John Paff v. Galloway Township (077692) (Atlantic and Statewide) ( 2017 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
John Paff v. Galloway Township (A-88-15) (077692)
Argued February 28, 2017 -- Decided June 20, 2017
Albin, J., writing for the Court.
In this appeal, the Court addresses the scope of a municipality’s obligation to disclose electronically stored
information in accordance with the New Jersey Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13.
On June 28, 2013, Plaintiff John Paff filed an OPRA request with Galloway Township’s records custodian,
seeking fields of information from all emails sent by the Township Clerk and the Township Police Chief between
June 3 and 17, 2013. Paff asked the records custodian to provide him with an itemized list of the following
categories of information in each email: “sender,” “recipient,” “date,” and “subject.” As a guide to the custodian,
he attached, as a template, an email log that the Township had provided him in response to a similar records request
six months earlier. On July 8, 2013, the Township Clerk denied the records request, explaining that “the
[Government Records Council] and the courts have held that a custodian is not required to create new records in
response to an OPRA request.”
One month later, Paff filed a complaint and order to show cause in the Superior Court, Law Division,
alleging that defendants Galloway Township and the Township Clerk (who is also the records custodian) violated
both OPRA and the common law right of access. Paff sought an order compelling the Township to release the
requested fields of information in the emails.
Beginning in late 2011, the Township provided email logs—similar to the one sought by Paff—in replying
to specific OPRA requests. Because the Township did not maintain email logs on a regular basis, it had to generate
them. At some point, the Clerk asked the Government Records Council (GRC) whether the Township could deny
email log requests given that the Township did not maintain such “logs as a public record.” With the caveat that its
guidance did “not constitute legal advice or a final [agency] decision,” the GRC responded as follows: “[B]oth the
GRC and the courts have held that a custodian is not required to create new records in response to an OPRA request.
If a record does not already exist, the custodian may deny access on the basis that no records responsive exist.”
Armed with this guidance, the Township ceased fulfilling requests for email logs, including the request by Paff.
The trial court ruled that the email logs requested by Paff were government records, as defined by OPRA,
and therefore subject to disclosure. The court did not analyze Paff’s records request under the common law right of
access, likely because the OPRA analysis ended the inquiry.
A panel of the Appellate Division reversed. 444 N.J. Super. 495, 497, 505 (App. Div. 2016). The panel
accorded “substantial deference” to the GRC’s guidance given to Galloway Township, id. at 499, 503, and held 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,” id. at 504. The panel rejected Paff’s argument that the common law right of access provided
an alternative ground for approving his email log request. Id. at 506 n.9. The Court granted Paff’s petition for
certification. 227 N.J. 24 (2016).
HELD: The Appellate Division’s overly constrictive reading of OPRA cannot be squared with the OPRA’s objectives
or statutory language. OPRA recognizes that government records will constitute not only paper documents, but also
information electronically stored. The fields of information covering “sender,” “recipient,” “date,” and “subject” in the
emails sent by the Galloway Township Chief of Police and Clerk over a two-week period are government records under
OPRA.
1. In 2001, the Legislature passed the Open Public Records Act (OPRA), L. 2001, c. 404 (codified at N.J.S.A.
47:1A-1 to -13), replacing the then-existing Right-to-Know Law, see L. 1963, c. 73, which had been enacted in
1963. In enacting OPRA, the Legislature intended to bring greater transparency to the operations of government and
public officials. The Legislature declared in OPRA that “government records shall be readily accessible for . . . the
citizens of this State, with certain exceptions, for the protection of the public interest, and any limitations on the
right of access . . . shall be construed in favor of the public’s right of access.” N.J.S.A. 47:1A-1. (pp. 14-16)
2. In keeping with that goal of transparency, OPRA broadly defines a “government record,” making clear 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. N.J.S.A. 47:1A-
1.1. The Legislature apparently decided against defining government record as documents or files stored or
maintained electronically. “Information” is the key word. By OPRA’s language, information in electronic form,
even if part of a larger document, is itself a government record. Thus, electronically stored information extracted
from an email is not the creation of a new record or new information; it is a government record. (pp. 16-17)
3. N.J.S.A. 47:1A-5(d) allows for a service-fee charge when the request for a record requires “a substantial amount
of manipulation or programming of information technology.” Information in an email includes certain fields: the
sender, recipient, date, and subject. Extracting that kind of information requires “programming of information
technology,” ibid., a function the Legislature clearly envisioned the municipality performing, provided that it has the
means of doing so. Here, Galloway Township concedes that Paff’s request does not require “a substantial amount of
manipulation or programming of information technology.” (pp 17-18)
4. Unlike the request in MAG Entertainment, LLC v. Division of Alcoholic Beverage Control, 375 N.J. Super. 534
(App. Div. 2005), Paff circumscribed his request to a two-week period and identified the discrete information he
sought. The records custodian did not have to make a subjective judgment to determine the nature of the
information covered by the request. Reliance on MAG is misplaced here. (pp. 19-21)
5. The Court does not accord “substantial deference” to the GRC’s guidance given to the Galloway Township
Clerk. The GRC cautioned that its guidance did “not constitute legal advice or a final [agency] decision.”
