Q Our town uses a private, third party company to manage our e-mails. I asked them to verify that the email management complies with the Open Public Records Act as well as records retention schedules from the Division of Archives Records Management, but have not gotten a satisfactory answer. How do I ensure that we are storing and sending our emails in a safe manner that complies with the law?
A Public records produced or maintained by a third party are still public records and still must be produced in response to an OPRA request.
In Burnett v. County of Gloucester, 415 N.J.Super. 506, (App. Div. 2010), an individual filed an Open Public Records Act request for settlement documents that were maintained off-site. The court held that this did not excuse the public body from producing the documents after receiving a valid OPRA request. The court reasoned: “Were we to conclude otherwise, a governmental agency seeking to protect its records from scrutiny could simply delegate their creation to third parties or relinquish possession to such parties, thereby thwarting the policy of transparency that underlies OPRA.” Id. at 517.
However, this does not mean that all documents produced by a private company are subject to OPRA. The documents must still be public records, which as defined by OPRA are something that “has been made, maintained, or kept on file” by a public officer, employee, or body, “in the course of his or its official business.” N.J.S.A. 47:1A-1.1. In Bent v. Township of Stafford Police Dept., Custodian of Records, 381 N.J.Super. 30, (App. Div. 2005), an individual requested records that were not required to be made maintained, or kept on file by the public body in question. Indeed, the court found that “even if the requested documents did exist in the files of outside agencies, Bent has made no showing that they were, by law, required to be ‘made, maintained or kept on file’ by the custodian so as to justify any relief or remedy under OPRA.” Id. at 39.
The best way to ensure that you comply with OPRA while doing business with a third party is to explain the requirements of OPRA before entering into any contractual relationship. Make certain that the third party understands that the town may face liability if the documents are not maintained in compliance with the law.
Q Iknow that citizens are permitted to videotape council meetings. However, a local gadfly has recently been quite disruptive. He sets up 3 or 4 cameras from different angles, shines bright lights onto the council, is constantly getting up and moving around to the different cameras, and often will noisly change tapes or make adjustments to the equipment. Furthermore, some of our residents are hesitant to be videotaped while addressing the council. We are considering an ordinance that would restrict videotaping and prohibit citizens from being taped while speaking. What advice can you offer?
A The Supreme Court case that permitted citizens to videotape meeting is Tarus v. Pine Hill, 189 N.J. 497, from 2007. That case also permitted towns to implement reasonable restrictions on the videotaping itself.
The Court stated: “Citizens are not permitted to disrupt meetings with their recording equipment. Accordingly, public bodies may impose reasonable guidelines to ensure that the recording of meetings does not disrupt the business of the body or other citizens' right of access.”
The Court went on to say that the guidelines can touch on “the number and type of cameras permitted, the positioning of the cameras, the activity and location of the operator, lighting and other items deemed necessary to maintain order and to prevent unnecessary intrusion into the proceedings,” as well as other restrictions designed “to preserve the orderly conduct of a meeting by controlling noise levels [and] spatial requirements ... [,] to safeguard public facilities against damage ... to the meeting hall's electrical system, or ... to require fair payment by the wielder of the device for electricity used.”
In light of this language, I think the restrictions you have in mind would likely be permissible.
However, it is not permissible to prohibit the recording of citizens addressing the council. The Court in Tarus stated that “no right of privacy protects a citizen's public comments. ‘Those who attend [public] meetings ... fully realize that their comments and remarks are being made in a public forum.’ As such, ‘[t]he argument that members of the public should be protected from the use of their words, and that they have [a] privacy interest in their own comments, is therefore wholly specious.’” (internal citations omitted). Id. at 513.
This column is for informational purposes only, and is not intended as legal advice.