(NOTE: The status of this decision is Published.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NOS. A-4742-17T4
APPROVED FOR PUBLICATION
v. February 21, 2020
BOROUGH OF ROSELLE
PARK, and ANDREW
CITY OF SUMMIT, and
Argued October 21, 2019 – Decided February 21, 2020
Before Judges Sabatino, Sumners and Geiger.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Docket Nos. L-1046-18 and
Donald Michael Doherty, Jr., argued the cause for
Jarrid H. Kantor argued the cause for respondents
Borough of Roselle Park and Andrew Casais, Clerk
(Antonelli Kantor, PC, attorneys; Jarrid H. Kantor, of
counsel and on the brief; Daniel H. Kline, on the brief).
Bradley David Tishman argued the cause for
respondents City of Summit and Rosemary Licatese,
City Clerk (Cleary Giacobbe Alfieri & Jacobs, LLC,
attorneys; Matthew J. Giacobbe and Bradley David
Tishman, of counsel and on the brief).
The opinion of the court was delivered by
SUMNERS, JR., J.A.D.
The matter before us concerns two consolidated appeals, calendared back-
to-back for the purposes of this single opinion, both brought by plaintiff Ernest
Bozzi who seeks access to names and addresses on dog license records issued
by defendants City of Summit and the Borough of Roselle Park (collectively
"the municipalities"). Plaintiff claimed he was entitled to the information under
the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and the common
law right of access to public records. The municipalities separately denied
plaintiff's requests, so plaintiff filed complaints in the Law Division to obtain
the information. The trial court determined plaintiff was not entitled to the
information because his sole purpose was to solicit dog licensees to install
invisible fences at their homes.
Before us, plaintiff contends the names and addresses in dog license
records are available to him under both OPRA and common law because they
are public records in which the licensees have no, or an insufficient, expectation
of privacy in the information. We agree with his OPRA argument and reverse.
We do not reach plaintiff's common law argument.
In accordance with N.J.S.A. 4:19-15.2 and -15.2(a), dog owners shall
apply for a dog license from the municipal clerk where they reside. N.J.S.A.
4:19-15.5 details the information an applicant must provide. In pertinent part,
the statute states:
The application shall state the breed, sex, age, color and
markings of the dog for which license and registration
are sought, whether it is of a long- or short-haired
variety, and whether it has been surgically debarked or
silenced; also the name, street and post-office address
of the owner and the person who shall keep or harbor
such dog. The information on the application and the
registration number issued for the dog shall be
preserved for a period of three years by the clerk or
other local official designated to license dogs in the
Plaintiff is a licensed home improvement contractor who runs a business
installing invisible fences for dog owners. 1 On January 26, 2018, he filed OPRA
requests with the municipal clerks of both Summit and Roselle Park seeking
copies of the municipalities' dog license records in order to solicit dog owners
to purchase invisible fences for their homes. His requests stated:
I am requesting copies of your most recent dog license
records that you have.
You may redact
. . . the breed/type of dog
. . . the name of the dog
. . . any information about why someone has the dog
(comfort animal, handicap assistance, law enforcement
of any other reason) if that information is in the record
. . . any phone numbers whether unlisted or not.
I am trying to get the names and addresses of dog
owners for our invisible fence installations (we are a
licensed home improvement contractor) and I allow you
to remove any information beyond that so there are no
An Invisible Fence is a trademark that is becoming genericized as people
regularly use it to refer to radio-signaled barrier systems dog owners can install
to keep their dogs on their property without erecting a traditional fence.