Additionally, OPRA specifically provides that “[a] decision of the [GRC] shall not have value as a precedent for any
case initiated in Superior Court.” N.J.S.A. 47:1A-7(e). Surely, if the Superior Court is to give no weight to a GRC
decision, then informal guidance from the GRC can stand in no better position. Finally, the GRC did not analyze the
facts of this case in light of the specific statutory provision at issue. (pp. 21-22)
6. The Township and amici have raised legitimate concerns whether the emails are subject to OPRA exceptions,
exemptions, or redactions—issues not fully explored or discussed before the trial court. It 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. The Court offers no opinion on whether
exceptions or exemptions apply to the information requested. If the Township wishes to contest the disclosure of the
information on grounds other than those raised in this appeal, it must present evidence and arguments to the trial
court, and Paff must be given the opportunity to respond. (pp. 22-24)
7. In light of its resolution of the OPRA claim, the Court has no need to address Paff’s arguments that the common
law right of access provides an alternative basis for disclosure of the information requested. The Court notes that its
silence on this subject should not be construed as an endorsement of the Appellate Division’s dismissal of Paff’s
common law claim. (pp. 24-25)
The judgment of the Appellate Division is REVERSED. The matter is REMANDED to the trial court for
proceedings consistent with this opinion.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA,
SOLOMON, and TIMPONE join in JUSTICE ALBIN’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-88 September Term 2015
077692
JOHN PAFF,
Plaintiff-Appellant,
v.
GALLOWAY TOWNSHIP and THALIA
C. KAY, in her capacity as
Municipal Clerk and Records
Custodian of Galloway
Township,
Defendants-Respondents.
Argued February 28, 2017 – Decided June 20, 2017
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 444 N.J. Super. 495 (App. Div.
2016).
Walter M. Luers argued the cause for
appellant (Law Offices of Walter M. Luers
and Furst & Lurie, attorneys; Walter M.
Luers, Joshua M. Lurie, and Raymond M.
Baldino, of counsel and on the briefs).
Michael J. Fitzgerald argued the cause for
respondents (Fitzgerald, McGroarty &
Malinsky, attorneys).
Thomas J. Cafferty argued the cause for
amicus curiae New Jersey Press Association
and Reporters Committee for Freedom of the
Press (Gibbons, attorneys; Thomas J.
Cafferty, Nomi I. Lowy, Lauren James-Weir,
and Charlotte M. Howells, on the brief).
Christopher J. Michie argued the cause for
amicus curiae American Civil Liberties Union
of New Jersey and the Electronic Frontier
1
Foundation (Clark Michie, attorneys;
Christopher J. Michie, Bruce W. Clark,
Edward L. Barocas, Jeanne M. LoCicero, and
Iris Bromberg, on the brief).
Carl R. Woodward, III, argued the cause for
amicus curiae New Jersey State League of
Municipalities and New Jersey Institute of
Local Government Attorneys (Carella, Byrne,
Cecchi, Olstein, Brody & Agnello,
attorneys).
Vito A. Gagliardi, Jr., argued the cause for
amicus curiae New Jersey State Association
of Chiefs of Police (Porzio, Bromberg &
Newman, attorneys; Vito A. Gagliardi, Jr.,
of counsel and on the brief, and Phillip C.
Bauknight; on the brief).
JUSTICE ALBIN delivered the opinion of the Court.
