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Paff v. Galloway Township

Supreme Court of New Jersey

June 20, 2017

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

         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 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).

          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 NJ, 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, a 404 (codified at N.J.S.A. 47:1A-1 to -13), replacing the then-existing Right-to-Know Law, see L. 1963, a 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 infavor 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. 47:1 A-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.

          OPINION

          ALBIN, JUSTICE

         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" 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 ...


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