Email logs

Response to this request is long overdue. By law, under all circumstances, Monmouth County Prosecutor's Office should have responded by now (details). You can complain by requesting an internal review.

Dear Monmouth County Prosecutor's Office,

This is a request for public records made under OPRA and the common law right of access. I am not required to fill out an official form. Please acknowledge receipt of this message.
Records requested:
I would like a copy of rhe email logs for all attorneys in the prosecutor's office from January 1, 2021 through march 1, 2021

Yours faithfully,

William Bailey

Mary Juliano, Monmouth County Prosecutor's Office

I want to make sure that I understand this request. Please clarify what is meant by “email logs.”
Additionally, confirm whether “all attorneys” is intended to mean “the prosecutor and all assistant prosecutors.”

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Dear Mary Juliano,

This is what I mean as email logs, https://law.justia.com/cases/new-jersey/...
I would like "information contained within the following fields: sender, recipient, date, and subject." It concerns me that you would not know what an email log is and work in the prosecutor's office and this case went to the New Jersey supreme court. Yes, I would like the email logs for the prosecutor and all the assistant prosecutors given they are actually attorneys, if they are not then I would wonder why they would be in those positions and not be licensed attorneys. I look forward to my public records.

Yours sincerely,

William Bailey

Mary Juliano, Monmouth County Prosecutor's Office

Dear Mr. Bailey:

You need not be concerned: I am familiar with the Paff decision.  The term
"email logs" does not have a fixed meaning.  The plaintiff in Paff v.
Galloway Twp, 229 N.J. 340 (2017), requested email-related “fields of
information” that included "sender" "recipient" "date" and "subject."  Id.
at 343, 344.  The Court referred to this request as for “email logs” as
opposed to email content.  Id. at 343.  Someone else’s request for "email
logs" could be for the same, more, or fewer "fields of information" than
at issue in Paff.  Your request did not cite Paff, nor did it describe
specific email-related information like Paff’s did.  Thank you for your
responsive email providing helpful clarity.

 

There may be other employees in the prosecutor's office that have law
degrees or are bar-admitted but are not assistant prosecutors.  Hence, the
reason for requesting your confirmation on that point.  Thank you for that
clarification.

 

Since you are familiar with the Paff decision, you undoubtedly are aware
that your request is significantly different.  Paff's request was for two
email accounts (municipal clerk and chief of police), for data covering a
two-week period.  229 N.J. at 343.  The township's IT specialist advised
that generating the requested record would take two to three minutes.  Id.
at 354.

 

In contrast, you are requesting data for 57 to 59 accounts over a
two-month period.  Furthermore, Paff recognized:

 

The Township [has] raised legitimate concerns whether the emails are
subject to OPRA exceptions, exemptions, or redactions -- issues not fully
explored or discussed before the trial court.  The Township fears that
wholesale disclosure of the requested fields of information from the
emails may compromise investigations or investigatory techniques, thwart
the internal exchange of confidential information, or lead to the release
of citizens' email addresses causing an unwarranted invasion of their
privacy....

 

It 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 for the Township Clerk and Chief of Police to
determine whether the requested information in each email may intrude on
privacy rights or raise public-safety concerns.  The potential issues by
the Township must be addressed.

 

Id. at 357.  The request for an attorney’s “email log,” as you intend that
term, would include the data for emails both sent to, and by, the
attorney.  Because I have processed requests for email data in the past, I
anticipate that the information you are requesting would entail tens of
thousands of lines of data.  As contemplated by Paff, each attorney would
have to review his or her own email data for exemptions and redactions. 
Similar to the police chief in Paff but arguably more so where an
assistant prosecutor is concerned, email-related information can raise
confidentiality issues that include but are not limited to criminal
investigations, uncharged criminal cases, privilege, interagency
deliberation, work product, and privacy of victims/third parties. 