In this appeal, we address the scope of a municipality’s
obligation to disclose electronically stored information in
accordance with the New Jersey Open Public Records Act (OPRA),
N.J.S.A. 47:1A-1 to -13.
Plaintiff John Paff filed a request with Galloway
Township’s records custodian for specific information in emails
sent by the Township’s Municipal Clerk and Chief of Police over
a two-week period. From those emails, Paff sought only
information contained within the following fields: “sender,”
“recipient,” “date,” and “subject.” Paff did not request the
contents of the emails.
The Township contended that only the emails -- not specific
information embedded within them -- were “government records”
2
subject to disclosure under OPRA. On that basis, the Township
denied the records request.
The trial court ordered the production of the fields of
information sought by Paff because OPRA defines a “government
record” as “information stored or maintained electronically” by
a municipality, quoting N.J.S.A. 47:1A-1.1 (emphasis added). A
panel of the Appellate Division reversed, concluding that OPRA
required only the production of the emails, not information
electronically stored within them.
We now hold that the Appellate Division’s overly
constrictive reading of OPRA cannot be squared with OPRA’s
objectives or statutory language. The Legislature has
instructed that government records must be readily accessible to
our citizenry, subject to certain exceptions, and that any
limitation on the “public’s right of access” must be construed
in favor of access. N.J.S.A. 47:1A-1. In passing OPRA, and
replacing its predecessor statute, the Legislature framed a
statutory scheme that reflects the profound changes in
communication and storage of information in recent times. OPRA
recognizes that government records will constitute not only
paper documents, but also information electronically stored. To
that end, N.J.S.A. 47:1A-1.1 provides that a government record
includes “information stored or maintained electronically.” The
information sought by Paff was clearly defined and
3
circumscribed; was stored electronically; and, by the Township’s
own admission, could have been produced within minutes.
The Appellate Division erred in finding that the government
record is the email itself and not the easily accessible fields
of information that were maintained electronically. We
therefore reverse. We remand to the trial court to determine
whether any of the requested information falls within any
exception or exemption to OPRA’s disclosure requirement.
I.
A.
On June 28, 2013, Paff filed an OPRA request with Galloway
Township’s records custodian, seeking fields of information from
all emails sent by the Township Clerk and the Township Police
Chief between June 3 and 17, 2013. Paff asked the records
custodian to provide him with an itemized list of the following
categories of information in each email: “sender,” “recipient,”
“date,” and “subject.”
As a guide to the custodian, he attached, as a template, an
email log that the Township had provided him in response to a
similar records request six months earlier. Four fields of
information were set forth in the template:
Sender Recipient Date Subject
4
On July 8, 2013, Thalia C. Kay, the Township Clerk,
notified Paff that the Township “is unable to provide logs on
email communication” and “[t]herefore, no records responsive
exist.” (emphasis added). In denying the records request, the
Clerk explained that “the [Government Records Council] and the
courts have held that a custodian is not required to create new
records in response to an OPRA request.”
One month later, Paff filed a complaint and order to show
cause in the Superior Court, Law Division, alleging that
defendants Galloway Township and the Township Clerk (who is also
the records custodian) violated both OPRA and the common law
right of access. Paff sought an order compelling the Township
to release the requested fields of information in the emails.
B.
During a three-day hearing, the trial court took testimony
from Paff, the Township Clerk, and the Township’s Information
Technology (IT) Specialist, Eric E. McCarthy, and reviewed each
of their certifications. The court also reviewed a
certification from Captain Christopher Doyle of the Galloway
Township Police Department. The facts gleaned from the record
are largely undisputed.
Beginning in late 2011, the Township provided email logs --
similar to the one sought by Paff -- in replying to specific
OPRA requests. Because the Township did not maintain email logs
5
on a regular basis, it had to generate them. Until it
discontinued the practice one year later, the Township had
released email logs, including one to Paff, in response to
approximately 100 records requests.
The Township had the technological capacity to provide the
fields of information sought by Paff and could have done so by
expending two to three minutes of its IT Specialist’s time. The
Township conceded that Paff’s request did not impose a
significant technological burden.
At some point, the Clerk asked the Government Records
Council (GRC) whether the Township could deny email log requests
given that the Township did not maintain such “logs as a public
record” and was not required to create such records.1 With the
caveat that its guidance did “not constitute legal advice or a
final [agency] decision,” the GRC responded as follows: “[B]oth
the GRC and the courts have held that a custodian is not
required to create new records in response to an OPRA request.
