2004-181

Final Decision

At its March 10, 2005 public meeting, the Government Records Council (“Council”) considered the March 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 with the provision that the Council’s decision is based on the specific facts in this case.  The Council, therefore, finds that the requested records should not be disclosed based on the specific facts in this case.

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 10^th Day of March, 2005

Vincent P. Maltese, Chairman
Government Records Council

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

Diane Schonyers
Government Records Council

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Findings and Recommendations of the Executive Director

Records Requested:

1. List of all homeowners who took out a fire alarm and/or burglar alarm permit in the last 3 years.

Request Made: October 8, 2004
Response Made: October 15, 2004
Custodian: Nancy Ecke-Hohmann – Borough Clerk[1]
GRC Complaint filed: October 26, 2004

Background

October 8, 2004
Written Open Public Records Act (OPRA) Request. Complainant seeks a list of all homeowners who applied for a fire alarm or burglar alarm permit in the last 3 years.

October 15, 2004
Letter from the Construction Official to the Complainant. The Construction Official denies access as the agency does not have to ability to provide the information as the agency cannot break down into specific categories. The Construction Official asserts that the information cannot be released under the Privacy Act of the United States which, “disallows such dissemination of this type of information without the homeowner’s written permission to do so.” Furthermore the State of New Jersey, Department of Community Affairs and the Governor of the State of New Jersey mandates that the responsible party for all documentation has the legal right of refusal when permission of the owner has not been granted and there is no “need pursuant to the Act.”

October 26, 2004
Complainant’s Denial of Access Complaint. Complainant filed a Denial of Access complaint alleging a denial of access to government records.

November 4, 2004
Offer of Mediation to both parties.

November 9, 2004
Custodian’s signed agreement to mediate.

December 7, 2005
Statement of Information submitted by Custodian’s counsel. Refers to the October 15, 2004 Letter from the Construction Official to the Complainant.

February 17, 2005
Letter from the Government Records Council (GRC) staff. GRC requests the certification of the Custodian no later than February 24, 2005 regarding; whether there is a list responsive to the request, what records the municipality maintains responsive to the request with a general nature description of the documents and an explanation of those exemptions being claimed and the specific basis therefore.

February 17, 2005
E-mail to Complainant from the Government Records Council (GRC). Request for clarification on what is being requested; names or names and addresses.

February 17, 2005
E-mail to the Government Records Council from the Complainant. The Complainant indicates the request if for “names and addresses of the homeowners who applied for a fire alarm or burglar alarm permit in the last 3 years.”  

March 3, 2005
Letter from the Custodian’s counsel to the GRC staff. The Custodian’s counsel requests an extension on the response to the February 17, 2005 letter from the Government Records Council (GRC) staff to March 11, 2005.

March 8, 2005
Letter and certification from Custodian and counsel explaining the denial of access based on “New Jersey Department of Community Affairs Division of Codes and Standards’ Bulletin dated July 2003.”

Analysis

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

The Complainant is requesting information related to fire and burglar alarms, which could potentially affect the security of the buildings to which they apply. The Complainant was notified that emergency and security information is not subject to disclosure pursuant to OPRA. As the request is for information that could affect the safety and privacy of the citizens that have applied for such permits it is necessary to employ the balancing test set forth by the 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 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 [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 factors were considered here with the following conclusions:

1. Type of record request:  List of all homeowners who applied for a fire/burglar alarm in the past 3 years.
2. The information it contains:  Names and addresses of residents who applied for a burglar alarm or fire alarm permit
3. The potential for harm in any subsequent nonconsensual disclosure:  jeopardizing the security of those who have applied for such permits, possible unsolicited contact
4. 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 would not be protected
5. The adequacy of safeguards to prevent unauthorized disclosure:  None. There is nothing to prevent redistribution of this information.
6. The degree of need for access:  Do not know
7. Whether there is an express statutory mandate, articulated public policy or other recognized public interest militating toward access [id. at 87-88]:  OPRA

The release of the requested name and address information has the potential for harm to both those citizens who have applied for a burglar or fire alarm in the past three years as well as those who have not. Permitting access to such records allows any recipient of the record to ascertain which homes are and are not secured with these devices. Furthermore, since the complainant seeks the records on behalf of the company Safetycare, 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 security 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 homeowners names and addresses.  The Council does need to address the applicability of the “New Jersey Department of Community Affairs Division of Codes and Standards’ Bulletin dated July 2003” at this time. 

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council find that the requested records should not be disclosed.

Prepared By: 

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

March 3, 2005

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