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A New Jersey Law Division judge recently held that public entities are required to turn over “metadata” related to internal e-mail communications when that information is sought via an Open Public Records Act (OPRA) request. In Paff v. Galloway Township, docket no. ATL-L-5428-13, the plaintiff, Paff, filed an OPRA request pursuant to N.J.S.A. 47:1A-1, et seq., seeking a log of e-mail messages between defendant Galloway Township’s Municipal Clerk and Chief of Police. Importantly, Paff did not request the e-mail messages themselves, but rather asked the Township to create a log of any such messages which would include information about the e-mails such as the sender, the recipient, and the date the e-mail was sent. Paff characterized the information provided in an e-mail log as “metadata” that qualified as a public record which, given the ease with which it could be retrieved, should be subject to an OPRA request. In response, the Township claimed that OPRA requires only that public entities turn over records in their possession, not that they create new records where records do not already exist. The Township admitted, however, that it had in the past voluntarily created e-mail logs in response to OPRA requests but ended the practice some time in 2012. Before turning to its legal analysis, the court noted that it was undisputed that the municipality had the technological ability to create a log of e-mails.
The court began its consideration of the scope of OPRA by pointing to the purpose of the statute, explaining that the core principle of OPRA is government transparency. The court also noted that OPRA broadly defines “government record,” i.e., the types of documents, photos, recordings, etc. that are subject to an OPRA request, and, under the statute, any limitations on the right to access government records are interpreted “in favor of the public’s right to access.” N.J.S.A. 47:1A-1. The court then held that, while the request for the information about the e-mail messages seems quite broad, the information sought was, in fact, “identified with reasonable clarity” and an e-mail log could be created without burdening the Township. In this case, as the court points out, the municipality did not even attempt to accommodate Paff’s request despite its obligation to do so under OPRA.
Finally, the court, somewhat tentatively, addressed the concept of “metadata” in the context of the matter before the court. While counsel for the respective parties disagreed as to whether a log of e-mail messages qualifies as “metadata,” the court held that an easily prepared log or list of e-mails, since the e-mails themselves would otherwise be public records under OPRA, by “logical/reasonable” extension, is covered by OPRA. Interestingly, while making clear that it has a limited grasp on the concept of “metadata”, the court defines the term by analogy to a card catalogue in a library. According to the court’s comparison, the catalogue cards include information about the books and their location, but not the information within the books. Such is the case with an e-mail log; the metadata tells you about the e-mail (e.g. who sent the e-mail, to whom it was sent, and when it was sent), but it does not tell you about the contents of the e-mail.
Regardless of the definition of “metadata,” the court found that the information requested by the plaintiff fell within the scope of OPRA and the municipality was thus obligated to create the requested e-mail log and provide it to the plaintiff.
The attorneys at Lieberman & Blecher, P.C., who regularly serve OPRA requests on public entities in the course of assisting clients with environmental legal issues throughout New Jersey, will be closely following the developments in in this area of the law as it evolves to address the realities of advancements in technology and their effect on the legal process.
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