ATLANTIC COUNTY SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS v. CITY OF ABSECON

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3047-07T33047-07T3

ATLANTIC COUNTY SOCIETY

FOR THE PREVENTION OF

CRUELTY TO ANIMALS,

Plaintiff-Appellant,

v.

CITY OF ABSECON, and

CARRIE A. CRONE, in her capacity

as the Acting Municipal Clerk for

the City of Absecon,

Defendants-Respondents.

___________________________________

 

Argued September 29, 2008 - Decided

Before Judges Winkelstein, Gilroy and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-16946-06.

Donald M. Doherty, Jr., argued the cause for appellant (Friedman Doherty, LLC, attorneys; Mr. Doherty, Jr., and Wesley G. Hanna, on the brief).

Michael J. Blee argued the cause for respondent (Michael J. Blee, LLC, attorneys; Mr. Blee, of counsel and on the brief).

PER CURIAM

Plaintiff, the Atlantic County Society for the Prevention of Cruelty to Animals, appeals from the January 18, 2008 order that: 1) granted defendants' motion for summary judgment, dismissing plaintiff's complaint seeking access to certain documents in defendants' possession pursuant to OPRA and the common-law right of access; and 2) denied its cross-motion for summary judgment. We reverse and remand for further proceedings consistent with this opinion.

I.

The facts are not in dispute. Plaintiff is the Atlantic County affiliate of the State Society for the Prevention of Cruelty to Animals. N.J.S.A. 4:22-11.6. As such, plaintiff is empowered to "[e]nforce all laws and ordinances enacted for the protection of animals" and "[p]romote the interests of, and protect and care for, animals within the State." N.J.S.A. 4:22-11.7c and d. Defendant City of Absecon (City) is a "[p]ublic agency" as that term is defined in OPRA. N.J.S.A. 47:1A-1.1. Defendant Carrie A. Crone is the Acting Municipal Clerk for the City and in that capacity serves as the custodian of the City's government records, N.J.S.A. 47:1A-1.1, including those pertaining to the licensing of dogs within the City, N.J.S.A. 4:19-15.1 to -15.23 and Chapter 122 of the City's Administrative Code (Code).

In October 2006, plaintiff sought to compile a list of all licensed dog owners in Atlantic County. The purpose was two-fold. First, the organization sought the information to assist in its animal cruelty enforcement efforts, explaining "we would be able to track if owners had multiple pets when a veterinarian or other person reported an instance of suspected animal cruelty. If one animal was alleged to have been abused, we would want to be alerted to the need to inquire about other animals." Second, the organization intended to use the information to solicit charitable contributions from the public.

Pursuant to its plan to marshal the information, plaintiff made informal requests for copies of "dog license applications or a list of the dog license holders" of all municipalities within Atlantic County. Except for the City, all municipalities responded affirmatively. The City rejected the informal request, advising plaintiff that it would only respond to a formal OPRA request form. Although plaintiff forwarded the requested form, the City again refused to supply the information.

On November 16, 2006, plaintiff filed its complaint against the City seeking to compel the City to provide it with copies of dog license records pursuant to OPRA (Count One); the common-law right of access (Count Two); and the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 and -2 (Count Three). Plaintiff also sought an award of attorney's fees and costs. On April 25, 2007, plaintiff filed an amended complaint naming Crone as an additional defendant. Agreeing that the issue concerned a matter of law, the parties filed cross-motions for summary judgment supported by a stipulation of facts that included the following: "[t]he parties stipulate that the documents requested by the [plaintiff] are available and, except for the parameters [of] the Bernstein decision, would normally be considered public records subject to disclosure under OPRA or the common[-]law right of access." On January 18, 2008, the trial court entered an order supported by a written opinion granting defendants' motion and denying plaintiff's motion.

In ruling on the motions, the trial court interpreted OPRA as not containing a defined list of exemptions from a public entity's obligation to permit citizens to inspect, copy, or purchase government records. "OPRA itself does not contain an exhaustive list of the exceptions, but does list some exceptions, but dog licenses are not mentioned among them." Acknowledging the parties had stipulated that the requested documents were government records, the court concluded that N.J.S.A. 47:1A-1's privacy provision required it to apply a balancing of interests test under OPRA to determine whether plaintiff's interest in disclosure of the documents outweighed the citizens' and the City's interest in withholding the information.

