Open Records in New Jersey

Open Records in New Jersey are governed by the Open Public Records Act (OPRA). The State of New Jersey’s Department of the Treasury has also released a records manual that outlines how records laws apply to social media content.

How New Jersey Defines a Public Record
The Open Public Records Act (OPRA) defines a public record in the following way:

“Government record” or “record” means any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof, including sub-ordinate boards thereof, or that has been received in the course of his or its official business by any such officer, commission, agency, or authority of the State or of any political subdivision thereof, including subordinate boards thereof. The terms shall not include inter-agency or intra-agency advisory, consultative, or deliberative material.

In chapter 16 of the State of New Jersey’s Department of the Treasury’s records manual it says that:

Social media and the content generated by these platforms are fit to be included in information security programs and records management regimes. These programs/regimes apply security controls and protections, as well as retention/disposition controls to information assets based on their relative value to the organization.

How New Jersey Defines a Public Record
The New Jersey Department of the Treasury’s records manual is a valuable resource for those trying to understand how to best apply public records laws and retention policies to social media content. The manual states that:

• Agencies can take steps to establish appropriate, effective and efficient security programs and controls for information assets, including social media content, by inventorying those assets, classifying them, and then conducting risk assessments. Through these assessments, agencies can determine their level of exposure to specific risks, and using information on the value of the implicated assets, structure their security programs and controls so that they focus on high value assets that are critical to the organization’s mission and legal viability (The Sedona Conference, 2012; Peltier, 2014).
• Social media content may have varying values depending upon its functional and legal uses. Agencies will need to assess these uses and values in order to understand which content requires retention and preservation, and the appropriate lengths of time and storage formats involved. These values will point to the impact of detrimental outcomes associated with threats that emanate from the operational, managerial and technical environments of social media content management, which have different likelihoods or probabilities of occurrence (Layton, 2007). Finally, the nature of appropriate security-related retention and preservation controls for social media content will become apparent once risks are analyzed in the context of these threats, impacts and probabilities.
• Before assessing the value of social media content, as with all other informational assets, agencies will need to gain intellectual control over the conceptual, institutional and physical spaces that the content occupies (National Institute of Standards and Technology, 2004; Peltier, 2014; Layton, 2014). For social media content, the organization will need to know which services are employed and which entity hosts/stores the content (as noted previously, the most common scenario will be for a third party service to provide hosting and storage services). In this connection, best practice would be to map the social media content inventory directly to a social media policy that sets boundaries with respect to legitimate, agency-approved services and interactions, content use (functional purpose and need for social content), confidentiality/fair use considerations, and content collection practices (Lauby, 2009; National Archives and Records Services, 2013).

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