NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0125-14T4
JOHN PAFF,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
April 18, 2016 v. APPELLATE DIVISION GALLOWAY TOWNSHIP and THALIA C. KAY, in her capacity as Municipal Clerk and Records Custodian of Galloway Township,
Defendants-Appellants. ______________________________________
Argued March 8, 2016 – Decided April 18, 2016
Before Judges Reisner, Hoffman and Leone.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L- 5428-13.
Michael J. Fitzgerald argued the cause for appellants (Fitzgerald McGroarty, attorneys; Mr. Fitzgerald, on the briefs).
Walter M. Luers argued the cause for respondent (Walter M. Luers, LLC and Furst & Lurie, attorneys; Mr. Luers, Joshua M. Lurie, and Raymond M. Baldino, of counsel and on the joint brief).
Vito A. Gagliardi, Jr., argued the cause for amicus curiae New Jersey State Association of Chiefs of Police (Porzio, Bromberg & Newman, P.C., attorneys; Mr. Gagliardi, of counsel and on the brief; Phillip C. Bauknight, on the brief). Christopher J. Michie argued the cause for amicus curiae American Civil Liberties Union of New Jersey and the Electronic Frontier Foundation (Clark Michie, LLP, attorneys; Mr. Michie, Edward L. Barocas, and Jeanne LoCicero, on the joint brief).
Carl R. Woodward, III, argued the cause for amicus curiae New Jersey State League of Municipalities and New Jersey Institute of Local Government Attorneys (Carella, Byrne, Cecchi, Olstein, Brody & Agnello, attorneys; Mr. Woodward, on the brief).
The opinion of the court was delivered by
HOFFMAN, J.A.D.
Defendants Galloway Township (the Township) and Thalia C.
Kay (the Clerk) appeal from a June 10, 2014 Law Division order
requiring them to provide plaintiff John Paff with logs of
emails, pursuant to the Open Public Records Act (OPRA), N.J.S.A.
47:1A-1 to -13. Because OPRA does not require public agencies
to create records that do not already exist, we conclude that
plaintiff was not entitled to the logs requested in this case.
Accordingly, we reverse.
I.
We begin by summarizing the salient facts. On June 8,
2013, plaintiff submitted an OPRA request to the Clerk, seeking
"logs" of all emails sent by the Clerk and the Township's Chief
2 A-0125-14T4 of Police between June 3 and June 17, 2013.1 Importantly,
plaintiff did not request any specific emails; rather, he sought
an itemized list showing the sender, recipient, date, and
subject of all emails sent by the Clerk and Chief of Police
during the designated period of time. Based on her own personal
understanding of OPRA, legal advice provided by the Township's
attorney, and information provided to her by the Government
Records Council (GRC),2 on July 8, 2013, the Clerk sent an email
to plaintiff denying his request.
On August 19, 2013, plaintiff filed a verified complaint
and order to show cause, seeking to compel defendants to create
and provide the requested lists of emails, pursuant to OPRA and
the common law right of access to public records. After the
court entered the order to show cause, the parties engaged in
1 In a certification submitted to the court, Captain Christopher Doyle, the Galloway Police Department's Deputy Records Custodian, stated his belief that plaintiff chose these specific dates because of an internal investigation conducted during this period of time. However, plaintiff testified that he could not recall any reason for making the request, nor the reason for choosing these specific dates. Plaintiff has filed numerous OPRA requests across New Jersey. 2 The GRC is an agency "within the Department of Community Affairs . . . charged with adjudicating OPRA disputes" in the event the person seeking the record chooses not to file an action in Superior Court. Bent v. Twp. of Stafford Police Dep't., 381 N.J. Super. 30, 38 (App. Div. 2005) (citing N.J.S.A. 47:1A-6).
3 A-0125-14T4 limited discovery and the court heard testimony over the course
of three days.
In a certification dated October 16, 2013, the Clerk
provided context for denying plaintiff's OPRA request, as well
as background information regarding the Township's policies and
practices for disclosing public records. During the timespan
between "late 2011" and the "end of 2012," the Township had an
informal policy of creating email logs in response to specific
OPRA requests (the informal log-creation policy). These email
logs were "never made, maintained or kept on file" absent a
specific request for them, and were produced irrespective of
whether OPRA required their production. Notably, the Township
never created any logs regarding emails sent by Police
Department personnel.
At the end of 2012, due to the "volume of legitimate OPRA
requests and the significant Township resources required to
appropriately respond to these requests," the Township
discontinued the informal log-creation policy, and the Clerk
began the practice of only responding to records requests which
meet the specific requirements of the OPRA statute.3 Before
discontinuing the informal log-creation policy, the Clerk sought
3 The current Clerk was not the Township's Clerk when the Township first implemented the informal log-creation policy, but was the Clerk when the Township discontinued the policy.
