NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1466-23
ALEX ROSETTI,
Plaintiff-Appellant,
v. APPROVED FOR PUBLICATION RAMAPO-INDIAN HILLS January 27, 2025 REGIONAL HIGH SCHOOL APPELLATE DIVISION BOARD OF EDUCATION1 AND THOMAS LAMBE, IN HIS OFFICIAL CAPACITY AS RECORDS CUSTODIAN,
Defendants-Respondents. __________________________
Argued October 8, 2024 – Decided January 27, 2025
Before Judges Sumners, Susswein and Bergman.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-1383-23.
Donald M. Doherty, Jr. argued the cause for appellant.
Johnathan F. Cohen argued the cause for respondents (Plosia Cohen LLC, attorneys; Johnathan F. Cohen, of counsel and on the briefs).
1 Improperly pled as Rampapo-Indian Hills Regional High School Board of Education The opinion of the court was delivered by
SUMNERS, JR., C.J.A.D.
The issue before this court, one of first impression, is whether the Open
Public Records Act (OPRA or Act), N.J.S.A. 47:1A-1 to -13, compels the
disclosure of email logs of public officials' personal computers discussing public
business. The trial court's order denied plaintiff Alex Rosetti's OPRA request
of defendants Ramapo-Indian Hills Regional High School Board of Education
(Board or District) and Thomas Lambe, the Board's records custodian, seeking
email logs from the personal computers of past and current Board members
(collectively Board members) discussing Board business. The court decided the
email logs were not government records and, if they were, they are too
burdensome to produce.
We reverse the trial court's order and remand. We conclude the email logs
on private servers are government records under N.J.S.A. 47:1A-1, and are
disclosable based on Ass'n for Government Responsibility, Ethics &
Transparency v. Borough of Mantoloking, 478 N.J. Super. 470, 489 (App. Div.
2024), where we held "OPRA's broad reach can include emails concerning
A-1466-23 2 government business, sent to or from personal accounts of government officials
–– if the emails fall within the definition of government records."
On remand, the Board members must search their personal email accounts
to determine if the sought-after email logs are available. If they determine the
email logs are unavailable or there are burdens in producing them, they must
produce Paff I2 certifications. The trial court must then decide if a fact-finding
hearing is needed. After giving Rosetti the opportunity to respond, the trial
judge must then decide if a fact-finding hearing is necessary. Moreover, the
court must be satisfied the parties made good faith efforts to reasonably resolve
their dispute. Only after this process occurs can the court decide if production
of the email logs should be provided, or if it would be too burdensome to
provide.
I.
In January 2023, Rosetti filed an OPRA request with the Board, seeking:
[1] All comments submitted by the public comments form received by the Board from August 1, 2022 through to the date [for] the response. The response should include the name, email, town and the question or comment of the sender.
2 Paff v. New Jersey Dep't of Labor, 392 N.J. Super. 334, 341 (App. Div. 2007) (Paff I). A-1466-23 3 [2] Email logs of all past and current Board members for all email accounts in which they have conducted or discussed Board of Education matters or business during the time frame of November 1, 2022 through to the date of the response. The email log should contain the sender, recipient, those copied ("cc") or blind copied ("bcc"), the date, time, subject and identify the existence and name of any attachment.
When the Board did not timely respond to the requests, Rosetti filed an order to
show cause and verified complaint against the Board in the Law Division,
claiming entitlement to the email logs under OPRA.
In response, the Board contended that Rosetti's requests should be re-
organized in the following manner:
(1) All comments submitted by the public comments form received by the Board from August 1, 2022, through to the date of the response. The response should include the name, email, town and the question or comment of the sender.
(2) (a) Email log[s] of Board members from Board server[s]; and
(2)(b) Email log[s] of Board members from their own personal email addresses. The parties reached a settlement regarding all but the Board members' email logs
pertaining to their own personal email addresses.