 

N.J.S.A. 47:1A-5(i)(1) provides the agency seven business days to grant or
deny an OPRA request “provided that the record is currently available and
not in storage or archived.”  This seven-business-day deadline is relaxed
in state of public emergency, which New Jersey remains under at this
time.  N.J.S.A. 47:1A-5(i)(2).  Even if the deadline were not relaxed
though, the “email logs” that you want are not “currently available”; they
would need to be generated by our IT department, then reviewed by the
individual account holders to convert to a form that ensures only publicly
available information is released.  Paff specifically recognized that a
service-fee may be charged when satisfying a request requires a
substantial amount of manipulation or programming of information
technology, and that such provision may be implicated where the request is
for computer-generated email data information.  Paff, 229 N.J. at 354.

 

I will consult with our IT department to get a concrete sense of the
volume of information at issue given the search parameters that you have
specified, and the feasibility and/or time it would take to run the
reports.  Once I have that, I can get a sense of, and add, the hours it
will take our 57+ lawyers to perform review of each of their “logs” for
exemptions and redaction.  By next Friday, March 19, 2021, I will write
you another email with determinations regarding N.J.S.A. 47:1A-5(d)
(special service fee for extraordinary labor cost of performing service),
47:1A-5(g) (whether request is denied because satisfaction of same would
substantially disrupt agency operations, or an accommodation could be
reached), and 47:1A-5(i)(1) (date record will be made available, assuming
it can). 

 

Respectfully,

Mary Juliano

Assistant Prosecutor

 

 

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Dear Mary Juliano,

My request is not substantially different, just the amount of people involved. I will amend my request for 2 weeks, January 1, 2022 through January 14, 2021. Redacting information is part of government function as well as fulfilling opra requests. Please respond with my requests as soon as the law permits.

Yours sincerely,

William Bailey

Mary Juliano, Monmouth County Prosecutor's Office

Mr. Bailey,

I have received the amendment to your OPRA request.  Narrowing the
requested email data to a two-week period of time, as you have, does
create parity between your request and Paff in that one respect.  However,
that does not change my plan for processing this request. 

 

We do not know what volume of data was at issue in Paff; whether
redactions were made to it; if so, how time-consuming those redactions
were; or, whether a service charge was imposed in connection with the
redactions.  As you point out, Paff involved two accounts; yours involves
57.  You therefore cannot favorably compare this case and Paff in terms of
the amount or volume of email data at issue.  We can cite to Paff as
authority that a service charge may be appropriate where email logs are
requested; we cannot cite to Paff as authority that one should not be
imposed here.

 

Second, it would be incorrect to assume that the technology or program
that the prosecutor's office would use to generate the email logs is the
same as Paff.  As stated in my other email, I have used our office's
program to process requests for email data in the past (for a request far
narrower than this) and can attest it did not take two to three minutes to
generate a document that was in a releasable, responsive form. 

 

Third, unlike Paff, you are requesting data associated with attorneys'
email accounts, which raise obvious and readily foreseeable privilege and
confidentiality concerns that will require careful scrutiny for redaction
and exemption.  Processing this request necessarily will require 57
attorneys to review (what will likely be) thousands of lines of email data
for potential redaction. 

 

Of course you are correct that "redacting information is part of
government function as well as fulfilling OPRA requests."  Yet N.J.S.A.
47:1A-5 recognizes that, where fulfilling an OPRA request becomes unduly
burdensome or costly, appropriate remedies are available to the government
agency.  Those are outlined in my previous email and will not be repeated
here.  Simply, we need to know what we are dealing with in terms of volume
and time expenditure before we can make informed judgments under N.J.S.A.
47:1A-5.  I intend to follow the plan of my email of 12:04 p.m. today. 
You can anticipate an email from me by next Friday, Mar. 19, 2021, that
communicates the promised information.

 

Have a good weekend,

Mary Juliano

Assistant Prosecutor

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Mary Juliano, Monmouth County Prosecutor's Office

Dear Mr. Bailey:

Per my email to you of March 11, 2021, I have investigated the time and
resource expenditure that satisfying your OPRA request would entail.  I am
providing you that information in this email. 

