Alex Rosetti v. Ramapo-Indian Hills Regional High School Board of Education

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1466-23

ALEX ROSETTI,

Plaintiff-Appellant,

v.

APPROVED FOR PUBLICATION

RAMAPO-INDIAN HILLS January 27, 2025

REGIONAL HIGH SCHOOL APPELLATE DIVISION

BOARD OF EDUCATION1

AND THOMAS LAMBE,

IN HIS OFFICIAL CAPACITY

AS RECORDS CUSTODIAN,

Defendants-Respondents.

__________________________

Argued October 8, 2024 – Decided January 27, 2025

Before Judges Sumners, Susswein and Bergman.

On appeal from the Superior Court of New Jersey, Law

Division, Bergen County, Docket No. L-1383-23.

Donald M. Doherty, Jr. argued the cause for appellant.

Johnathan F. Cohen argued the cause for respondents

(Plosia Cohen LLC, attorneys; Johnathan F. Cohen, of

counsel and on the briefs).

1

Improperly pled as Rampapo-Indian Hills Regional High School Board of

Education

The opinion of the court was delivered by

SUMNERS, JR., C.J.A.D.

The issue before this court, one of first impression, is whether the Open

Public Records Act (OPRA or Act), N.J.S.A. 47:1A-1 to -13, compels the

disclosure of email logs of public officials' personal computers discussing public

business. The trial court's order denied plaintiff Alex Rosetti's OPRA request

of defendants Ramapo-Indian Hills Regional High School Board of Education

(Board or District) and Thomas Lambe, the Board's records custodian, seeking

email logs from the personal computers of past and current Board members

(collectively Board members) discussing Board business. The court decided the

email logs were not government records and, if they were, they are too

burdensome to produce.

We reverse the trial court's order and remand. We conclude the email logs

on private servers are government records under N.J.S.A. 47:1A-1, and are

disclosable based on Ass'n for Government Responsibility, Ethics &

Transparency v. Borough of Mantoloking, 478 N.J. Super. 470, 489 (App. Div.

2024), where we held "OPRA's broad reach can include emails concerning

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government business, sent to or from personal accounts of government officials

–– if the emails fall within the definition of government records."

On remand, the Board members must search their personal email accounts

to determine if the sought-after email logs are available. If they determine the

email logs are unavailable or there are burdens in producing them, they must

produce Paff I2 certifications. The trial court must then decide if a fact-finding

hearing is needed. After giving Rosetti the opportunity to respond, the trial

judge must then decide if a fact-finding hearing is necessary. Moreover, the

court must be satisfied the parties made good faith efforts to reasonably resolve

their dispute. Only after this process occurs can the court decide if production

of the email logs should be provided, or if it would be too burdensome to

provide.

I.

In January 2023, Rosetti filed an OPRA request with the Board, seeking:

[1] All comments submitted by the public comments

form received by the Board from August 1, 2022

through to the date [for] the response. The response

should include the name, email, town and the question

or comment of the sender.

2

Paff v. New Jersey Dep't of Labor, 392 N.J. Super. 334, 341 (App. Div. 2007)

(Paff I).

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[2] Email logs of all past and current Board members

for all email accounts in which they have conducted or

discussed Board of Education matters or business

during the time frame of November 1, 2022 through to

the date of the response. The email log should contain

the sender, recipient, those copied ("cc") or blind

copied ("bcc"), the date, time, subject and identify the

existence and name of any attachment.

When the Board did not timely respond to the requests, Rosetti filed an order to

show cause and verified complaint against the Board in the Law Division,

claiming entitlement to the email logs under OPRA.

In response, the Board contended that Rosetti's requests should be re-

organized in the following manner:

(1) All comments submitted by the public comments

form received by the Board from August 1, 2022,

through to the date of the response. The response

should include the name, email, town and the

question or comment of the sender.

(2) (a) Email log[s] of Board members from Board

server[s]; and

(2)(b) Email log[s] of Board members from their own

personal email addresses.

The parties reached a settlement regarding all but the Board members' email logs

pertaining to their own personal email addresses.

After reviewing the Board members' email logs from the Board's servers,

Rosetti submitted a certification to the trial court attesting: "[I]n the log that

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was supplied there are dozens of redactions demonstrating Board members using

their District-supplied email accounts to communicate with other Board

members['] personal email accounts and even sending information to their own

personal accounts." To further support his request, Rosetti cited to "a newspaper

article detailing the intricate, involved and expansive agenda the [Board] was

able to vote upon without any significant discussion at its reorganization

meeting." He thus reasoned "that communications regarding Board business are

taking place outside the realm of the District[-] controlled email accounts."

