Presented by the Public Entity and Civil Rights Litigation Practice Group

Public Entity Required to Disclose Private Email Account Pursuant to an OPRA Request

The plaintiff, Frank Brooks, submitted a written request under the Open Public Records Act (OPRA) and the common law right of access for a log showing the sender, recipient, date, submit line, persons copied, and persons blind-copied for each email to and from 16 township elected officials and employees for the period of December 1, 2020, to December 31, 2020. Brooks did not request disclosure of the contents of the emails.

Elaine B. Kennedy, the Township of Tabernacle’s municipal clerk, redacted all email addresses that did not have a commercial, governmental or institutional domain name, marking them as private. All names associated with the email addresses were also redacted.

Brooks filed a complaint, alleging the redactions violated both OPRA and the common law right of access. The New Jersey Law Division upheld the redactions and found in favor of the Township clerk because private citizens have an objectively reasonable expectation of privacy pursuant to N.J.S.A. 47:1A-1.

The Appellate Division reversed in Brooks v. Township of Tabernacle, Docket No. A-3769-20 (App. Div. March 29, 2023). The court, relying upon Doe v. Poritz, 142 N.J. 1, 88 (1995), applied a balancing test. The court went through all of the factors and held that members of the public who engage in email communications with municipal elected officials and employees about public business cannot objectively and reasonably expect that their names and email addresses will not be subject to public disclosure as part of a log of emails sent and received by those officials and employees. 

The court further held that N.J.S.A. 47:1A-1.1 is not applicable because OPRA expressly protects from disclosure information received via email by members of the Legislature, but it does not extend protection to municipal officials. Moreover, email addresses are not included in N.J.S.A. 47:1A-5(a) as personal information that must be redacted.

Please do not hesitate to contact me with any questions about this case or other issues that pertain to the OPRA or the common law right of access.

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