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The Open Public
Record Act Applies

Matthew Weng
By Matthew Weng
League Staff Attorney

The majority of municipalities in New Jersey already have official websites. These sites allow residents to contact their elected and appointed officials, find out information about the latest town services and events, and even pay their taxes. They become, in effect, an “official” website, speaking with the voice of the elected officials. Residents expect such sites to be accurate and current.

Lately, however, there has been an explosion in popularity of a different type of website: social networking. Accounts and profiles on sites like Facebook, MySpace, or Twitter have become a staple of political campaigns. Now many towns are wondering whether a social networking site might be right for them. Many individual officials already have personal accounts to keep in touch with friends or loved ones. Before you sign up or log on again, you should consider the possible Open Public Records Act issues.

Many local government officials are already aware of the fact that emails between officials that discuss town business may be subject to an Open Public Records Act request. Facebook and MySpace present many of the same issues. Both sites have a feature, sometimes referred to as a “wall”, where other users can post pictures or comments.

Normally this may not present an issue. However, a few comments back and forth between walls of elected officials, or between an elected official and a member of the public, may well make the comments a public record: “Government Record means any …information stored or maintained electronically…that has been made, maintained or kept on file in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards thereof, or that has been received in the course of his or its official business by any such officer, commission, agency, or authority of the State or of any political subdivision thereof, including subordinate boards thereof.” N.J.S.A. 47:1A1.1.

This would require saving the conversations, consultation with the Division of Archives and Records Management, and possibly retention of hard copies of the comments.

The same issue applies with so called “microblogging” sites like Twitter. Twitter allows users to post a small blog entry, less than 140 characters. It can be useful in providing up to the minute notifications of events. However, other users can respond to posts made by a Twitter user (called “tweets”) and this can create a record for the purposes of the Open Public Records Act.

Both Facebook and MySpace also feature email or messaging capability. These messages are not public like wall comments, but would almost certainly be considered of a kind with web-based email accounts.



This article was originally published in New Jersey Municipalities magazine. Vol. 86, No. 9, December 2009


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