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June 2, 2016Download PDF

Striking Balance under OPRA

In April, the New Jersey Appellate Division drew a line in the sand limiting requests made to government agencies under the Open Public Records Act (“OPRA”), N.J.S.A. 47:1A-1 et seq. OPRA establishes a procedure for the public to access government records. Generally, under OPRA, government records should be readily accessible for inspection, copying or examination by the citizens of the State. However, as announced by the court in Paff v. Galloway, 444 N.J. Super. 495 (App. Div. 2016), that standard does not apply to improper OPRA requests.

OPRA litigation often arises where a governmental agency denies a request for records and a citizen challenges the denial. The interpretation of what constitutes a “government record” is a common dispute among litigants. OPRA defines a government record as “any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business. . .” In Paff, the court held that the definition of a government record should be narrowly construed, so as to exclude any records that must be created by the government agency.

The plaintiff in Paff requested an email log, detailing the sender, recipient, date and subject, of all emails during a particular time frame, between the Township Clerk and Chief of Police. The Plaintiff argued that the requested email log constituted a government record because it was present and accessible to the Township on its computer system. On the other hand, the Township contended that the request was inappropriate as it would impose an additional cost and tax burden to create the log, after a review of the relevant emails. In deciding in the plaintiff’s favor, the trial court reasoned that the requested records were accessible metadata and that a log could be easily prepared by the Township.

Overruling that decision, the Appellate Division accepted the Township’s position that if a document must be created, it is not a government record subject to OPRA. Compiling the information requested into a log was generating a new document, which is not required by the plain text of the statute. Converting the record into a requested medium is not within the definition of a government record. Therefore, creating a new record, which does not otherwise exist, is an impermissible extension of OPRA.

This decision seeks to prevent future attempts by the public to extend the applicability of OPRA to custom document requests. The court acknowledged that although this request is not overly burdensome, the potential for a significant burden upon public agencies going forward, warranted the establishment of a clear demarcation line in this case.

Interestingly, both the Township and the Court acknowledged that if the request were slightly different, only requesting the actual emails and not a log, the Township would be required to comply. Paff highlights the importance of adhering to the requirements of OPRA to ensure its success in granting public access to government records, while not subjecting government agencies with onerous requests.