The New Jersey Supreme Court recently heard oral arguments in a closely watched case involving the State’s Open Public Records Act (OPRA). The key question before the Court is whether email addresses submitted by members of the public to a public agency to sign up for electronic newsletters and notices are subject to disclosure under OPRA.
Facts of Rise Against Hate v. Cherry Hill Township
Plaintiff Rise Against Hate (RAH) is a 501(c)(3) non-profit corporation which purpose is to raise public awareness about racism and civil rights and to inform the public about the law. Among other things, the organization investigates racial disparities and monitors municipalities to ensure that they, and their agents, employees, law enforcement officers, and officials honor residents’ civil rights. Plaintiff Andrew Jung is a member of the board of advisors of RAH as well as the founder and Chair of Asian Hate Crimes Task Force (AHCTF), a 501(c)(3) non-profit organization that spreads awareness of hate crimes against the Asian community and educates the public about Asian culture, history, and current events.
Jung filed OPRA requests on behalf of RAH and AHCTF with the records custodians of Cherry Hill, West Deptford, and Bridgewater seeking disclosure of email subscriber lists maintained by the municipalities for municipal newsletters and public notices. RAH sought to use the subscriber lists to send unsolicited emails concerning RAH’s activities, investigations, and other matters relating to the civil rights of historically marginalized communities. AHCTF similarly intended to use the subscriber lists to send unsolicited emails to further the organization’s objectives. The records custodians denied the requests after determining that the requested information is protected from public disclosure by the personal privacy provision of N.J.S.A. 47:1A-1.
The trial court ordered disclosure of the requested information. It found that the custodians had not raised a colorable claim that disclosure of the email addresses on the subscriber lists would violate the objectively reasonable expectations of privacy of the subscribers. The court reasoned that disclosure of email addresses would be less invasive of privacy than the disclosure of home addresses, which courts have found to be subject to release when found in government records in some circumstances.
Appellate Division’s Decision in Rise Against Hate v. Cherry Hill Township
The Appellate Division reversed. It held that citizens’ expectation of privacy outweighed the minimal public interest advanced by disclosure of the requested information.
“We conclude members of the public who submit their email addresses to receive electronic newsletters and notices from a municipality have an objectively reasonable expectation that their email addresses will not be disclosed to a non-government organization that intends to send unsolicited emails to them to further the organization’s political and social objectives,” the appeals court held.
Issues Before the NJ Supreme Court
The New Jersey Supreme Court granted certification, agreeing to consider the following question: Are email addresses submitted by members of the public to a public agency to sign up for electronic newsletters and notices subject to disclosure under the Open Public Records Act?
During oral arguments held on November 28, 2023, RAH and AHCTF’s attorney argued that any harm from disclosure of the requested information is likely minimal. “People want to interact with their government, they want to receive information about their government, and that’s what my clients want to send,” C.J. Griffin stated, noting that “there will be many people that are happy to receive it. Others might hit the unsubscribe button.” However, the municipalities maintained that members of the public trusted local governments to safeguard their email addresses and may be deterred from subscribing to municipal newsletters and notices if subscriber lists are subject to public disclosure. “There’s a big difference, I would submit, between providing an email address to an online retailer versus providing an email address to your local government. The expectation is different, and reasonably so,” said Michael J. Miles, attorney representing Cherry Hill.