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Privacy Study Commission Meeting Minutes
May 7, 2004

Chairman Litwin called the meeting to order at 10:05 a.m.

Chairman Litwin read the Open Public Meetings Statement.

Chairman Litwin led all present in the salute to the flag.

Ms. Buckelew called the roll as follows:

Commission Members Present: Chairman Larry Litwin, Grayson Barber, Thomas Cafferty, George Cevasco, Richard DeAngelis (arrived at 10:10 a.m.), William Kearns, Pamela McCauley, Jack McEntee, Rosemary Karcher-Reavey (arrived at 10:35 a.m.), Karen Sutcliffe and H. Lawrence Wilson.

Commission Members Absent: Edithe Fulton and John Hutchison.

Staff Present: Catherine Starghill, Legal Specialist and Lori Buckelew, Division of Local Government Services staff.

Ms. Barber moved to approve the minutes of the April 16, 2004 meeting with a second by Mr. Cevasco. The motion was adopted on a call of ayes and nays. Ms. Sutcliffe abstained from voting.

Chairman Litwin raised the issue of how the Commission should resolve evenly tied votes in the future. This has become a more prevalent issue because there are only 12 members actively participating in the completion of the study (as opposed to the 13 members appointed). Discussion ensued. The Commission agreed that for those issues resulting in an evenly tied vote, the issue would die as unresolved.

Ms. Barber raised the issue of including a minority report with the final study report. Ms. Starghill reminded the Commission that the issue of minority reports was addressed at an earlier date and that the Commission agreed not to include a minority report in the final study report or in subcommittee reports.

 

Special Directive Subcommittee – Submission of the Report of Home Addresses and Telephone Numbers:

Ms. Barber provided a detailed summary of the subcommittee’s process and the resulting report. Ms. Barber noted that the subcommittee was unable to reach a consensus on two sections in the report and presented them to the Commission for discussion at this time. Those sections are: (1) Recommendation 4.b. - Groups of Individuals Whose Home Addresses Should Be Redacted, and (2) OPRA is Not an Unfunded Mandate.

Groups of Individuals Whose Home Addresses Should Be Redacted

Ms. Barber explained that in other jurisdictions there are certain categories of individuals, for example law enforcement officers, whose home addresses are not disclosed in open public records requests. One argument for this policy is that the interest of privacy outweighs the disclosure of this personal information due to safety concerns. It is further argued that these categories of individuals (i.e. school teachers, law enforcement officer and judges) are potentially at risk for physical harm if their home addresses were released to the public.

The counter argument is that all citizens have a privacy interest in their home address and could conceivably be at risk of harm if this personal information is disclosed (i.e. Rebecca Schaffer). Mr. Cafferty explained that one of the concerns raised was that it would be difficult for a records custodian to determine if a resident is in one of these groups or not. Ms. Starghill noted that the identification of an individual as being a member of one of the protected groups was addressed in the report by recommending that the Governor and legislature include a check box for each group on all new government forms and applications.

Mr. DeAngelis asked if the subcommittee discussed whether or not this suggestion would be retroactive or only for records going forward. Mr. Cafferty stated that the suggestion was only for records going forward. Mr. DeAngelis stated that this distinction in the implementation of the recommendation needed to be crystal clear in the report.

Ms. Starghill stated that the subcommittee could not reach a firm consensus on the groups to be protected. The report currently includes judges, law enforcement officers and victims of crime. However, there are subcommittee members who wanted to also include teachers and public employees. Therefore, Ms. Starghill pointed out that there is a need to be more specific on the exact groups of individuals to be included in this recommendation.

Mr. Cevasco raised the concern over carving out certain groups for protection based on employment when anyone who works directly with the public may be at risk of physical harm varying from utility workers to police officers. He further noted that the private sector does not reveal home addresses. Mr. McEntee stated that he would like retired and former law enforcement officers and judges included in the recommendation. He further stated that the report is silent on the subsequent liability resulting from disclosing the home addresses of members of the protected groups. Chairman Litwin also raised the issue of liability facing records custodians if the home addresses of members of these groups are erroneously disclosed. Ms. Barber stated that the subcommittee will discuss the matter later.

Ms. Starghill suggested that the subcommittee consider Florida as a model for how to addresses this issue. She informed the Commission that Florida has a governmental body that periodically reviews the necessity to exempt from disclosure the home addresses of certain categories of individuals as provided in Florida’s Public Records Act.

Mr. Cafferty moved to remand these issues to the Special Directive subcommittee for further examination and determination of changes to this recommendation, and report back to the Commission in advance of the next Commission meeting. Mr. McEntee seconded the motion. The motion was adopted on a call of ayes and nays.

OPRA is Not an Unfunded Mandate

Ms. Barber explained that this section of the report addresses the issue of the expense that these recommendations impose on public agencies for redacting home addresses and telephone numbers. She further explained that OPRA currently requires the redaction of certain personal information, such as Social Security numbers and Drivers License numbers. She noted that requiring the redaction of home addresses and telephone numbers would cost records custodians more time and resources. Some members of the subcommittee believe that the expense of redaction should not be born by requesters. While another subcommittee member pointed out that only the Council on State Mandates has jurisdiction to make should a determination.