4 A-0125-14T4 verification from the GRC that doing so would not run contrary
to OPRA. In response to the Clerk's inquiry, the GRC advised,
"Both the GRC and the Courts have held that a [records]
custodian is not required to create new records in response to
an OPRA request. If a record does not already exist, the
custodian may deny access on the basis that no records
responsive exist."
To further confirm this information, on March 7, 2013, the
Clerk filed her own OPRA request with the GRC, requesting a log
of all emails sent to or from the Acting Executive Director of
the GRC "from January 1, 2013 through February 28, 2013." The
GRC denied the Clerk's OPRA request on the basis that "no
records responsive exist."
According to the Clerk, the Township "do[es] not have the
resources to create records which are not required [by OPRA,]
and [it] would be entirely inappropriate to place an additional
cost and tax burden upon the residents of the Township to do
so." Regarding the volume of OPRA requests received by the
Township, the Clerk certified that the Township's OPRA responses
over the last two years totaled approximately 43,500 pages of
paper.
Eric McCarthy, a computer technician employed by the
Township, testified that creating an email log, such as those
5 A-0125-14T4 requested by plaintiff, requires a search on the Township's
email "appliance." This search — in which a user enters data
into certain electronic search boxes and forwards the results to
the desired recipient — takes approximately two to three
minutes, but could take longer depending on the volume of search
results.
Captain Doyle's certification also addressed the Police
Department's ability to create email logs such as those
requested by plaintiff. Although the Department had the
technical ability to create such logs, Captain Doyle expressed
concern that log-creation of this type "would have a significant
potential detriment to the Department's ability to protect
confidential information, ongoing investigations and
investigatory techniques." Furthermore, "[w]hile the Department
would have the ability to redact" sensitive information, Captain
Doyle certified that "there nevertheless is a real potential
danger of inadvertently releasing damaging information."
On June 10, 2014, the judge ruled in plaintiff's favor and
entered an order requiring defendants to provide the requested
list of emails. The judge concluded that what he called the
"metadata" or list of "sender/receiver/date/time of emails,"
sent by the Clerk and the Chief of Police between June 3 and 17,
2013, was a public record, analogous to a library's card
6 A-0125-14T4 catalogue, and that the preparation of the list required little
effort. He set forth his reasoning in a five-page memorandum of
decision, explaining, in pertinent part:
Whether termed "metadata" (which [p]laintiff's counsel urges and [d]efendant rejects) or not, the fact remains that the emails of the Township Clerk and Chief of Police are public records as defined by the OPRA because they comprise "[] information stored or maintained electronically . . . that has been made, maintained and kept on file in the course of his or its official business by any officer, commission, agency or authority of the state or any political subdivision thereof." By logical/reasonable extension, a log or list of emails that can be easily prepared, is likewise within the [ambit] of that definition.
The judge also rejected Captain Doyle's assertion that
production of an email log would compromise the confidentiality
of Police Department information, concluding: "Despite the
Township's purported concerns about disruption of police
investigations, the request made by the [p]laintiff affords him
access to no more than the sender/receiver/date/time of emails
between the dates of June 3 thru 17, 2013." The judge therefore
concluded that plaintiff "is entitled to receipt of the log[s]
of emails he has requested, at a reasonable fee commensurate
with the effort involved." The judge granted a stay pending
appeal. Thereafter, the judge clarified that he would conduct
7 A-0125-14T4 an in camera review of the requested email list prior to its
release to plaintiff.4
Defendants filed their notice of appeal on September 5,
2014.5 Defendants argue, "[I]f a document must be created, it is
not a record for purposes of OPRA or the common law right of
access." Amici supporting defendants' position emphasize that,
if upheld, the trial court's decision would have a significant
negative impact on governmental agencies, state-wide. Plaintiff
counters that we should not only affirm the trial court's
decision, but also "affirm that OPRA's broad mandate favoring
transparency and public access to knowledge about government
extends to computer information available through a simple
computer search requiring, at most, a few minutes."
II.
We review a trial judge's legal conclusions concerning
access to public records under OPRA de novo. Drinker Biddle &
4 The judge also awarded plaintiff $15,300 in attorney's fees and $723.13 in costs, pursuant to N.J.S.A. 47:1A-6, but stayed that order as well. Defendants have not appealed the order awarding fees and costs. 5 After defendants filed their notice, we permitted several amici curiae to intervene. Amici for defendants include the New Jersey State League of Municipalities (LM), the New Jersey Institute of Local Government Attorneys (ILGA), and the New Jersey State Association of Chiefs of Police (ACP). Amici for plaintiff include the American Civil Liberties Union of New Jersey (ACLU) and the Electronic Frontier Foundation.
