A-0125-14t4john Paff v. Galloway Township

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0125-14T4

JOHN PAFF,

Plaintiff-Respondent, APPROVED FOR PUBLICATION

April 18, 2016
v.
APPELLATE DIVISION
GALLOWAY TOWNSHIP and THALIA C.
KAY, in her capacity as Municipal
Clerk and Records Custodian of
Galloway Township,

Defendants-Appellants.
______________________________________

Argued March 8, 2016 – Decided April 18, 2016

Before Judges Reisner, Hoffman and Leone.

On appeal from Superior Court of New Jersey,
Law Division, Atlantic County, Docket No. L-
5428-13.

Michael J. Fitzgerald argued the cause for
appellants (Fitzgerald McGroarty, attorneys;
Mr. Fitzgerald, on the briefs).

Walter M. Luers argued the cause for
respondent (Walter M. Luers, LLC and Furst &
Lurie, attorneys; Mr. Luers, Joshua M. Lurie,
and Raymond M. Baldino, of counsel and on
the joint brief).

Vito A. Gagliardi, Jr., argued the cause for
amicus curiae New Jersey State Association
of Chiefs of Police (Porzio, Bromberg &
Newman, P.C., attorneys; Mr. Gagliardi, of
counsel and on the brief; Phillip C.
Bauknight, on the brief).
 Christopher J. Michie argued the cause for
amicus curiae American Civil Liberties Union
of New Jersey and the Electronic Frontier
Foundation (Clark Michie, LLP, attorneys;
Mr. Michie, Edward L. Barocas, and Jeanne
LoCicero, on the joint brief).

Carl R. Woodward, III, argued the cause for
amicus curiae New Jersey State League of
Municipalities and New Jersey Institute of
Local Government Attorneys (Carella, Byrne,
Cecchi, Olstein, Brody & Agnello, attorneys;
Mr. Woodward, on the brief).

The opinion of the court was delivered by

HOFFMAN, J.A.D.

Defendants Galloway Township (the Township) and Thalia C.

Kay (the Clerk) appeal from a June 10, 2014 Law Division order

requiring them to provide plaintiff John Paff with logs of

emails, pursuant to the Open Public Records Act (OPRA), N.J.S.A.

47:1A-1 to -13. Because OPRA does not require public agencies

to create records that do not already exist, we conclude that

plaintiff was not entitled to the logs requested in this case.

Accordingly, we reverse.

I.

We begin by summarizing the salient facts. On June 8,

2013, plaintiff submitted an OPRA request to the Clerk, seeking

"logs" of all emails sent by the Clerk and the Township's Chief

2 A-0125-14T4
of Police between June 3 and June 17, 2013.1 Importantly,

plaintiff did not request any specific emails; rather, he sought

an itemized list showing the sender, recipient, date, and

subject of all emails sent by the Clerk and Chief of Police

during the designated period of time. Based on her own personal

understanding of OPRA, legal advice provided by the Township's

attorney, and information provided to her by the Government

Records Council (GRC),2 on July 8, 2013, the Clerk sent an email

to plaintiff denying his request.

On August 19, 2013, plaintiff filed a verified complaint

and order to show cause, seeking to compel defendants to create

and provide the requested lists of emails, pursuant to OPRA and

the common law right of access to public records. After the

court entered the order to show cause, the parties engaged in

1
In a certification submitted to the court, Captain Christopher
Doyle, the Galloway Police Department's Deputy Records
Custodian, stated his belief that plaintiff chose these specific
dates because of an internal investigation conducted during this
period of time. However, plaintiff testified that he could not
recall any reason for making the request, nor the reason for
choosing these specific dates. Plaintiff has filed numerous
OPRA requests across New Jersey.
2
The GRC is an agency "within the Department of Community
Affairs . . . charged with adjudicating OPRA disputes" in the
event the person seeking the record chooses not to file an
action in Superior Court. Bent v. Twp. of Stafford Police
Dep't., 381 N.J. Super. 30, 38 (App. Div. 2005) (citing N.J.S.A.
47:1A-6).

