Recently, four other organizations have also sought to participate in the case: the New Jersey State League of Municipalities, the New Jersey Institute of Local Government Attorneys, the American Civil Liberties Union of New Jersey and the Electronic Frontier Foundation. The League and Institute filed a joint brief which is on-line here and the ACLU’s and Foundation’s joint brief is on-line here.
The League and Institute argue that while e-mails themselves are public records, a log of those e-mails “does not exist in a natural state, cannot be retrieved as is, but can only come into existence or be created by the operation of a computer to produce a log . . .” Accordingly, they argue, a log of e-mails “does not fit within the definition of a ‘government record’ as set forth in [OPRA].”
The ACLU and EFF brief takes issue with Galloway Township’s “remarkable contention that ‘computer data does not constitute a government record'” and notes that “since the vast majority of government information is stored on computers, this argument (if adopted) would effectively destroy the right of New Jersey’s citizenry to gain access to public information.” The ACLU/EFF brief goes on to argue:
Members of the public – who, lest we forget, ultimately pay for this technology – should be granted access to the same tools that public agencies use every day – specifically the ability to request a search of its electronic records for specific terms (or, here, the preparation an e-mail log). Especially in this information age, any other result would effectively eviscerate the public’s rights.