The New Jersey Open Public Records Act, N.J.S.A. 47:1A-1 et seq. (OPRA), established a broad requirement for the disclosure of government records, which are defined as any records made, maintained, kept on file, or received in the course of official business. The legislative intent behind OPRA is to protect the public interest by increasing government transparency, but the expansive definition of a “government record” is in tension with the privacy interests of government workers. As technology advances and people increasingly use their private electronic devices to manage all aspects of their life, the line between personal and official conduct becomes blurred, and government workers can unintentionally subject their personal lives to public scrutiny.

Custodians of records struggle with OPRA requests that threaten to upset the balance between the public’s interest in disclosure and the privacy interests of government workers, such as requests for records from private cell phones. Although the law arguably favors nondisclosure of such records at this time, public agents should be advised not to conduct official business on their private electronic devices. The balance of interests is delicate and depends on the specific facts of each case, so the best practice is to avoid all discussions of official matters on private electronic devices. Likewise, municipalities should create retention policies for government records for which there is no controlling retention schedule, such as text messages from official cell phones. These policies would establish a clean procedure for OPRA compliance while the retention schedules catch up with the expanding definition of a “government record.”

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