On June 20, the New Jersey Supreme Court determined that certain information, created and stored in conjunction with the email of public entities, is information that is subject to a request for public records filed under the Open Public Records Act (OPRA).

In Paff v Galloway Twp, a citizen filed an OPRA request seeking a list of the “sender, recipient, date and subject” of each email sent or received by the township clerk or police chief during a specific two-week period in 2013. The custodian of records denied the request because prior court decisions have ruled that a public entity is not required to create new records in response to an OPRA request. In the instant case, the clerk denied the request because the requested information did not exist as a distinct record and would have to be compiled, and because there was no legal obligation to create such a listing, a position confirmed with the Government Records Council, the agency created to oversee OPRA. Upon that denial, Mr. Paff filed a complaint in the superior court.

The trial court ruled that the requested fields were public records that were subject to OPRA, but the Appellate Division reversed. The Appellate Division found a distinction between the email fields that were the subject of the request, and the actual content of the emails, holding that “OPRA does not require the creation of a new government record that does not 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….”

On appeal, the New Jersey Supreme Court reversed the Appellate Division, finding that the requested email information, “sender, recipient, date and subject” were public records and were subject to disclosure pursuant to OPRA. In reaching this conclusion, the court reasoned that, “government records consist of not only hard-copy books and paper documents housed in file cabinets or on shelves, but also ’information stored or maintained electronically‘ in a database on a municipality’s server.”

While the court determined that the information sought was actually available to the custodian of records and only needed to be compiled instead of being created, and was therefore subject to disclosure, the court acknowledged that some information contained in those specific email fields might intrude on privacy rights or raise public-safety concerns. To that end, the court remanded the matter to the Superior Court to determine whether the township clerk and police chief wished to contest the disclosure on the grounds that an individual’s right to privacy could be violated. However, in order to contest disclosure, the township clerk and police chief would need to demonstrate that disclosure would violate an individual’s right to privacy or had the potential to compromise a police investigation.

For boards of education, this means that records custodians should be prepared to respond to requests seeking electronic information that is affiliated with email or demonstrate how a disclosure could violate an individual’s right to privacy or compromise a police investigation. However, the decision leaves unanswered the question as to a public entity’s obligation to disclose other metadata associated with electronic records. Because the request was limited to a list of the “sender, recipient, date and subject,” it is unclear as to whether fields such as Cc, Bcc, author, flags, receipt requested, or other fields typically associated with the transmission of emails is equally subject to disclosure. Boards may wish to proactively discuss concerns with their board attorneys and administrators responsible for information technology.