By Jay Cook |
A state Supreme Court decision last week reaffirmed what many Sunshine Law advocates have known as gospel for years: email records are public records.
After years of bouncing among New Jersey courtrooms, Open Public Record Act (OPRA) activists were afforded a win with the John Paff v. Galloway Township decision on June 20, which found that emails are deemed information stored electronically, lawfully falling under state OPRA guidelines.
“(This decision) puts New Jersey in the vanguard in terms of access to electronic records,” said Walter M. Luers, the attorney who represented Paff throughout the litigation. “It puts us right in the 21st century.”
On June 28, 2013, Paff filed an OPRA request with Galloway Township, Atlantic County, seeking information from emails sent between the township’s clerk and chief of police. In the request, Paff highlighted the terms “sender,” “recipient,” “date,” and “subject.”
His request was ultimately denied, with Galloway Township claiming that fulfilling the OPRA request would mean creating a new record, an issue courts have said is not permitted through OPRA.
Paff ’s case won at trial court, though was eventually overturned by the Appellate Division. That court found creating an email log with requested information would indeed be creating a new record.
When researching the case, Luers said he and his team could not find a situation across the country where states limited access to emails, adding that emails are a way of “efficiently searching” any and all information.
“I can’t imagine living in a state where electronic records are not accessible,” Luers said. “I can’t fathom it.”
Galloway Township fought hard to preserve the Appellate Division’s ruling, and sought help from the New Jersey State League of Municipalities (NJSLOM) during the trial, which served as amicus on the case.
In a statement to The Two River Times, Michael F. Cerra, NJSLOM’s assistant executive director and director of government affairs said the organization was “troubled by the decision.”
Cerra continued, citing concerns that this decision “blurs the lines” between creating and disclosing new records.
“This court decision fundamentally changes the scope of OPRA and leads municipalities down a path of having to create records, at taxpayer’s expense,” Cerra said.
Conversely, some argue that the court case champions the fight for more government transparency, a hot-button issue highlighted by the 2016 presidential election.
“We all know the saying, the best remedy for anything is sunshine,” said Steven Miller, the director of undergraduate studies in Journalism and Media Studies at Rutgers University. “Our laws, our records, what our government does, what our governmental agencies do, should be open to viewing by reporters, by the press, by the public.”
Miller pointed to all Americans, not just New Jerseyans, who have fought to gather more information from municipal, county and federal governments.
“Without the voters making their voices heard and forcing government to show its hand, this would not have happened,” Miller said.
‘THE BEST WATCHDOGS’
While it was Paff who took the most recent OPRA fight to the courts, he is certainly not the only resident striving for more government transparency in the Garden State.
“You need people that are not tied to government to act as watchdogs,” said Luers. “The best watchdogs are the people that go to their own town meetings because they know their own town the best.”
That is the case in Monmouth County, where locals in the Two River area have taken up less-combative arms, with their camcorders and smartphones in hand, to document what their towns do on a bi-weekly basis.
“It’s vital to our form of democracy that this information is available,” said Holmdel resident Scott Goldstein, referring to public township meetings.
Goldstein, who serves as president of the Holmdel-based land preservation group Citizens for Informed Land Use (CILU), has been a regular fixture at Holmdel Township Committee meetings over the past two decades.
Before bringing his camera and tripod to the first meeting nearly a year and a half ago, Goldstein said he was one of many CILU members who documented and sent out information learned through township committee meetings.
That method of sharing information has evolved into videotaping Holmdel’s elected officials from the dais, a way for residents unable to attend meetings to witness what happens firsthand. The videos are found on the CILU Holmdel YouTube channel.
“If you want to put your foot in your mouth, I’m just going to be the person there recording it,” Goldstein said. “If you want to be a jerk about how you deal with your community, that’s up to you.”
Goldstein said because of the videos, litigation has been brought on the Holmdel Township Committee four separate times to stop developments in town – most notably a $3.3 million bond for synthetic turf fields at Cross Farm Park and the building of affordable housing units at Palmer Square.
Video cameras have also become a common occurrence at Middletown Township meetings in recent years.
“I believe that this provides an important vehicle to those who cannot come out to a meeting,” said Middletown resident Don Watson.
Watson serves as the Middletown Township Democrat Committee chairman, and has long lobbied the all-Republican Township Committee to record township meetings themselves and broadcast on public television channels.
When the township denied that request, citing a $110,000 cost, Watson started the Middletown Open Government group to fund and discuss information shared at the public meetings.
He said nearly $1,000 was raised for video equipment, and he began uploading the meeting videos to his YouTube channel, MiddletownOG.
Watson has recorded meetings involving two of the township’s most contentious planning board applications in recent years – the Trinity Hall campus development on Chapel Hill Road and the Village 35 commercial complex project, which is still before the board.
Regarding what other costs he incurs for recording the meetings, Watson said “It costs me my time, and that’s it.”
FACEBOOK PLAYS A ROLE
Besides YouTube, the other power player in local municipal discussion is the social network site Facebook. Not only does it draw teenagers, parents and businesses, but the site has become a haven for sharing local news across the town lines.
One of the most prominent public Facebook groups in the area is Monmouth County News, supervised by Art Gallagher, a social media consultant and publisher of the conservative blog More Monmouth Musings.
More than 25,000 members have connected with the group since its inception in January 2014 and Gallagher said it has become a real force of news in Monmouth County.
“It’s a critical tool, and it’s changed the way that people get their information,” he said.
He noted different movements or causes in the county that have utilized Facebook to their advantage, ranging from the Residents Against Giant Electric group fighting high-voltage transmission lines through five towns, or the Little Silver Against the Cell Tower initiative, comprised of residents opposed to a cell tower erected less than 500 feet from a school.
Gallagher also cited the sea-level community in Highlands, where “people used Facebook to change our form of government from a partisan town to a non-partisan town, and elected a whole new slew of people.”
Miller, the Rutgers professor, maintained that locals have influence on their town’s governing bodies.
“Government transparency should be happening every single day,” Miller said. “You should be able to see it.”
This article was first published in the June 29-July 6, 2017 print edition of The Two River Times.
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