8 A-0125-14T4 Reath LLP v. N.J. Dep't of Law and Pub. Safety, 421 N.J. Super.
489, 497 (App. Div. 2011). We will not disturb factual findings
as long as they are supported by adequate, substantial and
credible evidence. See Meshinsky v. Nichols Yacht Sales, Inc.,
110 N.J. 464, 475 (1988).
New Jersey has traditionally maintained a strong public
policy that "government records shall be readily accessible for
inspection, copying, or examination by the citizens of this
State[.]" N.J.S.A. 47:1A-1. The OPRA statute ensures, with
exceptions, that "all government records shall be subject to
public access." N.J.S.A. 47:1A-1. A person who is denied
access to a government record may challenge the denial in
Superior Court or file a complaint with the GRC. N.J.S.A.
47:1A-6. In OPRA cases, the records custodian has the burden to
show that its denial of access was authorized by law. N.J.S.A.
47:1A-6; Asbury Park Press v. Monmouth Cty., 406 N.J. Super. 1,
7 (App. Div. 2009), aff'd, 201 N.J. 5 (2010).
The threshold question in an OPRA claim is whether the
plaintiff has requested "government records" pursuant to the
statute. O'Shea v. Twp. of West Milford, 410 N.J. Super. 371,
380 (App. Div. 2009) (citation omitted). The statute broadly
defines a "government record" as:
9 A-0125-14T4 any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically[6] or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof . . . .
[N.J.S.A. 47:1A-1.1 (emphasis added).]
Notwithstanding its broad definition of government record,
"OPRA does not require public agencies to create records."
Sussex Commons Assocs., LLC v. Rutgers, 210 N.J. 531, 544 (2012)
(citation omitted). We have previously interpreted this aspect
of OPRA narrowly, concluding that "a records custodian is not
required 'to conduct research among its records . . . and
correlate data from various government records in the
custodian's possession.'" Bent, supra, 381 N.J. Super. at 37
(quoting MAG Entm't, LLC v. Div. of Alcoholic Beverage Control,
375 N.J. Super. 534, 546-47 (App. Div. 2005)). Thus, based on
the plain language of the statute, we have held that "OPRA only
allows requests for records, not requests for information."
Ibid. (citing MAG, supra, 375 N.J. Super. at 546–47). The GRC
6 The judge quoted this language in support of his decision, stating that "the emails . . . [constitute] 'information stored or maintained electronically . . . that has been made, maintained and kept on file in the course of his or its official business by any officer . . . .'"
10 A-0125-14T4 has ruled that such requests need not be granted, and we "accord
substantial deference to the [GRC's] interpretation." Ciesla v.
N.J. Dep't of Health & Senior Servs., 429 N.J. Super. 127, 148
(App. Div. 2012).
N.J.S.A. 47:1A-5(d) requires a custodian to provide a copy
of a government record "in the medium requested" if it is kept
that way, or "convert the record to the medium requested or
provide a copy in some other meaningful medium." However, that
section does not change the definition of a "government record"
in N.J.S.A. 47:1A-1.1. At appellate oral argument, plaintiff
contended that the Township has to compile these email logs even
if the Township never would have created such a log for its own
use.
Defendants argue that the Township cannot be required to
create a document, such as a list of emails, even if it
previously created such lists voluntarily in response to OPRA
requests, and even if it would only take a few minutes to
compile the list. They admit that plaintiff could request
copies of the actual emails, but argue that they are not
required to create a list of the emails.
Defendants also contend that the list would involve
disclosing email addresses of the senders, which might in turn
compromise the privacy interests of those who communicated with
11 A-0125-14T4 the Township government in the expectation that their
communications would remain private. They also express concern
about compromising police investigations.
Plaintiff argues that the information he requested was part
of the "data" of the individual emails which the agencies kept
on file. Plaintiff also makes the argument that there is no
difference between "information" and "records" where electronic
records are concerned, contending that computer searches do not
create records, but actually "retrieve records that are kept as
data."
