2004-163

At its June 9, 2005 public meeting, the Government Records Council (“Council”) considered the June 3, 2005 Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations. Therefore, the Council dismissed the case on the basis that:

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 9^th Day of June, 2005

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

Findings and Recommendations of the Executive Director

Records Requested:
Itemized monthly cellular telephone bills for cellular telephones issued by the New Jersey Department of Corrections to Commissioner Devon Brown and Chief of Staff Charles Ellis, for the period of January 1, 2003 to present.
Request Made: 7/20/04
Response Made: 9/22/04
Custodian: Kathleen Wiechnik
GRC Complaint filed: 10/06/2004

July 22, 2004
The Complainant’s Open Public Records Act (OPRA) request seeking the above mentioned records.

August 3, 2004
Custodian’s response to the records request stating that there are 30 pages of responsive records that will be mailed upon a $15.00 payment.

September 22, 2004
A letter from the Custodian to the Complainant informing him that the records he requested were enclosed. However, she stated that there weren’t any bills for Mr. Ellis for January 2003, or Commissioner Brown for January and February 2003.

October 6, 2004
The Complainant sent a Denial of Access Complaint to the Government Records Council stating that all monthly bills were not provided. He stated that the bills provided only contained information regarding telephone calls for a one to three day consecutive period of each monthly billing cycle. The Complainant also stated that all specific telephone information was redacted, and no reason was provided as to why. Finally, the Complainant states that, “Any redaction to the cellular telephone billing information should be done in accordance with N.J.S.A. 47:1A-5, which allows for the redaction of unlisted telephone numbers.”

November 4, 2004
In the Statement of Information, Custodian’s counsel stated that telephone numbers that were called or received are confidential pursuant to North Jersey Newspapers Company v. Passaic County Board of Chosen Freeholders, 127 N.J. 9, 16-18 (1992.) They also stated that, “if the requestor is seeking the detailed bill, including the dates and times of calls and the telephone numbers called and received, such records will be provided, upon receipt of proper payment, with the telephone numbers redacted.”

Whether access to the cellular telephone bills of Commissioner Brown and Mr. Ellis were unlawfully denied by the Custodian of the Department of Corrections pursuant to OPRA?

The Open Public Records Act (“OPRA”) provides that “… government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions …” (Emphasis added.) N.J.S.A. 47:1A-1. Further, OPRA defines a “government record” as:

“… any paper, written or printed book, document, drawing map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar devise, or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards thereof, or that has been received…” (Emphasis added.) N.J.S.A. 47:1A-1.1.

OPRA also provides that a “government record shall not include … that portion of any document which discloses the … unlisted telephone number … of any person.” Id. OPRA specifically states that “[p]rior to allowing access to any government record, the custodian thereof shall redact from that record any information which discloses the … unlisted phone numbers … of any person. N.J.S.A. 47:1A-5(a).

While the monthly cellular telephone bills in question are maintained on file as required of government records that are generally readily accessible for inspection, copying or examination under OPRA with the exemption from disclosure of the unlisted telephone numbers contained therein, the Custodian denied access to the itemized telephone numbers on the bills. In the Custodian’s Statement of Information, she stated that access was denied on the basis that the “telephone numbers that were called or received are confidential pursuant to North Jersey Newspapers Company v. Passaic County Board of Chosen Freeholders, 127 N.J. 9, 16-18 (1992).”

In North Jersey, the New Jersey Supreme Court interpreted OPRA’s predecessor - the Right-to-Know Law (N.J.S.A. 47:1A-1 to –4). That Court held that because “a public record of the identity of persons called is not required by law to be made, maintained or kept on file … the Right-to-Know Law does not provide an unqualified right to the telephone toll-billing records of a public body that would disclose the identity of the parties called.” (Emphasis added.) Id. at 11.

Unlike OPRA, the Right-to-Know Law mandated an unqualified right of access to government records that were required by law to be made, maintained or kept on file. OPRA does not restrict a citizen’s right of access to government records on the basis of whether the records are “required by law” to be made, maintained or kept on file. Thus, any government record made, maintained or kept on file may be subject to disclosure under OPRA, unless a separate provision of OPRA, a superceding statute or common law principles apply.[1]

While the Court’s interpretation of the Right-to-Know Law is not relevant for purposes of the present case before the GRC, the Court’s analysis of common law standards regarding the disclosure of government records that may implicate privacy and confidentiality issues is especially compelling and instructive. In North Jersey, the Court held that “common law standards provide a balanced consideration of the public need for the numbers called and the need for confidentiality.” Id. at 16 (citing Loigman v. Kimmelman, 102 N.J. 98, 505 A.2d 958 (1986)).

In conducting its balanced consideration on the side of the need for confidentiality, the Court found three problems with unrestricted access to the telephone numbers. Id. at 16-17. The Court identified one problem as the implication of privacy interests since access to the telephone numbers called is the disclosure not only of the record of the public official’s calls but, inferentially, the identity of those who have called the official. The second problem the Court identified with the disclosure of the identity of such callers was that it may directly conflict with an express legislative policy or need of government. The Court stated that “[a] clear example of such a statutorily-forbidden consequence would be the disclosure of the identity of one reporting child abuse to a Division of Youth and Family Services caseworker” per the legislatively mandated confidentiality granted in N.J.S.A. 9:6-8.10(a). Id. at 17. The third problem identified by the Court was those times when a government official will have to make a telephone call that has an arguable claim of confidentiality (e.g. a mayor might need to call a city council member from an opposing political party on a most highly sensitive community issue to enlist that person’s support). Those communications appear to be protected, at the state level, by the “official information” privilege in N.J.S.A. 2A:84A-27. Id.