After reviewing the Board members' email logs from the Board's servers,
Rosetti submitted a certification to the trial court attesting: "[I]n the log that
A-1466-23 4 was supplied there are dozens of redactions demonstrating Board members using
their District-supplied email accounts to communicate with other Board
members['] personal email accounts and even sending information to their own
personal accounts." To further support his request, Rosetti cited to "a newspaper
article detailing the intricate, involved and expansive agenda the [Board] was
able to vote upon without any significant discussion at its reorganization
meeting." He thus reasoned "that communications regarding Board business are
taking place outside the realm of the District[-] controlled email accounts."
The Board opposed the request with a certification by John Chang, the
Board's Director of Technology, claiming email logs from private servers pose
distinct challenges because each server may have their own administrative
settings. The different settings, Chang noted, "make it impossible or
extraordinarily time consuming to create logs of any kind." He added, "[e]ven
if I could figure out how to generate a log for some of these email serv [ers], it
could potentially take me hours to construct each one and I would be unable to
ensure the integrity of the data (e.g., I cannot recover deleted emails in the same
way I can on the District Workspace service)." As such, Chang contends his
ability to generate logs on private servers is "difficult if not impossible" for
many types used by the Board members.
A-1466-23 5 The trial court agreed with the Board and denied Rosetti's request for the
Board members' personal email logs on the basis that it exceeded the purview
of OPRA. The court stated in its thorough written decision that "[t]he [Paff II3]
Court did not opine email logs from third-party email accounts were required
and nothing in the Court's opinion supports the compelled production of same."
The court distinguished Rosetti's request from the one in Burnett v. Gloucester
County, 415 N.J. Super. 506 (App. Div. 2010), reasoning that there, the "third-
party" government records were maintained by the county's agents, and, thus,
imputed to the government. The court continued that "[w]hile it is undeniable
that [Rosetti] has a right to the email correspondences from the private email
accounts of the Board members, that right cannot be extended to include email
logs from personal, non-Board-issued email accounts." (Emphasis added).
The court emphasized that granting Rosetti's request would impose a
substantial burden on the Board not authorized by OPRA because Board
members would have to spend considerable time, resources, and effort to obtain
such logs from their private servers. Given the Board members' technical
limitations, the court determined that compliance would require them to
"conduct a search for the responsive emails not within [the Board's] custody or
3 Paff v. Galloway Twp., 229 N.J. 340 (2017) (Paff II). A-1466-23 6 control and manually compile and collate information to generate a log." The
court found this task was not required by OPRA.
Lastly, the court rejected Rosetti's transparency concerns, deciding
"[t]here is no valid concern that, by their inability to produce the private email
logs, [Board members] are evading their obligation under OPRA." This appeal
followed.
II.
Whether Email Logs Are Government Records
To resolve this appeal, we must first determine whether the email logs
requested by Rosetti constitute government records under OPRA. When
interpreting a statute, we look to the Legislature's intent as set forth in the
statute's plain language. Conforti v. Cnty. of Ocean, 255 N.J. 142, 163 (2023).
"Where statutory language is clear, courts should give it effect unless it is
evident that the Legislature did not intend such meaning." Bubis v. Kassin, 184
N.J. 612, 626 (2005) (quoting Rumson Ests., Inc. v. Mayor of Fair Haven, 177
N.J. 338, 354 (2003)). We "ascribe[] to [a statute's] words their ordinary
meaning and significance and read[] them in context with related provisions so
as to give sense to the legislation as a whole." W.S. v. Hildreth, 252 N.J. 506,
519 (2023) (quoting DiProspero v. Penn, 183 N.J. 477, 492 (2005)). "If the
A-1466-23 7 language [of a statute] is clear, the court's job is complete." In re Diguglielmo,
252 N.J. 350, 360 (2022) (quoting In re Expungement Application of D.J.B.,
216 N.J. 433, 440 (2014)).
A trial court's factual findings regarding OPRA will only be disturbed if
they are not supported by adequate, substantial, and credible evidence. See
Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988). Our review
of the court's legal interpretations of OPRA is de novo. N. Jersey Media Grp.,
Inc. v. Twp. of Lyndhurst, 441 N.J. Super. 70, 89 (App. Div. 2015) rev'd on
other grounds, 229 N.J. 541 (2017).