3 A-0125-14T4
limited discovery and the court heard testimony over the course

of three days.

In a certification dated October 16, 2013, the Clerk

provided context for denying plaintiff's OPRA request, as well

as background information regarding the Township's policies and

practices for disclosing public records. During the timespan

between "late 2011" and the "end of 2012," the Township had an

informal policy of creating email logs in response to specific

OPRA requests (the informal log-creation policy). These email

logs were "never made, maintained or kept on file" absent a

specific request for them, and were produced irrespective of

whether OPRA required their production. Notably, the Township

never created any logs regarding emails sent by Police

Department personnel.

At the end of 2012, due to the "volume of legitimate OPRA

requests and the significant Township resources required to

appropriately respond to these requests," the Township

discontinued the informal log-creation policy, and the Clerk

began the practice of only responding to records requests which

meet the specific requirements of the OPRA statute.3 Before

discontinuing the informal log-creation policy, the Clerk sought

3
The current Clerk was not the Township's Clerk when the
Township first implemented the informal log-creation policy, but
was the Clerk when the Township discontinued the policy.

4 A-0125-14T4
verification from the GRC that doing so would not run contrary

to OPRA. In response to the Clerk's inquiry, the GRC advised,

"Both the GRC and the Courts have held that a [records]

custodian is not required to create new records in response to

an OPRA request. If a record does not already exist, the

custodian may deny access on the basis that no records

responsive exist."

To further confirm this information, on March 7, 2013, the

Clerk filed her own OPRA request with the GRC, requesting a log

of all emails sent to or from the Acting Executive Director of

the GRC "from January 1, 2013 through February 28, 2013." The

GRC denied the Clerk's OPRA request on the basis that "no

records responsive exist."

According to the Clerk, the Township "do[es] not have the

resources to create records which are not required [by OPRA,]

and [it] would be entirely inappropriate to place an additional

cost and tax burden upon the residents of the Township to do

so." Regarding the volume of OPRA requests received by the

Township, the Clerk certified that the Township's OPRA responses

over the last two years totaled approximately 43,500 pages of

paper.

Eric McCarthy, a computer technician employed by the

Township, testified that creating an email log, such as those

5 A-0125-14T4
requested by plaintiff, requires a search on the Township's

email "appliance." This search — in which a user enters data

into certain electronic search boxes and forwards the results to

the desired recipient — takes approximately two to three

minutes, but could take longer depending on the volume of search

results.

Captain Doyle's certification also addressed the Police

Department's ability to create email logs such as those

requested by plaintiff. Although the Department had the

technical ability to create such logs, Captain Doyle expressed

concern that log-creation of this type "would have a significant

potential detriment to the Department's ability to protect

confidential information, ongoing investigations and

investigatory techniques." Furthermore, "[w]hile the Department

would have the ability to redact" sensitive information, Captain

Doyle certified that "there nevertheless is a real potential

danger of inadvertently releasing damaging information."

On June 10, 2014, the judge ruled in plaintiff's favor and

entered an order requiring defendants to provide the requested

list of emails. The judge concluded that what he called the

"metadata" or list of "sender/receiver/date/time of emails,"

sent by the Clerk and the Chief of Police between June 3 and 17,

2013, was a public record, analogous to a library's card

6 A-0125-14T4
catalogue, and that the preparation of the list required little

effort. He set forth his reasoning in a five-page memorandum of

decision, explaining, in pertinent part:

Whether termed "metadata" (which
[p]laintiff's counsel urges and [d]efendant
rejects) or not, the fact remains that the
emails of the Township Clerk and Chief of
Police are public records as defined by the
OPRA because they comprise "[] information
stored or maintained electronically . . .
that has been made, maintained and kept on
file in the course of his or its official
business by any officer, commission, agency
or authority of the state or any political
subdivision thereof." By logical/reasonable
extension, a log or list of emails that can
be easily prepared, is likewise within the
[ambit] of that definition.

