March 15, 2009
Documents Contained on an Elected Public Official's Personal Home Computer, including Emails, Records and Data, are not Exempt from New Jersey's Open Public Records Act Requirements
Written By: James G. O'Donohue
In a recent decision the Government Records Council has ruled that all documents in electronic format maintained on a Mayor's personal home computer are subject to production under New Jersey's Open Public Records Act (OPRA). In so holding the Council noted that OPRA specifically covers "information stored or maintained electronically" and that the obligation to produce such documentation, electronic or otherwise, "is not restricted by the location of the record." In this case the fact that the Mayor utilized his personal home computer, and personal email address, to communicate with various individuals regarding Municipal business was deemed to be immaterial. The fact that the email communications, data and records discussed or touched upon governmental business and topics was dispositive and required production. Moreover, the Council noted that it is immaterial whether the record was "generated or received during regular office hours or official meetings". As such any and all electronic records whether they be emails, documents, data or the like, which are kept on an elected public official's personal home computer are subject to production pursuant to a citizen's demand under OPRA.
This decision has very significant implications to all governmental officials, State, County and local, elected or appointed. To the extent they utilize their personal home computers to discuss, transmit or otherwise deal with information related to their official positions in the jurisdictions in which they serve, such material is subject to production upon demand. The irony is that prior to the common use of email public officials would customarily discuss numerous and various issues with other public officials or citizens and no record of any nature would be created. Now, with the advent of email, which has in many cases become a substitute for personal communications, a record is created and maintained regarding discussions on a wide variety of topics including governmental business. However, emails customarily contain a mixture of information which involves not only a particular governmental topic, but often include personal information, business information or conveys messages completely unrelated to governmental matters. Whether emails must be produced in their original state, without redaction for such information, is an issue which the Government Records Council did not address in this decision. However, governmental officials would be well served to assume that any emails which they generate discussing public issues will now be subject to production, including any ancillary information contained in the transmission.
Given this expanded view of New Jersey's Open Public Records Act government officials should consider whether or not it would be prudent to have a separate personal computer dedicated solely for governmental business and utilized for emails, information and data related solely to that official's public position. Alternatively, consideration should be given to establishing an offsite account such as with AOL, specifically for the purpose of maintaining electric information related to that official's position.
Unless a governmental official is careful to segregate governmental information in this fashion responding to an OPRA request would be challenging and time consuming. Often individuals keep literally thousands of emails on their personal computers. Reviewing each of those emails, information or data to determine which may or may not be relevant to governmental issues would be an expensive and time consuming process, but one which is mandated by this most recent decision.
Although the use of emails is an effective and accurate way to communicate with multiple parties regarding a variety of governmental issues, a significant degree of circumspection is now required by public officials.
This article provides information of general interest and is not intended, and should not be used, as a substitute for consultation with legal counsel. Any questions regarding the specific issues raised in this article should be directed to James J. O'Donohue, Esq. (609) 734-6314 or by email: firstname.lastname@example.org