Yesterday, the State Division of Elections announced that the request for voter data from the Trump administration’s “voter integrity commission” is “under review.” The Division’s statement seems to suggest that New Jersey will only release public information to the Commission in response to an OPRA request: “[N]o information has been released nor will any future information be released that is not publicly available or does not follow the appropriate legal process for information requests.”
Presumably, the “legal process for information requests” means OPRA. But it appears that the Division would have to deny any OPRA request submitted on behalf of the Commission because the request would not be from a citizen of New Jersey. As discussed here, the GRC ruled in October 2016 that only citizens of New Jersey may make OPRA requests.
As I’ve previously discussed, there’s no precedential court opinion on the question of whether OPRA is available only to New Jersey citizens. In the absence of judicial precedent on an OPRA issue, New Jersey state agencies typically comply with GRC rulings. In this matter, the Division would be constrained to reject entirely an OPRA request from the Commission, based on the GRC’s 2016 citizenship decision.
The Supreme Court’s opinion in Paff v. Galloway Tp. changes the obligations of records custodians and raises questions with regard to several OPRA issues that had previously been clear. Here are some of the concerns resulting from the opinion.
-The Court’s holding that information in a database is a government record means that requestors can require public bodies to produce an unlimited variety of reports. The Court made clear that custodians must engage in computer programming to produce whatever compilation of information the requestor wants, and may charge a fee for this only where a substantial amount of programming or manipulation is necessary.
-The opinion casts doubt on the viability of the basic principle that OPRA does not obligate record custodians to research and collate information for requestors. The Court said that OPRA does not require the custodian to do research. However, its opinion does require custodians to compile and collate disparate pieces of electronic information, tasks which are typically thought to be inconsistent with the custodian’s duty.
-Further confusion is caused by the Court’s comment that the case law stating OPRA does not allow requests for information is incorrect, as applied to electronic records. This case law says that a valid request must ask for records, not simply pose questions. Is the Supreme Court saying that this is no longer correct, and requests for electronic records that ask questions must be answered?
-The opinion creates uncertainty as to whether GRC decisions are entitled to any weight or deference in court. The Court ruled that GRC informal guidance is entitled to no deference, and noted that the Superior Court should not defer to GRC decisions, but it then seemed to contradict these statements by commenting that the GRC’s interpretation of OPRA is entitled to deference in appellate review of GRC decisions.
The Supreme Court issued a groundbreaking OPRA opinion today, holding for the first time that requests for reports generated from information within electronic databases are valid. Paff v. Galloway Tp.
The request in this case sought a log showing the sender, recipient, date and subject matter of emails of certain Township employees over a specific period of time. The Township, of course, had the emails covered by the request, but would have to create a document displaying the information from these emails in the manner demanded by the request. Based on the longstanding rule that OPRA does not require the creation of a new record, the Appellate Division held that this request was invalid. But as I predicted after watching oral argument, the Supreme Court disagreed.
The Court ruled that where information is stored electronically, extracting it does not involve the creation of a new record. This holding was based on the conclusion that “[b]y OPRA’s language, information in electronic form, even if part of a larger document, is itself a government record.”
The Court recognized that although the request here was valid, the Township had to be given an opportunity to assert any exemptions or other arguments (such as substantial disruption of agency operations) that might preclude disclosure of the information in question.
As discussed in this post, the holding that OPRA requires the compilation of a report from a database has substantial consequences for public bodies and their records custodians. In addition, the Supreme Court’s new opinion has problematic ramifications for other aspects of OPRA law and practice, which I’ll discuss in subsequent posts.
Public bodies often receive overbroad OPRA requests that don’t identify specific records. These requests are written in the style of discovery interrogatories, demanding all correspondence about a topic, or all correspondence involving various people or entities. The courts have ruled that this type of request is invalid.
The Appellate Division has once again upheld the denial of such an invalid request, in an unpublished opinion, Serringer v. Office of the Governor.
The request sought all correspondence between the Governor’s Office and Choose NJ, Inc. between 1/1/13 and 4/24/15. The court held that this is an invalid blanket request. The court said that the request’s failure to identify the subject matter of the correspondence rendered it improper, as answering the request would have required every employee of the Governor’s Office to search every file and email account for potentially relevant records.
The Supreme Court recently held argument in Paff v. Galloway Twp., concerning whether OPRA permits a request that a public body create a log showing the sender, recipient, date and subject matter of emails of certain Township employees over a specific period of time.
This is a rare case where the outcome can be predicted based on the oral argument. The justices raised no objections to the argument of the requestor’s attorney that this is a valid OPRA request because it simply involves extracting certain information already shown in the emails existing in the Township’s computer system. And the justices were politely contemptuous of the counter-argument that this is an invalid request for the creation of a new record.