If a record does not already exist, the custodian may deny
access on the basis that no records responsive exist.” Armed
with this guidance, the Township ceased fulfilling requests for
email logs, including the request by Paff.
1 The GRC is an administrative agency created to offer guidance
on OPRA compliance and to adjudicate disputes regarding access
to government records. See N.J.S.A. 47:1A-7(b); N.J.A.C. 5:105-
1.5.
6
In a certification, Galloway Township Police Captain
Christopher Doyle -- the Department’s Deputy Custodian for OPRA
requests -- averred that the “Department ha[d] the technical
capability to create a log of emails sent or received by [its]
members” but had never done so before “in response to an OPRA
request.” Captain Doyle feared that the type of email log
sought by Paff “would have a significant potential detriment to
the Department’s ability to protect confidential information,
ongoing investigations and investigatory techniques.” He also
opined that the dates selected by Paff were not “random” and
were related “to an internal investigation within the Township
Police Department.” Captain Doyle warned that imposing on the
Department the obligation “to create and then redact logs of e-
mails would not only be extremely difficult,” but also
“impractical.”
In his testimony, Paff explained that the Township’s
reversal of its previous policy of making email logs accessible
prompted his OPRA request. He stated that his motive was simply
to further “the public’s right to know” and “to try to keep OPRA
from getting whittled away.” He asserted that he could not
recall why he chose the dates embraced within his OPRA request
and that he may have selected the dates randomly, solely for the
purpose of testing the new policy.
C.
7
The trial court ruled that the email logs requested by Paff
were government records, as defined by OPRA, and therefore
subject to disclosure. The court observed that OPRA broadly
defines “government record” as including “information stored or
maintained electronically,” quoting N.J.S.A. 47:1A-1.1. The
court concluded that a “list of emails” that afforded only
“sender/receiver/date/[subject]” information over a two-week
period was “information” falling within the definition of
“government record.” In reaching that conclusion, the court
made the following factual findings: Paff’s request for an
email log was “carefully circumscribed” and the information
sought was “identified with reasonable clarity”; the Township
has the technical ability to prepare an email log; and despite
the request’s apparent breadth, the Township would not incur
“any significant burden associated with producing the email
log.” The court evidently did not give credence to the
Township’s “concerns about disruption of police investigations”
based on the limited fields of information requested.
The court did not analyze Paff’s records request under the
common law right of access, likely because the OPRA analysis
ended the inquiry.2 The court stayed its order and award of
2 In his initial records request with the Township Clerk and in
his complaint, Paff claimed that disclosure of the email logs
was required under the common law right of access.
8
attorney’s fees to Paff pending appeal.
D.
A panel of the Appellate Division reversed the trial
court’s order compelling Galloway Township to provide the email
logs to Paff. Paff v. Galloway Township, 444 N.J. Super. 495,
497, 505 (App. Div. 2016). The panel determined that OPRA
requires public agencies to provide access to government
records, not to create them. Id. at 502. According to the
panel, the plain language of “OPRA only allows requests for
records, not requests for information.” Id. at 503 (quoting
Bent v. Twp. of Stafford Police Dep’t, 381 N.J. Super. 30, 37
(App. Div. 2005)). In support of that position, the panel
accorded “substantial deference” to the Government Records
Council’s guidance given to Galloway Township. See id. at 499,
503.
The panel held 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.” Id. at 504. The panel reasoned that
“[w]hile a computer may be able to create an email log quickly,
it is still creating a new government record, which is not
required under OPRA.” Id. at 505.
Additionally, although the panel conceded that the request
9
for an email log in this case “might not present a burdensome
task,” it envisioned “requests of a similar nature that would
present a serious burden.” Id. at 505-06. In the panel’s view,
any obligation imposed on “governmental entities to produce
lists and compilations that do not otherwise exist” must come
from the Legislature. Id. at 506.
Last, based on Paff’s inability to “recall any reason for
making his request [or] choosing the specific dates in his
request,” the panel rejected Paff’s argument that the common law
right of access provided an alternative ground for approving his
email log request. Id. at 506 n.9.
We granted Paff’s petition for certification. Paff v.