Ms. Starghill suggested that this discussion could be more appropriately presented in the Commission’s final report. Mr. Cafferty agreed with Ms. Starghill but noted that the subcommittee report should acknowledge the issue and simply state that it will be further addressed in the final report of the Commission. Mr. Kearns agreed that the issue should be addressed in the final report, but he expressed concern with the Commission concluding on the issue when it is not within the Commission’s jurisdiction to do so.

Ms. Barber moved to remove this section from the report and remand the issue to the subcommittee for new language simply acknowledging the issue, with a second by Mr. Kearns. The motion was adopted on a call of ayes and nays.

Other Issues Relevant to the Report

Mr. DeAngelis raised the issue he has with the introduction to the recommendations that references the two policy considerations of OPRA. He stated that the first policy favors the right of access and the second policy states that personal privacy issues must be taken into account. Mr. DeAngelis agreed with the subcommittee’s findings that the right of privacy is a secondary right or interest under OPRA, but he questioned whether the subcommittee should recommend that the legislature revisit this issue.

Mr. DeAngelis explained that he is a proponent of open access to government records when people want to determine how their government is working, what their government is doing and how they are being served. He also stated that striking a balance between open access and protecting personal privacy is a difficult task that may not lend itself to hard and fast rules. He suggested that the courts be allowed to make this determination on a case-by-case basis. He further stated that the issue of privacy is an important one and that it should not take a back seat to access.

Mr. Cafferty explained that Mr. DeAngelis’ issue is beyond the scope of the subcommittee’s report and that it should be discussed and resolved in the Commission’s final report.

Mr. DeAngelis moved to insert language in the report providing a recommendation that the legislature revisit these policy issues to put privacy on equal footing with open access when it comes to home addresses and telephone numbers. Mr. McEntee seconded Mr. DeAngelis’ motion. Discussion ensued. Mr. DeAngelis later withdrew his motion.

Chairman Litwin suggested that this issue be addressed in the Commission’s final report.

Mr. Kearns suggested that the Commission remove the language stating that “the right of privacy is secondary to the public right to access” from the report. He explained that in doing so, the subcommittee would remove the connotation that it was constrained from potentially making other recommendations because the right of privacy is only secondary to open access. Ms. Starghill noted that she would instead add Mr. Kearns’ recommendation to the strategic recommendations to be considered for the Commission’s final report.

Mr. DeAngelis made a motion to remove the following statement “Thus, the right of privacy is secondary to the public right to access” from page 3 of the report, with a second by Mr. Kearns. The motion failed on a call of ayes and nays as follows:

Ayes: Mr. Cafferty, Mr. Cevasco, Mr. DeAngelis, Mr. Kearns and Mr. McEntee.

Nays: Mr. Litwin, Ms. Barber, Ms. McCauley, Judge Karcher-Reavey, Ms. Sutcliffe and Mr. Wilson.

Ms. Starghill stated her general observation that she believes that all of the recommendations may be implemented at the state and county levels of government, but may not be so easily implemented at the municipal level due to limited budgets and technical resources. Mr. Kearns stated that this concern could be addressed in the final report, but that the recommendations in this report should not be altered. Mr. DeAngelis stated that while implementing these recommendations could be daunting for economically challenged towns, other towns might not have any problems. Ms. Sutcliffe and Mr. Cevasco agreed that the recommendations should not be altered simply because some municipalities do not have the resources to immediately implement them.

 

Review of Strategic Recommendations:

Ms. Starghill reviewed the overall strategic recommendations with the Commission. She advised the Commission that they would be discussing these recommendations at each meeting leading up to the creation of the final report.

Subcommittee Reports were discussed as follows:

New Jersey Practices: Ms. Sutcliffe stated that a draft report would be submitted in June.

Public Interest: Judge Karcher-Reavey stated that additional public hearings would be scheduled in the future.

Technology: Mr. Kearns stated that a draft report would be prepared for discussion among the subcommittee.

Commercial Use: Mr. Cafferty noted that he has information to facilitate the preparation of the report.

 

Review of the Study Timeline:

Ms. Starghill reviewed the timeline and noted that there were no changes to the timeline since the last meeting.

Staff Update:

Ms. Starghill noted that no additional public comments had been received. Ms. Starghill anticipates an increase in public comments when the Special Directive subcommittee’s report is publicly released.

Ms. Starghill advised the Commission that an internal counter will be added to the Commission’s website.

Public Comment:

Chairman Litwin opened the meeting for public comment. No public comment was heard.

Open Discussion of Privacy Study Commission Members:

Chairman Litwin opened the meeting for comments from Commission members.

Hearing no one, Mr. Kearns made a motion to adjourn the meeting with a second by Mr. Cevasco.

Chairman Litwin adjourned the meeting at 11:50 a.m.

Respectfully submitted,

Larry Litwin, Chairman

 

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