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2004-177
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Final Decision |
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Findings and Recommendations of the Executive Director |
Final Decision
At its April 14, 2005 public meeting, the Government Records Council (“Council”) considered the April 7, 2005 Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations. The Council dismissed the case on the basis that balancing the severity of the security concerns of the Borough of Fairlawn residents outweighs the public’s right to access under the Open Public Records Act and therefore, the requested records were properly withheld from public access. 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 I attest the foregoing is a true and accurate record of the Government Records Council. Findings and Recommendations of the Executive DirectorHoward Avin GRC Complaint No. 2004-177Complainant v. Borough of Fairlawn Custodian of Records Records Requested:
Request Made: October 8, 2004 Background October 8, 2004 October 8, 2004 October 18, 2004 October 26, 2004
November 4, 2004 November 22, 2004 Custodian’s Statement of Information with the following attachments.
The Custodian states that the Complainant’s request has not been denied, however, the agency does not maintain a list of permits. There is a monthly log of all permits that can be reviewed to determine who had received a permit for a burglar/fire alarm. There are approximately 3000 permits issued each year. On October 15, 2005 the Complainant revised his request and asked that the files be made available to so he could make copies of the permits responsive to the request. As some of the permits contain social security numbers and OPRA states that such information is not disclosable the documents would have to be reviewed and redacted prior to the Complainant copying the information. The Complainant “was advised that it would take 20-40 hours of research time to pull each permit” and review the 9000 responsive documents filed in the 3 years requested by the Complainant. “The Borough’s Municipal Code sets a $40.00/hour charge for research” which the complainant did not want to pay. The Construction Code Official who had been handling the request retired on October 20 and did not inform the Custodian that the matter was not resolved. The new Construction Code Official spoke with the Complainant on November 19, 2004 at which time the Complainant revised his request from 3 years to 18 months. He was given an estimate of 10 hours to research the monthly logs and manually compile a list responsive to the request. The Complainant stated he would “let us know if he was willing to pay the cost of research” but did not give a response. Once the Complainant “indicates willingness to pay the estimated cost of research necessary to comply with his request, either the list will be prepared or we will go through each of our permit files and redact the Social Security Numbers of all files and allow him to review them.” Additionally, the Custodian states there is a broader issue of “whether it is in the best interest for the safety and welfare of our residents that someone knows who has burglar and/or fire alarms and by inference who does not.” “At a minimum Social Security Numbers must be redacted and that takes an extraordinary and unusual amount of time. February 17, 2005 February 17, 2005 Analysis Whether the Custodian appropriately denied access to records pursuant to N.J.S.A. 47:1A-1 et. seq.? Certain records are defined as exempt from access for security reasons. In particular OPRA states: A government record shall not include the following information which is deemed to be confidential for the purposes of P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented:
The Statement of Information provided by the Custodian’s counsel cites the above-mentioned reasons for choosing not to disclose the records requested. The Complainant is requesting information related to fire and burglar alarms, which could potentially affect the security of the buildings to which they apply. The Complainant was notified that emergency and security information is not subject to disclosure pursuant to OPRA. As the request is for information that could affect the safety and privacy of the citizens that have applied for such permits it is necessary to employ the balancing test set forth by the Supreme Court. In Merino v. Ho-Ho-Kus, GRC Complaint 2003-121 the Council addressed the citizen’s reasonable expectation of privacy pursuant to N.J.S.A. 47:1A-1 finding that 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 outweighed any factors militating in favor of disclosure of the addresses. Additionally, the Council also applied the above balancing factors in the case Richard Wilcox v. Township of West Caldwell, GRC complaint 2004-28 in determining that the name and address information was properly withheld from disclosure. Therefore, the above factors were considered here with the following conclusions:
The release of the requested name and address information has the potential for harm to both those citizens who have applied for a burglar or fire alarms in the past three years as well as those who have not. Permitting access to such records allows any recipient of the record to ascertain which homes are and are not secured with these devices. Furthermore, since the complainant seeks the records on behalf of the company Safetycare, it is likely that release of the names and home addresses will result in unsolicited contact between the Complainant and the individuals whose names and home addresses are being requested. Balancing the severity of the security concerns of the residents of the town against the public’s right to access under OPRA, the Custodian should not allow public access to the homeowners names and addresses. Conclusions and Recommendations The Executive Director respectfully recommends that the Council find that the requested records should not be disclosed. Prepared By: Colleen McGann, Case Manager Approved By: |
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