Study Commission Meeting Minutes
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.
Directive Subcommittee – Submission of the Report
of Home Addresses and Telephone Numbers:
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
Groups of Individuals Whose Home Addresses Should
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
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.
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
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.
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.
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.
Litwin suggested that this issue be addressed in the Commission’s
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
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
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
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.
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
Starghill advised the Commission that an internal counter will
be added to the Commission’s website.
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
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.
Larry Litwin, Chairman