The Appellate Division recently issued two unpublished opinions discussing when and whether emails must be disclosed as part of an Open Public Records Act (“OPRA”) request. The cases were Rise Against Hate v. Cherry Hill Twp. and Brooks v. Township of Tabernacle.
Both matters address whether members of the public have an “objectively reasonable expectation in the privacy” of their email addresses sufficient to protect the records from disclosure under OPRA. The opinions were issued on the same day, by the same Appellate panel, yet have different conclusions. The question for municipal clients in determining how to respond to these requests in light of the opinions is- what led the Appellate Division to decide these similar cases very differently? Let’s take a look at the cases to better understand the varied results.
Plaintiff Rise Against Hate (hereafter RAH) is a non-profit corporation with an office in Cherry Hill. Their purpose is to raise awareness about racism and civil rights, investigate racial disparity, monitor municipalities to ensure they are honoring their residents’ civil rights, and to inform the public about the law.
In December 2020, RAH filed OPRA requests with the custodian of records, for various email lists maintained by Cherry Hill Twp. Members of the community subscribe to these lists by providing an email address and in return they receive newsletters and notices from the municipality. Importantly, when a resident registers for the newsletters, there is a disclaimer that states that their personal information will not be disclosed unless required by law. RAH advised that they wanted the email lists so they could send unsolicited emails regarding RAH’s investigative findings, their activities, and any racial disparities they claim occur in policing in Cherry Hill. The custodian of records acknowledged the email lists were government records, but that the information was protected under the personal privacy interest analysis of N.J.S.A. 47:1A-1 and denied the requested information. RAH filed a complaint in the Law Division claiming that the denial was a violation of OPRA. In June of 2021, RAH filed an OPRA request for the same information with the Township of Bridgewater and West Deptford Township. In all three cases, the trial courts agreed with RAH and ordered the municipalities to disclose.
Each of the Township defendants then filed an appeal and the trial courts stayed their orders directing disclosures. The Appellate Division consolidated the matters and conducted a de novo review of the trial courts’ decisions.
Upon review of each of the cases, the Appellate Division drew the following conclusions:
- Email addresses are public records which do not fall under one of the exceptions listed in J.S.A. 47:1A-1.1
- J.S.A. 47:1A-5(a) was recently expanded on several occasions to add more protections and none of the statutory revisions included emails as being exempt from disclosure.
3. In applying a balancing test for privacy interest, the court made the following conclusions:
a. The type of record requested was subscriber email addresses.
b. The requested information (email addresses) is voluntarily given to municipal officials. Further, by consenting to the receipt of newsletters, the subscribers are not participating in an inherently public act, seeking to influence government decision making, or engaging in a dialogue with public officials about public business.
c. The harm from disclosure is minimal. Although unwanted emails can be blocked, the court acknowledged that receiving them is a nuisance.
d. Some members of the public will be deterred from subscribing to the newsletters if the subscriber lists are disclosed.
e. There is no way to prevent RAH from further distributing the email addresses even though they did not indicate that they had the intention to do so.
f. RAH did not make a showing of need for the information. While getting the subscriber list is an inexpensive and easy way to distribute information, it is not essential to RAH accomplishing its stated goal of civic education.
g. Disclosure would not further the public interest. The goal of OPRA is to facilitate transparency in government. The list is simply a group of email addresses of people who consented to the receipt of “one-way generic information.”
Based on the above analysis, the objectively reasonable interest in privacy associated with protecting email addresses listed on subscriber lists outweighs the limited public interest that would be advanced by disclosure. Simply stated - NO Disclosure.
In Brooks v. Tabernacle, the Court reached the opposite conclusion. Plaintiff Brooks, is a resident of the Township of Tabernacle and submitted a request under OPRA for a log showing the sender, receipt, date, subject line, persons copied, and persons blind-copied for each email to or from sixteen elected officials and employees for the month of December 2020. Brooks did not request the contents of the emails. In responding to the request, the custodian of records provided thousands of lines of data, but redacted all names and email addresses that did not have a commercial, governmental, or institutional domain name and marked them “private.”