Unfortunately, there was hardly any mention during the argument of the consequences of holding that this type of request is permissible. As I’ve explained, see this post, the result will be that OPRA requestors can compel public bodies to produce reports from the information contained in computer databases, with the data organized according to the requestor’s preference. Custodians will effectively be research staffers for requestors, obligated to compile for requestors reports that did not previously exist.
The Supreme Court will hear oral argument on September 13 in the OPRA case of Gilleran v. Tp. of Bloomfield. This case presents the question of whether OPRA requires access to videos from building surveillance cameras. It involves several important issues that the Supreme Court has never addressed: the scope of OPRA’s exemptions for security and safety, as well as what constitutes a substantially disruptive OPRA request.
See here and here for more detail on the issues presented by this case.
Even though the law is clearly settled that OPRA does not require a custodian to conduct research in order to answer a request, requestors continue to make this demand. In an unpublished opinion issued today, Branin v. Collingswood Boro Custodian, the Appellate Division once again rejected a requestor’s argument that the custodian should have performed research to find the documents sought.
In Branin, the requestor asked for the settlement agreement in certain litigation. There was no such document. The court stated that the custodian could have figured out the terms resolving the litigation by researching documents in the Borough solicitor’s litigation file, and having the solicitor explain the significance of various documents. But, the court stated flatly, “OPRA does not require such research.”
Today the Supreme Court announced that it has granted review of the Appellate Division’s opinion in Paff v. Galloway Township. As I’ve noted, this is an extraordinarily important case, involving the question of whether OPRA requires public bodies to produce requested reports from the information contained in computer databases.
This is the fifth OPRA case currently pending before the Court, joining Verry v. Franklin Fire District No. 1 (whether a volunteer fire company that is a member of a Fire District is subject to OPRA), Lyndhurst (criminal investigatory records), Gilleran (security exemptions), and Firemen’s Assn (declaratory judgment procedure and privacy issues).
And one more OPRA case will be before the Supreme Court soon. The Appellate Division’s recent opinion in Paff v. Ocean County Prosecutor, concerning police dashcam recordings, had a dissenting opinion. This gives the losing party an automatic right of appeal to the Supreme Court, and the Ocean County Prosecutor has indicated that an appeal will be filed.
Since OPRA’s enactment, on an almost daily basis custodians have struggled with the issue of whether they must comply with a request that they produce a report showing certain information extracted from an agency’s computer databases. See this post for additional discussion of the question. Although the compilation sought can be put together by running an electronic search, the statute does not clearly require custodians to perform this function and produce the requested report.
In a precedential opinion issued today, Paff v. Galloway Township, the Appellate Division unambiguously held that OPRA does not permit this type of request, because it involves the creation of a new record. The court stated 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.”
The requestor in this case had asked the Township for a log showing the sender, recipient, date and subject matter of emails of certain Township employees over a specific period of time. He argued that OPRA requires the log to be disclosed because the information requested is part of the emails, which are government records, and the data can be easily compiled into a log. But the court rejected this position because the record that was actually requested–the email log itself–simply did not exist, and therefore a new record would have to be created.
Critically, the court noted that the ease of compiling a particular log is not relevant. It understood that a contrary ruling would have “far-reaching implications,” in requiring public agencies to produce many kinds of new lists and compilations.
This is why this opinion is so significant. The requestor’s argument did not apply only to email logs; it covered any compilation of information drawn from any agency database. If the requestor’s position had been upheld, OPRA would have become a vehicle for requestors to require public bodies to compile and produce an unlimited variety of reports from the agency’s records. This result is completely contrary to the basic principle that OPRA does not obligate record custodians to research and collate information for requestors.
While other OPRA cases, such as ones involving law enforcement records, may receive more press attention, the Paff v. Galloway opinion will have a far greater impact on the daily work of all record custodians in New Jersey.
In its recent opinion in Lagerkvist v. Office of the Governor, the Appellate Division rejected the notion that a records custodian is required to work with the requestor to turn an invalid request into a proper request that will result in providing the information sought by the requestor.
The courts have long held that OPRA does not permit overbroad requests that require the custodian to perform research. The request in Lagerkvist was denied for this reason. On appeal, the requestor argued that if the custodian rejects a request as overbroad, the statute obligates him to work with the requestor to refashion the request into one that properly asks for specific, identifiable records. Under this interpretation of OPRA, the task of a custodian is to be like a reference librarian, and make suggestions that will aid a requestor’s research project.
The Appellate Division firmly rejected this position. The court stated that OPRA contains no such requirement. The statute spells out the custodian’s duties in N.J.S.A. 47:1A-5g, and nothing there indicates that the custodian must assist the requestor with his research. The statute limits the custodian’s duties to finding and releasing the specific records requested. Quoting a 2014 Appellate Division opinion, the court emphasized that there is “no legal basis to expand the custodian’s role beyond what the Legislature specifically described in N.J.S.A. 47:1A-5g.”
The court’s refusal to add a new duty to the custodian’s obligations is crucial, in view of the heavy workload already shouldered by custodians in dealing with the high volume of valid OPRA requests.