OPRA was "enacted 'to maximize public knowledge about public affairs
in order to ensure an informed citizenry and to minimize the evils inherent in a
secluded process,'" Simmons v. Mercado, 247 N.J. 24, 38 (2021) (quoting
Mason v. City of Hoboken, 196 N.J. 51, 64 (2008)), as a means to make
governmental action transparent, Rivera v. Union Cnty. Prosecutor's Off., 250
N.J. 124, 141 (2022). In furtherance of this goal, our Legislature declared that
"all government records shall be subject to public access unless exempt," and
"any limitations on the right of access . . . shall be construed in favor of the
public's right of access." N.J.S.A. 47:1A-1. Exemption can be through "statute,
legislative resolution, administrative regulation, executive order, rules o f court,
A-1466-23 8 judicial decisions, or federal law." Asbury Park Press v. Cnty. of Monmouth,
406 N.J. Super. 1, 6 (App. Div. 2009) (citing N.J.S.A. 47:1A-1, -9).
In his appeal, Rosetti argues the trial court misinterpreted OPRA and
pertinent caselaw in determining the Board's "records custodian[] [does not
have] to obtain email logs of privately-owned email accounts being used to
conduct government business." He asserts the court's order undermines the
legislative intent behind OPRA, which the Burnett Court held is to provide
"ready access to government records by the citizens of this State." 198 N.J. at
421. He argues the court mistakenly denied his request because email logs are
stored on private servers, rather than granting his request given it is undisputed
the logs pertain to Board business, making them government records under
OPRA.
N.J.S.A 47:1A-1.1 defines a government record as
any paper, . . . document, . . . information stored or maintained electronically . . . , 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.
[N.J.S.A 47:1A-1.1 (emphasis added).]
Rosetti stresses that under our rules of statutory construction, the Supreme
Court has ruled "[t]he use of 'or' plainly indicates that any of those three listed
A-1466-23 9 actions is sufficient to satisfy the statutory definition." Simmons, 247 N.J. at
41. He thus reasons the use of the disjunctive "or" indicates that "[t]he status of
something being a government record is not [dependent] upon who owned the
pen that wrote it or the email account that created it." Rosetti claims, to rule
otherwise, would as the Court held in Burnett, allow "a governmental agency
seeking to protect its records from scrutiny [to] simply delegate their creation to
third parties or relinquish possession to such parties, thereby thwarting the
policy of transparency that underlies OPRA." 415 N.J. Super. at 517 (citing
N.J.S.A. 47:1A-1). Rosetti also argues in a Rule 2:6-11(d)(1) supplemental
letter that the majority and dissenting opinions in our recent decision in
Mantoloking, both "accepted that emails involving government business sent
through private email accounts 'on a private server' would be government
records." See 478 N.J. Super. at 489.
The Board contends the trial court's ruling was correct because the email
logs are kept on private servers, and only records kept on government-controlled
servers are under OPRA's purview. The Board gleans support from Bent v.
Township. of Stafford Police Department, 381 N.J. Super. 30, 38 (App. Div.
2005), where we held a narrow view of OPRA, finding the municipality's records
"custodian was under no obligation to search for [records] beyond the township's
A-1466-23 10 files." The Board maintains our ruling five years later in Burnett does not
support Rosetti's position because there, the requested records were kept by a
third-party which served as a government agent, and thus were "'made' by or on
behalf of" the public body. The Board cites Paff II, issued seven years after
Burnett, where the Court held "OPRA makes clear that government records
consist . . . [of] 'information stored or maintained electronically' in a database
on a municipality's server." 229 N.J. at 353 (emphasis added). Considering
these caselaw trends, the Board takes a contrary view of Mantoloking, arguing
it is factually distinct from Rosetti's request. It contends that case entailed "a
municipal prosecutor [who] redacted certain information from an email from her
private account which she showed to counsel for a criminal defendant" and held
that it was not a government record nor disclosable under OPRA. See
Mantoloking, 478 N.J. Super. at 492-93. In sum, the Board argues upsetting the
court's order would violate OPRA by expanding it to cover proprietary email
servers.
