Appellate Division Issues The Most Important OPRA Opinion In Years

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.

Leave a Reply

Your email address will not be published. Required fields are marked *