Invisible fences transmit radio signals to a receiver collar worn by a dog. When
the collar gets within range of the boundary, it first emits a warning tone audible
to the dog, then if the dog continues to cross the boundary, it signals the collar
to cause a static shock. Kyle Schurman, Three best invisible fences, CHICAGO
TRIBUNE (Nov. 19, 2018), https://www.chicagotribune.com/sns-pets-three-best-
privacy concerns as determined by the Government
Records Council [GRC] in Bernstein v. Allendale.2
On February 2, Summit's City Clerk denied plaintiff's request, citing the
GRC's final decision in Bernstein v. Allendale. This decision was one of five
rulings rendered by the GRC the same day involving the same complainant , Rich
Bernstein, in which OPRA requests for dog license records were denied. The
others were Bernstein v. Borough of Woodcliff Lake, GRC Complaint No. 2005-
02 (July 14, 2005); Bernstein v. Borough of Harrington Park, GRC Complaint
No. 2005-06 (July 14, 2005); Bernstein v. Borough of Ho Ho Kus, GRC
Complaint No. 2005-13 (July 14, 2005); and Bernstein v. Borough of Park
Ridge, GRC Complaint No. 2005-99 (July 14, 2005). Because the decisions
involve the exact same issue – OPRA requests for dog license records in order
to sell invisible fences to the dog license holders – resulting in the same factual
findings and legal conclusions, unless noted otherwise, we will refer to them
collectively as the "Bernstein rulings."
Four days later, Roselle Park's Clerk denied the request because of
"privacy" concerns and "Executive Order 21." 3
Bernstein v. Borough of Allendale, GRC Complaint No. 2004–195 (July 14,
3 Exec. Order No. 21 (July 5, 2002), 34 N.J.R. 2487(a) (Aug. 5, 2002).
In response to the denials of his requests, plaintiff sought relief in the Law
Division. He initially filed a complaint against Summit and its City Clerk
seeking the dog license records under OPRA and common law.4 This was
shortly followed by the filing of a similar complaint against Roselle Park and its
Clerk. In both matters, the trial court issued orders to show cause requiring the
municipalities to explain why plaintiff was not entitled to the requested records,
counsel fees, and the costs of suit.
On May 7, at the conclusion of oral argument, the trial court agreed with
the municipalities' decisions not to disclose the dog license records based upon
OPRA's privacy provision, N.J.S.A. 47:1A-1. The court maintained the
licensees did not expect their "personal information . . . [,] provided in order to
comply with law[, to be given] to someone who is using it . . . to solicit them for
something else." The court believed this constituted a substantial injury to the
licensees’ relationship with their municipal government such that "it would
encourage people to not comply with the law." The court explained:
[T]o use OPRA for this commercial purpose against the
privacy interests of citizens who are complying with the
law and paying a fee, giving over that information
because they must. Not because they want to, but
OPRA gives a person who is denied access to public records the option to file
a complaint in court or with the GRC to adjudicate the dispute. N.J.S.A. 47:1A-
because they must or because -- not because they've
been given a ticket or want to build a house. They just
simply want to own a dog. I think the privacy interest
is greater than [plaintiff]'s need to have this to have - to
have the government do its -- do his targeting marketing
for him -- market research for him.
The court referred to the Bernstein rulings but did not specifically cite them in
support of its ruling. The court also pointed out Chief Justice Rabner, writing
for the Court in Burnett v. Cty. of Bergen, 198 N.J. 408 (2009), mentioned one
of the Bernstein rulings. The court stated: "Now, [Chief Justice Rabner] cites
[Bernstein v. Boro of Park Ridge Custodian of Records, GRC Complaint No.
2005–99 (July 14, 2005)]. He notes it. He doesn't say it's wrong. And perhaps
he wasn't necessarily focusing on that, but he certainly had done the r esearch
and seen that." The court did not make a ruling on plaintiff's common law claim.