The City's dog licensing application requests that the applicant provide, among other information: the owner's name, address, e-mail address, and phone number; whether the owner is a senior citizen; the type of dog, and whether it is trained as a guide or assistance dog. The court determined that plaintiff possessed both a private and a wholesome public interest in obtaining that information; and dog owners had a reasonable expectation of privacy in providing the information to the City. Particularly, the court reasoned that dog owners have an interest in maintaining confidentiality of the information for security concerns.

The court offered various examples of why dog owners might have reasonable expectations of privacy in the information provided to the City. Nefarious individuals could use the information to determine: which residences within the City are not protected by dogs; which residences are occupied by senior citizens; and which residences contain "especially highly-prized breeds," making the residences susceptible to burglary and theft, including the theft of dogs. After balancing the interests of plaintiff against the interests of the City and the dog owners, the court granted defendants' motion dismissing plaintiff's complaint under both OPRA and the common-law right of access, concluding that plaintiff "has not shown a compelling need in the face of the confidentiality concerns of the government and the reasonable expectation of privacy concerns of its citizens." The court also impliedly dismissed Count Three of the complaint as moot, determining that "[t]here is no need to reach Count III of the Amended Complaint because of the decisions on Count I and Count II."

On appeal, plaintiff argues that the trial court erred in dismissing its OPRA claim by interpreting the provisions in N.J.S.A. 47:1A-1 as "provid[ing] authority to expand upon the exceptions to disclosure." Plaintiff also asserts that the trial court erred in dismissing its common-law right of access claim, contending that the court applied the wrong balancing of interests standard. Plaintiff requests that we reverse the order granting defendants summary judgment and denying its cross-motion for summary judgment; and remand the matter for the trial court to address its request for attorney's fees.

II.

A trial court will grant summary judgment to the moving party "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). On appeal, "the propriety of the trial court's order is a legal, not a factual, question." Pressler, Current N.J. Court Rules, comment 3.2.1 on R. 2:10-2 (2009). We employ the same standard when reviewing summary judgment orders. Block 268, LLC v. City of Hoboken Rent Leveling & Stabilization Bd., 401 N.J. Super. 563, 567 (App. Div. 2008).

"The purpose of OPRA 'is to maximize public knowledge about public affairs in order to ensure an informed citizenry and to minimize the evils inherent in a secluded process.'" Times of Trenton Publ'g Corp. v. Lafayette Yard Cmty. Dev. Corp., 183 N.J. 519, 535 (2005) (quoting Asbury Park Press v. Ocean County Prosecutor's Office, 374 N.J. Super. 312, 329 (Law Div. 2004)). In furtherance of that purpose, the Legislature declared: "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, and any limitations on the right of access . . . shall be construed in favor of the public's right of access." N.J.S.A. 47:1A-1.

OPRA defines "[g]overnment record" broadly, that is, "any paper, . . . document, . . . data [] or image processed document, information stored or maintained electronically . . . 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, . . . agency . . . of the State or of any political subdivision thereof . . . ." N.J.S.A. 47:1A-1.1. That same statute, however, contains exemptions from the definition of "[g]overnment record."

Initially, the statute provides that government records "shall not include inter-agency or intra-agency advisory, consultative, or deliberative material." N.J.S.A. 47:1A-1.1. The statute also lists over twenty other categories of documents that fall outside the statutory definition of a government record, the Legislature considering those categories of documents confidential. N.J.S.A. 47:1A-1.1 and N.J.S.A. 47:1A-10; Wilson v. Brown, 404 N.J. Super. 557, 570 (App. Div.), certif. denied, ____ N.J. ____ (2009). These exemptions from the statutory definition of a government record include "criminal investigatory records, victims' records, trade secrets, various materials received or prepared by the Legislature, certain records relating to higher education, and other items." Mason v. City of Hoboken, 196 N.J. 51, 65 (2008). In addition, the custodian must redact from any document "which discloses the social security number, credit card number, unlisted telephone number, or driver license number of any person . . . ." N.J.S.A. 47:1A-1.1 and -5a.