Assessing the trial court's reasoning and the parties' arguments leads us to
conclude that the requested email logs are government records under OPRA
because they relate to Board business even though they are on Board members'
private servers and not maintained nor controlled by the Board.
A-1466-23 11 An email log is "electronically stored information extracted from an
email," "not the creation of a new record or new information" and is a
government record under OPRA when it relates to government business. Paff
II, 229 N.J. at 343, 353 (2017). The fact that Rosetti's OPRA request sought
email logs on the Board members' private servers is not a basis to deny
disclosure. As noted, N.J.S.A. 47:1A-1.1 provides a government record is
"information stored or maintained electronically . . . that has been made,
maintained or kept on file in the course of his or its official business by any
officer." (Emphasis added.). Our Supreme Court recently recognized that the
Legislature's use of "or" means that any of the listed actions––made, maintained,
or kept––is sufficient to constitute a government record. Simmons, 247 N.J. at
41. Thus, even though the email logs are not kept on Board servers, they are
nonetheless government records because they reference Board business. See
ibid. ("[R]egardless of who maintains the files, the fact that [the defendant]
'makes' the CDR-1s means that it can be called upon to disclose those
government records.").
Concluding the email logs on the Board members' private servers are
subject to OPRA is in line with a broad reading of the Act. See Rivera, 250 N.J.
at 141 (2022); see also Simmons, 247 N.J. at 38 (2021); Burnett, 415 N.J. Super.
A-1466-23 12 at 517. As we recently held in Mantoloking, "OPRA's broad reach can include
emails concerning government business, sent to or from personal accounts of
government officials –– if the emails fall within the definition of government
records." 478 N.J. Super. at 489. To allow the Board members' email logs to
be concealed under the cover of their private servers would be inconsistent with
OPRA's well-settled legislative intent that "any limitations on the right of access
[to government records] . . . shall be construed in favor of the public's right of
access." N.J.S.A. 47:1A-1. To embrace the Board's position would undermine
the democratic access to public records and prevent Board members from being
held accountable for their decisions. See e.g., Fair Share Hous. Ctr., Inc. v. N.J.
State League of Muns., 207 N.J. 489, 502 (2011) ("Those who enacted OPRA
understood that knowledge is power in a democracy, and . . . without access to
information contained in records maintained by public agencies[,] citizens
cannot monitor the operation of our government or hold public officials
accountable.").
In reaching our conclusion, we are unpersuaded that the Board's reliance
on Bent, where we held OPRA does not require a township records custodian to
search for records beyond the township's files, dictates that Rosetti's request
should be denied. 381 N.J. Super. at 38. In our subsequent decision in Burnett,
A-1466-23 13 we opted for a narrow reading of Bent and a broader interpretation of OPRA. In
Burnett, the plaintiff sought documents pertaining to a settlement reached by
third parties on behalf of Gloucester County that were not in the county's
possession. 415 N.J. Super. at 508. We concluded the documents were subject
to disclosure under OPRA and distinguished Bent, reasoning:
We find the circumstances presented in Bent to be far removed from those existing in the present matter because, as we have previously concluded, the settlement agreements at issue here were "made" by or on behalf of the Board in the course of its official business. Were we to conclude otherwise, a governmental agency seeking to protect its records from scrutiny could simply delegate their creation to third parties or relinquish possession to such parties, thereby thwarting the policy of transparency that underlies OPRA.
