Like many municipalities, Ocean City (Cape May County) has a written policy governing employees’ use of e-mail. The third page of Ocean City’s policy states:
All email, voicemail and Internet messages (including any technology-based messaging) are official documents subject to the provisions of the Open Public Records Act (N.J.S.A. 47:1A-1). Employees of the City of Ocean City are required to use the assigned municipal email account for ALL City business and correspondence. The use of private email accounts for ANY city business or during business hours is strictly prohibited.
The seventh page of the policy shows that City Business Administrator James V. Mallon signed it and acknowledged that he read and understood it. Yet, the City’s response to my recent Open Public Records Act (OPRA) request shows that Mallon has violated the policy.
In her January 4, 2016 OPRA response, City Clerk Sheila Cottrell disclosed redacted versions of five e-mails to which Mallon was a party. Three of those e-mails show Mallon communicating about Ocean City’s drug and alcohol policy with City Labor Counsel Mark Ruderman via his personal Hotmail account. The other two e-mails show Mallon using his municipal e-mail to communicate about City business with Mayor Jay A. Gillian, Council member Antwan L. McClellan and Chief Financial Officer Frank Donato.
The three July e-mails constitute a clear violation of the City’s policy. In her response to my OPRA request, Cottrell, apparently aware of the violation, stated:
In response to your bringing this concern to our attention, the appointing authority has taken action reasonably calculated to insure that the City’s policy will not be violated by the individuals involved in the future.
What “action” the city took, however, was not disclosed.
Forbidding employees from using their personal e-mail accounts to discuss City business is sound policy. The mischief that arises when employees use their personal e-mail accounts for municipal business is illustrated by Cottrell’s response to paragraph 3 of my OPRA request, which sought official e-mails that Mallon may have received on his personal account during several days in November and December 2015. Cottrell wrote:
Mr. Mallon personally reviewed his emails for documents responsive to this request and no documents responsive to this request exist.
Clearly, the government employees should not be relied upon to search, without oversight, their personal e-mail accounts for those which are responsive to an OPRA request. The temptation to delete or ignore responsive e-mails is simply too great.