 

In summary, we have determined that we are able to satisfy the request
without an intolerably "substantial disrupt[ion] to agency operations." 
N.J.S.A. 47:1A-5(g). 

 

However, accommodating the request would involve an extraordinary
expenditure of time and effort, justifying imposition of a special service
charge.  N.J.S.A. 47:1A-5(c).  The special service charge has been
assessed at $2,323.11. 

 

Additionally, as explained in my prior email, the records that you request
do not exist; they would have to be generated and then reviewed for
redaction to accomplish a releasable product.  N.J.S.A. 47:1A-5(i). 
Satisfying this request would entail a multi-step process that would
require collaboration of 59 of our staff members.  We would need a minimum
of one month to produce the records. 

 

Pursuant to N.J.S.A. 47:1A-5(c), you “shall have the opportunity to review
and object to the charge prior to it being incurred.”  Below, I provide an
explanation of how we arrived at the special service charge.  Review at
your leisure.  I will await a response from you before undertaking the
process of satisfying the request.

 

1.)    The program that our office uses to generate the “email logs”
unavoidably produces reports that contain information that is extraneous
and/or unresponsive to the data that you requested.  Consequently, after
each report is run, the IT administrator must manually edit the result to
excise unresponsive rows and columns of data.  Producing each of the
report logs in responsive form would take our IT technician approximately
10 minutes.  There would be 57 reports to generate.  The IT technician’s
hourly rate is $55.03.  The total technical cost of producing the reports
is $522.78.

 

2.)    After the reports are generated, they would be distributed to each
assistant prosecutor to review for redaction.  See Paff v. Galloway Twp,
229 N.J. 340, 357-58 (2017).  The Supreme Court has recognized that
“requestors may be assessed costs for preparation work involved in
responding to a request,” including the cost of redaction where same would
involve an extraordinary amount of time or effort.  Burnett v. County of
Bergen, 198 N.J. 408, 438 (2009). 

 

Not all assistant prosecutors receive the same volume of email; therefore,
not every attorney’s report and redaction task would be equal.  Our
executive-level prosecutors receive more email than line-assistant
prosecutors.  To fairly estimate the volume of data in order to reasonably
assess “actual cost” (N.J.S.A. 47:1A-5(c)), we ran three sample reports:
the First Assistant’s, and two line AP’s.  A line of data consists of
sender, recipient, subject, and date.  The two line AP’ logs were 525
lines, and 494 lines, of data.  The First Assistant’s log was 2,428 lines
of data.

 

Approximating that a line-AP’s log would average 500 lines of data, we
conservatively estimate that it would take each line-AP 30 minutes to
review his or her report to flag items for redaction.  This 30 minutes
includes not only the careful read-through of the report for clearly
excisable matter, but also follow-up questions to the OPRA custodian (me)
about data that is ambiguous or questionable in terms of redaction.  While
30 minutes may not seem “extraordinary” in terms of time expenditure,
there were 54 line-APs working the first two weeks of January 2021, which
equates to 27 hours’ worth of redaction demanded of our line-AP legal
staff.  The average hourly salary of these APs was $52.31.  The sum total
for review for redaction by line APs is $1,412.37.

 

Although the First Assistant’s log was close to five times the volume of
the two line APs’ logs, we, again, conservatively estimate it would take
approximately 75 minutes for the executive level prosecutors to review
their reports and resolve ambiguities and legal questions concerning
redaction.  The average hourly salary of the three executive level
prosecutors was $89.11.  The sum total for review for redaction for the
executive prosecutors is $334.16.

 

3.)    After the attorneys review and flag the redactions in their
respective logs, our OPRA clerical must go through the 57 log reports and
actually make the redactions.  We conservatively estimate this would take
3.5 hours.  The OPRA secretary’s hourly wage is $15.37.  The sum total
cost to mechanically accomplish the redactions is $53.80.

 

Please advise whether you want us to proceed with processing your request.

 

Respectfully,

Mary Juliano

Assistant Prosecutor

 

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