A resident asks for every conversation a department head had with an AI chatbot about a zoning change. Does the Open Public Records Act reach them? A September 2026 article by media lawyer Steven D. Zansberg, excerpted by Eugene Volokh, reported that no published court decision had yet applied FOIA or a state public records law to officials’ AI chatbot conversations.1 What New Jersey has is its statute and its own guidance, and both point the same way.
What the law calls a record
The Open Public Records Act defines a government record broadly. It includes “information stored or maintained electronically,” among many other forms, “that has been made, maintained or kept on file in the course of his or its official business.” It also leaves out “inter-agency or intra-agency advisory, consultative, or deliberative material.”2 A chat about public business, in an account the office controls, fits the first description. Whether a particular chat falls under the second is a question for the custodian, one request at a time.
What the State’s guidance says
New Jersey’s records guidance for AI systems is direct: “Records associated with or created by governmental systems using AI/ML are therefore subject to the State’s public records law.” It names prompts, the responses the systems generate and the log files among the records to plan for, and it asks agencies to consider “whether it is feasible to store prompts and outputs produced during normal system operations for fixed time periods.”3
What Pennsylvania decided
In February 2026, Pennsylvania’s Office of Open Records sided largely with the governor’s administration in withholding employees’ ChatGPT conversations. It treated them as “notes and working papers used solely for that official’s or employee’s own personal use” and as “internal, predecisional deliberations.”4 That is one agency’s ruling under another state’s law. It shows the arguments an agency will make, not how a New Jersey court would rule.
Keep chats where you can find them
- Decide before the first prompt. With your records custodian, settle which chats are records and which retention schedule they fall under.
- Use accounts the office controls. A chat about public business in a personal account is the hardest to find and the easiest to lose.
- Keep a chat with what it produced. When a chat shaped a decision or a document, file it with that document.
- Leave the exemptions to the custodian. The deliberative exemption is an answer to a specific request, not a reason to keep nothing.
Whether a particular chat must be released is your records custodian’s call, with your attorney. Whether you can find it when someone asks is yours to settle now.
Sources
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Steven D. Zansberg, “Are the Government’s Conversations with AI Accessible Under Public Records Laws and FOIA?” forthcoming in Communications Lawyer, Fall 2026 (manuscript dated September 10, 2026). Excerpted by Eugene Volokh in The Volokh Conspiracy, September 22, 2026. Accessed October 5, 2026. ↑
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Open Public Records Act, N.J.S.A. 47:1A-1.1 (definitions; Justia, 2025 edition). Accessed September 27, 2026. ↑
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New Jersey Division of Revenue and Enterprise Services, Guidelines for Developing Retention and Disposition Policies for Artificial Intelligence/Machine Learning Systems, February 2025, revised July 2025, pages 3 and 11. Accessed September 27, 2026. ↑
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Jaxon White, WITF, “Public access to Pennsylvania officials’ AI conversations may be limited after agency ruling,” WVIA News, February 19, 2026. Accessed September 27, 2026. ↑