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2003-110
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Final Decision |
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Interim Decision on Access |
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Supplemental Findings and Recommendations of the Executive Director |
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Interim Order on Access |
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Findings and Recommendations of the Executive Director |
Final Decision
At the July 8, 2004 public meeting, the Government Records Council (“Council”) considered the June 29, 2004, Supplemental Findings and Recommendations of the Executive Director and all related documents submitted by the parties. As documented in a previously issued Interim Decision on Access, the Council voted unanimously to adopt items “2,” “3" and “4" of said Findings and Recommendations. In item “1,” the Executive Director recommended that the Council order the custodian to release to the complainant copies of all moving violation summonses issued by Officer Tuttle, without redacting the home addresses of the individuals to whom the summonses had been directed. After balancing the privacy interests of the individuals against the public interest in disclosure, a three-member majority of the five-member Council voted to reject the recommendation of the Executive Director on item “1,” and hold, instead, that in the specific circumstances of this case, the home addresses should be redacted from the records provided to the complainant. The majority of the Council concurred with the Background information contained in the June 29, 2004 Findings and Recommendations of the Executive Director, and the recommendation that the Council evaluate the request for release of home addresses in the framework of the seven-factor test articulated by the Supreme Court of New Jersey in Doe v. Poritz, 142 N.J. 1, 82 (1995). The Council also concurs with the identification of the relevant factors in the circumstances of this complainant’s OPRA request. These elements of the Findings and Recommendation are hereby incorporated in this Final Decision. With regard to the weighing of the factors, however, in the specific circumstances of this case, the majority of the Council reached a conclusion different from the Executive Director and the two members of the Council who voted to allow access to the home addresses. The Council received legal advice during the private session, and conducted extensive discussion of the matter during the public session. The Council considered whether or not the home addresses must be released pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 et seq., in the context of relevant judicial rulings, including the recognition that “a public agency has a responsibility and an obligation to safeguard from public access a citizen’s personal information with which it has been entrusted when disclosure thereof would violate the citizen’s reasonable expectation of privacy.” Serrano v South Brunswick Twp., 358 N.J. Super. 352, 368-69 (App. Div. 2003). In addition, the New Jersey Supreme Court has indicated that, as a general matter, the public disclosure of an individual’s home address “does implicate privacy interests.” Doe v. Poritz, 142 N.J. 1, 82 (1995). The Court emphasized that even if a home address is otherwise available to the public, the circumstances in which the information is sought under OPRA requires the determination of whether the inclusion of addresses, along with other information, implicates any privacy interest. Id. at 83. Specifically, the Court stated that “privacy interests may be implicated where disclosure of a person’s address results in unsolicited contact.” Id. Moreover, the Court noted that a citizen surely has a privacy interest in past aspects of his or her history that may have been a matter of public knowledge, but have been obscured by the passage of time. Id. at 86-87. Having found that privacy interests may be implicated by the release of home addresses to the public, the Supreme Court set forth factors to be considered when determining whether or not disclosure is warranted. Relevant considerations include, when applicable, (1) the type of record requested; (2) the information the record contains; (3) the potential for harm in any subsequent nonconsensual disclosure; (4) the injury from disclosure to the relationship in which the record was generated; (5) the adequacy of safeguards to prevent unauthorized disclosure; (6) the degree of need for access; and (7) whether there is an express statutory mandate, articulated public policy, or other recognized public interest militating toward access. Id. at 87-88. When assessing whether or not the government must disclose information, the Court mandated a balancing of these factors to determine whether the state interest in public disclosure substantially outweighs the requestor’s interest in privacy. Id. at 88. In the circumstances of the complainant’s OPRA request, the focus is on the express statutory mandate to liberally provide public access to government records, weighed against