WILLIAM J. BRENNAN v. BERGEN COUNTY PROSECUTOR'S OFFICE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

WILLIAM J. BRENNAN,

Plaintiff-Respondent,

v.

BERGEN COUNTY PROSECUTOR'S

OFFICE; FRANK PUCCIO, CUSTODIAN

OF RECORDS FOR THE BERGEN

COUNTY PROSECUTOR'S OFFICE,

Defendants-Appellants.

___________________________________

July 6, 2016

 

Argued May 11, 2016 Decided

Before Judges Ostrer, Haas and Manahan.

On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-20832-14.

John M. Carbone argued the cause for appellants (Carbone and Faasse, attorneys; Mr. Carbone, on the briefs).

Donald F. Burke argued the cause for respondent.

PER CURIAM

This case presents the question whether the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, or the common law, compels disclosure of documents containing the names and addresses of persons who successfully bid at an auction of public property. By leave granted, the Bergen County Prosecutors Office and its custodian of records Frank Puccio (collectively, BCPO) appeal from a June 12, 2015 order requiring disclosure of bidders' names and addresses to plaintiff William J. Brennan. BCPO also appeals from the court's denial of its motion to restrict plaintiff's use of the information.

Having considered the parties' arguments in light of the record and applicable principles of law, we conclude that the bidders' reasonable expectation of privacy outweighs the interest in disclosure, and therefore reverse the order compelling release of the records. In view of that conclusion, we do not reach the issue whether BCPO was entitled to restrict the use of the information once released.

I.

We discern the following facts from the record. On May 3, 2014, Caspert Management Company (Caspert) conducted a public auction of various items of sports memorabilia on behalf of Bergen County.1 The memorabilia had been seized from a person BCPO had prosecuted for various drug-related crimes. The auction was conducted in-person at the Bergen County Law & Public Safety Institute in Mahwah, as well as online. According to a resolution of the Bergen County Board of Chosen Freeholders (Board), Caspert was to receive an auctioneer's fee of fifteen percent of the gross amount sold at the auction.2

Participants in the auction utilized numbered paddles to identify themselves to the auctioneer in the presence of other bidders. Before the auction, live bidders completed numbered registrations forms, which assigned the paddle numbers. The bidders included on the form their name, address, telephone number and email address. Online bidders were also assigned paddle numbers, although the record does not clearly indicate what information online bidders provided to register. Successful live bidders received a receipt that listed only their number. Successful online bidders received receipts that included their paddle number and their name and address. There were thirty-nine successful bidders at the auction.

Regrettably, the record does not include the receipts or registration forms (redacted or not), or any other writings that show an agreement between the bidder and either Caspert or the County. The record also does not include the checks or other forms of payment to indicate whether the payee on the purchases was Caspert or the County.3

After a news report called into question the memorabilia's authenticity, the County Prosecutor wrote to successful bidders whose names Caspert had provided to offer refunds to any buyer "uncomfortable with [their] purchase." The December 2014 letter described BCPO's efforts to confirm the items' authenticity, and did not concede that any items were inauthentic.

3 On December 9, 2014, plaintiff submitted a request, pursuant to OPRA and the common law, for records "of payment received from all winning bidders on sports memorabilia items auctioned by [BCPO] on 05/03/2014" and "[c]ontact information for each winning bidder of items auctioned by [BCPO] on that date."4

In response, Puccio, BCPO's custodian of records, offered to release redacted copies of both live and online bidders' receipts. He explained that BCPO was concerned about the buyers' privacy, and so had requested their consent to release their identifying information. He added that the registration forms were still in Caspert's possession, and BCPO was seeking to obtain the forms from Caspert. The documents were stored on a CD, which plaintiff was invited to pick up upon payment of a fee.5 Puccio denied the request for contact information, finding it was a request for information, not government records.

Plaintiff then filed a verified complaint in which he alleged that BCPO unlawfully "withheld the identities of persons who have contracted with the [BCPO] for the purchase of goods." He asserted he was entitled, under OPRA and the common law, to access to the requested records.6 BCPO filed an answer, and the matter was heard in a summary proceeding on February 20, 2015.

The trial court denied BCPO's motion to dismiss, but declined to order disclosure immediately. The court first rejected BCPO's argument that the documents were not "government records" because they were Caspert's records, reasoning that Caspert generated the records on behalf of BCPO. Turning to whether an exemption from disclosure applied, the court recognized that OPRA's "privacy clause," seeN.J.S.A. 47:1A-1, may be "a valid basis for exemption," citing Burnett v. County of Bergen, 198 N.J.408 (2009). The court required BCPO to contact winning bidders and advise them they must affirmatively object to the release of their personal information or seek to intervene in the case.

