Brooke Lewis ’17
The New Jersey Supreme Court has recently decided to hear a case that will set open records policy in the emerging world of big data.
While our government’s transition to the digital world has brought about new levels of speed and efficiency, it may have also created an unintended “black box.” Information that was once reduced to an easily identifiable “public record” is now more likely to exist as an electronic abstraction that defies our traditional understanding of a “record.” As a result, information that is more internally accessible to the government may be far less accessible to the public.
Faced with this modern dilemma, the New Jersey Supreme Court has granted review of Paff v. Galloway to decide if running a query on a database involves creating a new record for purposes of responding to an Open Public Records Act (OPRA) request. Notably, while OPRA grants the public access to “government records,” it does not require the government to create a record that does not already exist.
In Galloway, Plaintiff John Paff sent an OPRA request to Galloway Township requesting a log of all the emails exchanged between the Township’s Clerk and the Chief of Police. The email log would not contain “any specific email,” but would instead be “an itemized list showing the sender, recipient, date, and subject of all emails sent during the designated period of time.” The Township did not have a policy of maintaining an email log, and providing a log would require “a search on the Township’s email ‘appliance.’” After the Township’s Clerk denied his request, Paff filed a complaint seeking to compel the Township to provide the requested log.
The trial court sided with Paff and entered an order requiring the Township to provide the email log, reasoning that the log “was a public record, analogous to a library’s card catalogue.” The Appellate Division, however, reversed the trial court and found that the email log “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.”
Many jurisdictions—including Washington, Arizona, New York, Tennessee, Illinois, and Florida—agree that “metadata” associated with electronic public records, like the email information requested by Paff, is itself a “public record” subject to public disclosure. However, it is not yet clear if having an agency compile a list of metadata by querying a database would involve creating a new public record. Paff maintains that “computer searches do not create records, but actually ‘retrieve records that are kept safe as data.’” Will the New Jersey Supreme Court agree?
Only a few courts have addressed whether querying a database involves creating a new record, but those that have spoken on the issue have found that, unless it would be unduly burdensome, searching a database generally does not create a new record. In Tennessean v. Electric Power Board of Nashville, for example, the Tennessee Supreme Court required that a city’s electric utility search its database and provide a list of the names, addresses, and telephone numbers of its customers, concluding that “once information is entered into a computer, a distinction between information and record becomes to a large degree impractical.” (discussed by Millonzi). Similarly, the New York Supreme Court, Appellate Division in Locator Services Group Ltd. v. Suffolk County Controller found that responding to a request for vendor payment information by searching the county’s database, using an existing program, did not create a new record. (discussed by Millonzi).
At the federal level, the U.S. Department of Justice notes that there is very little case law addressing “an agency’s search obligations in connection with ‘electronic’ files” under the Freedom of Information Act, but suggests that an agency should comply with a request when the information can be retrieved through the agency’s “existing data-retrieval programs.”
If the New Jersey Supreme Court plans to rule consistently with other jurisdictions, it is likely to find that searching the Township’s email appliance, so long as it is not excessively burdensome, does not involve creating a new public record and that Paff is entitled to the email log.