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2004-128

- Final Decision
- Findings and Recommendations of Executive Director

Final Decision

Florence Perino
Complainant
      v.
Borough of Haddon Heights
Custodian of Record		 Complaint No. 2004-128

At its November 9 2004 public meeting, the Government Records Council (Council) considered the November 2, 2004 Findings and Recommendations of the Executive Director and all related documentation submitted by the parties, including the administrative change under the “Analysis” in #6 that reflect the deletion of the paragraph beginning with “Complainant …” and ending with “…citizen.” and was replaced with “The Complainant wished to have the information in order to apologize.” The Council voted unanimously to adopt said findings and recommendations with the administrative changes noted by the Government Records Council’s Staff.   Therefore, the Council hereby dismisses the cases on the basis of:

  1. The Complainant’s stated need for access does not outweigh the citizen’s expectation of privacy. In arriving at this conclusion, the potential harm of unsolicited contact and confrontation between the citizen and the OPRA complainant and/or its agents or representatives was considered. Therefore, the name, address and phone number of the citizen who brought the complaint to the Borough’s attention should remain redacted from the requested documentation.
  2. In numbers 2 thru 11  in the “Complainant’s Case Position,” the Complainant’s access to the requested records was not hindered by the Borough’s lack of following proper protocol in accordance with N.J.S.A. 47:1A-1 et seq. based on the fact that the Complainant’s June 2, 2004 request was responded to in a timely manner.
  3. The case is being decided on the merits of the balancing test.
  4. Cases are heard and decided by the Government Records Council on a case-by-case basis.

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 9th Day of November, 2004

Vincent P. Maltese, Chairman
Government Records Council

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

Virginia Hook, Secretary
Government Records Council

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Findings and Recommendations of Executive Director

Florence Perino,                                               GRC Complaint No. 2004-128
Complainant   
v.
Borough of Haddon Heights,
Custodian of Records

Records Requested: Police Call Sheet of May 23, 2004 regarding the name, address, and phone number of the Complainant around 9:30 P.M. about noise at/around 1640 Sycamore
Custodian: Chief Ronald Shute
Request Made:   6/2/04
Response Made:  6/8/04
GRC Complaint filed: 8/27/04

Background

Complainant’s Case Position
The Complainant filed a Denial of Access Complaint with the Government Records Council on August 27, 2004 pursuant to N.J.S.A. 47:1A-1 et. seq. alleging the following: 

  1. “Denial of Access to the Police Call Sheet of May 23, 2004 regarding the name, address, and phone number of the Complainant around 9:30 P.M. about noise at/around 1640 Sycamore”
  2. “The Municipal Clerk’s request form lacks a statement of the requestor’s right to challenge a decision by the public agency to deny access and the procedure for filing an appeal”
  3. “The Clerk’s request form lacks space on it for the custodian to list reasons if a request is denied in whole or in part”
  4. “The Municipal request form does not have a space for the custodian to sign and date the form if the request is fulfilled or denied”
  5. “The form lacks space for the Custodian to indicate which of the requested records will be made available”
  6. “The Custodian did not sign and date the completed request form before providing the Complainant with a copy”
  7. “By letter of 6/8/04 the Police Chief failed to advise when the redacted copy of the record would be made available as well as not informing the Complainant in the denial letter of the number of pages of the redacted call sheet and the fee to duplicate it”
  8. “The Chief asserted in his letter that it was First Asst. County Prosecutor Joe Audino’s “recommendation” that the caller’s name, address and phone number be redacted from the call sheet prior to allowing access. However, in the denial letter the Chief failed to refer to and advise the Custodian of the legal exemption to OPRA”
  9. “She was never given a pamphlet that describes the record request and appeal of denial process”
  10.  “There was no OPRA notice posted setting forth the right to appeal a denial of, or failure to provide access to a government record”
  11.  “The 6/8/04 letter from the Chief failed to advise of the right to an appeal process by filing a (free) complaint with the GRC in lieu of filing in Superior Court”
  12.  “The “Victim Identification Exemption” referred to in the letter from the Borough Solicitor is cited in N.J.S.A. 47:1A-3(b). That entire subsection strictly relates to “ongoing criminal investigations.” The only other reference the Complainant found in OPRA to the “Victim Identification Exemption” is cited in N.J.S.A. 47:1A-2.2(a) and (b). Both parts (a) and (b) relate only to convicts of any indictable offense being prohibited from accessing certain records containing personal identifying information of their victim or the victim’s family. “Certainly neither the Chief nor Mr. Audino is alleging that any part of this subsection is pertinent in this matter since neither my son nor I have ever been convicted of any indictable offense.”
  13.  “According to the GRC website the Council issued and posted online Final Decisions in several cases similar to hers. In each case, the GRC decided in the requestor’s favor to access and obtain copies of “Calls for Service.” The Complainant notes that in each case, (# 2002-08, 2002-46, and 2002-55) copies of the call sheets were copied and made available without redactions.”

Public Agency Position
In response to the Complainant’s allegations, the Custodian asserts the following:

In a June 8, 2004 letter to the Complainant, the Custodian, (Chief of Police Ronald Shute), states that he spoke to Mr. Joseph Audino, Assistant Prosecutor for the Camden County Prosecutor’s Office and it was his recommendation that, “the information regarding the complaint at your residence be released only after the complainant’s name, address, and phone number be redacted.” He goes on to state that this information will not be provided so there will be no retaliatory action.

In the Statement of Information, the Custodian reiterates this position as well as states that it was the opinion of the Camden County Prosecutor’s office that the request fell under the Victim Identification Exemption to the Open Public Records Act.