Nineteen out of thirty-nine bidders responded to BCPO's subsequent letter and questionnaire seeking the bidders' views on disclosure. Sixteen of those opposed release of their information due to privacy and security concerns.

Several bidders stated they presumed their participation would remain anonymous, and they would not have participated had they known their identities and purchases would be disclosed. For example, one bidder stated, "When I registered for the auction, it was with [the] full expectation that my personal info would remain confidential, as with any other auction. I expect the auctioneers to continue to honor that completely reasonable expectation." Another bidder noted that the use of paddle numbers led him to believe his identity would be protected. In general, these bidders feared that disclosing their home addresses along with the fact that they were collectors would put them at risk of burglary and identity theft.

BCPO filed a motion to restrict plaintiff's use of the requested records, although the record does not include BCPO's notice of motion or form of order indicating the precise relief sought.7 Plaintiff opposed the motion, which he described as a request for a "prior restraint" on his ability to disseminate and comment on the records.

Plaintiff's certification described his motivation for seeking the successful bidders' records. He believed BCPO "knew or should have known" that the auctioned items were "bogus" and he wanted "the public to scrutinize the activities of [BCPO]." He claimed that the County Prosecutor and Puccio made false statements in connection with the auction, and also suspected that successful bidders wanted to remain anonymous because they had resold inauthentic items.

After oral argument on June 10, 2015, the court granted plaintiff's demand for disclosure, and denied BCPO's motion to restrict plaintiff's use of the records. The court found that, although the records did not fall within any explicit exemption under OPRA, the "information could implicate a privacy interest." However, finding that bidders' names and addresses could be "easily obtained" on the internet or in the Yellow Pages, the court concluded any privacy interest was "very limited." Applying the factors set forth in Burnett, supra, the court found that the bidders' privacy interests were substantially outweighed by plaintiff's interest in disclosure.8 The court found that bidders should have realized Caspert was acting on behalf of BCPO, noting that Caspert's website stated that the auction was conducted "by order of the Bergen County Prosecutor."9 The court also found that disclosure would be compelled under the common law, although the court did not expressly apply the factors set forth in Loigman v. Kimmelman, 102 N.J. 98, 108 (1986).

In denying BCPO's motion to restrict plaintiff's use, the court noted the absence of any authority, in OPRA or elsewhere, for restricting plaintiff's use or dissemination. The court also declined to find that plaintiff was "prone to 'misuse' the information that he seeks simply because his behavior in the past might have been unfavorable."10

BCPO presents the following points for our review

POINT I

THE APPELLATE STANDARD OF REVIEW IS PLENARY OF A TRIAL LEVEL DECISION ON THE OPEN PUBLIC RECORDS ACT AND COMMON LAW ACCESS.

POINT II

THE COURT BELOW IMPROPERLY INTERPRETED THE REASONABLE EXPECTATION OF PRIVACY AND THE RIGHT TO PRIVACY OF THE SUCCESSFUL BIDDERS.

A. OPRA and the Right to Privacy in New Jersey and Balancing Tests.

B. Federal Right to Privacy and Balancing Tests.

C. Privacy as a Bi-Lateral Construct of Informational Privacy and Anonymity.

POINT III

THE COURT'S DENIAL OF AN ORDER UPON THE PLAINTIFF FOR POST-RELEASE RESTRICTION, SUBSEQUENT DISCLOSURE AND USE OF THE PRIVATE AND PERSONAL INFORMATION MUST [BE] REVIEWED AND BE IMPOSED IF THE DOCUMENTS ARE TO BE RELEASED.

POINT IV

NEW JERSEY LAW MANDATES PROTECTION OF THE PRIVACY OF PERSONAL INFORMATION BY PUBLIC OFFICIALS[,] OPRA AND THE REASONABLE EXPECTATION OF PRIVACY OF THE INDIVIDUAL IN THE ENTRUSTED INFORMATION IN PUBLIC RECORDS.

II.

We begin with our analysis under OPRA. We exercise de novo review of the trial court's decision regarding whether OPRA requires disclosure of publicly held records. K.L. v. Evesham Twp. Bd. of Educ., 423 N.J. Super.337, 349 (App. Div. 2011), certif. denied, 210 N.J.108 (2012). We first examine whether the requested records are protected from disclosure by OPRA's privacy clause, and then briefly discuss the right to access under common law.

