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July 22, 2016

New Jersey case highlights digital divide on government records

Original law envisioned paper documents, not electronic data

New Jersey open records advocate John Paff is heading toward a state Supreme Court face-off over what constitutes a government record.

The eventual ruling will affect access to information relevant to every citizen of the state.

That’s because when the state’s records law was adopted 15 years ago, a “record” clearly meant a paper document.

That’s far less clear today.

Rather than a document, much of the information required to be kept by New Jersey government and agencies is stored simply as data.

That concept is at the heart of the legal challenge heading for a hearing by the New Jersey Supreme Court.

Paff had unsuccessfully sought a record of emails between the chief of police and the clerk in Galloway Township, an Atlantic County municipality across the bay from Brigantine, for two weeks in June 2013.

A legal tussle followed.

Eventually, an appellate ruling held that the state's records act "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."

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While other court rulings have not taken such a narrow view, the appellate finding in question means “the public’s right to know has a taken a serious hit,” said Paff, who has pushed for government transparency for years.

Acknowledging the changing meaning of government record-keeping, the New Jersey Supreme Court has agreed to hear Paff’s challenge to the appellate finding.

The township's business manager, Chris Johnansen, said Galloway is looking forward to having the Supreme Court settle the dispute,  which he predicted will go in the favor of the township due to the wording of the records law.

But he did add that if a more inclusive view of what is a record is today, then the case should be taken up by the state legislature for an update to the law's language – to include data.

Paff said technology has made obsolete the idea of viewing records solely as paper documents.

“The database itself is now the record,” he said, noting that government and agencies extract records all the time from databases with a few keystrokes and done in just a few seconds.

“They are working in a digital world and they are leaving us in an analog world,” said Paff.