the potential for unsolicited contact between the complainant and the individuals who had received moving violation summonses from Officer Tuttle during the three years of his employment with the Ho-Ho-Kus Police Department. Since the complainant seeks the records in the context of his dissatisfaction with Officer Tuttle’s conduct in issuing him a moving violation summons, the majority of the Council finds it likely that release of the home addresses will result in unsolicited contact between the complainant and the individuals who previously received similar summonses. Moreover, many of the summonses in question were disposed of years ago, and the underlying motor vehicle infractions have faded into obscurity. Balancing the likelihood of unsolicited contact in this case against the public interest in open government records, the majority concluded that the privacy interest of the individuals, who are not parties to this action, outweighs the public interest in disclosure of the home addresses. This is the final administrative determination in this matter. Any further review should be pursued in the Appellate Division of the Superior Court of New Jersey within forty-five (45) days. Information about the appeals process can be obtained from the Appellate Division Clerk’s Office, Hughes Justice Complex, 25 W. Market St., PO Box 006, Trenton, NJ 08625-0006. Final Decision Rendered by the Vincent P. Maltese, Chairman I attest the foregoing is a true and accurate record of
the Government Records Council. Interim Decision on Access
At the July 8, 2004 public meeting, the Government Records Council (“Council”) considered the June 29, 2004 Executive Director’s Supplemental Findings and Recommendations and all related documents submitted by the parties. The Council voted unanimously to adopt items “2,” “3” and “4” of said findings and recommendations. By a majority, the Council voted not to accept the Executive Directors recommendations in item “1” of said findings and recommendations and will review its decision in this matter at the August 12, 2004 public meeting after seeking legal counsel. Therefore, the Council hereby orders that:
Interim
Decision Rendered by the Supplemental Findings and Recommendations of the Executive DirectorRick Merino GRC Complaint No. 2003-110Complainant v. Borough of Ho-Ho-Kus Custodian of Records Relevant Records Requested: Copies of (1) all moving violations of
Officer Michael Tuttle during career with Ho-Ho-Kus Police Department, (2)
training records of Officer Tuttle; and (3) records of complaints or internal
reprimands against Officer Tuttle. Complainant also accuses Custodian of
overcharging for duplication/copying fees. Recommendations of the Executive Director The Executive Director respectfully recommends the Council find that:
Background The complaint alleges denial of an Open Public Records Act request to review copies of (1) all moving violations of Officer Michael Tuttle during his career with the Ho-Ho-Kus Police Department, including names and addresses of those cited; (2) training records of Officer Tuttle; and (3) records of complaints or internal reprimands against Officer Tuttle. The Complainant also alleges that the custodian overcharged him for duplicating the requested records. The record shows that the Custodian did provide access to moving violation summonses issued by Officer Tuttle. However, upon the advice of Borough counsel, the Custodian redacted the addresses of the individuals cited on those summonses. The Custodian took the position that some citations, maintained beyond thirty days after disposition, issued by Officer Tuttle were not subject to public access because such records were not required to be kept pursuant to the Records Retention and Disposal Schedule promulgated by the Law Enforcement Standards Section of the New Jersey Division of Criminal Justice. In addition, the Custodian denied access to Officer Tuttle’s training records and records of complaints and internal reprimands against Officer Tuttle, claiming that such items were exempt under the confidentiality exceptions of OPRA. The Custodian charged fees of $64.25 for copying the requested materials ($25.00 for copy of incident videotape and $39.25 for 27 double-sided photocopies). At the March 11, 2004 public meeting, the Government Records Council (“Council”) issued the following Interim Decision:
Complainant: The Complainant claims that the Custodian’s Counsel should not have redacted the names and address of moving violations issued by Officer Tuttle. In addition, the Complainant represents that the cost for the copy of the video should be $25.00. Public Agency: The Custodian redacted the names and addresses of moving violations issued by Officer Tuttle and set a special service fee for reproduction of a requested video. Regarding this second issue, the Custodian’s Counsel informed the Government Records Council Executive Director that the copying charge for the video was $50.00 and not $25.00. In a March 17, 2004 memorandum, the Custodian stated that the $50.00 fee represented the cost for a “discovery request” for video in preparation of a court matter involving the