New Jersey Libertarian Party Open Government Advocacy Project: Municipal Retention of elected officials' e-mails
Following is the text of my 12/30/10 records request to the Borough of Pitman (Gloucester County).
On December 28, 2010, I submitted to the Borough of Pitman a records request for
1. The nonexempt portions of the first three e-mails sent after 12:01 a.m. on February 23, 2008 by former Councilman Fred Swartz that related to municipal business. (NOTE: in my request, I misspelled the Councilman's name as "Schwartz.")
2. The nonexempt portions of the first three (3) e-mails sent by sitting Councilwoman Debra Higbee after 12:01 a.m. on February 23, 2010 that related to municipal business.
3. Any policy or other writing presently in force in Pitman Borough which addresses the requirements and recommendations set forth in DARM Circular Letter No. 03-10-ST.
The overall purpose of my request was to determine whether the Borough is in compliance with DARM Circular Letter No. 03-10-ST, which requires the Borough to reliably retain and archive its official records, including those that are sent from or received at an elected official's personal e-mail account. (NOTE: The DARM Circular Letter is on-line at http://www.njarchives.org/links/circular-letter-03-10-st.html and official correspondence sent and received from an elected official's personal e-mail account have been determined to be government records disclosable under the Open Public Records Act (OPRA), see Donal Meyers v. Borough of Fair lawn, GRC Case No. 2005-127 at http://www.nj.gov/grc/decisions/2005-127.html )
On December 28, 2010, Borough Clerk Judith O'Donnell responded. In response to my request for former Councilman Swartz's e-mails, Clerk O'Donnell stated:
I was not in my present position with the Borough of Pitman at [the time that Mr. Swartz served on Borough Council], and therefore had no occasion or receive any form of correspondence from Councilman Schwartz.
In response to my request for Councilwoman Higbee's e-mails, Clerk O'Donnell provided three e-mails dated February 23, 2010, 1:28 p.m.; March 9, 2010, 10:24 a.m., and March 9, 2010, 2:32 p.m.
Clerk O'Donnell's cover letter and three responses are on-line here.
Clerk O'Donnell improperly responded to my request for Swartz's e-mails. My request was for "the nonexempt portions of the first three e-mails sent after 12:01 a.m. on February 23, 2008 by former Councilman Fred Swartz that related to municipal business." Clerk O'Donnell, however, apparently interpreted my request as being for e-mails Swartz had sent to HER. Since Clerk O'Donnell was not the Borough Clerk when Swartz served on Council, she asserted that since she had not corresponded with Swartz, no records were responsive to my request.
But, my request wasn't limited to e-mails Swartz sent to Clerk O'Donnell or even to the person who served as Borough Clerk during 2008. Rather, my request was for three e-mails that dealt with municipal business that Swartz sent, during a certain time frame, to ANYONE while he served as a member of the Borough Council.
Suppose, for example, that Swartz sent a February 24, 2008 e-mail to a municipal vendor regarding a municipal contract. Suppose further that Swartz did not send a copy of that e-mail to the Clerk or anyone else. This e-mail would likely be categorized as "general external correspondence" that the Borough is required to retain for 3 years (NOTE: See Record Series No. 0503-0001 in the Municipal Agencies General Records Retention Schedule which is on-line at http://www.state.nj.us/state/darm/links/pdf/m100000-007.pdf ) Thus, the Borough would be under an affirmative duty to retain such an e-mail for at least three years regardless of whether or not Swartz had sent a copy of it to anyone else and regardless of whether Swartz transmitted it from a computer at Borough Hall, his home or from a Starbucks in San Diego.
Accordingly, I am repeating my request for Swartz's e-mails in Request No. 1 below. This time, I ask Clerk O'Donnell to properly respond.
I note that two of Councilwoman Higbee's three e-mails were addressed to Clerk O'Donnell and the third e-mail was copied (i.e. cc 'd) to Clerk O'Donnell. But this raises a question as to whether Clerk O'Donnell provided me with only those e-mails that were sent to her as opposed to those that Higbee sent to others. As stated in my analysis of Swartz, my request was not limited to only those e-mails to which Clerk O'Donnell received. Rather, my request was broad enough to encompass municipality related e-mails that Councilwoman Higbee sent to anyone, such as a vendor, a fire chief or a colleague on the Borough Council. Accordingly, I am resubmitting another request, in Request No. 2 below, restricted to e-mails Higbee sent that were NOT sent or copied to the municipal clerk.
Also, Higbee's March 9, 2010, 2:32 p.m. e-mail states:
"Russ [presumably Council President Russell Johnson], Dave [presumably Councilman David Swindell] and Patti [presumably Councilwoman Patti Kelley] have all answered yes to paying the bill and I make it 4 so it is okay to pay the sj gas bill."
It appears that a majority of the Borough Council "met" via e-mail and "voted" to expend money from the public treasury [footnote]. This raises a separate question regarding compliance with the Senator Byron M. Baer Open Public Meetings Act, N.J.S.A. 10:4-6 et. seq. Accordingly, Request No. 3 seeks to learn more about this on-line vote.
1. The nonexempt portions of the first three e-mails sent after 12:01 a.m. on February 23, 2008 by former Councilman Fred Swartz that related to municipal business.
2. The nonexempt portions of the first three (3) e-mails sent by sitting Councilwoman Debra Higbee after 12:01 a.m. on February 23, 2010 that related to municipal business. Specifically excluded from this request are any e-mails that were sent or copied (i.e. cc' d) to Clerk O'Donnell.
3. All e-mails from "Russ," "Dave" and "Patti" regarding the "sj gas bill" referred to in Councilman Higbee's March 9, 2010, 2:32 p.m. e-mail.
The March 8, 2010 public meeting minutes indicate that a question was raised about a $34.31 gas bill that was deducted from the ambulance hall budget and could have been possibly coded to the wrong account. The minutes reflect that the payment of the $34.31 bill was not approved for payment at the March 8, 2010 meeting. While authorizing payment of a small sum by an e-mail vote may appear to be an insignificant violation of the Meetings Act, it is nevertheless concerning since it suggests that the Council, on other occasions, may have taken votes on more significant issues outside of public view.
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