The judge also rejected Captain Doyle's assertion that

production of an email log would compromise the confidentiality

of Police Department information, concluding: "Despite the

Township's purported concerns about disruption of police

investigations, the request made by the [p]laintiff affords him

access to no more than the sender/receiver/date/time of emails

between the dates of June 3 thru 17, 2013." The judge therefore

concluded that plaintiff "is entitled to receipt of the log[s]

of emails he has requested, at a reasonable fee commensurate

with the effort involved." The judge granted a stay pending

appeal. Thereafter, the judge clarified that he would conduct

7 A-0125-14T4
an in camera review of the requested email list prior to its

release to plaintiff.4

Defendants filed their notice of appeal on September 5,

2014.5 Defendants argue, "[I]f a document must be created, it is

not a record for purposes of OPRA or the common law right of

access." Amici supporting defendants' position emphasize that,

if upheld, the trial court's decision would have a significant

negative impact on governmental agencies, state-wide. Plaintiff

counters that we should not only affirm the trial court's

decision, but also "affirm that OPRA's broad mandate favoring

transparency and public access to knowledge about government

extends to computer information available through a simple

computer search requiring, at most, a few minutes."

II.

We review a trial judge's legal conclusions concerning

access to public records under OPRA de novo. Drinker Biddle &

4
The judge also awarded plaintiff $15,300 in attorney's fees and
$723.13 in costs, pursuant to N.J.S.A. 47:1A-6, but stayed that
order as well. Defendants have not appealed the order awarding
fees and costs.
5
After defendants filed their notice, we permitted several amici
curiae to intervene. Amici for defendants include the New
Jersey State League of Municipalities (LM), the New Jersey
Institute of Local Government Attorneys (ILGA), and the New
Jersey State Association of Chiefs of Police (ACP). Amici for
plaintiff include the American Civil Liberties Union of New
Jersey (ACLU) and the Electronic Frontier Foundation.

8 A-0125-14T4
Reath LLP v. N.J. Dep't of Law and Pub. Safety, 421 N.J. Super.

489, 497 (App. Div. 2011). We will not disturb factual findings

as long as they are supported by adequate, substantial and

credible evidence. See Meshinsky v. Nichols Yacht Sales, Inc.,

110 N.J. 464, 475 (1988).

New Jersey has traditionally maintained a strong public

policy that "government records shall be readily accessible for

inspection, copying, or examination by the citizens of this

State[.]" N.J.S.A. 47:1A-1. The OPRA statute ensures, with

exceptions, that "all government records shall be subject to

public access." N.J.S.A. 47:1A-1. A person who is denied

access to a government record may challenge the denial in

Superior Court or file a complaint with the GRC. N.J.S.A.

47:1A-6. In OPRA cases, the records custodian has the burden to

show that its denial of access was authorized by law. N.J.S.A.

47:1A-6; Asbury Park Press v. Monmouth Cty., 406 N.J. Super. 1,

7 (App. Div. 2009), aff'd, 201 N.J. 5 (2010).

The threshold question in an OPRA claim is whether the

plaintiff has requested "government records" pursuant to the

statute. O'Shea v. Twp. of West Milford, 410 N.J. Super. 371,

380 (App. Div. 2009) (citation omitted). The statute broadly

defines a "government record" as:

9 A-0125-14T4
 any paper, written or printed book,
document, drawing, map, plan, photograph,
microfilm, data processed or image processed
document, information stored or maintained
electronically[6] or by sound-recording or in
a similar device, or any copy thereof, that
has been made, maintained or kept on file in
the course of his or its official business
by any officer, commission, agency or
authority of the State or of any political
subdivision thereof . . . .

[N.J.S.A. 47:1A-1.1 (emphasis added).]

Notwithstanding its broad definition of government record,

"OPRA does not require public agencies to create records."