The Board opposed the request with a certification by John Chang, the

Board's Director of Technology, claiming email logs from private servers pose

distinct challenges because each server may have their own administrative

settings. The different settings, Chang noted, "make it impossible or

extraordinarily time consuming to create logs of any kind." He added, "[e]ven

if I could figure out how to generate a log for some of these email serv [ers], it

could potentially take me hours to construct each one and I would be unable to

ensure the integrity of the data (e.g., I cannot recover deleted emails in the same

way I can on the District Workspace service)." As such, Chang contends his

ability to generate logs on private servers is "difficult if not impossible" for

many types used by the Board members.

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The trial court agreed with the Board and denied Rosetti's request for the

Board members' personal email logs on the basis that it exceeded the purview

of OPRA. The court stated in its thorough written decision that "[t]he [Paff II3]

Court did not opine email logs from third-party email accounts were required

and nothing in the Court's opinion supports the compelled production of same."

The court distinguished Rosetti's request from the one in Burnett v. Gloucester

County, 415 N.J. Super. 506 (App. Div. 2010), reasoning that there, the "third-

party" government records were maintained by the county's agents, and, thus,

imputed to the government. The court continued that "[w]hile it is undeniable

that [Rosetti] has a right to the email correspondences from the private email

accounts of the Board members, that right cannot be extended to include email

logs from personal, non-Board-issued email accounts." (Emphasis added).

The court emphasized that granting Rosetti's request would impose a

substantial burden on the Board not authorized by OPRA because Board

members would have to spend considerable time, resources, and effort to obtain

such logs from their private servers. Given the Board members' technical

limitations, the court determined that compliance would require them to

"conduct a search for the responsive emails not within [the Board's] custody or

3

Paff v. Galloway Twp., 229 N.J. 340 (2017) (Paff II).

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control and manually compile and collate information to generate a log." The

court found this task was not required by OPRA.

Lastly, the court rejected Rosetti's transparency concerns, deciding

"[t]here is no valid concern that, by their inability to produce the private email

logs, [Board members] are evading their obligation under OPRA." This appeal

followed.

II.

Whether Email Logs Are Government Records

To resolve this appeal, we must first determine whether the email logs

requested by Rosetti constitute government records under OPRA. When

interpreting a statute, we look to the Legislature's intent as set forth in the

statute's plain language. Conforti v. Cnty. of Ocean, 255 N.J. 142, 163 (2023).

"Where statutory language is clear, courts should give it effect unless it is

evident that the Legislature did not intend such meaning." Bubis v. Kassin, 184

N.J. 612, 626 (2005) (quoting Rumson Ests., Inc. v. Mayor of Fair Haven, 177

N.J. 338, 354 (2003)). We "ascribe[] to [a statute's] words their ordinary

meaning and significance and read[] them in context with related provisions so

as to give sense to the legislation as a whole." W.S. v. Hildreth, 252 N.J. 506,

519 (2023) (quoting DiProspero v. Penn, 183 N.J. 477, 492 (2005)). "If the

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language [of a statute] is clear, the court's job is complete." In re Diguglielmo,

252 N.J. 350, 360 (2022) (quoting In re Expungement Application of D.J.B.,

216 N.J. 433, 440 (2014)).

A trial court's factual findings regarding OPRA will only be disturbed if

they are not supported by adequate, substantial, and credible evidence. See

Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988). Our review

of the court's legal interpretations of OPRA is de novo. N. Jersey Media Grp.,

Inc. v. Twp. of Lyndhurst, 441 N.J. Super. 70, 89 (App. Div. 2015) rev'd on

other grounds, 229 N.J. 541 (2017).

OPRA was "enacted 'to maximize public knowledge about public affairs

in order to ensure an informed citizenry and to minimize the evils inherent in a

secluded process,'" Simmons v. Mercado, 247 N.J. 24, 38 (2021) (quoting

Mason v. City of Hoboken, 196 N.J. 51, 64 (2008)), as a means to make

governmental action transparent, Rivera v. Union Cnty. Prosecutor's Off., 250

N.J. 124, 141 (2022). In furtherance of this goal, our Legislature declared that

"all government records shall be subject to public access unless exempt," and

"any limitations on the right of access . . . shall be construed in favor of the

public's right of access." N.J.S.A. 47:1A-1. Exemption can be through "statute,

legislative resolution, administrative regulation, executive order, rules o f court,

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judicial decisions, or federal law." Asbury Park Press v. Cnty. of Monmouth,

406 N.J. Super. 1, 6 (App. Div. 2009) (citing N.J.S.A. 47:1A-1, -9).

In his appeal, Rosetti argues the trial court misinterpreted OPRA and

pertinent caselaw in determining the Board's "records custodian[] [does not

have] to obtain email logs of privately-owned email accounts being used to

conduct government business." He asserts the court's order undermines the

legislative intent behind OPRA, which the Burnett Court held is to provide

"ready access to government records by the citizens of this State." 198 N.J. at

421. He argues the court mistakenly denied his request because email logs are

stored on private servers, rather than granting his request given it is undisputed

the logs pertain to Board business, making them government records under

OPRA.

