2004-195

At its July 14, 2005 public meeting, the Government Records Council (“Council”) considered the July 8, 2005 Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council voted by a majority to adopt the entirety of said findings and recommendations. The Council, therefore, dismissed the case on the basis that pursuant to N.J.S.A. 47:1A-1 and Executive Order 21 the records should not be disclosed because of the unsolicited contact, intrusion or potential harm that may result.

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
Government Records Council
On The 14^th Day of July, 2005

I attest the foregoing is a true and accurate record of the Government Records Council.

Findings and Recommendations of the Executive Director

Request Made: November 9, 2004
Response Made: November 19, 2004
Custodian: Gwen Gabbert
GRC Complaint filed: November 19, 2004

November 9, 2004
The Complainant filed an Open Public Records Act (“OPRA”) request seeking names and addresses of dog license owners in the Borough.

November 19, 2004
The Custodian responded to the Complainant’s OPRA request. The Custodian denied the Complaint’s request stating that the records are exempt from disclosure under OPRA as it is “considered a breach of the personal security of our residents.”

November 19, 2004
The Complainant filed a Denial of Access Complaint with the Government Records Council (GRC).

November 23, 2004
The Council’s staff sent Mediation information to the Complainant and Custodian.

November 29, 2004
Both parties signed agreements to participate in mediation.

January 31, 2005
The Council received a letter from the Complainant requesting that the case be returned to the GRC for adjudication.

February 18, 2005
The Custodian submitted a Statement of Information stating that the names and addresses of the dog owners was not released for security reasons as it was an “invasion of privacy.” In support of the denial of access, the Custodian cites GRC Complaint No. 2003-110, Merino v. Ho Ho Kus and the Supreme Court decision is Doe v. Poritz.

June 14, 2005
The Council’s staff issued a letter to the Complainant seeking the need for access to be addressed by the Complainant in order to accurately apply the common law balancing test.

June 27, 2005
The Complainant responded to the Council’s staff’s letter of June 14, 2005 by stating that he is seeking the records to start his own hidden electric fence business. The Complainant further indicated that his company will comply with local ordinances on installations, plans no telemarketing and will not redistribute the records.

Whether the Custodian unlawfully denied access to the names and addresses of dog license owners pursuant to N.J.S.A. 47:1A-1 et. seq. and Executive Order 21?

N.J.S.A. 47:1A et. seq. provides 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…”

Executive Order 21 provides that “…the Legislature further found and declared in the Open Public Records Act 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…and the right of public access to government records as provided in the Open Public Records Act must be balanced against the risk of disclosing information that would facilitate terrorist activity and balanced against a citizen's reasonable expectation of privacy…”

The Complainant requested names and addresses of dog license owners. The Custodian notified the Complainant that dog license information is not subject to disclosure pursuant to OPRA as the public agency has a responsibility to safeguard a citizen’s personal information and the citizen’s reasonable expectation of privacy. The Custodian further notified the Complainant that the Chief of Police also had some security concerns in releasing the names and addresses of dog owners. The Chief of Police, in a memorandum to the Custodian, asserted that a resident is legally required to license their dog and in doing so is required to supply a name and address. The Chief of Police also stated that the information is not optional, but required by law and the dog owners entrust the Borough to protect their privacy by not disclosing their personal information. The Chief of Police, further, asserted that the disclosure of this type of information would jeopardize the security of the dog owner, the security of the non-dog owner, the property that the dog may be protecting and the dog from burglary, theft and other criminal activity. The Chief of Police contended that many homeowners use their dogs as a means of security and that others have valuable dogs that could be subject to theft.

As the request is for information that could adversely affect the privacy of the citizens that have applied for such licenses because of:

it is necessary, therefore, to employ the balancing test set forth by the New Jersey Supreme Court and utilized in previous GRC cases.