These appeals ensued.5
Plaintiff maintains the municipalities' reliance on the Bernstein rulings is
misplaced for several reasons. They are not controlling because OPRA
This court granted plaintiffs' motion to consolidate the separately filed
specifically states that "a decision of the [GRC] shall not have value as a
precedent for any case initiated in the Superior Court . . . ." N.J.S.A. 47:1A- -
7(e). Plaintiff contends the rulings, rendered in July 2005, incorrectly: (1) relied
on the previously rescinded paragraph three of Exec. Order 21 (July 5, 2002),
34 N.J.R. 2487(a) (Aug. 5, 2002); (2) misapplied the then controlling decision
on privacy – Higg-A-Rella v. Essex, 141 N.J. 35, 49 (1995) (holding there is no
privacy interest in names and addresses in public records that would prevent
disclosure under the common law); and (3) erred in applying Doe v. Poritz, 142 N.J. 1, 79, 82 (1995) (ruling there was no "privacy interest" in keeping the public
from learning the names and addresses of those on the registered list of sex
Plaintiff argues that under Brennan v. Bergen Cty. Prosecutor's Office,
233 N.J. 330, 342 (2018), there is no need to consider the Doe factors because
his request for dog license records does not seek information that "a person has
an objectively reasonable expectation of privacy in or normally has a justifiable
basis to keep from the world." Plaintiff argues a record of dog ownership "is
Plaintiff also relies upon the "logic" of this court's unpublished decisions to
support his position that he is entitled to the requested records. Because they
have no precedential value, we do not address them. R. 1:36-3
not a significant personal identifier" that imposes a realistic risk of harm. 7
Plaintiff relies on the Court's recognition that in OPRA "the Legislature has
chosen to prevent disclosure of home addresses in select situations. Aside from
those particular exemptions, however, OPRA does not contain a broad-based
exception for the disclosure of names and home addresses that appear in
government records." Id. at 338. He furthers contends the court also misapplied
the Doe factors in denying his request. 8
We see no merit to the self-serving remarks made by plaintiff's counsel at
argument before the trial court that he felt no risk of harm by stating his name,
address, and his dog's name in open court.
Plaintiff also argues Roselle Park's denial of his OPRA request relied upon
paragraph three of Exec. Order No. 21 (July 5, 2002), 34 N.J.R. 2487(a) (Aug.
5, 2002), which was issued for the purpose of implementing OPRA but rescinded
one month later, Exec. Order No. 26 (Aug. 13, 2002), 34 N.J.R. 3043(b) (Sept.
9, 2002). The rescinded paragraph provided, in pertinent part:
. . . 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.
[ 34 N.J.R. 2487(a) (emphasis added).]
The municipalities assert the trial court's analysis of OPRA's privacy
provision was correct. They primarily rely on Boro of Park Ridge Custodian of
Records, one of the Bernstein rulings, in which the GRC determined a person
had a reasonable expectation of privacy in information provided to a
municipality to obtain a dog license. Roselle Park contends that, despite the
non-precedential value of GRC rulings as set forth in OPRA, N.J.S.A. 47:lA -l,
the Burnett Court cited to Boro of Park Ridge Custodian of Records. Burnett,
198 N.J. at 424.
The municipalities contend the trial court correctly agreed with them that
there was a colorable claim of privacy in the information contained in the dog
license records. They further argue that Brennan is distinguishable from the
situation here. In that appeal, the personal information was sought from citizens
who voluntarily participated in a public auction bidding process. Whereas here,
Roselle Park cites Exec. Order No. 21's fourth clause, stating:
"WHEREAS 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[.]" 34 N.J.R. 2487(a). Although it is merely a preamble
to the substantive clauses, which has not been rescinded, it is also set forth
verbatim in N.J.S.A. 47:1A-1 and is clearly part of the law. Burnett, 198 N.J. at 422-23 (citation omitted). Consequently, there is no merit to plaintiff's
a citizen's information was given privately to municipal clerks to satisfy a legal
requirement imposed by the municipalities to own a dog. It is further argued
that the disclosure of the licensees and their addresses sheds no light on
government transparency and there is a reasonable expectation of privacy in the
information. Hence, the court was obligated to apply the Doe factors and
properly did so in rejecting plaintiff's OPRA requests.
In considering the trial judge's legal conclusions concerning the release of
public records under OPRA and common law, our review is de novo. N. Jersey
Media Grp., Inc. v. Twp. of Lyndhurst, 441 N.J. Super. 70, 89 (App. Div. 2015).
We will not disturb factual findings if they are supported by adequate,
substantial, and credible evidence. See Meshinsky v. Nichols Yacht Sales, Inc.,
110 N.J. 464, 475 (1988).
In examining the parameters of OPRA, we determine the Legislature's
intent by giving its words "their ordinary meaning and significance."