"The common law makes a much broader class of documents available than [OPRA], but on a qualified basis." Daily Journal v. Police Dep't of Vineland, 351 N.J. Super. 110, 122 (App. Div.), certif. denied, 174 N.J. 364 (2002). Under the common law, public records available for inspection "include any records made by public officers in the exercise of their functions. As such, they include almost every document recorded, generated, or produced by public officials, whether or not required by law to be made, maintained, or kept on file." Ibid. (internal citations omitted).

Under the common-law right of access, the court applies a two-prong standard to determine whether a public entity must comply with a citizen's request for government records. Ibid. First, the person seeking access to the documents must prove standing, that is, "'establish an interest in the subject matter of the material.'" Hig-A-Rella, Inc. v. County of Essex, 141 N.J. 35, 46 (1995) (quoting South Jersey Publ'g Co. v. N.J. Expressway Auth., 124 N.J. 478, 487 (1991)). The required interest may be either "'a wholesome public interest or a legitimate private interest.'" Loigman v. Kimmelman, 102 N.J. 98, 112 (1986) (quoting City of St. Matthews v. Voice of St. Matthews, Inc., 519 S.W 2d, 811, 815 (Ky. 1974)).

Second, the court must balance the requestor's interest in the public records against the public entity's interest in maintaining confidentiality of the documents. Higg-A-Rella, supra, 141 N.J. at 46. The balancing "standard is flexible and adaptable, Loigman, supra, 102 N.J. at 103, and calls for an 'exquisite weighing process.'" Daily Journal, supra, 351 N.J. Super. at 123 (quoting Beck v. Bluestein, 194 N.J. Super. 247, 263 (App. Div. 1984)). In performing their balancing obligation, the Supreme Court has instructed trial courts that the process may include the following factors:

(1) the extent to which disclosure will impede agency functions by discouraging citizens from providing information to the government; (2) the effect disclosure may have upon persons who have given such information, and whether they did so in reliance that their identities would not be disclosed; (3) the extent to which agency self-evaluation, program improvement, or other decision making will be chilled by disclosure; (4) the degree to which the information sought includes factual data as opposed to evaluative reports of policymakers; (5) whether any findings of public misconduct have been insufficiently corrected by remedial measures instituted by the investigative agency; and (6) whether any agency disciplinary or investigatory proceedings have arisen that may circumscribe the individual's asserted need for the materials.

[Loigman, supra, 102 N.J. at 113.]

III.

We first address plaintiff's OPRA claim. Plaintiff argues that the trial court erred by interpreting N.J.S.A. 47:1A-1's privacy provision as an exemption from the right of access under OPRA. Plaintiff contends that N.J.S.A. 47:1A-1's privacy provision only serves as "a precatory statement" explaining why custodians of records are required to withhold disclosure of certain items of personal information explicitly set forth in other sections of OPRA. Plaintiff also asserts that the court erred by applying a balancing of interests test to its OPRA claim.

On a challenge to a public entity's denial of a citizen's request for a public record, either in the Law Division or in the GRC, "[t]he public agency shall have the burden of proving that the denial of access is authorized by law." N.J.S.A. 47:1A-6. "If it is determined that access has been improperly denied, the court or [the GRC] shall order that access be allowed." Ibid.

The issue of whether the privacy provision in N.J.S.A. 47:1A-1.1 serves only as a precatory statement to the Act, or whether the provision is substantive, was recently addressed by the Court in Burnett v. County of Bergen, ___ N.J. ___, ___ (2009) (slip op. at 15-17). Without ambiguity, the Court held that the privacy provision "is neither a preface nor a preamble." Id. at 15. Rather, "the very language expressed in the privacy clause reveals its substantive nature; it does not offer reasons why OPRA was adopted, as preambles typically do; instead, it focuses on the law's implementation." Ibid. "Specifically, it imposes an obligation on public agencies to protect against disclosure of personal information which would run contrary to reasonable privacy interests." Ibid. Acknowledging the competing expressions of legislative intent between the privacy provision in N.J.S.A. 47:1A-1.1 and the obligation of custodians to permit records to be inspected, examined and copied under N.J.S.A. 47:1-5a, the Court reconciled the provisions by "balanc[ing] the interests each section advances: ready access to government documents while safeguarding the citizen's reasonable expectation of privacy." Id at 19.

