2005-01

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. After balancing the public’s interest in disclosure against the privacy interests raised in said findings and recommendations, a three-member majority of the four-member Council voted to reject the recommendation of the Executive Director and hold, instead, that in the specific circumstances of this case, the dog license owners names and addresses are to be disclosed. 

With regard to the weighing of the factors, the majority of the Council reached a conclusion different from the Executive Director and the member of the Council who voted to not allow access to the list of dog license owners’ names and addresses.  The Council, therefore, finds that in the specific circumstances of this case the list of dog owners names and addresses are to be released because:

1. The Council does not believe there is an unwarranted invasion of privacy;
2. The decision to disclose outweighs the non-disclosure and concerns of unwanted solicitation; and
3. The potential for harm is not sufficient.

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, and 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 April, 2005
Vincent P. Maltese, Chairman
Government Records Council

I attest the foregoing is a true and accurate record of the Government Records Council.
DeAnna Minus-Vincent, Secretary
Government Records Council 
Decision Distribution Date:  April 20, 2005

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Findings and Recommendations of the Executive Director

Records Requested:

List of names and addresses of Dog License owners

Request Made: December 14, 2004
Response Made: December 17, 2004
Custodian: Witold Baginski
GRC Complaint filed: December 16, 2004

Background

December 16, 2004
Complainant’s Denial of Access Complaint stating that he had been denied access to the requested records

December 17, 2004
Letter to the Complainant from the Custodian stating that the request cannot be fulfilled. Specifically the letter stated, “The copying of information from records in the health department for the purpose of providing a list of names and addresses having an immediate or foreseeable commercial use, thereby invading the privacy of individuals, or families named on such record is prohibited and protected under the New Jersey Department of Health and Senior Services Inspection of Public Records…”

February 7, 2004
Custodian’s Statement of Information with attachment of letter that was given to the Complainant in response to the request.

Analysis

Whether the Custodian unlawfully denied access to records pursuant to N.J.S.A. 47:1A-1 et. seq. ?

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 nothing contained in P.L.1963, c.73 (C.47:1A-1 et seq.), as amended and supplemented, shall be construed as affecting in any way the common law right of access to any record, including but not limited to criminal investigatory records of a law enforcement agency.

The Statement of Information provided by the Custodian cites the above-mentioned reasons for choosing not to disclose the records requested. The Complainant is requesting information related to names and addresses of dog license owners, which could potentially affect the privacy of the citizen with unwanted solicitation. The Complainant was notified that dog license information is not subject to disclosure pursuant to a citizen’s reasonable expectation of privacy. As the request is for information that could affect the privacy of the citizens that have applied for such licenses it is necessary to employ the balancing test set forth by the  New Jersey 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 New Jersey Supreme Court, 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 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."  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:

1. The type of record requested;
2. The information it does or might contain;
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;
7. Whether there is an express statutory mandate, articulated public policy or other recognized public interest militating toward access [id. at 87-88].

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.

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:

1. Type of record request:  List of names and addresses of dog license owners
2. The potential for harm in any subsequent nonconsensual disclosure:  jeopardizing the privacy of those who have applied for such licenses, possible unsolicited contact
3. The injury from disclosure to the relationship in which the record was generated:  residents may no longer trust the agency with this information for fear that their privacy will not be protected
4. The adequacy of safeguards to prevent unauthorized disclosure:  None. There is nothing to prevent redistribution of this information.
5. The degree of need for access:  Do not know
6. Whether there is an express statutory mandate, articulated public policy or other recognized public interest militating toward access:  OPRA.

The release of the requested name and address information has the potential for harm to citizens who have applied for a dog license. Permitting access to such records allows any recipient of the record to ascertain which homes are protected by or have dogs. Furthermore, since the Custodian certifies that the records are being sought for commercial use, 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 privacy 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 dog license owners names and addresses.

Conclusions 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 the records should not be disclosed.

Prepared By:  Kimberly Gardner, Case Manager

Approved By:
Paul F. Dice
Executive Director
Government Records Council
April 7, 2005

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