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State of NJ - Government Records Council Email Grc

2005-13

- Final Decision
- Supplemental Findings and Recommendations of the Executive Director
- Interim Decision on Access
- Findings and Recommendations of the Executive Director

Final Decision

Rich Bernstein
   Complainant
      v.
Borough of Ho Ho Kus
   Custodian of Records

Complaint No. 2005-13

 

At its July 14, 2005 public meeting, the Government Records Council ("Council") considered the July 8, 2005 Supplemental Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council voted by a majority to adopt the entirety of said findings and recommendations.  The Council, therefore, dismissed the case on the basis that pursuant to N.J.S.A. 47:1A-1 and Executive Order 21 the records should not be disclosed because of the unsolicited contact, intrusion or potential harm that may result.

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 14th Day of July, 2005

Vincent P. Maltese, Chairman
Government Records Council

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

DeAnna Minus-Vincent, Secretary
Government Records Council

Decision Distribution Date: July 21, 2005

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Supplemental Findings and Recommendations of the Executive Director

Rich Bernstein                                 GRC Complaint No. 2005-13
Complainant
            v.
Borough of Ho Ho Kus
Custodian of Records

Records Requested: List of names and addresses of dog license owners
Request Made: December 21, 2004
Response Made: January 7, 2005
Custodian: Catherine S. Henderson
GRC Complaint filed: January 8, 2005

Background

January 8, 2005
The Complainant's Denial of Access Complaint to the Government Records Council (GRC), which stated that he was denied a list of names and addresses of dog license owners

January 19, 2005
Mediation was offered to both parties.

February 15, 2005
The Custodian's Statement of Information, which stated that the Custodian had a telephone conversation with the Complainant shortly after she received the request, at which time the Complainant was informed that the requested documents were not going to be released for privacy and security reasons. It is also stated that Ms. Henderson's response was subsequently documented in writing on or about January 7, 2005. Custodian's counsel employed a balancing test in this case, as well as referenced Merino v. Ho-Ho-Kus, GRC Complaint 2003-121 in which a balancing test was also used.  The Custodian also stated that there are no Executive Orders or legislation at the present time that address the disclosure of home addresses. They stated further that there has, however, been a report issued by the privacy study commission with recommendations on this issue.

May 12, 2005
The Council issued an Interim Decision deferring a final decision to seek legal advice.  In accordance with the Council's Interim Decision, the Office of the Attorney General ("AG's Office) was contacted to provide guidance regarding the Council's application of the common law balancing test in cases involving the disclosure of names and addresses of individuals.  The AG's Office reiterated its previous advice that the Council should employ the balancing test established by the New Jersey Supreme Court in Doe v. Poritz, 142 N.J. 1 (1995) for cases in which privacy interests are implicated.  Furthermore, the AG's Office verified that the Council may in its discretion ask the Complainant his or her degree of need for access to the requested record(s).  The Complainant's degree of need for access is one of the factors in the balancing test that the Council must consider in making its determination in such cases.  While the Council may in its discretion inquire into the Complainant's degree of need for access, records custodians may not similarly ask requestors the same.

June 13, 2005
The Council's staff issued a letter to the Complainant seeking the need for access to be addressed by the Complainant in order to accurately apply the common law balancing test. 

June 13, 2005 
The Complainant responded to the Council's staff's letter of June 13, 2005 by stating that he is seeking the records to start his own hidden electric fence business.  The Complainant further indicated that his company will comply with local ordinances on installations, plans no telemarketing and will not redistribute the records. 

Analysis

Whether the Custodian unlawfully denied access to the names and addresses of dog license owners pursuant to N.J.S.A. 47:1A-1 et. seq. and Executive Order 21?

N.J.S.A. 47:1A et. seq. provides 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..."

Executive Order 21 provides that "...the Legislature further found and declared in the Open Public Records Act 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...and the right of public access to government records as provided in the Open Public Records Act must be balanced against the risk of disclosing information that would facilitate terrorist activity and balanced against a citizen's reasonable expectation of privacy..."