In weighing the public's interest in disclosure with a citizen's need to safeguard personal information in which he or she maintains that a reasonable expectation of privacy exists, the Court directed that public entities apply the following seven-prong test of Doe v. Poritz, 142 N.J. 1 (1995):

(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; and (7) whether there is an express statutory mandate, articulated public policy, or other recognized public interest militating toward access.

[Id. at 22 (quoting Doe, supra, 142 N.J. at 88).]

Under that test, N.J.S.A. 47:1A-1.1's privacy provision does not create an exemption from disclosure whenever a citizen's privacy interest is raised. Rather, when viewed through the lens of Burnett, the provision serves as a mechanism ensuring that a citizen's personal information will not automatically be disclosed when the citizen who provided the information reasonably expected that the information would remain private. Thus, where the privacy provision is called into question and the court applies the Burnett balancing test, the requested information may or may not ultimately be disclosed.

Here, the parties stipulated that the dog license applications constitute government records under OPRA and the common law. We discern no reason to disagree. With the parties having so stipulated, the burden shifted to defendants to prove that their denial of access was authorized by law. N.J.S.A. 47:1A-6. Because defendants rely on the privacy provision for not disclosing the information requested, we consider the issue under the privacy test as directed by Burnett. Burnett, supra, (slip op. at 22). In so doing, we consider the seven-prong standard on a qualitative basis, not a quantitative basis.

The first two prongs of the Burnett standard address the nature of the records requested and the information contained therein. Id. at 24. Plaintiff requested that the City provide it with a list of names and addresses of individuals to whom the City issued dog licenses or, in the alternative, copies of the dog license applications on file with the City.

OPRA prohibits disclosure of a citizen's "social security number, credit card number, unlisted telephone number or driver license number . . . ." N.J.S.A. 47:1A-1.1 and -5a. However, those statutes do not expressly prohibit the disclosure of names and addresses. We are not aware of any executive order, statute, or judicial decision, N.J.S.A. 47:1A-9a and -9b, that would authorize withholding disclosure of only the names and addresses of individuals contained in a government record, which is otherwise subject to inspection pursuant to OPRA or the common-law.

Nevertheless, disclosure of names and addresses may be withheld when combined with certain personal identifiers that would place the citizen's privacy interest at risk. For example, see N.J.S.A. 56:8-161, defining "personal information" as:

[A]n individual's first name or first initial and last name linked with any one or more of the following data elements: (1) Social Security number; (2) driver's license number or State identification card number; or (3) account number or credit or debit card number, in combination with any required security code, access code, or password that would permit access to an individual's financial account.

[(Emphasis added).]

These personal identifiers are not present here, which leads us to the third and fourth prongs of the Burnett standard that "address the potential for harm from disclosure." Id. at 28. We do not foresee a significant risk of harm from disclosure of only names and addresses of holders of dog licenses. As noted by the Burnett Court, that the land records contained the names and addresses of individuals would not by itself have prevented disclosure under the privacy provision, id. at 23; rather, it was that the names and addresses were combined with another personal identifier that caused concern. Id. at 27. See also Higg-A-Rella, supra, 141 N.J. at 55 (authorizing the release of copies of tax-assessment lists under the common-law right of access).

In Higg-A-Rella, plaintiffs requested copies of tax-assessment lists from the Essex County Board of Taxation. Id. at 40-41. Among other matters, those lists contain information for each parcel of land that included the property's street address and block and lot numbers; name and address of the owner; and if the property was residential, "whether the owner is entitled to a deduction or exemption as a senior citizen, veteran, disabled veteran, or surviving spouse of a person in one of those categories." Id. at 41-42. Applying the common-law right of access test, the Court determined that the information was not exempt from disclosure. Id. at 49. "The lists contain simple, non-evaluative data that have historically been available to the public, and that do not give rise to expectations of privacy." Ibid. (emphasis added).

The fifth prong of the test concerns "the adequacy of safeguards to prevent unauthorized disclosure" after access to the information is granted to the requestor. Burnett, supra, (slip op. at 32). Provided that the names and addresses of the holders of dog licenses are not linked to other personal identifiers of the individuals, we accord this factor little weight. Individuals' names and addresses contained in government records have historically been available to the public. Higg-A-Rella, supra, 141 N.J. at 49.

