July 24, 2008
FRANKFORD -- A local mall developer has filed a lawsuit against Frankford township for failing to respond to an Open Public Records Request that seeks copies of e-mail correspondence among township officials.
Sussex Commons Associates, developers of a proposed 350,000-square-foot shopping mall at Ross' Corner, filed the lawsuit Wednesday in Superior Court.
The developer filed 23 requests June 26, most of which were for e-mails sent between land use board members and township officials from Nov. 6, 2007 to present, and copies of e-mail correspondence between members of the plan endorsement advisory committee.
The request also asks for a copy of the township's electronic records management policy and a copy of the contract awarded to township planner H2M Associates this May.
Typically, an open records request must be responded to within seven days. However, extensions can be granted based on extenuating circumstances, such as requests that include an extensive number of documents.
"We are a small township, it's summertime, and multiple people and committee members have been on vacation. (Sussex Commons Associates attorney Kevin Kelly) refused to grant us a reasonable extension," said township attorney Kevin Benbrook.
Kelly extended the deadline for his request to this past Monday, but township officials said it still was not enough time to complete it.
The requests made by Kelly were too broad, and did not indicate certain e-mails between township officials, but rather all electronic correspondences made within the last eight months, Benbrook said. In addition, township administrator Louanne Cular, the employee who would gather the information was on vacation from July 3-14.
In 2002, under the Open Public Records Act, the state passed a statute requiring all governing bodies to also supply copies of and keep records of electronic documents discussing issues relating to the government.
Cular said she has in the past provided e-mails requested through the Open Public Records Act, but was not aware of any township policy stating that e-mails between committee members must be kept on record.
In Frankford, committee members do not have township issued e-mail addresses, but use their own personal accounts.
Frankford Mayor Robert McDowell said the township has followed the guidelines on e-mail correspondence provided to it by Benbrook. He was unaware of any policy in regard to e-mails that pertained to committee members, he said.
"The township has no real control over e-mail sent on the private computers of local officials," Benbrook said. "It may be that this request for e-mails from public officials would also include mails between mothers, brothers, sisters, or even confirming online purchases. The request is just too broad."
Kelly disagrees, saying state law dictates the township keep track of all correspondence involving its business.
"As a governing body, they can't talk about public business in private," Kelly said.
John Paff, chairman of the state's Open Government Advocacy Project, said problems with requesting copies of e-mail correspondence are not uncommon, especially in smaller townships.
"It is the responsibility of the requester to be reasonably specific in their request and it is the responsibility of the town to provide records in a prompt fashion to that request," Paff said.
"It's also the responsibility of the township to safeguard their e-mails and they can't say they don't have it because it was part of the councilman's personal e-mail account," Paff added.
Paff said similar cases requesting e-mails are increasing in the state. One solution to the problem is to enact official township e-mail addresses and keep e-mails about official business limited strictly to those accounts.
Paff said officials also can send personal e-mails to a township database, where clerks would be able to search for e-mails by topic or date.
"The law is the law and it's not supposed to take five years to update the system," Paff said. "E-mails can provide a clear window into the workings of the government, whether it's good or bad, and without records you don't get that."