Plaintiff contends that the logs he requested constitute
"metadata," and therefore should be subject to disclosure under
OPRA. Plaintiff cites cases from other jurisdictions which have
held that the metadata included in the computerized form of a
public record is discoverable as part of a request for the
discoverable public record itself.7 Defendants counter by
arguing that a log of emails is not itself metadata. Rather,
defendants claim that an email log is an independent compilation
7 See, e.g., O'Neil v. City of Shoreline, 240 P.3d 1149, 1153–54 (Wash. 2010); Lake v. City of Phoenix, 218 P.3d 1004, 1008 (Ariz. 2009); In re Irwin v. Onondaga Cty. Res. Recovery Agency, 72 A.D.3d 314 (N.Y. App. Div. 2010); Tennessean v. Elec. Power Bd. of Nashville, 979 S.W.2d 297, 302–04 (Tenn. 1998); Hammer v. Lentz, 547 N.E.2d 191, 195 (Ill. 1989); Seigle v. Barry, 422 So.2d 63, 66 (Fla. Dist. Ct. App. 1982), review denied, 431 So.2d 988 (Fla. 1983).
12 A-0125-14T4 of metadata that did not exist independently from the emails
themselves prior to the OPRA request. In other words, although
the information that would be contained in the log plaintiff
seeks — the sender, recipient, date, and subject of emails sent
by government personnel — is itself metadata,8 defendants assert
that they are not required to assemble a new list that extracts
this metadata and displays it in a newly-created document.
Stated differently, defendants argue that a log of emails is not
a government record because it does not exist prior to the
Clerk's receipt of an OPRA request, and that OPRA does not
require the creation of a new government record that does not
yet exist at the time of a request. We agree.
We hold 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 Township's computers store the
emails, which are government records, but the Township has never
created an email database for the use of Township personnel.
Unlike a library's card catalogue, the email logs requested here
never existed prior to plaintiff's OPRA request. While a
8 In his testimony, McCarthy defined metadata as "the information about each particular e-mail" including the sender, date, and recipient of emails.
13 A-0125-14T4 computer may be able to create an email log quickly, it is still
creating a new government record, which is not required under
OPRA as interpreted in Sussex, Bent, and MAG.
We acknowledge that the creation of an email log in the
circumstances before us would not present a particularly
burdensome task for the Clerk. However, once the email log is
generated, redacting it to remove information that is not
discoverable under OPRA could require substantial effort,
including gathering and reviewing the emails themselves. In any
event, an order requiring the creation of an email log, that
does not exist prior to time of the request, represents an
extension of a plainly-worded statute. "[O]ur goal is to
interpret the statute consistent with the intent of the
Legislature." Oberhand v. Dir., Div. of Taxation, 193 N.J. 558,
568 (2008). Applying well-settled rules of statutory
construction, "we give a statute's 'words and phrases' their
usual and ordinary meaning, N.J.S.A. 1:1-1, because the words of
a statute ordinarily provide the most reliable indication of
legislative intent." Cty. of Bergen Emp. Benefit Plan v.
Horizon Blue Cross Blue Shield of N.J., 412 N.J. Super. 126, 132
(App. Div. 2010). When the language in a statute "is clear and
unambiguous, and susceptible to only one interpretation," we
presume the Legislature meant what it said and that the plain
14 A-0125-14T4 meaning governs. Burnett v. Cty. of Bergen, 198 N.J. 408, 421
(quoting Lozano v. Frank DeLuca Constr., 178 N.J. 513, 522
(2004)).
Based on the statute's clear and unambiguous language, and
consistent with our previous interpretations of the statute in
Bent and MAG, we reverse the order granting plaintiff's OPRA
request in this case, as it would require defendants to create a
new record which did not otherwise exist. While the OPRA
request under review might not present a burdensome task, we can
easily envision requests of a similar nature that would present
a serious burden. In light of our interpretation of the
clearly-worded statute, and the far-reaching implications of
requiring governmental entities to produce lists and
compilations that do not otherwise exist, we conclude that any
extension of OPRA should properly come from the Legislature.
Until such an amendment occurs, our holding — that OPRA does not
require the creation of a new government record that does not
yet 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 — should
provide a clear demarcation line in this case, as well as future
cases.
15 A-0125-14T4 Reversed.9
9 In the event we reversed the trial court's OPRA ruling, plaintiff urged us to remand for the court to address his request under the common law right of access. While the common law right of access reaches a broader class of documents than its statutory counterpart, Higg-A-Rella, Inc. v. Cty. of Essex, 141 N.J. 35, 46 (1995), in order to prevail, a litigant must establish an interest in the public record, and that the interest in disclosure outweighs the need for confidentiality. Shuttleworth v. City of Camden, 258 N.J. Super. 573, 582 (App. Div.) (quoting Home News Publ'g Co. v. State, 224 N.J. Super. 7, 16 (App. Div. 1988)), certif. denied, 133 N.J. 429 (1992). In light of plaintiff's testimony that he could not recall any reason for making his request nor the reason for choosing the specific dates in his request, we conclude there exists no basis for a remand.
16 A-0125-14T4