Galloway Township, 227 N.J. 24 (2016). We also granted requests
of the following organizations to participate as amici curiae:
American Civil Liberties Union of New Jersey, the Electronic
Frontier Foundation, New Jersey Press Association, Reporters
Committee for Freedom of the Press, New Jersey State Association
of Chiefs of Police, New Jersey State League of Municipalities,
and New Jersey Institute of Local Government Attorneys.
II.
A.
Paff contends that the Appellate Division erred by failing
to recognize that the Legislature, in enacting OPRA, broadly
defined government records to include not only paper documents
10
and files, but also computer-generated “information stored or
maintained electronically.” According to Paff, for OPRA
purposes, electronically stored information is an existing
record, and therefore extracting digital information, such as a
list of the “sender,” “recipient,” “date,” and “subject” fields
from emails, is not the creation of a new record. Paff notes
that OPRA takes into account the type of request he made by
allowing public agencies to charge a fee for a “substantial
amount of manipulation or programming of information
technology,” quoting N.J.S.A. 47:1A-5(d). He insists, “it is
critical that citizens have access to [government] records on
terms that reflect the realities of technology.”
Paff also argues that the Appellate Division disregarded
OPRA’s command that a GRC decision shall have no precedential
value in a Superior Court case, citing N.J.S.A. 47:1A-7(e).
Last, Paff states that the Appellate Division, in perfunctorily
rejecting his common law right to access claim, failed to engage
in the required balancing of interests of both the requestor and
the Township.
Amici American Civil Liberties Union of New Jersey, the
Electronic Frontier Foundation, New Jersey Press Association,
and Reporters Committee for Freedom of the Press, collectively
or individually, maintain that the Appellate Division failed to
grasp OPRA’s intent to make electronically stored information
11
easily accessible by harnessing modern technology.3 Amici submit
that OPRA deems both paper documents and “information” stored in
electronic form to be government records. They also assert that
information extracted from a computer database -- whether called
a list, a log, or a response to a request -- is not new
information or a new record, but a government record, as defined
by OPRA. Finally, amici note that whether the requested
information sought is subject to non-disclosure based on an OPRA
exception or exemption has no bearing on whether electronic
information constitutes a government record.
B.
Galloway Township, including the Township Clerk,
acknowledges that the actual emails at issue are government
records subject to disclosure in electronic or paper form. The
Township claims, however, that OPRA does not require the
Township to create records by extracting and compiling
information from those emails in the form of a list. The
Township contends that because it does not maintain an email
list limited to the fields of “sender,” “recipient,” “date,” and
“subject,” there is no existing government record to disclose.
The Township also urges that, in deciding whether
3 American Civil Liberties Union of New Jersey and the Electronic
Frontier Foundation filed a joint brief, and New Jersey Press
Association and Reporters Committee for Freedom of the Press
filed a separate joint brief.
12
disclosure of the requested records is statutorily required,
this Court consider the privacy and confidentiality concerns
raised by compelling disclosure of lists of emails that may
touch on communications between members of the public and
government officials. Last, the Township highlights the
difficulties government officials will face if email lists must
be prepared and released, positing that officials will have to
determine whether each individual email contains privileged or
confidential information subject to redaction.
Amici New Jersey State Association of Chiefs of Police, New
Jersey State League of Municipalities, and New Jersey Institute
of Local Government Attorneys, collectively or individually,
insist that requiring law enforcement officials to create email
logs will “compromise the sensitive investigatory techniques of
police departments” and “irreparably damage the fluid and
consistent exchange of confidential information internally.”4
They also posit that citizens -- fearing unwarranted invasion of
their privacy or identity theft -- might be discouraged “from
using the internet to communicate with their government.”
Additionally, they express concern that records custodians are
not equipped to decide whether confidential information must be
4 New Jersey State Association of Chiefs of Police filed a brief,
and New Jersey State League of Municipalities and New Jersey
Institute of Local Government Attorneys filed a separate joint
brief.
13
redacted from the vast number of emails generated by the Police
Department and other municipal officials.
III.
The issue in this case is simply one of statutory
interpretation. OPRA defines “government record” to include
“information stored or maintained electronically” by a
municipality. N.J.S.A. 47:1A-1.1. We must decide whether
Paff’s request for fields of information that list the sender,
recipient, date, and subject of emails sent by Galloway
Township’s Chief of Police and Clerk over a two-week period is a
request for government records within the intendment of OPRA.
