March 20, 2012
Re: Email lists and the Open Public Records Act
Recently some questions have arisen as to whether an email list maintained by a municipality to contact residents is subject to the Open Public Records Act. Based on the language of the statute and recent case decisions, it appears that they are.
In Geier v. Plumsted, a March 2010 Law Division case, residents had signed up to receive an email newsletter from the municipality. An individual requested that list of resident emails under the Open Public Records Act, and Plumstead denied the request, citing the privacy concerns of its residents. Geier filed suit, and the trial judge ordered the list released. Plumstead filed for reconsideration, and the League supported Plumsted’s position as amicus curiae.
The motion was denied, and a list of email addresses maintained by a municipality was held to be subject to the Open Public Records Act. Although the Judge in that pointed out that a newsletter email is different from an emergency notification email, he did not carve an exemption for emergency only emails, nor has any other court.
You can find a copy of the Geier v. Plumsted decision here: http://www.njslom.org/documents/geier-decision.pdf
More recently, the Appellate Division released its decision in Renna v. County of Union. The issue in that case was whether a mailing list of senior citizens, compiled by Union County for the purposes of mailing out (physically, not electronically) a newsletter, was subject to the Open Public Records Act. Union County had originally provided the list, but had redacted the mailing addresses. The trial court ordered that Union County provide an unredacted list, and the Appellate Division upheld this decision. Union County has recently filed for certification before the New Jersey Supreme Court, and the League will be participating as amicus curiae.
You can find a copy of the Renna v. Union County decision here: http://www.njslom.org/documents/renna-decision.pdf
These decisions demonstrate reluctance on the part of the Courts to find an exception in OPRA for mailing lists, whether physical or electronic.
We urge you to discuss the implications of these decisions with your records custodian and municipal attorney. If you have any questions or require further information, please contact League Staff Attorney Matthew Weng at 609-695-3481 ext 137 or at firstname.lastname@example.org.