John Paff v. Galloway Township (077692) (Atlantic and Statewide) ( 2017 )

                                        SUPERIOR COURT OF NEW JERSEY
                                        APPELLATE DIVISION
                                        DOCKET NO. A-0125-14T4
         Plaintiff-Respondent,            APPROVED FOR PUBLICATION
                                               April 18, 2016
                                             APPELLATE DIVISION
    KAY, in her capacity as Municipal
    Clerk and Records Custodian of
    Galloway Township,
             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-
             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
        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.
        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
    381 N.J. Super. 30
    , 38 (App. Div. 2005) (citing N.J.S.A.
                                                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
           Eric     McCarthy,      a     computer      technician          employed      by    the
    Township, testified that creating an email log, such as those
    requested      by     plaintiff,       requires     a    search   on     the    Township's
                                                   5                                     A-0125-14T4
    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
          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
    catalogue, and that the preparation of the list required little
                                                    6                                      A-0125-14T4
    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."
         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
          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
           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
    the    Township       government         in        the     expectation          that      their
                                                  11                                       A-0125-14T4
    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
        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
    of metadata that did not exist independently from the emails
    7 See, e.g., O'Neill 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); Hamer v.
    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
    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
    computer may be able to create an email log quickly, it is still
    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
    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
    meaning governs.          Burnett v. Cty. of Bergen, 
    198 N.J. 408
    , 421
                                                   14                                       A-0125-14T4
    (quoting    Lozano    v.   Frank      DeLuca       Constr.,   
    178 N.J. 513
    ,    522
          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
                                                15                               A-0125-14T4
    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