N.J.S.A 47:1A-1.1 defines a government record as

any paper, . . . document, . . . information stored or

maintained electronically . . . , or any copy thereof, 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.

[N.J.S.A 47:1A-1.1 (emphasis added).]

Rosetti stresses that under our rules of statutory construction, the Supreme

Court has ruled "[t]he use of 'or' plainly indicates that any of those three listed

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actions is sufficient to satisfy the statutory definition." Simmons, 247 N.J. at

41. He thus reasons the use of the disjunctive "or" indicates that "[t]he status of

something being a government record is not [dependent] upon who owned the

pen that wrote it or the email account that created it." Rosetti claims, to rule

otherwise, would as the Court held in Burnett, allow "a governmental agency

seeking to protect its records from scrutiny [to] simply delegate their creation to

third parties or relinquish possession to such parties, thereby thwarting the

policy of transparency that underlies OPRA." 415 N.J. Super. at 517 (citing

N.J.S.A. 47:1A-1). Rosetti also argues in a Rule 2:6-11(d)(1) supplemental

letter that the majority and dissenting opinions in our recent decision in

Mantoloking, both "accepted that emails involving government business sent

through private email accounts 'on a private server' would be government

records." See 478 N.J. Super. at 489.

The Board contends the trial court's ruling was correct because the email

logs are kept on private servers, and only records kept on government-controlled

servers are under OPRA's purview. The Board gleans support from Bent v.

Township. of Stafford Police Department, 381 N.J. Super. 30, 38 (App. Div.

2005), where we held a narrow view of OPRA, finding the municipality's records

"custodian was under no obligation to search for [records] beyond the township's

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files." The Board maintains our ruling five years later in Burnett does not

support Rosetti's position because there, the requested records were kept by a

third-party which served as a government agent, and thus were "'made' by or on

behalf of" the public body. The Board cites Paff II, issued seven years after

Burnett, where the Court held "OPRA makes clear that government records

consist . . . [of] 'information stored or maintained electronically' in a database

on a municipality's server." 229 N.J. at 353 (emphasis added). Considering

these caselaw trends, the Board takes a contrary view of Mantoloking, arguing

it is factually distinct from Rosetti's request. It contends that case entailed "a

municipal prosecutor [who] redacted certain information from an email from her

private account which she showed to counsel for a criminal defendant" and held

that it was not a government record nor disclosable under OPRA. See

Mantoloking, 478 N.J. Super. at 492-93. In sum, the Board argues upsetting the

court's order would violate OPRA by expanding it to cover proprietary email

servers.

Assessing the trial court's reasoning and the parties' arguments leads us to

conclude that the requested email logs are government records under OPRA

because they relate to Board business even though they are on Board members'

private servers and not maintained nor controlled by the Board.

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An email log is "electronically stored information extracted from an

email," "not the creation of a new record or new information" and is a

government record under OPRA when it relates to government business. Paff

II, 229 N.J. at 343, 353 (2017). The fact that Rosetti's OPRA request sought

email logs on the Board members' private servers is not a basis to deny

disclosure. As noted, N.J.S.A. 47:1A-1.1 provides a government record is

"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." (Emphasis added.). Our Supreme Court recently recognized that the

Legislature's use of "or" means that any of the listed actions––made, maintained,

or kept––is sufficient to constitute a government record. Simmons, 247 N.J. at

41. Thus, even though the email logs are not kept on Board servers, they are

nonetheless government records because they reference Board business. See

ibid. ("[R]egardless of who maintains the files, the fact that [the defendant]

'makes' the CDR-1s means that it can be called upon to disclose those

government records.").

Concluding the email logs on the Board members' private servers are

subject to OPRA is in line with a broad reading of the Act. See Rivera, 250 N.J.

at 141 (2022); see also Simmons, 247 N.J. at 38 (2021); Burnett, 415 N.J. Super.

