On October 3, the Appellate Division of Superior Court determined that not every email sent on government email servers is automatically a public record accessible under the Open Public Records Act.
In Carter v. Fire District No.1, the plaintiff, a requestor of records, sought emails sent between fire commissioners concerning a political action committee. The fire district denied access to the emails asserting that they were not government records and, therefore, not subject to disclosure under OPRA.
The requestor sought the Government Records Council’s review of the denial by the fire district. The Government Records Council (GRC) reviewed the request determining that the mere fact that the emails concerning the political action committee were sent on a government system did not automatically mean that the emails were government records.
Moreover, the GRC determined that the fire district’s policy in which it had declared that any email sent on its servers would be considered its property, does not mean it was automatically a government record. Rather, email sent over government servers must meet the definition of government record under OPRA which includes documents made, maintained or kept in the course of official business.
On appeal, the Appellate Division upheld the decision of the GRC. The Appellate Division said that, when looking at the plain language of the OPRA, it was clear that the Legislature did not intend to include personal emails. The political action committee emails did not pertain in any way to the official business of the fire district and were not “authorized or approved by the [Fire] District.”
The acceptable use policy of the fire district did not change this result. An email sent on government servers must meet the definition of a government record under OPRA before it can even be considered disclosable to the public.
The court did not address, nor was the issue raised, whether the sending of personal emails about a political action committee was a violation of the fire district’s acceptable use policy. For more information about this case, please contact the NJSBA Legal and Labor Relations Department at 609-278-5254 or your board attorney.