The Complainant requested names and addresses of dog license owners. The Custodian notified the Complainant that dog license information is not subject to disclosure because of privacy and security reasons.

As the request is for information that could adversely affect the privacy of the citizens that have applied for such licenses because of:

  1. their reasonable expectation of privacy;
  2. unwarranted commercial solicitation;
  3. compromised home and personal security; and
  4. exposure to theft of valuable breeds

it is necessary, therefore, to employ the balancing test set forth by the New Jersey Supreme Court and utilized in previous GRC cases. As stated above, Custodian's counsel also applied a balance test in this case. They raise the following concerns:

  1. unsolicited contact (i.e. possibility of directing mass mailings, telephone calls about services and/or products involving the Complainants business, selling the list of resident's names to other businesses)
  2. potential security issue by revealing the type of personal protection residents may or may not have for their homes (i.e. dog for protection/guarding)

Custodian's counsel concluded that there is a strong argument that the privacy concern outweighs the general policy that favors public access under OPRA.

In Merino v. Ho-Ho-Kus, GRC Complaint 2003-121 (Feb. 18, 2004), the Council addressed the citizen's reasonable expectation of privacy pursuant to N.J.S.A. 47:1A-1 and found that the New Jersey Supreme Court, Appellate Division 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, 541 U.S. 157, 124 S.Ct. 1570 (U.S. 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). 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 that indicated that significant privacy concerns are raised where disclosure of the address "can invite unsolicited contact or intrusion based on the additional revealed information."  Id. (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].

The foregoing criteria was applied accordingly by the Court 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.

The Council has applied the above balancing factors in Merino v. Ho-Ho-Kus, GRC Complaint 2003-121 (Feb. 18, 2004), and Richard Wilcox v. Township of West Caldwell, GRC complaint 2004-28 (Oct. 14, 2004), in determining that name and address information was properly withheld from disclosure. 

Therefore, the above factors were considered here with the following conclusions:

  1. Type of record request:  List of names and addresses of dog license owners.
  2. The type of information it does or might contain:  List of names and addresses of dog license owners.
  3. The potential for harm in any subsequent nonconsensual disclosure: 
    • Jeopardizing the privacy of those who have applied for such licenses, possible unsolicited contact;
    • Jeopardizing the privacy of those who have applied for such licenses by the redistribution of such lists;
    • Jeopardizing the security of those who have applied for such licenses,
    • Jeopardizing the security of those who have not applied for such licenses and jeopardizing the citizen's property including their dog.
  4. The injury from disclosure to the relationship in which the record was generated: 
    • Citizens may no longer trust the agency with this information for fear that their privacy will not be protected;
    • Citizens who license their dogs and those who do not own dogs may be targeted for theft;
    • Citizens property may be targeted for theft and vandalism;
    • Valuable dogs may be targeted for theft and some dogs may be targets for potential harm. 
  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:  Access is in the form of unsolicited contact or intrusion.
  7. Whether there is an express statutory mandate, articulated public policy or other recognized public interest militating toward access:  OPRA provides that "...government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions, for the protection of the public interest..." (N.J.S.A. 47:1A-1). 

The release of the requested names and addresses could potentially adversely affect the privacy of citizens with unwarranted solicitation and the redistribution or sale of the names and addresses.  The Complainant has clearly indicated that he intends to use the records for soliciting business.  Although the Complainant indicated that he would not redistribute the records, once released the public agency has no safeguards as to how the records are used.  Unwarranted solicitation, however, is not the only glaring issue to consider. 

The release of the requested names and addresses could also potentially adversely affect a citizen's willingness to provide personal information to a government agency knowing that their personal information may not be protected from disclosure to anyone who files an OPRA request.  The names and addresses are required as a procedure for licensing a dog in New Jersey and are not optional. 

