On January 27, 2025, the New Jersey Appellate Division held that email logs from a current or past Board member’s private email account were subject to disclosure under the Open Public Records Act (“OPRA”) when those logs contained emails discussing Board business. In overturning the trial court, the Appellate Division held that email logs on private servers are government records, and that OPRA was broad enough to include email logs with emails sent to or from personal accounts of government officials about government business.
This case arises following a January 2023 OPRA request submitted to the Ramapo-Indian Hills Regional High School Board of Education, seeking “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 request sought the sender, recipient, any individuals copied or blind-copied, along with the date, time, subject, whether the email contained an attachment and, if so, the name of the attachment. Following the lack of the Board’s timely response, the Plaintiff filed an Order to Show Cause and Verified Complaint seeking disclosure of the records.
In his Complaint, Plaintiff alleged that records previously provided from the District’s internal email servers contained “dozens of redactions demonstrating Board members using their District-supplied email accounts to communicate with other Board members’ personal email accounts”. This, Plaintiff argued, was intended to circumvent OPRA. In opposition, the Board argued that the email logs sought were not government records and, even if they were, it would be “difficult if not impossible” to generate the email logs sought from private servers. The trial court agreed, finding that personal email logs exceed OPRA’s purview and granting the request would impose a substantial burden on the Board. Plaintiff’s appeal followed.
On appeal, the Plaintiff argued that the statutory text of OPRA did not create a limitation on “the pen that wrote [the email] or the email account that created it”, meaning that OPRA did not differentiate between private or District-created email accounts for the purpose of generating public records. The Board argued that the email logs were kept on private servers, and only government-controlled servers were subject to OPRA’s requirements.
In its decision, the Appellate Division held that the requested email logs are government records because they relate to Board business, despite being maintained on a private server and outside the Board’s control. Further, the Appellate Division stated that no new record was created, as an email log is simply information extracted from an email – thus making it a government record.
Most notably, the Appellate Division focused on the portion of N.J.S.A. 47:1A-1.1’s definition of government record which states that 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 in original). In using “or” in the emphasized portion of the statute, the Appellate Division found that Plaintiff’s request fell within the definition, as a government official had “made” the record. It was not necessary for the Board to then “keep” the record, as the “or” in the statute required only one of the referenced “criteria” to be satisfied. Thus, records satisfy the definition of “government records” simply if a government official created them, even if the Board does not keep those records.
Once the definition of “government records” was satisfied, the Appellate Division focused on the production of the requested records. The Court determined that the request for production was not unduly burdensome. However, as the Board claimed that it was unfeasible to produce the records, the Court opted to remand the matter to the trial court. This provides the Board with the opportunity to substantiate its claims, and for the Plaintiff to respond.
As part of that remand, the Appellate Division ordered that Board members search their personal email accounts to determine if the email logs are available. If unavailable or production is burdensome, the Board must submit persuasive certifications which meet the criteria established in Paff v. New Jersey Dep’t of Labor, 392 N.J.Super. 334, 341 (App. Div. 2007). These certifications must set 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 [Board’s] document retention / destruction policy and the last date on which documents that may have been responsive to the request were destroyed. Id.
If such certification is provided, the Plaintiff shall have the opportunity to respond. Once both parties submit, the trial court shall determine if a fact finding hearing is needed and ensure that the parties make good faith efforts to resolve the request. Then, the trial court must determine whether the production is unduly burdensome.
This case marks an important extension of OPRA’s requirements. Board members should be aware that any emails which discuss Board business, whether sent by a District-provided email address or a personal email address, are subject to disclosure as government records. Board members must be mindful of the contents of their emails at all times.
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