DiProspero v. Penn, 183 N.J. 477, 492 (2005) (citations omitted); N.J.S.A. 1:1-
1. Only if a statute's plain reading is ambiguous, meaning "more than one
plausible interpretation," or leads to an absurd result, do we look at extrinsic
evidence, such as legislative history and committee reports, to determine the
Legislature's intent. DiProspero, 183 N.J. at 492-93 (citations omitted).
"OPRA provides for ready access to government records by the citizens
of this State." Burnett, 198 N.J. at 421-22 (citing Mason v. City of Hoboken,
196 N.J. 51, 64-65 (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 Cty. Prosecutor's Office, 374 N.J. Super. 312, 329
(Law Div. 2004)). Accordingly, OPRA directs that "all government records
shall be subject to public access unless exempt," and "any limitations on the
right of access . . . shall be construed in favor of the public's right of access. "
A "[g]overnment record" is broadly defined as, "any paper, . . . document,
. . . data processed or image processed document, information stored or
maintained electronically . . . or any copy . . . that has been made, maintained or
kept on file in the course of . . . official business by any officer, . . . agency . . .
of the State or of any political subdivision thereof . . . ." N.J.S.A. 47:1A- -1.1.
The record custodian, however, must redact personal identifiers 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.
There are twenty-three categories of documents identified in N.J.S.A.
47:1A-1.1 that fall outside the statutory definition of a government record; the
Legislature considers those categories of documents confidential. Brennan, 233 N.J. at 337. One such exemption relates to "personal firearms records, except
for use by any person authorized by law to have access to these records or for
use by any government agency, including any court or law enforcement agency,
for purposes of the administration of justice." N.J.S.A. 47:1A-1.1. The other
involves the Department of Environmental Protection, Division of Fish and
Wildlife's receipt of personal identifying information – "name, address, social
security number, telephone number, fax number, driver’s license number, email
address, or social media address of any applicant or licensee" – in any
application for hunting with a firearm license is not considered a government
record subject to disclosure. N.J.S.A. 47:1A-1.1. However, OPRA affords no
"overarching exception for the disclosure of names or home addresses"
contained in government records. Brennan, 233 N.J. at 337. Hence, there is no
specific exemption for a person's identity and address when it is received by a
municipality from a dog license application.9
Generally, we do not consider the reason behind OPRA requests.
Michelson v. Wyatt, 379 N.J. Super. 611, 620 (App. Div. 2005). A person
"seeking records for commercial reasons therefore has the same right to them as
anyone else." Burnett, 198 N.J. at 435. That said, government records are
subject to exemption when "disclosure thereof would violate the citizen's
reasonable expectation of privacy." N.J.S.A. 47:1A-1. When privacy concerns
are imbedded in public records, the court must inquire "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.'" Burnett, 198 N.J. at 435
(quoting Mason, 196 N.J. at 64).
In Burnett, the Court held, "OPRA's privacy provision is directly
implicated" where government records sought contain information not meant to
be publicized, such as "[social security numbers (SSNs)] along with the names,
addresses, signatures, and marital status of a substantial number of New Jersey
Exemptions are given to "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, 196 N.J. at 65.
residents." 198 N.J. at 428; Asbury Park Press v. Cty. of Monmouth, 201 N.J.
5, 7 (2009). Thus, there must be a "balancing test [as] outlined in [Doe, 142 N.J. at 88] to harmonize OPRA's competing concerns and evaluate whether
disclosure without redacting SSNs is proper." Burnett, 198 N.J. at 428. The
Doe factors are:
(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, 142 N.J. at 88).]
Applying these factors in Burnett, the Court granted the plaintiff's request for
eight million pages of various types of land title records regarding mortgages,
deeds, and other documents containing individuals' addresses, signature
specimens, marital status, and other details but ordered redaction of SSN's to
avoid the increased risk of identity theft. Id. at 415-16, 437. The information
sought was purely for commercial reasons "to catalogue and sell the information
by way of an easy-to-search computerized database" thus "enabling title
insurance companies to connect regional title databases and to access them using
computer software." Id. at 414-15.
