In a recent post I called this new Appellate Division opinion the most important OPRA court opinion issued in years. What’s so significant about a ruling that OPRA does not require a town to create a log describing the emails of certain employees? Because in doing so, the court put to rest the notion, aggressively advanced by many requestors, that OPRA can be used to force public bodies to produce reports from the information contained in computer databases.
Since OPRA’s enactment, many requestors have claimed that the statute requires that custodians perform research and collate information for them. Although the courts have consistently rejected such OPRA requests, no court had dealt with the related question of whether OPRA imposes on custodians the duty to query the agency’s databases to produce whatever report the requestor seeks. The Appellate Division has now made clear that OPRA does not have such a requirement.
This ruling has real, practical consequences. As I’ve noted before, handling OPRA requests is quite costly. One significant cost is that when agency employees are creating new reports for requestors, they are not performing their other responsibilities, and government efficiency suffers. The harm to government operations is clear if, as the requestor argued in the Galloway case, OPRA mandates that public employees spend their time serving as research staff for all requestors.
Fortunately, the court recognized that this is not the intent of OPRA and confirmed that custodians do not have to create reports, lists and other compilations for requestors.
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.