The release of the requested names and addresses, additionally, has the potential for harm to citizens who have applied for a dog license, as well as citizens who do not own dogs. Permitting access to such records allows any recipient of the record to ascertain which homes are protected by or have dogs and which do not have dogs.  Although the Complainant has indicated that the records are to be used in business solicitation, the release of this information could potentially jeopardize the safety and security of citizens and their property, as well as their dogs.  The public agency, nonetheless, cannot guarantee how the records will be used once the records have been released.  The potential for theft, physical harm, vandalism and burglary is a concern in determining the disclosure because it allows the requestor access to personal information regarding the dog owner and their property that may not otherwise be disclosed to the public. 

The release of the requested names and addresses, further, has the potential for harm to citizens who own valuable dogs. Dogs of certain breeds may become potential targets for threats, theft and physical harm simply because of their breed.  The public agency is without safeguards to provide assurance as to how the records will be used if released. 

Pursuant to OPRA and Executive Order 21, a government agency has the obligation to protect citizens from the potential harm of disclosing their personal information.  The potential harm of unwarranted solicitation, along with the harm of jeopardizing a citizen's person and property justifies the government agency to deny access to information that if disclosed would cause substantial risks and undesirable activity.  No safeguards are available for the public agency to prohibit the citizen's person or property from being jeopardized by unwarranted solicitation or potential harm. 

Balancing the severity of the privacy and security concerns of the residents against the public's right to access under OPRA and Executive Order 21, the Custodian should not allow public access to the dog license owners' names and addresses.

Additionally, the Council should consider the recommendations on the disclosure of home addresses given to Acting Governor Codey and the New Jersey Legislature from the New Jersey Privacy Study Commission.  The Privacy Study Commission was created under OPRA to "...study the privacy issues raised by the collection, processing, use and dissemination of information by public agencies, in light of the recognized need for openness in government and recommend specific measures including legislation, the Commission may deem appropriate to deal with these issues and safeguard the privacy rights of individuals."  N.J.S.A. 47:1A-1 et.seq.

In its final report, dated December 2004, the Privacy Study Commission acknowledged that "[t]he disclosure of home addresses and telephone numbers contained in government records is at the forefront of the privacy debate in New Jersey."[1]  The report further stated "[w]hile the New Jersey Open Public Records Act favors disclosure of government records, it also states that public agencies have a responsibility to safeguard personal information when disclosure would violate a citizen's reasonable expectation of privacy.  Ibid. 

Of the six recommendations the Privacy Study Commission made regarding the disclosure of home addresses and telephone numbers, four of them exclusively related to providing additional protections surrounding the disclosure of home addresses.  Thus, it appears that the Privacy Study Commission viewed the disclosure of home addresses as an important issue to which it devoted significant analysis and recommendations.

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council dismiss this case on the basis that pursuant to N.J.S.A. 47:1A-1 and Executive Order 21 the records should not be disclosed because of the unsolicited contact, intrusion or potential harm that may result.

Prepared By: Chris Malloy, Case Manager

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

July 8, 2005


[1] New Jersey Privacy Study Commission, "Final Report Privacy Study Commission", (December 2004), pg. 15, (available on the New Jersey Privacy Study Commission's website at www.nj.gov/privacy).

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Interim Decision on Access

Rich Bernstein
   Complainant
          v.
Borough of Ho-Ho-Kus
  Custodian of Record

Complaint No. 2005-13

 

At the May 12, 2005 public meeting, the Government Records Council ("Council") considered the May 6, 2005 Executive Director's Findings and Recommendations and all related documents submitted by the parties.  The Council voted unanimously to defer rendering a final decision in the case until the June 9, 2005 public meeting in order to seek legal advice on whether the Council has the authority to inquire from the Complainant about their need for access in applying the balance test. 

Interim Decision Rendered by the
Government Records Council
On The 12th Day of May, 2005

Vincent P. Maltese, Chairman
Government Records Council

I attest the foregoing is a true and accurate record of the Government Records Council.
DeAnna Minus-Vincent, Secretary
Government Records Council

Decision Distribution Date: May 18, 2005

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Findings and Recommendations of the Executive Director

Rich Bernstein                                                   GRC Complaint No. 2005-13
Complainant
            v.
Borough of Ho Ho Kus
Custodian of Records

Records Requested: List of names and addresses of dog license owners
Request Made: 12/21/04
Response Made: 1/07/05     
Custodian: Catherine S. Henderson
GRC Complaint filed: 1/08/05

Background

January 8, 2005
The Complainant’s Denial of Access Complaint to the Government Records Council (GRC), which stated that he was denied a list of names and addresses of dog license owners

January 19, 2005
Mediation was offered to both parties.