A.

OPRA provides a broad right of access to government records, and limitations on that right "shall be construed in favor of the public's right of access." N.J.S.A. 47:1A-1. "OPRA's clear purpose . . . 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.'" Educ. Law Ctr. v. N.J. Dep't of Educ., 198 N.J. 274, 284 (2009) (quoting Mason v. City of Hoboken, 196 N.J. 51, 64 (2008)). Generally, government records are subject to public access unless exempt. N.J.S.A. 47:1A-1. The public agency bears the burden to demonstrate authority for denying access. N.J.S.A. 47:1A-6.11

The Governor may exempt government records from disclosure by executive order. N.J.S.A. 47:1A-1. Executive Order No. 21 (McGreevey) protected individuals' home addresses from disclosure

In order to effectuate the legislative directive that a public governmental agency has the responsibility and the obligation to safeguard from public access a citizen's personal information with which it has been entrusted, an individual's home address and home telephone number, as well as his or her social security number, shall not be disclosed by a public agency at any level of government 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.

[Executive Order No. 21 (McGreevey), 3 (emphasis added).]

Thereafter, the Governor rescinded the exemption of home addresses with Executive Order No. 26, and instead asked the Privacy Study Commission to study whether home addresses should be exempt. Executive Order No. 26 (McGreevey), 5.

Importantly, Executive Order No. 26 exempted from "government records" subject to access "[i]nformation describing a natural person's finances, income, assets, liabilities, net worth, bank balances, financial history or activities, or creditworthiness, except as otherwise required by law to be disclosed." Id. at 4(b)(3). We recognize that bidders could contend that receipts for purchased items of memorabilia describe an "asset."12 However, since BCPO did not present the argument, we choose not to address it.

We must determine whether the bidders' records are shielded by OPRA's privacy clause, which states: "[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 . . . ." N.J.S.A. 47:1A-1. "The privacy clause is a substantive counterweight to the right to access under OPRA." In re N.J. Firemen's Ass'n Obligation to Provide Relief Applications Under the Open Public Records Act, 443 N.J. Super. 238, 263 (App. Div. 2015) (citing Burnett, supra, 198 N.J. at 422-23), certif. granted 224 N.J. 528 (2016). The clause "imposes an obligation on public agencies to protect against disclosure of personal information which would run contrary to reasonable privacy interests." Burnett, supra, 198 N.J. at 423.

In order to determine whether records are shielded from disclosure under the privacy clause, a court must weigh seven factors

(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 427 (quoting Doe v. Poritz, 142 N.J. 1, 88 (1995).]

This analysis is case-specific. Id. at 437.

B.

We consider the first two factors together. Plaintiff requested receipts for goods purchased at a public auction and accompanying registration forms, which together disclose a successful bidder's name, home address,13 paddle number, and the price paid. Although the receipts are not in the record, we presume they describe in some way the specific item purchased.14

We conclude that the bidders have a reasonable expectation of privacy in this information. Although they participated in an auction of public property, they were entitled to expect that their personal information would have the same confidentiality as it would in an auction of private property. That expectation is reasonable given that a private auctioneer conducted the sale, participants were given numbered paddles so they could bid anonymously, and payments may have been made directly to the auctioneer. We note that the Privacy Study Commission found that many citizens are unaware of the possibility that their home address may be publicly disclosed if they provide it to the government. N.J. Privacy Study Commission, Final Report (Dec. 20, 2004) at 4.

We part company with the trial court's view that the privacy interest in one's name and address is "very limited" because names and addresses are already publicly available. The key here is that a person's name and address is linked with their purchase of sports memorabilia, such that disclosure would indicate the person is a collector who possesses many other items, conceivably of substantial value. This is precisely the concern voiced by several of the objecting bidders. See, e.g., Doe, supra, 148 N.J. at 83 (noting that the privacy interest in a person's name and address may be heightened when it is linked to other information); Burnett, supra, 198 N.J. at 430 (inclusion of Social Security numbers along with names, addresses and other personal information "elevates the privacy concern at stake"). Even if all that was at issue was a bidder's name and address, the Doe Court rejected the notion that a person loses any expectation of privacy in their address simply because it is publicly available. 148 N.J. at 83.

