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New Jersey Superior Court Denies Public Records Request for Email Log Production

Posted on April 29th, 2016

An email log being sought under the state public records act was the subject of an appeal in Paff v. Galloway Township, Docket No. A-0125-14T4 (N.J. Super. Ct. App. Div. April 18, 2016).

Plaintiff sought email logs from the defendant Township pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to 13.  He sought an itemized list of all emails sent between the Clerk and the Township’s Chief of Police between June 3 and June 17, 2013, including the sender, recipient, date and subject of the emails.  The Clerk denied the request, arguing that it was under no obligation to create a list of emails—a record that would have to be first created to be produced.

Plaintiff filed a show cause order to force the Township to provide this data.  The trial court ordered the Township to produce the record, and the Township appealed.

The Superior Court maintained that the threshold question was whether the plaintiff requested “government records” pursuant to the statute.  Government records are broadly defined in the statute, but prior case law held “OPRA does not require public records to create records.”  Put another way, OPRA only allows requests for records, not information.

Plaintiff countered that there was not a difference between “information” and records in electronic form, and that his request would only require a simple computer search.  Plaintiff further contended that this computer search would not be creating a new “record,” but was instead a simple retrieval of records kept as electronic data.  Plaintiff characterized it as a request for email metadata, and cited cases from other jurisdictions that held metadata is a discoverable public record in and of itself.

The Township disagreed with the plaintiff’s contention that the email log was metadata, but rather asserted that the log would be an independent compilation of metadata.  The defendant also argued that although the information contained in the log would be comprised of metadata, the Township is not required to assemble a new list of metadata to create a new document (log) for production.

The Superior Court agreed with the Township that the email log was not a government record under the statute.  It found that because the email log did not exist at the time of the request, that ordering production of such a log would require the creation of a government record, which is not required under the provisions of the New Jersey public records act.  The Court further noted in its ruling that although the plaintiff’s request was not particularly burdensome, the court was concerned about setting a precedent for future public records requests which may require creation of data compilations.

ILS – Plaintiff eDiscovery Experts

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