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at 517. As we recently held in Mantoloking, "OPRA's broad reach can include

emails concerning government business, sent to or from personal accounts of

government officials –– if the emails fall within the definition of government

records." 478 N.J. Super. at 489. To allow the Board members' email logs to

be concealed under the cover of their private servers would be inconsistent with

OPRA's well-settled legislative intent that "any limitations on the right of access

[to government records] . . . shall be construed in favor of the public's right of

access." N.J.S.A. 47:1A-1. To embrace the Board's position would undermine

the democratic access to public records and prevent Board members from being

held accountable for their decisions. See e.g., Fair Share Hous. Ctr., Inc. v. N.J.

State League of Muns., 207 N.J. 489, 502 (2011) ("Those who enacted OPRA

understood that knowledge is power in a democracy, and . . . without access to

information contained in records maintained by public agencies[,] citizens

cannot monitor the operation of our government or hold public officials

accountable.").

In reaching our conclusion, we are unpersuaded that the Board's reliance

on Bent, where we held OPRA does not require a township records custodian to

search for records beyond the township's files, dictates that Rosetti's request

should be denied. 381 N.J. Super. at 38. In our subsequent decision in Burnett,

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we opted for a narrow reading of Bent and a broader interpretation of OPRA. In

Burnett, the plaintiff sought documents pertaining to a settlement reached by

third parties on behalf of Gloucester County that were not in the county's

possession. 415 N.J. Super. at 508. We concluded the documents were subject

to disclosure under OPRA and distinguished Bent, reasoning:

We find the circumstances presented in Bent to be far

removed from those existing in the present matter

because, as we have previously concluded, the

settlement agreements at issue here were "made" by or

on behalf of the Board in the course of its official

business. 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 (citing N.J.S.A. 47:1A-1) (emphasis added).]

We therefore pronounced that OPRA may extend to records not within a public

body's immediate possession if public officials made them. Ibid. Burnett is

consistent with our statutory construction of N.J.S.A 47:1A-1.1 that records are

government records if they are made by government officials even when the

records are maintained by third parties, not the government.

Based on the record before us, we hold the email logs of the Board

members' private servers sought by Rosetti are subject to OPRA because the

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emails discuss Board business and were made by the Board members.

Concluding these email logs contain government records under OPRA prevents

government officials from circumventing OPRA by using personal email

accounts and sustains the legislative intent behind the statutory scheme. This

decision may also discourage government officials from using their personal

devices, email accounts, or cell phones (texts) to conduct government business

to avoid public disclosure otherwise permitted by OPRA.

III.

Production of the Email Logs

Having concluded the email logs from the Board members' private servers

are government records under OPRA, we address the trial court's order that the

Board does not have to disclose them because it is unduly burdensome.

Rosetti contends production of an email log from a private server is not

unduly onerous. He emphasizes the Board's IT specialist Chang only certified

that he believes he lacks the authority and is unable to construct an email log

from a private account. He contends the Board's nondescriptive assertions of

hardship falls short of "an actual specific demonstrated hardship." See Mason,

196 N.J. at 78. Rosetti stresses "[t]here is no defense for the [Board] to simply

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assert that 'in theory' it does not have access to the records, particularly without

even trying to obtain access and possession."

Nevertheless, Rosetti argues that any difficulty in retrieving the private

email logs was created by the Board members' decisions to avoid use of Board-

issued email accounts and they and the Board should not be allowed to

circumvent OPRA requirements due to self-imposed burdens. Rosetti contends

the Board members should be required to search their private servers for

responsive emails and file Paff I certifications 4 "to protect . . . [Lambe] by

demonstrating that [whoever] has the records has conducted an adequate search

for them." See e.g., Lipsky v. N.J. Ass'n of Health Plans, Inc., 474 N.J. Super.

447, 474 (App. Div. 2023) ("[T]he employees' searches of their own devices,

4

Paff I certifications are sworn statements by government personnel setting forth:

(1) the search undertaken to satisfy the request;

(2) the documents found that are responsive to the

request;

(3) the determination of whether the document or any

part thereof is confidential and the source of the

confidential information; [and]

(4) a statement of the agency's document

retention/destruction policy and the last date on which

documents that may have been responsive to the request

were destroyed.

[Paff I, 392 N.J. Super. at 341.]

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and their production of certifications attesting to their searches, complied with

the explicit terms of the subpoena, as well as [OPRA].").

The Board contends the trial court correctly determined the email logs

were not disclosable due to "the technological realities that make it nearly

impossible to obtain email logs from personal accounts on [private servers]."

The Board refutes Rosetti's contention that the Board may simply subpoena

private email servers to access the email logs because OPRA does not compel

custodians to conduct research. See MAG Ent., LLC v. Div. of Alcoholic

Beverage Control, 375 N.J. Super. 534, 546-47 (App. Div. 2005). The Board

explains, "courts could not conceivably require that to fulfill an OPRA request

a . . . [public body] must issue a subpoena to a technology company to force it

to generate an email log that a trained IT Director is unable to construct due to

proprietary limits."