Our evaluation of the privacy interest is buttressed by several decisions of the Government Records Council (GRC). While GRC decisions are not binding or precedential, N.J.S.A. 47:1A-7(e); Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973), we consider the decisions regarding home addresses to be persuasive authority. See Renna v. Cty. of Union, 407 N.J. Super. 230, 237 n. 2 (App. Div. 2009). In multiple decisions applying the Burnett balancing test, the GRC held that the privacy interests in home addresses outweighed the interest in disclosure. See, e.g., Knehr v. Twp. Of Franklin, GRC 2012-38 (Dec. 18, 2012) (denying disclosure of names and addresses of dog and cat owners to person who sought to market products to the pet owners). In the context of pet owners, the GRC reasoned that disclosure could pose a threat to home security, as well as subject the owners to unwelcome commercial solicitation.

Concerns about home security and freedom from commercial solicitation also motivated the GRC's denial of disclosure of names and addresses of persons who had permits for burglar or fire alarms. See, e.g., Avin v. Borough Clerk of Oradell, GRC 2004-176 (Mar. 10, 2005). The GRC also barred access to the names and addresses of Rutgers football and basketball season ticket holders, because access could subject the ticket holders to unsolicited contact. Faulkner v. Rutgers Univ., GRC 2007-149 (May 28, 2008). The GRC has protected home addresses in other contexts, as well. See Wolosky v. Twp. of Harding, GRC 2010-221 (June 26, 2012) (home address properly redacted from payroll record where need for access did not outweigh interest in privacy); Perino v. Borough of Haddon Heights, GRC 2004-128 (Nov. 9, 2004) (name, address, and telephone number properly redacted from police call sheet where expectation of privacy outweighed need for access).

C.

We turn next to factors three, four and five. Although plaintiff has not directly stated what he intends to do with the requested information, he has said that he suspects the objecting bidders knowingly resold inauthentic items. We disagree with the trial court that the bidders' concerns were too speculative. The bidders may reasonably be concerned that plaintiff will contact them directly, or will publish their names and addresses and the products they purchased to criticize them or warn other collectors that the bidders obtained inauthentic items. It is plausible that the public would infer, based on the receipts and registration forms, that the bidders possess large collections of sports memorabilia. That could make the bidders targets of theft. While the risk is obviously indeterminable, the bidders' concerns appear to be genuine.

Disclosure could also injure "the relationship in which the record was generated," by deterring participation in auctions for the sale of forfeited property. Many of the objecting bidders explicitly stated that had they known their names and addresses would be disclosed, they would not have bid at the auction. One bidder indicated that private auctioneers are expected to protect the confidentiality of their personal information.15 Were it established that the names and addresses of bidders must be disclosed under OPRA, it is likely that participation would suffer, as would the income generated for the benefit of the governmental entities.16

Finally, there are no safeguards to prevent unauthorized disclosure. Plaintiff is free to disseminate the information as he wishes, limited only by criminal and civil law. The trial court minimized this factor because "names and addresses are already publicly available." However, the fact that the persons identified own sports memorabilia is not.

D.

Factors six and seven pertain to the need for access and the presence of an articulated policy favoring access. With respect to the former, the Burnett Court instructed courts "to ask whether unredacted disclosure will further the core purposes of OPRA: to maximize public knowledge about public affairs in order to ensure an informed citizenry and to minimize the evils inherent in a secluded process." 198 N.J. at 435 (internal quotation marks and citation omitted).

Plaintiff argues that redacting bidders' names and addresses "would seriously undermine government accountability." He contends that the bidders purchased items of questionable authenticity, and those who did not return them may have resold them. He also asserts that identifying the bidders would enable him to determine whether a bidder was related in some way to the auctioneer or a government official, raising questions about the sale's legitimacy.

We are unpersuaded that disclosure of the bidders is relevant to government accountability. The bidders were not responsible for any government actions in connection with the auction, nor would their identity further an inquiry into those actions. The bidders did not organize the auction, select the expert who advised BCPO that the items were legitimate, or make any representations to the public regarding whether the items were authentic. Plaintiff's concerns about what a private owner of property may have done with a purchased item is a private matter, and is far afield from the operation of BCPO or the County. Finally, plaintiff's newly minted concern that a person connected to BCPO or the auctioneer may have bid was not raised below, according to the record before us. See Nieder v. Royal Indemnity Ins. Co., 62 N.J. 229, 234 (1973).

Balancing these factors, we conclude that the bidders' reasonable expectation of privacy outweighs the interest in disclosure. We note that giving access to the receipts, with names and addresses redacted, as BCPO proposed, would still enable the public to learn what items were sold and for what price. To the extent plaintiff wishes to raise questions about the authenticity of the items an issue about which experts apparently disagree he can do so without entangling the individual bidders.