Conversely, the Court acknowledged that what the Legislature had in mind when enacting the Right-to-Know Law was full and unrestricted citizen access to all the records that would allow public involvement in most aspects of government.[2] North Jersey, 127 N.J. 9, 18 (1992). The Court then concluded that the “public interest is in access to sufficient information to enable the public to understand and evaluate the reasonableness of the public body’s actions.” Id. (citing South Jersey Publishing Co. v. New Jersey Expressway Authority, 124 N.J. 478, 494-495 (1991)). Therefore, on this side of the “balanced consideration,” the Court held that

“almost everything necessary to evaluate the actions of the government official is concededly available: the amount of the telephone bills, the names of the persons who have incurred the bills, and a comparison of the bills with prior expenditures. That information will apprise the public of governmental waste without requiring inferential disclosure of the identity of the neighbor who had called to complain of a zoning violation, or the neighbor who had called to report a terrible case of child abuse, or of the community member reputed to oppose the official who called to make peace.” Id.

After performing its “balanced consideration” of the public need for the numbers called and the need for confidentiality, the North Jersey Court decided that “the Legislature has yet transposed into the public prism every detail of information that public bodies assemble. Id. Thus, the Court decided that the balance weighed heavier on the side of the need for confidentiality and privacy. Specifically, the Court held that a person’s privacy interest includes “the people and places one calls on a telephone, no less than the resulting conversations. Thus, a person’s expectation of privacy extends to telephone toll-billing records.” Id. (citing State v. Mollica, 114 N.J. 329, 341-44, (1989)). More importantly, the Court held that the “expectation of privacy is rooted in a strong legislative tradition of protecting the privacy of telephone communications.” Id. (citing State v. Minter, 116 N.J. 269, 276 (1989)). Ultimately, the Court did not allow the disclosure of the telephone toll-billing records of a public official that would disclose the identity of the parties whom the public officials called. Id.

Like the Court in North Jersey, the GRC has also employed a common law balancing for the privacy interests of citizens against the public interest in disclosure when “privacy interests may be implicated” (see Merino v. Borough of Ho-Ho-Kus, GRC Case No. 2003-110 (2004) (citing Doe v. Poritz, 142 N.J. 1, 82 (1995)))[3]. This balancing is consistent with the Appellate Division which 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 Township, 358 N.J. 352, 368-369 (App. Div. 2003). See also National Archives and Records Administration v. Favish, 541 U.S. 157, 124 S. Ct. 1570 (United States Supreme Court, March 30, 2004) (personal privacy interests are protected under FOIA).

A balanced consideration of the privacy interests of citizens and the public interest in disclosure of the records in question by the GRC directly mirrors that performed by the New Jersey Supreme Court in North Jersey. As such, the itemized telephone billing records of a public official that would disclose the identity of the parties whom the public officials called should not be disclosed since almost everything necessary to evaluate the actions of the government official is concededly available in the summary telephone bills already provided by the Custodian.

Additional support for the nondisclosure of the itemized telephone billing records of a public official that would disclose the identity of the parties whom the public officials called is that provision in OPRA which provides “this act … shall not abrogate or erode any executive or legislative privilege or grant of confidentiality heretofore established or recognized by the Constitution of this State, statute, court rule or judicial case law, which privilege or grant of confidentiality may duly be claimed to restrict public access to a public record or government record.” N.J.S.A. 47:1A-9(b). Given the potential for violation of the grant of confidentiality found in N.J.S.A. 9:6-8.10(a) and the “official information” privilege in N.J.S.A. 2A:84A-27, as discussed above in North Jersey, a finding by the GRC of disclosure of the records in questions could result in an “abrogation or erosion” of this legislative privilege and grant of confidentiality.

It should also be noted that even if a balanced consideration of the privacy issues and need for confidentiality with the public’s need for the telephone numbers called came out on the side for disclosure, there is the practical problem with OPRA’s mandate that prior to allowing access to any government record, the custodian must redact from that record any information which discloses the unlisted phone numbers of any person. N.J.S.A. 47:1A-5(a). It is not likely that any custodian could comply with this OPRA provision by making such redactions with accurate precision when there is a realistic chance that the custodian may miss just one unlisted telephone number. This is particularly true when a custodian may need to consult an unknown number of geographically located telephone directories to verify whether the telephone numbers listed on such telephone bills are unlisted numbers that must be redacted. From a practical standpoint, there may be no way for a custodian to ensure that all unlisted numbers have been redacted even after exerting enough hours to justify a special service charge and creating a substantial disruption to the custodian’s operations.

Conclusions and Recommendations
The Executive Director respectfully recommends that the Council dismiss this case on the basis that:

[1] It should be noted that OPRA does affirmatively exclude from the definition of “government records” twenty-one categories of information, including (as previously stated) the unlisted telephone numbers of any person. N.J.S.A. 47:1A-1.1.
[2] Absent legislative history to the contrary, we assume that the same is true of the legislative intent behind the enactment of OPRA.
[3] In Doe v. Poritz, 142 N.J. 1 (1995), the New Jersey Supreme Court indicated that, as a general matter, the public disclosure of an individual’s home address “does implicate privacy interests.” Id. at 82. The Court emphasized that even if a home address is otherwise available to the public, the circumstances in which the information is sought under OPRA requires the determination of whether the inclusion of addresses, along with other information, implicates any privacy interest. Id. at 83. Specifically, the Court stated that “privacy interests may be implicated where disclosure of a person’s address results in unsolicited contact.” Id. Having found that privacy interests may be implicated by the release of home addresses to the public, the New Jersey Supreme Court mandated a balancing of seven factors it set forth when determining whether the state interest in public disclosure substantially outweighs an individual’s interest in privacy. Id. at 88.