Analysis

  1. 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:
    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.

    While this case involves redaction of a name, address, and telephone number, the aforementioned balancing of interests is an appropriate concept to consider. Specifically, the Council should weigh the privacy interest(s) of the individual who made the complaint with the Police Department against the individual seeking the information in the instant case. 

    According to the Police Department’s submissions, a citizen reportedly telephoned the Department with a complaint about noise at 9:30 P.M. It is reasonable to conclude that disclosure of the citizen’s name, address and phone number could result in unsolicited contact and confrontation between the citizen and the OPRA complainant and/or its agents or representatives.

    Applying the Supreme Court’s balancing test, a valid method of balancing party interests, to the instant case yields the following conclusions:

    1. The type of record requested:  A call sheet
    2. The information it does or might contain:  The name, address and telephone number of a citizen who gave a verbal report to the Police Department regarding a noise violation.
    3. The potential for harm in any subsequent nonconsensual disclosure:  Possible unsolicited contact and confrontation between the citizen and the OPRA Complainant and/or his agents or representatives.
    4. The injury from disclosure to the relationship in which the record was generated:  None that be gleaned from the party submissions.
    5. The adequacy of safeguards to prevent unauthorized disclosure: This question can only be answered in terms of the actions to date as disclosure is not being recommended. The Police Department reasonably maintained a position of nondisclosure.
    6. The degree of need for access: Little to none. Complainant (OPRA Complainant) states that he requires the information to support his zoning appeal application. This is not a persuasive argument. The Township stated that zoning issues are independent of the citizen’s verbal notice to the Township. The subject property’s lack of conformity with zoning regulations was based on a property inspection by the Township, not the citizen’s verbal representations. It is the Township that brought the action against the OPRA Complainant, not the citizen.
    7. Whether there is an express statutory mandate, articulated public policy or other recognized public interest militating toward access.  N.J.S.A. 47:1A-1 et seq.

    After careful consideration of all the interests at stake, the Council should find that the name, address and phone number of the citizen who brought the complaint to the Borough’s attention should remain redacted from the requested documentation. The Complainant’s stated need for access does not outweigh the citizen’s expectation of privacy. In arriving at this conclusion, the potential harm of unsolicited contact and confrontation between the citizen and the OPRA complainant and/or its agents or representatives was considered. In addition, the Legislature provided the Open Public Records Act to allow for the balancing of interests between the public and the citizens of the State of New Jersey.

  2. In numbers 2 thru 11 above, in the “Complainant’s Case Position” the Complainant      states that the Custodian’s records request form is not in compliance with N.J.S.A. 47:1A-1 et seq. Also, in accordance with N.J.S.A. 47:1A-1 et seq.  the Complainant asserts that the Custodian did not follow proper protocol in denying her records request.

    Pursuant to N.J.S.A. 47:1A-7(b) the Council’s role is limited to adjudicating issues surrounding denial of access to government records. The issue here is whether the Custodian’s actions resulted in, or contributed to, a denial of access to records.      

    In this situation, the Complainant’s access to the requested records was not hindered by the Borough’s lack of following proper protocol in accordance with N.J.S.A. 47:1A-1 et seq.  based on the fact that the Complainant’s June 2, 2004 request was responded to in a timely manner. 

    This portion of the complaint should be dismissed following the Council’s advisement to the Custodian of its duty under N.J.S.A. 47:1A-5(g).

  3. The “Victim Identification Exemption” issue referred to by the Complainant need not be considered because this case should be decided on the merits of the balancing test.
  4. The Complainant raises the issue that other cases similar to hers have been heard and decided by the Government Records Council wherein copies of the call sheets were copied and made available without redactions.

    The Government Records Council hears and decides cases on a case-by-case basis. Based on this, this portion of the complaint should be dismissed.

Documents Reviewed

  1. August 27, 2004 – Denial of Access Complaint (w/attachments)
    1. Complainant’s request
    2. Letter from Chief Shute
    3. Letter from Complainant to Custodian
    4. Letter from Complainant to Borough Clerk
    5. Letter from Borough Clerk to Complainant
    6. Redacted Operations Report (purported to be Call Sheet)
    7. Letter from Complainant to Custodian
    8. Letter from Complainant to Borough Solicitor
    9. Letter from Borough Solicitor           

  2. September 9, 2004 – Offer of Mediation to Complainant and Custodian

  3. September 22, 2004 – Statement of Information (w/attachment)

    1. Letter from Borough Solicitor to Government Records Council (GRC)

  4. October 26, 2004 – E-mail from Custodian to GRC

Conclusions and Recommendations of the Executive Director

The Executive Director respectfully recommends that the Council should dismiss the case on the basis that:

  1. The Complainant’s stated need for access does not outweigh the citizen’s expectation of privacy. In arriving at this conclusion, the potential harm of unsolicited contact and confrontation between the citizen and the OPRA complainant and/or its agents or representatives was considered. Therefore, the name, address and phone number of the citizen who brought the complaint to the Borough’s attention should remain redacted from the requested documentation.
  2. In numbers 2 thru 11 above in the “Complainant’s Case Position,” the Complainant’s access to the requested records was not hindered by the Borough’s lack of following proper protocol in accordance with N.J.S.A. 47:1A-1 et seq. based on the fact that the Complainant’s June 2, 2004 request was responded to in a timely manner.
  3. This case should be decided on the merits of the balancing test.
  4. Cases are heard and decided by the Government Records Council on a case-by-case basis.

Prepared By:

Approved By:
Paul F. Dice
Executive Director
Government Records Council

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