On September 24, 2015, a Sayreville Borough (Middlesex County) Council member filed a Government Records Council (GRC) complaint after the the Borough denied him access to e-mails and texts a colleague sent and received during the August 24, 2015 Borough Council meeting.
The complainant is council member Art Rittenhouse who requested member Victoria Kilpatrick’s texts and e-mails by way of an August 28, 2015 Open Public Records Act (OPRA) request. Assistant Borough Clerk Jessica Morelos forwarded the request to Kilpatrick who responded that “no e-mails or text messages were exchanged on my borough phone.” In his complaint, Rittenhouse noted that Kilpatrick’s response did not address texts and e-mails sent and received during the meeting on her personal phone.
In the Borough’s August 31, 2015 denial letter, Borough Attorney Michael R. DuPont claimed that disclosure of Kilpatrick’s texts and e-mails would violate the Borough’s duty “to safeguard from public access a citizen’s personal information.” “Councilwoman Kilpatrick’s cell phone is a personal cell phone and the Borough of Sayreville has no control over that device or the information contained therein.”
In his complaint, Rittenhouse claimed that DuPont had him and Mayor Kennedy O’Brien submit their private e-mails and phone records in response to a 2014 OPRA request. Rittenhouse alleged that DuPont responded to his recent request in a “partisan manner and not in the interests of the Borough of Sayreville.”
DuPont’s conclusion appears to be contrary to the GRC’s 2005 decision in Meyers v. Borough of Fair Lawn, GRC Case No. 2005-127. There, the GRC held that whether an e-mail sent or received on an official’s personal computer is a government record turns on the nature and content of the e-mail and not on whether the computer is public or private.