“In construing the meaning of a statute, our review is de
novo,” and therefore we owe no deference to the interpretative
conclusions reached by either the trial court or the Appellate
Division. Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584
(2012). The statutory language, as always, is the best
indicator of legislative intent, DiProspero v. Penn, 183 N.J.
477, 492 (2005), but here, too, the historical background that
impelled the Legislature to pass OPRA sheds a clear light on its
intent.
A.
In 2001, the Legislature passed the Open Public Records Act
(OPRA), L. 2001, c. 404 (codified at N.J.S.A. 47:1A-1 to -13),
replacing the then-existing Right-to-Know Law, see L. 1963, c.
14
73, which had been enacted in 1963. The thirty-eight-year reign
of the Right-to-Know Law did not keep pace with the vast
technological advances that changed the way citizens and public
officials communicate and store information. See Issues Dealing
with Public Access to Government Records: Hearing on S.B. 161,
351, 573, 866 Before the S. Judiciary Comm. 18-19 (2000)
(statement of Sen. Byron M. Baer) (remarking on “antiquated”
nature of Right-to-Know Law in “information age” and need for
proposed OPRA legislation to “tie in with the Internet”).
Under the Right-to-Know Law, “the Legislature intended to
circumscribe the public’s right . . . to receive copies of
public records in computer form.” Higg-A-Rella, Inc. v. County
of Essex, 141 N.J. 35, 45 (1995). To that end, the Right-to-
Know Law was so “narrowly drawn” that it did “not entitle
citizens to obtain computer copies.” Ibid. Thus, “the copying
of records maintained by a system of data processing or image
processing [was] deemed to refer to the right to receive printed
copies of such records” only. L. 1994, c. 140, § 8 (emphasis
added).
In enacting OPRA, the Legislature intended to bring greater
transparency to the operations of government and public
officials. The Legislature declared in OPRA that “government
records shall be readily accessible for . . . the citizens of
this State, with certain exceptions, for the protection of the
15
public interest, and any limitations on the right of access . .
. shall be construed in favor of the public’s right of access.”
N.J.S.A. 47:1A-1. In keeping with that goal of transparency,
OPRA broadly defines a “government record” as:
[A]ny 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 by any
officer, commission, agency or authority of
the State or of any political subdivision
thereof.
[N.J.S.A. 47:1A-1.1.]5
OPRA makes clear 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. Ibid.
The Legislature, pointedly, declined to limit accessibility to
electronic records by not adopting a more restrictive
formulation of government record. The Legislature apparently
decided against defining government record as documents or files
stored or maintained electronically. “Information” is the key
word.
5 N.J.S.A. 47:1A-1.1 contains an extensive list of exceptions to
the broad definition of “government record.” The exceptions
consist of records that are “deemed to be confidential” and
therefore exempt from disclosure. Ibid.
16
One definition of “information” is “facts or figures ready
for communication.” Webster’s Third New International
Dictionary 1160 (3d ed. 1981); see also Merriam-Webster’s
Collegiate Dictionary 641 (11th ed. 2004) (defining information
as “knowledge,” “facts,” and “data”). We must presume that the
Legislature intended the words that it chose and the plain and
ordinary meaning ascribed to those words. DiProspero, supra,
183 N.J. at 492.
A document is nothing more than a compilation of
information -- discrete facts and data. By OPRA’s language,
information in electronic form, even if part of a larger
document, is itself a government record. Thus, electronically
stored information extracted from an email is not the creation
of a new record or new information; it is a government record.
This logical conclusion flows directly from OPRA’s language
and related provisions in the statutory scheme.6 As noted
earlier, OPRA’s definition of “government record” indicates that
electronically stored information that is part of a larger
6 The conclusion that electronically stored information is a
government record is also supported by the interpretation given
to the similarly worded Pennsylvania Right-to-Know Law. See 65
Pa. Cons. Stat. § 67.102 (defining “record” as “information
stored or maintained electronically”). Pennsylvania courts have
held that extracting information from an electronic database “is
not the creation of a record.” See, e.g., Commonwealth of Pa.,
Dep’t of Envtl. Prot. v. Cole, 52 A.3d 541, 549 (Pa. Commw. Ct.