Complainant. The Custodian stated further “it took approximately 1 hour and a half for Lieutenant Wanamaker to reproduce the tape for Mr. Merino.” Thus, the Custodian added a service charge to the production of the video. Analysis OPRA does not address whether home addresses must be disclosed. Although Executive Order 21 (2002) exempted home addresses from disclosure, this exemption was rescinded by Executive Order 26 (2002), which referred the issue to the Privacy Study Commission for its review. See para. 5. As a result, the confidentiality of home addresses under OPRA is an open issue. Therefore, the appropriateness of disclosure of this information must be considered on a case-by-case basis by the GRC, based on the privacy interests involved in the particular situation. The Appellate Division has held that the GRC must enforce OPRA's declaration, in N.J.S.A. 47:1A-1, that "a public agency has a responsibility and an obligation to safeguard from public access a citizen's personal information with which it has been entrusted when disclosure thereof would violate the citizen's reasonable expectation of privacy." Serrano v. South Brunswick Twp., 358 N.J. Super. 352, 368-69 (App. Div. 2003). See also National Archives and Records Administration v. Favish,U.S.(United States Supreme Court, March 30, 2004) (personal privacy interests are protected under FOIA). The New Jersey Supreme Court has indicated that, as a general matter, the public disclosure of an individual's home address "does implicate privacy interests." Doe v. Poritz, 142 N.J. 1, 82 (1995).[1] The Court specifically noted that such privacy interests are affected where disclosure of a person's address results in unsolicited contact. The Court quoted with approval a federal court decision which indicated that significant privacy concerns are raised where disclosure of the address "can invite unsolicited contact or intrusion based on the additional revealed information." Ibid. citing Aronson v. Internal Revenue Service, 767 F.Supp. 378, 389 n. 14 (D. Mass. 1991). The Supreme Court concluded that the privacy interest in a home address must be balanced against the interest in disclosure. It stated that the following factors should be considered:
Accordingly, the foregoing criteria was applied in exercising its discretion as to whether the privacy interests of the individuals named in the summonses are outweighed by any factors militating in favor of disclosure of the addresses. The above factors were considered with the following conclusions:
After careful consideration of all the interests at stake, the privacy concerns do not outweigh OPRA’s general policy favoring public access. In arriving at this conclusion, the GRC considered the potential harm of unsolicited contact and emotional strain placed on those individuals affected by this decision. In addition, the Legislature provided the Open Public Records Act to allow for readily available access to public documents by citizens of this State. Balancing the severity of the concerns and the public’s right to access under OPRA, the Borough of Madison should allow public access to these addresses. In regard to the second issue, the Borough of Madison charged a special service charge in its production of the requested video. Pursuant to N.J.S.A. 47:1A-5, The actual cost of duplicating the record shall be the cost of materials and supplies used to make a copy of the record, but shall not include the cost of lab or other overhead expenses associated with making the copy except as provided for in subsection c. of this section. If a public agency can demonstrate that its actual cost for duplication of a government record exceed the forgoing rates, the public agency shall be permitted to charge the actual cost of duplicating the record. N.J.S.A. 47:1A-5 (c) addresses the issue of a special service charge. In this specific case, the production of this video took neither an extraordinary expenditure of time nor an extraordinary effort to furnish to the Complainant. In addition, the Custodian provided no reason that equipment outside of the ordinary document copying equipment was needed to reproduce the video. As a result, the Custodian has never demonstrated the need for assessing a special service fee for production of this video. Documents Reviewed The following documents were reviewed in preparing the Supplemental Findings and Recommendations for this case: March 11, 2004 - Interim Decision by GRC March 22, 2004 – Response by Custodian regarding the cost of producing the requested video May 10, 2004 – Response to this case by Assistant Attorney General Lewis Scheindlin Conclusion Based on the Department of Law and Public Safety’s balancing test recommendation, the Custodian should not have redacted the addresses of those individuals cited in the requested moving violations. Furthermore, the Custodian improperly assessed a special service charge for the reproduction of this video. The Custodian should reimburse the Complainant $25.00. Paul F. Dice June 29, 2004 [1] This case upheld the validity of Megan's Law and concluded that the public interest in disclosure of sex offender addresses outweighed privacy interests. Although not an OPRA case, the general standards announced by the Supreme Court are helpful and pertinent in evaluating OPRA's expectation of privacy requirement with regard to addresses. Interim Order on Access