[Id. at 517 (citing N.J.S.A. 47:1A-1) (emphasis added).]
We therefore pronounced that OPRA may extend to records not within a public
body's immediate possession if public officials made them. Ibid. Burnett is
consistent with our statutory construction of N.J.S.A 47:1A-1.1 that records are
government records if they are made by government officials even when the
records are maintained by third parties, not the government.
Based on the record before us, we hold the email logs of the Board
members' private servers sought by Rosetti are subject to OPRA because the
A-1466-23 14 emails discuss Board business and were made by the Board members.
Concluding these email logs contain government records under OPRA prevents
government officials from circumventing OPRA by using personal email
accounts and sustains the legislative intent behind the statutory scheme. This
decision may also discourage government officials from using their personal
devices, email accounts, or cell phones (texts) to conduct government business
to avoid public disclosure otherwise permitted by OPRA.
III.
Production of the Email Logs
Having concluded the email logs from the Board members' private servers
are government records under OPRA, we address the trial court's order that the
Board does not have to disclose them because it is unduly burdensome.
Rosetti contends production of an email log from a private server is not
unduly onerous. He emphasizes the Board's IT specialist Chang only certified
that he believes he lacks the authority and is unable to construct an email log
from a private account. He contends the Board's nondescriptive assertions of
hardship falls short of "an actual specific demonstrated hardship." See Mason,
196 N.J. at 78. Rosetti stresses "[t]here is no defense for the [Board] to simply
A-1466-23 15 assert that 'in theory' it does not have access to the records, particularly without
even trying to obtain access and possession."
Nevertheless, Rosetti argues that any difficulty in retrieving the private
email logs was created by the Board members' decisions to avoid use of Board-
issued email accounts and they and the Board should not be allowed to
circumvent OPRA requirements due to self-imposed burdens. Rosetti contends
the Board members should be required to search their private servers for
responsive emails and file Paff I certifications 4 "to protect . . . [Lambe] by
demonstrating that [whoever] has the records has conducted an adequate search
for them." See e.g., Lipsky v. N.J. Ass'n of Health Plans, Inc., 474 N.J. Super.
447, 474 (App. Div. 2023) ("[T]he employees' searches of their own devices,
4 Paff I certifications are sworn statements by government personnel setting forth:
(1) the search undertaken to satisfy the request; (2) the documents found that are responsive to the request; (3) the determination of whether the document or any part thereof is confidential and the source of the confidential information; [and] (4) a statement of the agency's document retention/destruction policy and the last date on which documents that may have been responsive to the request were destroyed.
[Paff I, 392 N.J. Super. at 341.]
A-1466-23 16 and their production of certifications attesting to their searches, complied with
the explicit terms of the subpoena, as well as [OPRA].").
The Board contends the trial court correctly determined the email logs
were not disclosable due to "the technological realities that make it nearly
impossible to obtain email logs from personal accounts on [private servers]."
The Board refutes Rosetti's contention that the Board may simply subpoena
private email servers to access the email logs because OPRA does not compel
custodians to conduct research. See MAG Ent., LLC v. Div. of Alcoholic
Beverage Control, 375 N.J. Super. 534, 546-47 (App. Div. 2005). The Board
explains, "courts could not conceivably require that to fulfill an OPRA request
a . . . [public body] must issue a subpoena to a technology company to force it
to generate an email log that a trained IT Director is unable to construct due to
proprietary limits."
Based on the record before us, we conclude Rosetti's OPRA request is not
unduly burdensome. Although a public agency may reject a records request if
granting access "would substantially disrupt agency operations," the records
custodian must "attempt[] to reach a reasonable solution with the requestor that
accommodates the interests of the requestor and the agency." N.J.S.A. 47:1A-
5(g). Our Supreme Court has recognized that, in cases like this involving
A-1466-23 17 technology, "[i]t may take only two to three minutes for an IT Specialist to make
accessible fields of information from two weeks of emails; it will take
considerably longer . . . to determine whether the requested information in each
email may intrude on privacy rights." Paff II, 229 N.J. at 357. Thus, a remand
may be necessary for a hearing so that the public agency can substantiate its
claims that there are unfeasible burdens to produce the documents and the
requestor be afforded the opportunity to respond. Ibid.
