Pushing the Limits of OPRA: Personal Online Privacy for Government Officials

Government Employees and Elected Officials - is your private email activity on Gmail, Hotmail, and the like, safe from the Open Public Records Act (OPRA)?

In a case that I argued and briefed, Bergen County’s top judge ruled in favor of government entities and the online privacy of their elected officials. Although the decision is not binding statewide, it addresses an unsettled issue of importance to New Jersey’s thousands of elected and appointed government officials and public records requesters.

Bergen County Superior Court Assignment Judge Novey Catuogno held that OPRA did not require our client, Ramapo-Indian Hills School District, to obtain from its Board members and produce to the plaintiff requestor email logs from their Gmail, Optimum, etc., accounts.

The Assignment Judge ruled that the “email logs of government officials’ personal, third-party accounts do not fall within the definition of a ‘government record’” and stated that she could not “recognize any circumstances where the Legislature would place a substantial burden on government agencies to compile, create and produce records not within an agency’s control.”

This decision, which is likely to be appealed, sets the precedent in favor of privacy for government officials in their personal email and internet activity. Notwithstanding this legal victory, our firm advises officials to avoid using their private accounts to conduct government business.

Please contact our firm for a copy of the decision.