N.J. Supreme Court to decide whether township email lists are subject to public records law
The state Supreme Court heard nearly two hours of arguments Tuesday in a case that will determine whether New Jersey towns’ email lists for municipal newsletters and public notices are subject to public records requests.
The appeal to the high court comes after nonprofit civil rights group Rise Against Hate sued Cherry Hill, West Deptford, and Bridgewater for fighting its 2020 and 2021 public records requests seeking their lists of email subscribers. The Supreme Court took up the case after an appellate court ruled in favor of the towns in March.
The attorneys representing the nonprofit and the towns clashed Tuesday over whether sharing subscribers’ email addresses would violate privacy provisions of the state’s Open Public Records Act, and whether releasing them would advance transparency goals. The justices, meanwhile, shared concerns about the subscribers’ expectation of privacy, and whether businesses or harmful entities would gain access to distribution lists, prompting spam and phishing scams.
“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.
Attorney CJ Griffin, representing Rise Against Hate, argued that the Legislature has repeatedly taken steps to exempt phone numbers and home addresses from public records, but has not done the same with email addresses. She noted that a 2004 study recommended to the Legislature that email addresses should be confidential, and the body did not take up that recommendation.
Rise Against Hate is seeking email distribution lists to share local crime statistics and news on civil rights issues with residents of those towns, said Griffin, who represents the New Jersey Monitor in legal matters.
Griffin argued that people typically don’t share many concerns about their email addresses and that they often accept the fact that they receive an inordinate amount of spam. Most workplace email addresses are also already public, she said.
A public document that reveals someone’s email address does not create “the same kind of harm” as one that reveals a home address, she added.
“People might not like that they get spam. They can unsubscribe. It could probably be caught by a spam filter. They could also just create another Gmail account and subscribe with that one,” Griffin said.
Griffin urged the court to apply the privacy provision of the Open Public Records Act “sparingly.” The privacy provision asks records custodians to determine first whether there is a reasonable expectation of privacy, and if there is, requires a balancing test to weigh factors like why someone is asking for the record, how personal the details are, whether its release could harm that person, and who it would benefit.
Justice Fabiana Pierre-Louis argued that citizens who sign up for municipal newsletters or public notices are entrusting their personal information with the town under the assumption that it will be safeguarded. The fact that people are willing to give out their email addresses isn’t a reason to disregard privacy, she said.
Griffin returned to her argument that not requiring the redaction of email addresses from public documents was a “legislative choice.”
“People want to interact with their government, they want to receive information about their government, and that’s what my clients want to send,” Griffin said, adding that “there will be many people that are happy to receive it. Others might hit the unsubscribe button.”
The attorney representing West Deptford, Matthew Flynn, said requiring municipal officials to release information on their email subscribers could be a move away from transparency. Someone may be less likely to interact with their government if they know that their email address could become public if they sign up for a newsletter or local alerts, Flynn argued.
And as a result of declining to sign up for their town newsletter, residents would be less informed about the inner workings of their town, less informed about emergencies, and have less interaction with local government, he said.
“It creates less transparency because it may lead to local residents wanting to be less involved with their local officials,” Flynn said.