February 15, 2005
The Custodian’s Statement of Information, which stated that the Custodian had a telephone conversation with the Complainant shortly after she received the request, at which time the Complainant was informed that the requested documents were not going to be released for privacy and security reasons. It is also stated that Ms. Henderson’s response was subsequently documented in writing on or about January 7, 2005. Custodian’s counsel employed a balancing test in this case, as well as referenced Merino v. Ho-Ho-Kus, GRC Complaint 2003-121 in which a balancing test was also used.  The Custodian also stated that there are no Executive Orders or legislation at the present time that address the disclosure of home addresses. They stated further that there has, however, been a report issued by the privacy study commission with recommendations on this issue.

Analysis

Whether the Custodian unlawfully denied access to the names and addresses of dog license owners pursuant to N.J.S.A. 47:1A-1 et. seq. and Executive Order 21?

N.J.S.A. 47:1A et. seq. provides 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…”

Executive Order 21 provides that “…the Legislature further found and declared in the Open Public Records Act 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…and the right of public access to government records as provided in the Open Public Records Act must be balanced against the risk of disclosing information that would facilitate terrorist activity and balanced against a citizen's reasonable expectation of privacy…”

The Complainant requested names and addresses of dog license owners. The Custodian notified the Complainant that dog license information is not subject to disclosure because of privacy and security reasons.

As the request is for information that could adversely affect the privacy of the citizens that have applied for such licenses because of:

  1. their reasonable expectation of privacy;
  2. unwarranted commercial solicitation;
  3. compromised home and personal security; and
  4. exposure to theft of valuable breeds

it is necessary, therefore, to employ the balancing test set forth by the New Jersey Supreme Court and utilized in previous GRC cases. As stated above, Custodian’s counsel also applied a balance test in this case. They raise the following concerns:

  1. unsolicited contact (i.e. possibility of directing mass mailings, telephone calls about services and/or products involving the Complainants business, selling the list of resident’s names to other businesses)
  2. potential security issue by revealing the type of personal protection residents may or may not have for their homes (i.e. dog for protection/guarding)

Custodian’s counsel concluded that there is a strong argument that the privacy concern outweighs the general policy that favors public access under OPRA.

In Merino v. Ho-Ho-Kus, GRC Complaint 2003-121 (Feb. 18, 2004), the Council addressed the citizen’s reasonable expectation of privacy pursuant to N.J.S.A. 47:1A-1 and found that the New Jersey Supreme Court, Appellate Division 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, 541 U.S. 157, 124 S.Ct. 1570 (U.S. 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). 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 that indicated that significant privacy concerns are raised where disclosure of the address "can invite unsolicited contact or intrusion based on the additional revealed information."  Id. (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].

The foregoing criteria was applied accordingly by the Court 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.

The Council has applied the above balancing factors in Merino v. Ho-Ho-Kus, GRC Complaint 2003-121 (Feb. 18, 2004), and Richard Wilcox v. Township of West Caldwell, GRC complaint 2004-28 (Oct. 14, 2004), in determining that name and address information was properly withheld from disclosure. 

