New Jersey Appellate Division weighs in on email access with new decisions under OPRA

This week, the New Jersey Superior Court, Appellate Division released two noteworthy, unpublished rulings that could have a significant impact on email access under the Open Public Records Act (OPRA). In both cases, a panel of the state's intermediate appellate court focused on whether members of the public can expect privacy for their names and email addresses when communicating with municipal officials or when subscribing to electronic newsletters.

While these cases may not be binding precedent, they provide valuable insight into the court's interpretation of privacy expectations and can help guide OPRA requestors when seeking emails. In this post, we'll discuss the implications of these decisions for requestors seeking email records.

Case 1: Brooks v. Township of Tabernacle (A-3769-20)

In the first case, the Appellate Division was asked to determine whether individuals engaging in email communications with municipal elected officials and employees about public business can reasonably expect their names and email addresses to remain private. The court concluded that such individuals cannot objectively expect that their names and email addresses will not be subject to public disclosure as part of a log of emails sent and received by those officials and employees.

Implication for OPRA requestors: This decision suggests that OPRA requestors seeking email records involving public business may be able to obtain the names and email addresses of private individuals who communicate with municipal officials and employees. As a result, requestors can potentially access more comprehensive email records, including the identities of the individuals involved in these communications.

Case 2: Rise Against Hate v. Cherry Hill Township, et al. (A-3421-20, A-1440-21, A-1517-21)

The second case addressed a slightly different issue. The court considered whether members of the public who submit their email addresses to receive electronic newsletters and notices from a municipality can reasonably expect their email addresses to remain private. The court ruled that these individuals do have an objectively reasonable expectation that their email addresses will not be disclosed to a non-government organization that intends to send unsolicited emails to further the organization's political and social objectives.

Implication for OPRA requestors: This decision implies that OPRA requestors may face limitations when seeking email addresses of individuals who have subscribed to electronic newsletters or notices from a municipality. Requestors should be aware that they might not be able to access this information, especially when the intended use is for purposes unrelated to the government's functions, such as marketing.

Key Takeaways:

These two rulings from the New Jersey Superior Court, Appellate Division provide valuable guidance for OPRA requestors seeking email records. The Brooks case suggests that requestors may be able to access more comprehensive email records related to public business, while the Rise Against Hate case indicates that obtaining email addresses of electronic newsletter subscribers may be more challenging.

While these cases are unpublished and may have limited precedential value, they still offer a glimpse into the court's thinking on privacy expectations under OPRA and how the courts may address such issues in the future. OPRA requestors should stay informed about future cases involving email access and privacy rights, as these rulings could shape their strategies when seeking email records from public entities.

It will be interesting to see how future cases involving email access and privacy rights will be impacted by these decisions.