Open Public Records Act Request That Requires Government to Create Records is Improper

Paff v. Galloway Tp., 444 N.J. Super. 495 (App. Div. 2016).  John Paff is a frequent litigant under the Open Public Records Act, N.J.S.A. 47:1A-1 et seq. (“OPRA”).  In this case, he sought logs of all emails sent by the Galloway Township Clerk and its Chief of Police for a two-week period in June 2013.  Paff did not request the emails themselves, but instead wanted “an itemized list showing the sender, recipient, date, and subject of all emails” between those two officials during that time.  There were no such logs or itemized lists.  They would have to be created.  The request was denied and Paff then sued.  He prevailed in the Law Division, but today the Appellate Division reversed.  Judge Hoffman wrote the panel’s opinion.

As Judge Hoffman noted, in Sussex Commons Assocs., LLC v. Rutgers, 210 N.J. 531, 544 (2012), discussed here, the Supreme Court stated that, despite the broad definition of “government record” in OPRA,”OPRA does not require public agencies to create records.”  But Paff offered an argument based on the nature of email.  Defendants “admit[ted] that plaintiff could request copies of the actual emails.”  Paff thus contended that “the information he requested was part of the ‘data’ of the individual emails,” and there was “no difference between ‘information’ and ‘records’ where electronic records are concerned,” because “computer searches do not create records, but actually retrieve records that are kept as data.”

Paff also argued that the requested logs constituted metadata.  He cited cases from other jurisdictions ruling that metadata included in a computerized form of a public record is discoverable as part of a request for the public record itself.  Defendants disagreed that the log was discoverable metadata.  It was simply not in existence when plaintiff made his OPRA request.

Judge Hoffman recognized that legal issues attendant to OPRA issues get de novo review, while factual findings are upheld where they are supported by “adequate, substantial and credible evidence.”  He held that “OPRA does not require the creation of a new government record that does not exist at the time of the request, even if the information sough to be included in the new government record is stored or maintained electronically in other government records.”  The fundamental principle of statutory interpretation that clear and unambiguous legislative language must be given its full effect mandated that result.

Though it might have been easy for defendants to create the requested logs in this case, that did not call for a different outcome.  The panel could “easily envision requests of a similar nature that would present a serious burden.”  Judge Hoffman stated that the panel’s ruling “should provide a clear demarcation line in this case, as well as future cases,” unless and until the Legislature amends OPRA in this regard.