Therefore, the above factors were considered here with the following conclusions:

 

  1. Type of record request:  List of names and addresses of dog license owners.
  2. The type of information it does or might contain:  List of names and addresses of dog license owners.
  3. The potential for harm in any subsequent nonconsensual disclosure: 
    1. Jeopardizing the privacy of those who have applied for such licenses, possible unsolicited contact;
    2. Jeopardizing the privacy of those who have applied for such licenses by the redistribution of such lists;
    3. Jeopardizing the security of those who have applied for such licenses,
    4. Jeopardizing the security of those who have not applied for such licenses and jeopardizing the citizen’s property including their dog. 
  4. The injury from disclosure to the relationship in which the record was generated: 
    1. Citizens may no longer trust the agency with this information for fear that their privacy will not be protected;
    2. Citizens who license their dogs and those who do not own dogs may be targeted for theft;
    3. Citizens property may be targeted for theft and vandalism;
    4. Valuable dogs may be targeted for theft and some dogs may be targets for potential harm. 
  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:  OPRA provides that “…government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions, for the protection of the public interest…” (N.J.S.A. 47:1A-1). 

The release of the requested names and addresses could potentially adversely affect the privacy of citizens with unwarranted solicitation and the redistribution or sale of the names and addresses.  Unwarranted solicitation, however, is not the only glaring issue to consider. 

The release of the requested names and addresses could also potentially adversely affect a citizen’s willingness to provide personal information to a government agency knowing that their personal information may not be protected from disclosure to anyone who files an OPRA request.  The names and addresses are required as a procedure for licensing a dog in New Jersey and are not optional. 

The release of the requested names and addresses has the potential for harm to citizens who have applied for a dog license, as well as citizens who do not own dogs. Permitting access to such records allows any recipient of the record to ascertain which homes are protected by or have dogs and which do not have dogs.  The release of this information could jeopardize the safety and security of citizens and their property, as well as their dogs.  The potential for theft, physical harm, vandalism and burglary is a concern in determining the disclosure because it allows the requestor access to personal information regarding the dog owner and their property that may not otherwise be disclosed to the public. 

The release of the requested names and addresses has the potential for harm to citizens who own valuable dogs.  Dogs of certain breeds may become potential targets for threats, theft and physical harm simply because of their breed. 

Additionally, the Council should consider the recommendations on the disclosure of home addresses given to Acting Governor Codey and the New Jersey Legislature from the New Jersey Privacy Study Commission.  The Privacy Study Commission was created under OPRA to "...study the privacy issues raised by the collection, processing, use and dissemination of information by public agencies, in light of the recognized need for openness in government and recommend specific measures including legislation, the Commission may deem appropriate to deal with these issues and safeguard the privacy rights of individuals."  N.J.S.A. 47:1A-1 et.seq.

In its final report, dated December 2004, the Privacy Study Commission acknowledged that "[t]he disclosure of home addresses and telephone numbers contained in government records is at the forefront of the privacy debate in New Jersey." [1] The report further stated that "[w]hile the New Jersey Open Public Records Act favors disclosure of government records, it also states that public agencies have a responsibility to safeguard personal information when disclosure would violate a citizen's reasonable expectation of privacy.  Ibid. 

Of the six recommendations the Privacy Study Commission made regarding the disclosure of home addresses and telephone numbers, four of them exclusively related to providing additional protections surrounding the disclosure of home addresses.  Thus, it appears that the Privacy Study Commission viewed the disclosure of home addresses as an important issue to which it devoted significant analysis and recommendations.

Pursuant to OPRA and Executive Order 21, a government agency has the obligation to protect citizens from the potential harm of disclosing their personal information.  The potential harm of unwarranted solicitation, along with the harm of jeopardizing a citizen’s person and property justifies the government agency to deny access to information that if disclosed would cause substantial risks and undesirable activity.   

Balancing the severity of the privacy and security concerns of the residents against the public’s right to access under OPRA and Executive Order 21, the Custodian should not allow public access to the dog license owners’ names and addresses.

Conclusions and Recommendations

The Executive Director respectfully recommends that the Council dismiss this case on the basis that pursuant to N.J.S.A. 47:1A-1 and Executive Order 21 the records should not be disclosed.

Prepared By: Chris Malloy, Case Manager

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

May 6, 2005


[1] New Jersey Privacy Study Commission, "Final Report Privacy Study Commission", (December 2004), pg. 15, (available on the New Jersey Privacy Study Commission's website at www.nj.gov/privacy).

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