By: Christine Placide, Esq.

A recent unpublished Appellate Division opinion, involving emails exchanged on a government computer network, provides further clarity regarding data privacy and the Open Public Records Act (“OPRA”), N.J.S.A. 47:1a-1.

The case Jeff Carter v. Franklin Fire District No.1(Somerset), Custodian of Records, Docket No. A-1068-16T, (App. Div. 2018) (unpublished), involved an appeal from the New Jersey Government Records Council (“GRC”), regarding an OPRA request for emails (concerning Political Action Committee (“PAC”)[1] money), that were exchanged on Franklin Fire District’s computer network. The Records Custodian denied the request asserting that the emails were not “government records”[2]; the requester filed a complaint with the GRC and the District’s Record Custodian responded that as a Commissioner, he was “not required to make, maintain, or keep on file in the course of [his] official business as a Commissioner, any type of communication regarding PAC [m]oney.” Id. The requestor appealed, and argued that the emails were subject to disclosure under OPRA because they were maintained on the public body’s computer network, “the PAC money emails [were] government records automatically subject to disclosure because they were stored or maintained electronically on the District’s server, the District’s Resolution 07-13…adopted a computer use policy that designated all emails on its computer network as the District’s property,” and as such, data owned by the District is subject to OPRA. Id.

The issue on appeal was whether the emails “were made, maintained, or kept on file in the course of the District’s or Commissioner’s official business, and if so, whether the Record Custodian unlawfully denied access to them and knowingly and willfully violated OPRA.” Id. The Court found that the plain language of OPRA defines “government record” as “information stored or maintained electronically . . . that has been made, maintained or kept on file in the course of [a public officer’s or public agency’s] official business . . . or that has been received in the course of [a public officer’s or public agency’s] official business.”[3] The Court, in agreement with the GRC, found that the emails did not constitute “government records” under OPRA because they did not “pertain…to the District’s and Commissioner’s official business, were not authorized or approved by the District, were personal in nature [and therefore were] not subject to disclosure under OPRA.”[4]

Takeaways:

  • A personal email is not subject to disclosure under OPRA merely because it was sent/received on a public entity’s computer network.
  • Data stored on government servers are not automatically subject to OPRA.
  • Personal emails on a government entity’s server are not government records, and thus not recoverable under OPRA.

[1] A “Political-Action Committee” is defined as “[a]n organization formed by a special-interest group to raise and contribute money to the campaigns of political candidates who seem likely to promote its interests; a group formed by a business, union, or interest group to help raise money for politicians who support the group’s public-policy interests.” Black’s Law Dictionary (10th ed. 2014). Jeff Carter v. Franklin Fire District No.1(Somerset), Custodian of Records, Docket No. A-1068-16T, (App. Div. 2018) (unpublished).

[2] N.J.S.A. 47:1A-1

[3] N.J.S.A. 47:1A-1.1.

[4] Jeff Carter v. Franklin Fire District No.1(Somerset), Custodian of Records, Docket No. A-1068-16T, (App. Div. 2018) (unpublished).