After Paff v. Galloway, in which the New Jersey Supreme Court held that the public had a right to receive logs of e-mails to or from public officials, one potential response from public agencies was to reduce their technological capabilities.
Not so fast. In 2018, the Appellate Division decided Conley v. New Jersey Department of Corrections, 425 N.J. Super. 605 (App. Div. 2018). In Conley, the plaintiff, who was self-represented, filed an OPRA request with the New Jersey Department of Corrections (“NJDOC”) in which he requested “monthly remedy form statistical reports” and “monthly remedy logs for January, February, March and April 2014 for a few state prisons.
The NJDOC provided some statistical information response to the Plaintiff’s request, but denied access to the full reports. Although full reports had previously been provided for earlier time periods, NJDOC stated that NJDOC had begun utilizing a new database and that NJDOC could no longer generate or provide to Plaintiff the requested reports.
Conley appealed the denial of access to the Government Records Council (“GRC”), which held in favor of NJDOC. Conley then appealed to the Appellate Division, which reversed and ordered the NJDOC to produce the requested reports to Conley, even though the NJDOC’s “new” database could not provide the reports in the format requested by Conley. The Court held that “Given the history of accessibility and the conceded public character of [the requested] information, the DOC should have considered the public ramifications before modifying the manner it stored public records.” Further, “[t]echnological advancements in data storage should enhance, not diminish, the public’s right of access to ‘government records’ under OPRA.”
We believe this opinion may fairly be read to require public agencies to, at a minimum, maintain (if not improve) the level of public access to documents and information stored electronically. Public agencies, through what the Court labeled, generally, “bureaucratic manipulation,” cannot reduce access to records by changing or limiting their technological capabilities.
Although decisions of the GRC only apply to the parties, the Appellate Division’s published opinion is applicable to all public agencies. This decision continues to reinforce and strengthen New Jersey’s commitment to the use of technology to improve access to public records.
Anyone who has been denied access to records or has questions about access to public records should contact Cohn Lifland to discuss their options. The statute of limitations to file a denial of access complaint in Superior Court is 45 days after the date of the denial, so it is important to act quickly.