The sixth prong addresses the requestor's need for access to the information. Burnett, supra, (slip op. at 32). The trial court found that plaintiff had a "wholesome public interest" in the information because "the alleged public purpose of seeing whether there was more than one animal at risk by an owner is a salutary one," as well as a "legitimate private interest" in gathering the information for fundraising purposes. We agree.

The last prong of the privacy test asks "whether there is an express statutory mandate, articulated public policy, or other recognized public interest" in favor of disclosing the information. Id. at 34 (internal quotations and citation omitted). As previously stated, we are not aware of any reason for withholding the names and addresses of individuals contained in government records when not combined with or linked to other personal identifiers. Thus, disclosure of the requested information furthers the Legislature's intention that OPRA should be "construed in favor of the public's right of access." N.J.S.A. 47:1A-1.

On weighing the aforementioned seven factors, we conclude that "the twin aims of public access and protection of personal information" favor disclosure of the names and addresses of individuals possessing dog licenses issued by the City. Id. at 37. Accordingly, we reverse the January 18, 2008 order and remand for the trial court to enter an order directing that defendants disclose the names and addresses of those individuals to plaintiff.

On remand, if the City possesses a list containing only the names and addresses of individuals possessing dog licenses, it must provide the list to plaintiff. If the City does not possess such a list, the custodian should redact that part of the dog license applications containing information which is expressly prohibited from disclosure by OPRA. For example, if the license applications contain unlisted telephone numbers of the license applicants, that personal identifier must be redacted. N.J.S.A. 47:1A-1.1 and -5a. If defendants believe that other information contained in the applications should be withheld as falling under the umbrella of the privacy provision, they should redact that information and turn over the remaining portion of the applications to plaintiff. N.J.S.A. 47:1A-5g.

If there is a dispute as to any charge by the City for the cost of its services in redacting the records, N.J.S.A. 47:1A-5c, that issue should be addressed by the trial court, with the parties presenting evidence as to the number of dog license applications involved, the items of information to be redacted on each application, and the estimated hours of labor involved, together with any other relevant evidence on the issue. We also remand the issue of plaintiff's request for a reasonable attorney's fee, N.J.S.A. 47:1A-6, for the trial court to address in first instance, including any request for counsel fees on the appeal. R. 2:11-4(c).

Because we conclude that plaintiff is entitled to the information requested under OPRA, we do not address plaintiff's common-law access claim.

Reversed and remanded.

The Open Public Records Act, N.J.S.A. 47:1A-1 to -13.

In denying plaintiff's request for the dog license information, defendants cited the Government Records Council's (GRC) decision in the matter of Bernstein v. Borough of Ho-Ho-Kus, Complaint No. 2005-13, where the GRC determined that the Borough's custodian had properly denied access to dog license owners' names and addresses, concluding that the citizens had a reasonable expectation of privacy in the information. Available at http://www.nj.gov/grc/decisions/2005-13.html.

N.J.S.A. 4:19-15.5 governs the information required for the issuance of a dog license tag by a local municipality. Under the statute, the municipality is required to maintain the information for a period of three years. Section 122-9B of the City's Code, like the statute, requires that the application and registration number be maintained by the City for a period of three years.

Although social security numbers are generally prohibited from disclosure pursuant to N.J.S.A. 47:1A-1.1 and -5a, both statutes contain an exception: "except that a social security number contained in a record required by law to be made, maintained or kept on file by a public agency shall be disclosed when access to the document or disclosure of that information is not otherwise prohibited by State or Federal law, regulation or order . . . ." Because the social security numbers were contained in records that were required by law to be kept on file by the County, the Burnett Court was required to address citizens' rights of privacy in their social security numbers as it conflicted with the aforementioned exemption from disclosure.

In Bernstein, the GRC relied in part on Governor McGreevey's Executive Order No. 21. Paragraph No. 3 of that order prohibited public entities from, among other matters, disclosing an individual's home address "to anyone other than a person duly authorized by this State or the United States, except as otherwise provided by law, when essential to the performance of official duties, or when authorized by a person in interest." Supra, 34 N.J.R. at 2487(a). However, Paragraph No. 3 of Executive Order No. 21 was rescinded by Governor McGreevey's Executive Order No. 26. 34 N.J.R. 3043(b) (September 9, 2002).

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A-3047-07T3

June 5, 2009