Sussex Commons Assocs., LLC v. Rutgers, 210 N.J. 531, 544 (2012)

(citation omitted). We have previously interpreted this aspect

of OPRA narrowly, concluding that "a records custodian is not

required 'to conduct research among its records . . . and

correlate data from various government records in the

custodian's possession.'" Bent, supra, 381 N.J. Super. at 37

(quoting MAG Entm't, LLC v. Div. of Alcoholic Beverage Control,

375 N.J. Super. 534, 546-47 (App. Div. 2005)). Thus, based on

the plain language of the statute, we have held that "OPRA only

allows requests for records, not requests for information."

Ibid. (citing MAG, supra, 375 N.J. Super. at 546–47). The GRC

6
The judge quoted this language in support of his decision,
stating that "the emails . . . [constitute] 'information stored
or maintained electronically . . . that has been made,
maintained and kept on file in the course of his or its official
business by any officer . . . .'"

10 A-0125-14T4
has ruled that such requests need not be granted, and we "accord

substantial deference to the [GRC's] interpretation." Ciesla v.

N.J. Dep't of Health & Senior Servs., 429 N.J. Super. 127, 148

(App. Div. 2012).

N.J.S.A. 47:1A-5(d) requires a custodian to provide a copy

of a government record "in the medium requested" if it is kept

that way, or "convert the record to the medium requested or

provide a copy in some other meaningful medium." However, that

section does not change the definition of a "government record"

in N.J.S.A. 47:1A-1.1. At appellate oral argument, plaintiff

contended that the Township has to compile these email logs even

if the Township never would have created such a log for its own

use.

Defendants argue that the Township cannot be required to

create a document, such as a list of emails, even if it

previously created such lists voluntarily in response to OPRA

requests, and even if it would only take a few minutes to

compile the list. They admit that plaintiff could request

copies of the actual emails, but argue that they are not

required to create a list of the emails.

Defendants also contend that the list would involve

disclosing email addresses of the senders, which might in turn

compromise the privacy interests of those who communicated with

11 A-0125-14T4
the Township government in the expectation that their

communications would remain private. They also express concern

about compromising police investigations.

Plaintiff argues that the information he requested was part

of the "data" of the individual emails which the agencies kept

on file. Plaintiff also makes the argument that there is no

difference between "information" and "records" where electronic

records are concerned, contending that computer searches do not

create records, but actually "retrieve records that are kept as

data."

Plaintiff contends that the logs he requested constitute

"metadata," and therefore should be subject to disclosure under

OPRA. Plaintiff cites cases from other jurisdictions which have

held that the metadata included in the computerized form of a

public record is discoverable as part of a request for the

discoverable public record itself.7 Defendants counter by

arguing that a log of emails is not itself metadata. Rather,

defendants claim that an email log is an independent compilation

7
See, e.g., O'Neil v. City of Shoreline, 240 P.3d 1149, 1153–54
(Wash. 2010); Lake v. City of Phoenix, 218 P.3d 1004, 1008
(Ariz. 2009); In re Irwin v. Onondaga Cty. Res. Recovery Agency,
72 A.D.3d 314 (N.Y. App. Div. 2010); Tennessean v. Elec. Power
Bd. of Nashville, 979 S.W.2d 297, 302–04 (Tenn. 1998); Hammer v.
Lentz, 547 N.E.2d 191, 195 (Ill. 1989); Seigle v. Barry, 422
So.2d 63, 66 (Fla. Dist. Ct. App. 1982), review denied, 431
So.2d 988 (Fla. 1983).

12 A-0125-14T4
of metadata that did not exist independently from the emails

themselves prior to the OPRA request. In other words, although

the information that would be contained in the log plaintiff

seeks — the sender, recipient, date, and subject of emails sent

by government personnel — is itself metadata,8 defendants assert

that they are not required to assemble a new list that extracts

this metadata and displays it in a newly-created document.

