New Jersey Supreme Court to Rule on Open Data Case

An open government advocate has sued in an Ocean County court over a town's refusal to provide metadata of emails sent by its police chief, claiming that such a record did not exist and creating one would create an unnecessary burden.

by Jan Hefler, The Philadelphia Inquirer / July 19, 2016

(TNS) -- The New Jersey Supreme Court has agreed to hear a case brought by an open-government activist who contends that the public should be allowed to view electronic data and metadata kept by local government agencies.

In summer 2013, John Paff requested a log of the emails sent by the Galloway Township police chief and the township clerk during a two-week period in June 2013, and then sued in an Ocean County court when his request was denied.

A judge in 2014 ordered that the information be released to Paff, the chairman of the New Jersey Libertarian Party's Open Government Advocacy Project. For the last two decades, Paff has filed numerous requests for public records in his quest to test transparency in local government.

The town's IT specialist had testified at the hearing, before Superior Court Judge Nelson C. Johnson, that retrieving the data would take about "two to three minutes," depending on the volume of emails that the search turned up. The data would include the sender, recipient, date, and subject.

The 2014 ruling was reversed by an appeals panel in March 2016. The panel decided the log was off-limits because the clerk would have to create a record that did not already exist. The state Open Public Records Act (OPRA) only requires the release of records, not information or data, the panel said.

"If the Supreme Court doesn't reverse this, it restricts the public to a paper world while the government will be operating in an electronic world," Paff said in an interview Monday. On Friday, the Supreme Court decided to take up the appeal.

The case pits Paff, the American Civil Liberties Union of New Jersey, and the Electronic Frontier Foundation against Galloway Township, the New Jersey State Association of Chiefs of Police, and the New Jersey State League of Municipalities.

Galloway Mayor Don Purdy and Township Solicitor Michael J. Fitzgerald did not return calls for comment.

Vito Gagliardi Jr., a Morristown lawyer who represents the chiefs of police, said, "A list of all the people a chief of police is communicating with could compromise investigations and reveal the identities of victims of crimes and witnesses while an investigation is unfolding. . . . There is a great deal of concern about citizens finding out who the chiefs of police are communicating with, and with what frequency."

Gagliardi said that the emails themselves would be denied because of their sensitive nature, and that the log of the emails should also be kept confidential.

Paff testified at the court hearing in 2014 that he did not recall a specific reason why he made the request. The police department's records custodian, however, testified that he believed the dates of the emails were tied to an internal investigation that was conducted at that time.

Paff said in an interview Monday that sensitive matters may be redacted but that the public is entitled to information that does not involve an investigation, or that involves an investigation that is closed. "The government's natural tendency is to suppress information and then selectively issue press releases on what it wants the public to know. . . . I want to know if the public's right to know is keeping up with technology," he said.

Paff said a public agency's "metadata is a public record," and that it only takes a few keystrokes to obtain information from the computer records and provide it to the public.

But the appeals panel decision, written by Judge Richard S. Hoffman, cited the testimony of the Galloway clerk, who said she did 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." The decision also noted that a police captain in the town testified that the creation of the log would "have a significant potential detriment to the department's ability to protect confidential information."

©2016 The Philadelphia Inquirer Distributed by Tribune Content Agency, LLC.