the staff of the Ridgewood blog
Glen Rock NJ, A Glen Rock resident has filed suit against the borough for denying a records request, and in so doing, has brought to the forefront the continuing legal debate about whether elected officials’ social media accounts constitute a government property to New Jersey Superior Court.
Glen Rock Mayor Bruce Packer had this is say on his Facebook pages :
April 21 at 9:05pm ·
I cannot comment on ongoing litigation but I want to make it clear that when OPRA (Open Public Records Act) requests are made, elected officials play NO part in whether or not they are granted. As the Borough Clerk is in possession of those records that fall under the rules, it is the Borough Clerk who makes such decisions, at times with the help of the Borough Attorney.
There are times where there are questions as to what constitutes a government record and unfortunately I cannot comment any further.
You can find lots of info about OPRA here:
*Part 2 on OPRA requests*
When a Borough Clerk is not in possession of an item that is requested, it is not possible for the clerk to provide that record. That does not inherently imply that the record is not subject to OPRA but, for example, if governing body members have Facebook pages on their personal email accounts, it is not possible for a Borough Clerk to access them and provide information.
While I cannot talk in detail about the current lawsuit regarding OPRA and Facebook accounts, our Borough Clerk has no access to our accounts and the heart of the issue is whether or not she should.
In short, are the unseen parts of governing body members’ Facebook pages, such as admin settings, block lists, etc, government records? No court has ever made a determination to date on this and the information has never been provided based on my own informal conversations with other municipalities.
In Part 3, I will share an email that I received from the NJ Government Records Council last October.
*Part 3 on OPRA requests*
I believe in full transparency and open access to all records as appropriate. There is a line that protects the privacy of governing body members though and there are times when that line is not clear.
After an OPRA request was received for information relating to a Facebook page last year, I wrote to the state authority on such matters, the NJ Government Records Council (http://www.state.nj.us/grc/). As this is uncharted territory, I wanted to gather all of the facts.
Here is the response to my query and the last paragraph responds to my specific question:
Thank you for contacting the NJ Government Records Council (“GRC”). The information provided by the GRC is guidance and does not constitute legal advice or a final decision of the GRC regarding whether a particular record is exempt from disclosure or not since the provisions of the Open Public Records Act (“OPRA”) are applied to the specific facts of the request and/or complaint. The GRC cannot tell you exactly how to respond to an official OPRA records request because your response must depend on the specific facts of the records request.
Generally, OPRA provides that “. . . government records shall be readily accessible for inspection, copying, or examination . . . with certain exceptions . . .” N.J.S.A. 47:1A-1. There are 25 specific exemptions from disclosure included in OPRA.
Additionally, OPRA defines a government record as a record “made, maintained or kept on file . . . or that has been received in the course of . . . official business . . .” N.J.S.A. 47:1A-1.1. Also, OPRA requires a custodian to grant or deny access as soon as possible but no later than seven (7) business days from receipt of the request. N.J.S.A. 47:1A-5(i). OPRA further requires that custodians inform requestors of the lawful basis for any denial of government records. N.J.S.A. 47:1A-6.
Regarding your inquiry, the GRC has no prior decisions regarding social media and OPRA. Additionally, the current state of the law doesn’t specifically contemplate the disclosability of social media posts. It’s an awfully tricky situation given the interactive nature of social media. At some point, these types of issues will need to be decided either through new legislation, court decisions or Council adjudications.