2012).
17
document is a government record. Other OPRA provisions
distinguish between paper records and records in electronic
form, placing in context the different treatment given to
electronic information. N.J.S.A. 47:1A-5(d) provides that a
records requestor is entitled to a government record “in the
medium requested if the public agency maintains the record in
that medium.” Thus, if the record is maintained in an
electronic medium, the requestor is entitled to the document in
electronic form. If the record is not maintained “in the medium
requested,” the custodian must “convert the record to the medium
requested or provide a copy in some other meaningful medium.”
Ibid.
That provision also allows for a service-fee charge when
the request for a record requires “a substantial amount of
manipulation or programming of information technology.” Ibid.
Obviously, providing access to or copies of computer-generated
information involves challenges that are not present in the rote
copying of paper documents.
Information in an email includes certain fields: the
sender, recipient, date, and subject. Extracting that kind of
information requires “programming of information technology,”
ibid., a function the Legislature clearly envisioned the
municipality performing, provided that it has the means of doing
so. Here, Galloway Township concedes that Paff’s request does
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not require “a substantial amount of manipulation or programming
of information technology,” which would have entitled the
Township to a service charge. See ibid. The Township’s IT
Specialist testified that providing the fields of information
requested is not a burden and would consume no more than two to
three minutes of time. Retrieving paper documents from a
storage facility and copying them undoubtedly would take more
time and impose greater costs. To that extent, modern
technology has lessened some of the burdens on municipal
officials.
The Township does not dispute that the emails requested by
Paff are government records. Instead, it argues that Paff can
have the entirety of those emails or nothing. According to the
Township, Paff is not entitled to fields of information -- such
as “sender,” “recipient,” “date,” and “subject” -- divorced from
the emails themselves. To support that position, the Township
does not rest on the language of the statute but rather on prior
Appellate Division decisions that did not address the electronic
medium and therefore are inapposite. The Appellate Division in
this case made the same error.
To advance its argument, the Township relies heavily on MAG
Entertainment, LLC v. Division of Alcoholic Beverage Control,
375 N.J. Super. 534 (App. Div. 2005), a case not comparable to
the one before us. In MAG, the Division of Alcoholic Beverage
19
Control (ABC) instituted administrative proceedings to revoke
MAG’s license for allegedly selling alcohol to an intoxicated
person and for alleged acts of lewdness by its employees. Id.
at 539. MAG filed an OPRA request with the ABC for “all
documents or records” involving similar enforcement actions.
Id. at 539-40 (emphasis added). “[T]he request failed to
identify with any specificity or particularity the governmental
records sought.” Id. at 549. Given this unrestricted records
request, the Appellate Division sensibly stated that OPRA did
not countenance “[w]holesale requests for general information to
be analyzed, collated and compiled by the responding government
entity” or “open-ended searches of an agency’s files.” Ibid.
A records request must be well defined so that the
custodian knows precisely what records are sought. The request
should not require the records custodian to undertake a
subjective analysis to understand the nature of the request.
Seeking particular information from the custodian is
permissible; expecting the custodian to do research is not.
Unlike the request in MAG, Paff circumscribed his request
to a two-week period and identified the discrete information he
sought. The records custodian did not have to make a subjective
judgment to determine the nature of the information covered by
the request. The custodian simply had to search for -- not
research the identity of -- the records requested. Therefore,
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the Township’s, as well as the Appellate Division’s, reliance on
MAG is misplaced here.
With respect to electronically stored information by a
municipality or other public entity, we reject the Appellate
Division’s statement that “OPRA only allows requests for
records, not requests for information.” Paff, supra, 444 N.J.
Super. at 503 (quoting Bent, supra, 381 N.J. Super. at 37).
That position cannot be squared with OPRA’s plain language or
its objectives in dealing with electronically stored
information.
B.
We do not accord “substantial deference” to the GRC’s
guidance given to the Galloway Township Clerk. See Paff, supra,
444 N.J. Super. at 503. That guidance merely stated in
boilerplate language that the Township was not “required to
create new records in response to an OPRA request.”
Significantly, the GRC cautioned that its guidance did “not
constitute legal advice or a final [agency] decision.”
