New Jersey Supreme Court to Decide Whether Electronic Data Are Public Information

Published on

July 21, 2016


State Law


Jan-alfred Aquino

In the ongoing contention of balancing fully open, transparent governments with the protection of government information, the New Jersey Supreme Court has agreed to hear a case on whether electronic data and metadata are available as public records.

John Paff requested a log of emails in Galloway Township sent within a two week period in 2013. The data would include the sender, recipient, date, and subject of the emails, but not their content. Paff, an open-government activist, has requested numerous public records in the past in order to test the transparency of local governments.

When Paff’s request was denied, he sued an Ocean County court in 2014, which ordered that the information be released to him. An appeals panel in March 2016 reversed the 2014 ruling, arguing that the email log was not a public record because the clerk would have to create a record that did not already exist. New Jersey’s Open Public Records Act (OPRA) requires the release of public records, but not information or data.

The upcoming decision may be a matter of semantics - whether public records also include electronic data and metadata, as in the case of email logs - but its implications are significant. As information becomes increasingly more available online, limiting public information to only those listed in public records would hugely affect citizens’ relations with their government. It would be interesting to see how the New Jersey Supreme Court would decide on the case, especially given the federal FOIA Improvement Act’s provisions for limiting what information can be reasonably withheld.

Undoubtedly, the upcoming decision can fundamentally transform New Jersey’s public information system and reflects important questions of what information is truly available in the digital age. Has your government made electronic information available?

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