In New Jersey, as well as in most states across the country, it is not clear whether public officials’ text messages are subject to freedom of information laws. Recently, the GRC issued one of the few decisions in the nation on this significant issue, and the first rendered in New Jersey. The GRC stated that text messages are government records under OPRA.

In Verry v. Franklin Fire Dist. 1 (#2014-387), the requestor asked for certain text messages of various officials and employees from their government-issued cell phones. The custodian denied the request on the ground that there were no responsive records; the individuals either no longer had the cell phone from the period covered by the request, or their phones did not have the ability to save texts.

Although the GRC ultimately affirmed the denial because the agency did not have the requested records, it nevertheless decided to “provide a definitive holding” on the issue of whether text messages are covered by OPRA. It determined that texts fall under the statute’s definition of a “government record,” as they are information that is stored or maintained electronically. The GRC said that texts are “fundamentally similar” to emails, because they are electronic communications.

The GRC’s brief analysis, while straightforward, does not fully deal with the questions that come up with regard to text messages under OPRA. For example, why doesn’t the case law holding that public employee telephone records are confidential (see this post) apply to cell phone text messages?

The impact of the GRC’s ruling is not clear. The GRC acknowledged that its decision does not require text messages to be retained by public employees. As a practical matter, as demonstrated by the Verry case, text messages usually won’t be saved, so in most cases there will be no records to provide.

However, the GRC’s decision is important because it suggests that future requests for text messages should not simply be denied on the ground that they do not involve a government record. Instead, under this decision, custodians will have to conduct a search to see if any text messages exist.