Additionally, OPRA specifically provides that “[a] decision of
the [GRC] shall not have value as a precedent for any case
initiated in Superior Court.” N.J.S.A. 47:1A-7(e). That
statutory provision clearly indicates that in proceedings
initiated in Superior Court concerning an OPRA request, GRC
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decisions are not entitled to any deference.7 Surely, if the
Superior Court is to give no weight to a GRC decision, then
informal guidance from the GRC can stand in no better position.
Finally, we add that the GRC did not analyze the facts of this
case in light of the specific statutory provision at issue.
C.
In conclusion, the fields of information covering “sender,”
“recipient,” “date,” and “subject” in the emails sent by the
Galloway Township Chief of Police and Clerk over a two-week
period are government records under OPRA.
IV.
Our finding that the fields of information in the requested
emails are government records does not end the inquiry. The
Township and amici have raised legitimate concerns whether the
emails are subject to OPRA exceptions, exemptions, or redactions
-- issues not fully explored or discussed before the trial
court. The Township fears that wholesale disclosure of the
requested fields of information from the emails may compromise
investigations or investigatory techniques, thwart the internal
7 GRC decisions obviously will have precedential value in matters
brought before the GRC. On appeal from an adjudicatory
proceeding in which the GRC renders a final agency decision, a
GRC determination will be entitled to deference before the
Appellate Division. See McGee v. Township of East Amwell, 416
N.J. Super. 602, 612-13 (App. Div. 2010) (recognizing GRC’s
authority to interpret and apply OPRA and endorsing “deferential
standard” of appellate review of GRC decisions).
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exchange of confidential information, or lead to the release of
citizens’ email addresses causing an unwarranted invasion of
their privacy.
An informed citizenry is essential to a well-functioning
democracy. Cf. Mason v. City of Hoboken, 196 N.J. 51, 64
(2008). Clearly, technology has opened the door to unparalleled
transparency of government operations. OPRA recognizes,
however, that technology now imposes burdens on public
officials. It 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. The potential issues
raised by the Township must be addressed.
OPRA carves out thirty exceptions to the definition of
government record, N.J.S.A. 47:1A-1.1, and lists multiple
exemptions to the right to access. For example, OPRA exempts
from disclosure any records that “pertain to an investigation in
progress by any public agency” if disclosure of such records
would “be inimical to the public interest.” N.J.S.A. 47:1A-
3(a). OPRA also authorizes a public agency to deny a records
request if granting access “would substantially disrupt agency
operations.” N.J.S.A. 47:1A-5(g). However, before doing so,
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the agency must first attempt “to reach a reasonable solution
with the requestor that accommodates the interests of the
requestor and the agency.” Ibid.
OPRA also permits redaction of parts of government records
that are not subject to disclosure. See ibid.; see also
N.J.S.A. 47:1A-5(a). Additionally, the Legislature declared in
OPRA that public agencies have “a responsibility and an
obligation to safeguard from public access a citizen’s personal
information . . . when disclosure thereof would violate the
citizen’s reasonable expectation of privacy.” N.J.S.A. 47:1A-1.
This is by no means an exhaustive list of OPRA’s exceptions and
exemptions.
This Court is not the proper forum to resolve whether
exceptions or exemptions apply to the information requested, and
we offer no opinion on the issue. If the Township wishes to
contest the disclosure of the information on grounds other than
those raised in this appeal, it must present evidence and
arguments to the trial court, and Paff must be given the
opportunity to respond. The Township, however, carries the
burden of establishing a statutory basis for denying Paff’s
records request. N.J.S.A. 47:1A-6.
Last, in light of our resolution of the OPRA claim, we have
no need to address Paff’s arguments that the common law right of
access provides an alternative basis for disclosure of the
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information requested. Our silence on this subject should not
be construed as an endorsement of the Appellate Division’s
dismissal of Paff’s common law claim. See Paff, supra, 444 N.J.
Super. at 506 n.9.
V.
For the reasons expressed, we reverse the judgment of the
Appellate Division. We conclude that the requested fields of
information from the identified emails constitute “information
stored or maintained electronically,” N.J.S.A. 47:1A-1.1, and
are therefore “government records” under OPRA. The trial court
must determine whether any of OPRA’s exceptions or exemptions
bar access to the requested information or whether any
redactions are necessary. We remand for proceedings consistent
with this opinion.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON,
FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE ALBIN’s
opinion.
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