We find instructive our recent decision in Lipsky where we recognized
that government employees' personal devices may not be subject to civil
discovery unless the government entity party in the litigation "has 'possession,
custody or control' over that data." 474 N.J. Super. at 471 (citing R. 4:18-1(a)).
Yet, we intimated that the information on the personal devices may be subject
to OPRA. Id. at 472. We pointed out that "courts in other jurisdictions have
concluded that public records contained in personal accounts or on personal
electronic devices may be subject to production under those jurisdictions' open
public records statutes." 5 Ibid. Consequently, "th[o]se courts have concluded
5 We referenced the following cases: Ethyl Corp. v. U.S. Env't Prot. Agency, 25 F.3d 1241, 1246-47 (4th Cir. 1994); City of San Jose v. Superior Court, 389 P.3d 848, 858-61 (Cal. 2017); Better Gov't Ass'n v. City of Chicago Off. of Mayor, 169 N.E.3d 1066, 1074-78 (Ill. Ct. App. 2020); Toensing v. Att'y Gen.
A-1466-23 18 that employees may be required to search their own accounts and devices and
produce data responsive to the records request, subject to any assertions of
privilege or confidentiality by the public employer." Ibid.
We conclude a remand is necessary here. We part company with the trial
court's determination that the record established that Board members' private
email logs cannot be provided because "[the Board] do[es] not possess the
technological capabilities to produce [Rosetti's] requested email logs without
difficulty." Given the insufficiency of Chang's certification –– it is "difficult if
not impossible to generate logs from . . . private email accounts" –– the trial
court should require the Board members to search their personal email accounts
to determine if the sought-after email logs are available. If the email logs are
unavailable or their production is burdensome, they must be supported by
persuasive Paff I certifications. Rosetti, of course, should have the opportunity
to respond. After the court reviews the parties' submissions, then it must decide
if a fact-finding hearing is needed. Moreover, the court should ensure the parties
make good faith efforts to reasonably resolve the document request as required
of Vt., 178 A.3d 1000, 1002, 1004, 1009-13 (Vt. 2017); Nissen v. Pierce Cnty., 357 P.3d 45, 49, 56-58 (Wash. 2015). A-1466-23 19 by N.J.S.A. 47:1A-5(g). Only after this process can the court judiciously
determine if retrieval of the email logs is too burdensome.
We remind the court that special service charges may be imposed to
compensate the public agency for unconventional retrievals of government
records. N.J.S.A. 47:1A-5(c). The statute provides:
Whenever the nature, format, manner of collation, or volume of a government record embodied in the form of printed matter to be inspected, examined, or copied pursuant to this section is such that the record cannot be reproduced by ordinary document copying equipment in ordinary business size or involves an extraordinary expenditure of time and effort to accommodate the request, the public agency may charge, in addition to the actual cost of duplicating the record, a special service charge that shall be based upon the actual direct cost of providing the copy or copies, and such special service charge shall be reasonable.
[N.J.S.A. 47:1A-5(c).]
We take no position whether such charges are appropriate.
Additionally, if there are concerns about the disclosure of privileged
material, a Vaughn6 index might be necessary. In the index, the records
custodian "must describe each document in sufficient detail to provide the
requestor 'with as much information as possible to use in presenting his case'
6 Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973). A-1466-23 20 and to enable the decision-maker's review of governmental records to determine
whether they contain privileged material." Paff v. Div. of L., 412 N.J. Super.
140, 161 (App. Div. 2010) (internal quotations and citation omitted).
Reversed and remanded for proceedings consistent with this opinion. We
do not retain jurisdiction.
A-1466-23 21