III.

Plaintiff's claim for access under the common law fares no better than his claim under OPRA. As with OPRA, we review the trial court's determination regarding common law access de novo. Drinker Biddle & Reath LLP v. N.J. Dep't of Law & Pub. Safety, 421 N.J. Super. 489, 497 (App. Div. 2011).

In determining whether plaintiff has a common law right of access, we consider 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 decisionmaking 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.]

Against these factors we balance the importance of the records to plaintiff's "vindication of the public interest." Ibid. We may also consider whether the requestor's motive is to serve a private, as opposed to a public interest. Id. at 104.

Weighing these factors, we are guided by many of the same considerations relevant to the OPRA balancing test. Regarding factor one, disclosure could harm public auctions by discouraging bidders from participating due to privacy concerns. As for the second factor, many bidders provided their name and address with the understanding that their information would not be publicly disclosed, and were genuinely concerned that disclosure would threaten their home security. Factors three and four do not seem to apply.

Regarding factor five, while plaintiff is highly critical of BCPO's management of the auction, he has not demonstrated how disclosing bidders' identifying information would further his inquiries. Given plaintiff's lack of confidence in BCPO's self-evaluation of its management of the auction, factor six carries no weight.

In our view, factors one and two outweigh "the importance of the information sought to the plaintiff's vindication of the public interest." Therefore, plaintiff was not entitled to disclosure of the requested records under the common law.

Given our disposition of plaintiff's demand for disclosure, we do not reach BCPO's argument that it was entitled to an order limiting plaintiff's use of the information if disclosed.

Reversed.

1 Caspert apparently conducted a second auction on September 27, 2014, but that was not the subject of plaintiff's records request.

2 The Board authorized the County to enter into an agreement with Caspert to provide auctioneer services from 2011 to 2012, with two twelve-month renewal options. The record includes a June 2012 resolution of the Board that approved exercise of the first option, extending the agreement to September 6, 2013. It also referred to a September 7, 2011 contract with Caspert. However, BCPO was unable to produce any contracts between the County and Caspert. After searching unsuccessfully for one, an assistant county counsel concluded, "it appears none was ever prepared." BCPO also did not provide the resolution extending the agreement through the period when the memorabilia auction actually occurred.

3 The June 2012 Board resolution stated that the "successful bidder" agrees to make "auction proceeds payments" payable to the Bergen County Treasurer, but it is unclear whether "successful bidder" refers to Caspert or a participant in the auction.

4 Plaintiff also sought other documents related to the auction, including the contract between BCPO and the auctioneer. Those requests are not the subject of this appeal.

5 Apparently, plaintiff never picked up the CD.

6 Plaintiff also included constitutional and civil rights claims that he later voluntarily dismissed.

7 The record does include a letter from BCPO's outside counsel seeking plaintiff's consent, in advance of the motion, to the following restrictions

1. No posting, release, publication or publicity on the internet or elsewhere of the information and records the Court may release;

2. No further release, publication, dissemination or distribution of the information and records the Court may release to other persons, entities, or third parties;

3. No contact or communication by your client or others with the "successful bidders" or their family members;

4. No business or other commercial use of the information and records the Court may release . . . .

8 Although the court stated that only thirteen successful bidders objected to disclosure, the number was actually sixteen.

9 The webpage upon which the trial court relied is not in the record before us.

10 This was a reference to past unrelated litigation in which plaintiff was involved, which stemmed in part from his requests for records from other government entities.

11 BCPO does not renew, and we therefore do not consider, the argument it presented to the trial court that the receipts and registration forms are not "government records" because they were maintained by Caspert. Also, although OPRA exempts numerous categories of documents from the definition of "government records," see Educ. Law Ctr., supra, 198 N.J. at 284, none of those exemptions are at issue here.

12 Although the record does not reflect the range of prices paid for each item sold, a chart shows that bidders who sought refunds received as little as $79.22 for one item and as much as $10,475.30 for three items.

13 Although the record does not clearly show that the address disclosed was a home address (as opposed to a business address), we assume it was, based on the bidders' objections.

14 As noted above, the record does not include any receipts. Conceivably, the receipt may refer only to a lot number, which in turn references items described in a catalog.

15 We cannot know what, if any, disclaimers regarding confidentiality appeared on the registration form, as the forms are not in the record.

16 Alternatively, bidders reluctant to disclose their personal information might retain nominees to bid in their stead. However, those costs would also ultimately impact the amount of bids and the income generated.