The takeaways from today’s two-judge Appellate Division panel’s Open Public Records Act (OPRA) opinion in Jeff Carter v. Franklin Fire District No. 1 are:

1.  If you’re an OPRA requestor who wants e-mails in their native format, you need to specifically request them in their native or original format.  Don’t conflate the terms “medium” and “format.”  A record’s “medium” is the manner in which a document is produced, such as in paper, as a PDF document or as a video file.  Its “format . . . relates to the file structure of the original application that created the document.”  In this case, the requestor did not specify that he sought e-mails in their “native” or “original” format.  Rather, he asked only for “electronic copies of all e-mails.”  The panel held that the custodian complied with his request when it provided him with the e-mails as PDF files.

2. If you’re a records custodian, it isn’t permissible for you to certify that you asked the elected officials to search their own personal e-mail accounts for responsive e-mails and then produce a set of e-mails that are allegedly fully responsive to the OPRA request.  Such a certification is not based on the custodian’s own personal knowledge and is therefore not allowed under OPRA.  Unless you conduct the searches yourself or supervise those searches in a meaningful way, there is no way for the requestor to know whether the records you produce constitute a complete set of the responsive records that exist. 

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