Livingston’s web site invites members of the public to contact the mayor and council members by sending e-mails to their personal accounts. While it’s good for public officials to be accessible by e-mail, the fact that their personal addresses are being used for official correspondence raises a question as to how Livingston is fulfilling its duties under state regulations to archive and preserve all official e-mails. (The applicable state regulations are on-line here.)

Suppose that a council member dies, moves out of town or has a computer crash. Suppose further that a citizen were to then submit an Open Public Records Act (OPRA) request for that council member’s previously sent or received e-mails. Would the Township clerk be able to produce those e-mails without having to contact the former council member (or his or her estate) or subpoena them from the former council member’s personal e-mail server?

On February 22, 2011, I sent a letter and an OPRA request to Livingston Mayor Rudy Fernandez and the members of the Township Council. In it, I asked for three random, municipal-related e-mails that were sent or received in February 2009 by former Township Councilman Charles “Buddy” August.

By letter of March 2, 2011, Township Clerk Glenn R. Turtletaub advised me that he was having trouble getting former Councilman August’s e-mails because they are on his former employer’s computer. He also stated that the “Township is aware of [the state record retention requirements], has been working to address the situation and is in the process of developing a policy to address the situation.” He asked for a three day extension that I granted.

By letter of March 7, 2011, Turtletaub advised me that August’s former employer advised him that “he does not know how to retrieve and can’t retrieve any such documents, and that he has no knowledge of how to retrieve old e-mails from the time period when Mr. August worked for” his previous employer but that he would “keep trying.”

The OPRA request and correspondence are on-line here:

Livingston’s inability to produce official e-mails of a former council member clearly demonstrates that the Township is not in compliance with state regulations. Unfortunately, Livingston is only one of many New Jersey municipalities that I have found to suffer from the same deficiency.

Chairman of the New Jersey Libertarian Party's Open Government Advocacy Project. Please send all comments to [email protected]