At its March 11, 2004 public meeting, the Government Records Council (“Council”) considered the March 11, 2004 Findings and Recommendations of Executive Director and all related documentation submitted by the parties. The Council voted to adopt said Findings and Recommendations with revisions and orders the custodian to:
The Council will postpone its decision on whether the addresses and names were properly redacted on the documents pertaining to the prior month’s moving violation summonses of Officer Tuttle for further review by the GRC’s legal counsel. A decision on this matter will be addressed at the March 30, 2004 Government Records Council Meeting. Vincent P. Maltese, Chairman I attest the foregoing is a true and accurate record of
the Government Records Council. Findings and Recommendations of the Executive DirectorRick Merino GRC Complaint No. 2003-110Complainant v. Borough of Ho-Ho-Kus Custodian of Records Relevant Records Requested: Copies of (1) all moving violations of
Officer Michael Tuttle during career with Ho-Ho-Kus Police Department, (2)
training records of Officer Tuttle; and (3) records of complaints or internal
reprimands against Officer Tuttle. Complainant also accuses Custodian of
overcharging for duplication/copying fees. Recommendations of Acting Executive Director This OPRA complaint filed October 6, 2003 alleges denial of an OPRA request to review copies of (1) all moving violations of Officer Michael Tuttle during career with Ho-Ho-Kus Police Department, including names and addresses of those cited (2) training records of Officer Tuttle; and (3) records of complaints or internal reprimands against Officer Tuttle. The Complainant also alleges that the custodian overcharged him for duplicating the requested records. The record shows that the Custodian did provide access to the prior month’s moving violation summonses issued by Officer Tuttle; however, upon the advice of Borough counsel, the Custodian redacted the addresses of the individuals cited on those summonses. Moreover, the Custodian took the position that earlier citations issued by Officer Tuttle were not subject to public access because such records were not required to be kept pursuant to the Records Retention and Disposal Schedule promulgated by the Law Enforcement Standards Section of the New Jersey Division of Criminal Justice. In addition, the Custodian denied access to Officer Tuttle’s training records and records of complaints and internal reprimands against Officer Tuttle, claiming that such items were exempt under the confidentiality exceptions of OPRA. The Custodian charged fees of $64.25 for copying the requested materials ($25.00 for copy of incident videotape and $39.25 for 27 double-sided photocopies). The Acting Executive Director respectfully recommends the Council find that:
Legal Analysis N.J.S.A. 47:1A-1.1 provides that certain types of personal information shall be exempt from public access, including social security numbers, driver’s license numbers, credit card numbers and unlisted telephone numbers. The custodian has not asserted any argument for redaction of addresses from the requested summonses. N.J.S.A. 47:1A-5(a) provides that the “custodian of a government record shall permit the record to be inspected, examined, and copied by any person during regular working hours,” subject to certain redaction provisions. Hence, irrespective of whether some other law or regulation mandates the destruction of a government document, if such document has not been destroyed and is in the possession of the custodian, such record must be provided to the person requesting the document. N.J.S.A. 47:1A-10 provides that personnel records that “disclose conformity with specific experiential, educational or medical qualifications required for government employment” shall be considered a government record and must be made available for public access. Hence, training records relating to a police officer’s public employment as a law enforcement official would be subject to public access. N.J.S.A. 47:1A-10 provides in pertinent that “the personnel or pension records of any individual in the possession of a public agency, including but not limited to records relating to any grievance filed by or against an individual, shall not be considered a public record and shall not be made available for public access.” As a result, neither complaints filed against a police officer, nor reprimands issued to such officer, would be subject to public access. N.J.S.A. 47:1A-5 provides that the maximum fees for copying shall be $0.75 for the first ten pages, $0.50 for the second ten pages, and $0.25 for each page thereafter. The proper fee for 27 double-sided pages is, therefore, $21.00. Documents Reviewed The following documents were reviewed in preparing the Findings and Recommendations for this case:
Conclusion
_________________________ Paul F. Dice |
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