Brooks filed a complaint in the Law Division alleging that the redactions violated OPRA. The trial court issued an opinion agreeing that the redactions were proper and the information was protected from disclosure. Brooks appealed.
Upon review of the facts presented in the trial court, the Appellate Division drew the following conclusions:
- Email addresses are public records and do not fall under the exceptions listed in J.S.A. 47:1A-1.1. The court particularly noted that information received by the Legislature from a constituent could not be disclosed and recent amendments to that statute specifically did not extend to municipal officials. (Same conclusion found in RAH)
2. J.S.A. 47:1A-5(a) recently expanded protections on several occasions and did NOT include emails as being exempt from disclosure (Same conclusion found in RAH)
3. In applying the privacy analysis, the court made the following conclusions:
a. The information sought is the names and email addresses of members of the public who communicated via email with municipal officials.
b. The information is widely publicly disclosed and voluntarily and readily sent to municipal officials at an address on the municipality’s server to discuss public business. MOREOVER, it is the context in which the information appears that is important to the analysis, that is- a member of the public, identified by name and email address, communicating with a municipal employee about public business. (This factor is significantly different than the facts in the RAH case. In RAH, the emails requested are NOT emails of individuals who are engaged in a dialogue with officials about public business)
c. There is little evidence of harm if the information is disclosed. Brooks did not intend to use the names for commercial purposes or to contact the members of the public. Her intent is to monitor the activities of municipal officials, identify who is influencing decision making, and detect conflicts of interest, corruption and potential violations of OPRA and OPMA. (This is significant and appears to be a pivotal difference between this case and RAH. In fact, the court seemed to feel this is one of the primary reasons to disclose)
d. There is no way to prevent further disclosure of the email lists, but there is no evidence in the record Brooks intends to do so.
e. Brooks demonstrated a need for the information. Disclosure allows her to identify corruption, conflicts of interest and those who are influencing decision making. (Again, a significant distinction between this case and RAH)
f. The public interest weighs heavily in favor of disclosure, noting the very purpose of OPRA is to facilitate transparency in government. Further, there were no assurances to members of the public that their information would remain confidential. (This is an important distinction between this case and RAH. RAH’s interest in obtaining the emails lists and using them to disseminate information to the public is very different than Brooks’s interest in ferreting out corruption and uncovering undue influence in government)
Here, the court determined that the limited interest in privacy associated with shielding the names and email addresses from public disclosure is outweighed by the public’s interest in transparency in the email communications of municipal officials about public business. The court further held that the trial court erred when it allowed the Township of Tabernacle to withhold the names and private domain email addresses. YES- Disclosure.
Based on the above cases, how does a municipality determine when they should disclose citizen email addresses pursuant to an OPRA request?
It is clear that the Appellate Division is not looking to OPRA to hand out email lists like Oprah Winfrey hands out prizes- “you get an email address, you get an email address, you get an email address.” To the contrary, the Appellate division appears to make a distinction between disclosing the names and email address of members of the public that correspond with municipal officials, about public business for the purpose of ferreting out potential corruption and undue influence (yes disclosure) and a plaintiff who requests that a municipality disclose email addresses for the purpose of using them to send out mailings to the community for general civic education (no disclosure).
While the factors and issues addressed by the Appellate Division in these cases appear relatively straightforward, by their very nature, OPRA requests are often more complex than they initially appear. A lawful response by a municipality very often turns on the subtle components of the request itself. If you are a municipal entity and are unsure how to respond, Parker McCay’s Municipal and Government Department regularly advises its public entity clients on how to answer OPRA requests.
Because these cases reach different conclusions on very similar topics, the Parker McCay Public Records Practice Group reminds custodians that seeking advice on these requests is paramount to help avoid litigation that can cost public entity time and resources in defending decisions whether or not to release public records.