Stated differently, defendants argue that a log of emails is not

a government record because it does not exist prior to the

Clerk's receipt of an OPRA request, and that OPRA does not

require the creation of a new government record that does not

yet exist at the time of a request. We agree.

We hold that OPRA does not require the creation of a new

government record that does not exist at the time of a request,

even if the information sought to be included in the new

government record is stored or maintained electronically in

other government records. The Township's computers store the

emails, which are government records, but the Township has never

created an email database for the use of Township personnel.

Unlike a library's card catalogue, the email logs requested here

never existed prior to plaintiff's OPRA request. While a

8
In his testimony, McCarthy defined metadata as "the information
about each particular e-mail" including the sender, date, and
recipient of emails.

13 A-0125-14T4
computer may be able to create an email log quickly, it is still

creating a new government record, which is not required under

OPRA as interpreted in Sussex, Bent, and MAG.

We acknowledge that the creation of an email log in the

circumstances before us would not present a particularly

burdensome task for the Clerk. However, once the email log is

generated, redacting it to remove information that is not

discoverable under OPRA could require substantial effort,

including gathering and reviewing the emails themselves. In any

event, an order requiring the creation of an email log, that

does not exist prior to time of the request, represents an

extension of a plainly-worded statute. "[O]ur goal is to

interpret the statute consistent with the intent of the

Legislature." Oberhand v. Dir., Div. of Taxation, 193 N.J. 558,

568 (2008). Applying well-settled rules of statutory

construction, "we give a statute's 'words and phrases' their

usual and ordinary meaning, N.J.S.A. 1:1-1, because the words of

a statute ordinarily provide the most reliable indication of

legislative intent." Cty. of Bergen Emp. Benefit Plan v.

Horizon Blue Cross Blue Shield of N.J., 412 N.J. Super. 126, 132

(App. Div. 2010). When the language in a statute "is clear and

unambiguous, and susceptible to only one interpretation," we

presume the Legislature meant what it said and that the plain

14 A-0125-14T4
meaning governs. Burnett v. Cty. of Bergen, 198 N.J. 408, 421

(quoting Lozano v. Frank DeLuca Constr., 178 N.J. 513, 522

(2004)).

Based on the statute's clear and unambiguous language, and

consistent with our previous interpretations of the statute in

Bent and MAG, we reverse the order granting plaintiff's OPRA

request in this case, as it would require defendants to create a

new record which did not otherwise exist. While the OPRA

request under review might not present a burdensome task, we can

easily envision requests of a similar nature that would present

a serious burden. In light of our interpretation of the

clearly-worded statute, and the far-reaching implications of

requiring governmental entities to produce lists and

compilations that do not otherwise exist, we conclude that any

extension of OPRA should properly come from the Legislature.

Until such an amendment occurs, our holding — that OPRA does not

require the creation of a new government record that does not

yet exist at the time of a request, even if the information

sought to be included in the new government record is stored or

maintained electronically in other government records — should

provide a clear demarcation line in this case, as well as future

cases.

15 A-0125-14T4
 Reversed.9

9
In the event we reversed the trial court's OPRA ruling,
plaintiff urged us to remand for the court to address his
request under the common law right of access. While the common
law right of access reaches a broader class of documents than
its statutory counterpart, Higg-A-Rella, Inc. v. Cty. of Essex,
141 N.J. 35, 46 (1995), in order to prevail, a litigant must
establish an interest in the public record, and that the
interest in disclosure outweighs the need for confidentiality.
Shuttleworth v. City of Camden, 258 N.J. Super. 573, 582 (App.
Div.) (quoting Home News Publ'g Co. v. State, 224 N.J. Super. 7,
16 (App. Div. 1988)), certif. denied, 133 N.J. 429 (1992). In
light of plaintiff's testimony that he could not recall any
reason for making his request nor the reason for choosing the
specific dates in his request, we conclude there exists no basis
for a remand.

16 A-0125-14T4