Our Supreme Court's recent interpretation of the Open Public Records Act in Paff v. Galloway Twp. applies OPRA to the type of data evaluation known as “traffic analysis.” The opinion enhances public access on the one hand while preserving OPRA's confidentiality-preserving exceptions on the other.

The plaintiff in Paff filed an OPRA request for emails to or from the township's chief of police and township clerk during a specific two-week period. He did not request the emails themselves. Instead he requested that the township provide him with a chart, in the format he submitted, showing the fields from each email's header, sender, recipient, date, and subject matter line. Although the township had provided similar charts in the past, it refused to do so, relying on informal guidance from the Government Records Council that OPRA does not require a government agency to create records that do not already exist. Reversing the Appellate Division, the Supreme Court held that the creation of new records was not involved, but rather the sorting of data in existing electronic records. “By OPRA's language,” it said, “information in electronic form, even if part of a larger document, is itself a public record.” The court noted that N.J.S.A. 47A:1-5(d) allowed municipalities to charge services fees when response to a request “entails a substantial amount of manipulation or programming of information technology.” From this language, it inferred a legislative intent that the “manipulation or programming of information technology” used to extract the header information was not the creation of a new record but the disclosure of part of an existing one. It disposed of the GRC's contrary guidance by noting: first, that the GRC had disclaimed giving legal advice and, second, that because OPRA declares even the GRC's formal decisions to be non-precedential and not binding on the courts, its informal advice a fortiori did not warrant deference.

Why did Paff request only header information and not the contents of the emails? His testimony in the trial court was disingenuous. Paff testified that he was simply trying to protect the public's right to know, couldn't recall why he had chosen the dates in question, and may have been just testing the township's disclosure policy. A representative of the township's police department certified that the dates related to an internal investigation in the police department and that disclosure of the header information would affect the confidentiality of that investigation.