Based on the record before us, we conclude Rosetti's OPRA request is not

unduly burdensome. Although a public agency may reject a records request if

granting access "would substantially disrupt agency operations," the records

custodian must "attempt[] to reach a reasonable solution with the requestor that

accommodates the interests of the requestor and the agency." N.J.S.A. 47:1A-

5(g). Our Supreme Court has recognized that, in cases like this involving

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technology, "[i]t may take only two to three minutes for an IT Specialist to make

accessible fields of information from two weeks of emails; it will take

considerably longer . . . to determine whether the requested information in each

email may intrude on privacy rights." Paff II, 229 N.J. at 357. Thus, a remand

may be necessary for a hearing so that the public agency can substantiate its

claims that there are unfeasible burdens to produce the documents and the

requestor be afforded the opportunity to respond. Ibid.

We find instructive our recent decision in Lipsky where we recognized

that government employees' personal devices may not be subject to civil

discovery unless the government entity party in the litigation "has 'possession,

custody or control' over that data." 474 N.J. Super. at 471 (citing R. 4:18-1(a)).

Yet, we intimated that the information on the personal devices may be subject

to OPRA. Id. at 472. We pointed out that "courts in other jurisdictions have

concluded that public records contained in personal accounts or on personal

electronic devices may be subject to production under those jurisdictions' open

public records statutes." 5 Ibid. Consequently, "th[o]se courts have concluded

5

We referenced the following cases: Ethyl Corp. v. U.S. Env't Prot. Agency,

25 F.3d 1241, 1246-47 (4th Cir. 1994); City of San Jose v. Superior Court, 389

P.3d 848, 858-61 (Cal. 2017); Better Gov't Ass'n v. City of Chicago Off. of

Mayor, 169 N.E.3d 1066, 1074-78 (Ill. Ct. App. 2020); Toensing v. Att'y Gen.

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that employees may be required to search their own accounts and devices and

produce data responsive to the records request, subject to any assertions of

privilege or confidentiality by the public employer." Ibid.

We conclude a remand is necessary here. We part company with the trial

court's determination that the record established that Board members' private

email logs cannot be provided because "[the Board] do[es] not possess the

technological capabilities to produce [Rosetti's] requested email logs without

difficulty." Given the insufficiency of Chang's certification –– it is "difficult if

not impossible to generate logs from . . . private email accounts" –– the trial

court should require the Board members to search their personal email accounts

to determine if the sought-after email logs are available. If the email logs are

unavailable or their production is burdensome, they must be supported by

persuasive Paff I certifications. Rosetti, of course, should have the opportunity

to respond. After the court reviews the parties' submissions, then it must decide

if a fact-finding hearing is needed. Moreover, the court should ensure the parties

make good faith efforts to reasonably resolve the document request as required

of Vt., 178 A.3d 1000, 1002, 1004, 1009-13 (Vt. 2017); Nissen v. Pierce Cnty.,

357 P.3d 45, 49, 56-58 (Wash. 2015).

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by N.J.S.A. 47:1A-5(g). Only after this process can the court judiciously

determine if retrieval of the email logs is too burdensome.

We remind the court that special service charges may be imposed to

compensate the public agency for unconventional retrievals of government

records. N.J.S.A. 47:1A-5(c). The statute provides:

Whenever the nature, format, manner of collation, or

volume of a government record embodied in the form

of printed matter to be inspected, examined, or copied

pursuant to this section is such that the record cannot

be reproduced by ordinary document copying

equipment in ordinary business size or involves an

extraordinary expenditure of time and effort to

accommodate the request, the public agency may

charge, in addition to the actual cost of duplicating the

record, a special service charge that shall be based upon

the actual direct cost of providing the copy or copies,

and such special service charge shall be reasonable.

[N.J.S.A. 47:1A-5(c).]

We take no position whether such charges are appropriate.

Additionally, if there are concerns about the disclosure of privileged

material, a Vaughn6 index might be necessary. In the index, the records

custodian "must describe each document in sufficient detail to provide the

requestor 'with as much information as possible to use in presenting his case'

6

Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973).

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and to enable the decision-maker's review of governmental records to determine

whether they contain privileged material." Paff v. Div. of L., 412 N.J. Super.

140, 161 (App. Div. 2010) (internal quotations and citation omitted).

Reversed and remanded for proceedings consistent with this opinion. We

do not retain jurisdiction.

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