In Merino v. Ho-Ho-Kus, GRC Complaint 2003-121 (Feb. 18, 2004), the Council addressed the citizen’s reasonable expectation of privacy pursuant to N.J.S.A. 47:1A-1 and found that the New Jersey Supreme Court, Appellate Division 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, 541 U.S. 157, 124 S.Ct. 1570 (U.S. 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). 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 that indicated that significant privacy concerns are raised where disclosure of the address "can invite unsolicited contact or intrusion based on the additional revealed information." Id. (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:

The foregoing criteria was applied accordingly by the Court 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 Council has applied the above balancing factors in Merino v. Ho-Ho-Kus, GRC Complaint 2003-121 (Feb. 18, 2004), and Richard Wilcox v. Township of West Caldwell, GRC complaint 2004-28 (Oct. 14, 2004), in determining that 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 names and addresses could potentially adversely affect the privacy of citizens with unwarranted solicitation and the redistribution or sale of the names and addresses. The Complainant has clearly indicated that he intends to use the records for soliciting business. Although the Complainant indicated that he would not redistribute the records, once released the public agency has no safeguards as to how the records are used. Unwarranted solicitation, however, is not the only glaring issue to consider.

The release of the requested names and addresses could also potentially adversely affect a citizen’s willingness to provide personal information to a government agency knowing that their personal information may not be protected from disclosure to anyone who files an OPRA request. The names and addresses are required as a procedure for licensing a dog in New Jersey and are not optional.

The release of the requested names and addresses has the potential for harm to citizens who have applied for a dog license, as well as citizens who do not own dogs. Permitting access to such records allows any recipient of the record to ascertain which homes are protected by or have dogs and which do not have dogs. Although the Complainant has indicated that the records are to be used in business solicitation, the release of this information could potentially jeopardize the safety and security of citizens and their property, as well as their dogs. The public agency, nonetheless, cannot guarantee how the records will be used once the records have been released. The potential for theft, physical harm, vandalism and burglary is a concern in determining the disclosure because it allows the requestor access to personal information regarding the dog owner and their property that may not otherwise be disclosed to the public.

The release of the requested names and addresses has the potential for harm to citizens who own valuable dogs. Dogs of certain breeds may become potential targets for threats, theft and physical harm simply because of their breed. The public agency is without safeguards to provide assurance as to how the records will be used if released.

Pursuant to OPRA and Executive Order 21, a government agency has the obligation to protect citizens from the potential harm of disclosing their personal information. The potential harm of unwarranted solicitation, along with the harm of jeopardizing a citizen’s person and property justifies the government agency to deny access to information that if disclosed would cause substantial risks and undesirable activity. No safeguards are available for the public agency to prohibit the citizen’s person or property from being jeopardized by unwarranted solicitation or potential harm.

Balancing the severity of the privacy and security concerns of the residents against the public’s right to access under OPRA and Executive Order 21, the Custodian should not allow public access to the dog license owners’ names and addresses.

Additionally, the Council should consider the recommendations on the disclosure of home addresses given to Acting Governor Codey and the New Jersey Legislature from the New Jersey Privacy Study Commission. The Privacy Study Commission was created under OPRA to "...study the privacy issues raised by the collection, processing, use and dissemination of information by public agencies, in light of the recognized need for openness in government and recommend specific measures including legislation, the Commission may deem appropriate to deal with these issues and safeguard the privacy rights of individuals." N.J.S.A. 47:1A-1 et.seq.

In its final report, dated December 2004, the Privacy Study Commission acknowledged that "[t]he disclosure of home addresses and telephone numbers contained in government records is at the forefront of the privacy debate in New Jersey."[1] The report further stated "[w]hile the New Jersey Open Public Records Act favors disclosure of government records, it also states that public agencies have a responsibility to safeguard personal information when disclosure would violate a citizen's reasonable expectation of privacy. Ibid.

Of the six recommendations the Privacy Study Commission made regarding the disclosure of home addresses and telephone numbers, four of them exclusively related to providing additional protections surrounding the disclosure of home addresses. Thus, it appears that the Privacy Study Commission viewed the disclosure of home addresses as an important issue to which it devoted significant analysis and recommendations.

The Executive Director respectfully recommends that the Council dismiss this case on the basis that pursuant to N.J.S.A. 47:1A-1 and Executive Order 21 the records should not be disclosed because of the unsolicited contact, intrusion or potential harm that may result.

[1] New Jersey Privacy Study Commission, "Final Report Privacy Study Commission", (December 2004), pg. 15, (available on the New Jersey Privacy Study Commission's website at www.nj.gov/privacy).

Administrative Case Disposition

Mediation agreement signed by Complainant 11/24/04
Mediation agreement signed by the Custodian 11/29/04

This case is presently in mediation with Fran Snyder.
Request for dog owners names and addresses.