality concerns.

I was ably represented in the case by Walter M. Luers of Clinton.

Sunday, June 18, 2017

Unpublished trial court OPRA opinion.

Unpublished opinions" are not published in the law books and are not ordinarily written about in legal periodicals. Unless somebody puts them on-line and calls attention to them, they are likely not to be located by people who may want to search for them. I think that it's important that court opinions, even if they are not precedential, are easily accessible for future use.

Agustin Garcia v. Bergen County Prosecutor's Office et al, Docket No. BER-L-6475-16
Hon. Bonnie J. Mizdol, A.J.S.C.
February 13, 2017
Click here for the court's decision.

Summary:  An inmate serving a life sentence for murder is precluded from filing any more OPRA lawsuits without prior approval from the court because the inmate has demonstrated a pattern of filing frivolous and baseless OPRA lawsuits.  I have been informed that this case is currently under appeal.

Wednesday, June 14, 2017

Appellate Division rebuffs OPRA requestor's Declaratory Judgment Act lawsuit.

In Stop & Shop Supermarket v. County of Bergen, a three-judge panel of the New Jersey Superior Court's Appellate Division today issued a published decision holding that a record requestor's suit that sought a declaration that Bergen County violated the Open Public Records Act (OPRA) by failing to disclose an important document in response to a 2011 records request was mooted by the County's production of that document in response to the requestor's 2014 request.

The document at issue, an engineering report authored in January 2011, was within the scope of the supermarket's July 2011 OPRA request but the County did not acknowledge the report's existence when responding to that request.  The report's existence became known to the supermarket only after the county disclosed it in response to a the supermarket June 2014 request. The supermarket filed a lawsuit under the Declaratory Judgment Act that sought a ruling that the County violated OPRA by failing to disclose the engineering report in response to its 2011 OPRA request.  The lawsuit also sought an order requiring the County to pay the supermarket's legal fees for bringing the lawsuit.

The trial court granted the County's motion to dismiss.  The court held that the lawsuit was moot and that an attorney fee award was not warranted because the supermarket had the engineering report in its possession prior to the lawsuit's filing.  The Appellate Division affirmed the dismissal and noted that the the supermarket's only available OPRA remedy was to seek imposition of a civil penalty against the County's records custodian for having knowingly, willfully and unreasonably denied access to the report in 2011.  The supermarket, however, did not seek imposition of a penalty.