Nine years later, the Court clarified when the balancing factors set forth
in Doe must be applied. In Brennan, which was decided after the trial court's
decision, it was held that "before an extended analysis of the Doe factors is
required, a custodian [of records] must present a colorable claim that public
access to the records requested would invade a person's objectively reasonable
expectation of privacy." 233 N.J. at 342. Importantly, the Court recognized
that "[a]side from . . . particular exemptions, . . . OPRA does not contain a
broad-based exception for the disclosure of names and home addresses that
appear in government records." Id. at 338.
Considering the parties' respective arguments, we are persuaded that
plaintiff is entitled to the dog licensees’ names and addresses. We agree with
plaintiff that the Bernstein rulings have no precedential value in our
consideration of OPRA appeals. N.J.S.A. 47:1A-7(e). The suggestion by the
court and Roselle Park that the Burnett Court cited or specifically favored the
Bernstein rulings is misplaced. Chief Justice Rabner, writing for the Court,
merely mentioned Boro of Park Ridge Custodian of Records and another GRC
ruling10 to illustrate the GRC "has also relied on the privacy provision [in OPRA]
in addressing requests for access to government records." Burnett, 198 N.J. at
424. Noting the GRC is "an informal mediation program designed to resolve
disputes under OPRA," the Court did not pass judgment on the wisdom of those
rulings. Accordingly, the GRC's rulings will not dictate our decision here.
Turning our analysis to the specifics of plaintiff's OPRA requests, we do
not consider the Doe balancing factors because the municipalities have not
presented a colorable claim that the requests for names and addresses of the dog
licensees invades an "objectively reasonable expectation of privacy." Brennan,
233 N.J. at 342. Based on the record before us, we do not see where the citizens
in Summit and Roselle Park have a reasonable expectation of privacy in their
names and addresses when they apply for a dog license. While they may not
have anticipated OPRA requests such as plaintiff's, there is no indication that
this information should be cloaked within privacy protection. Indeed, people
who own dogs frequently walk them in public places and ordinarily do not
conceal their status.
Granted, Brennan addressed the disclosure of releasing information
related to a public auction conducted by a governmental body. Nevertheless,
Catrell v. N.J. Dep't of Corr., GRC Complaint No. 2006-121 (Feb. 28, 2007).
we discern no erosion of protected privacy rights by allowing the release of the
licensees’ names and addresses. This is unlike the situation in Burnett, where
the Court applied the Doe factors to balance the privacy interest in an SSN, a
personal identifier, contained in government records. 198 N.J. at 428.
Except for the exemptions of personal information provided for firearms
and hunting licenses, the Legisture has provided no clear exemption in OPRA
against the disclosure of citizens' names and addresses when they are provided
to governmental bodies as a condition to acquire a license required by law.
Hence, releasing the names and addresses of the dog license holders violates no
directive in OPRA, or any other law for that matter.
While we appreciate the concerns of the trial court and the municipalities
that the result of plaintiff's requests may be irritating – receiving unsolicited
mail from individual or entities pursuing business opportunities related to their
dog ownership – to some, it is not an infringement of any established privacy
interest. Some dog owners receiving plaintiff's solicitation may be interested,
while others may view it as unwanted clutter in their mailboxes. We note that
plaintiff disavows any plan to call dog owners with solicitations. Simply put,
the dog owners would take a few seconds to view the solicitation and discard it
if it is of no interest. We have not been presented with any indication suggesting
there is a reasonable expectation of privacy in the requested personal
information because it could lead to identity theft or other unwelcomed
We recognize there is merit to the trial court's determination that plaintiff's
request seeking personal information for business purposes may not be what the
Legislature envisioned when it enacted OPRA. However, that is not the
barometer to determine whether the request should be denied based on the
statute's language. As with any new legislation, our Legislature could not
foresee every type of information to be sought from the government's file
cabinets, or now computer files, when OPRA was enacted. See N.J.S.A. 47:1A-
9(a) (stating disclosure of any information that is protected by any other state or
federal statute, regulation, executive order, or court rule is exempt from
disclosure). Legislation evolves through amendments to address unforeseen
concerns and societal changes. That said, we are fully aware that a proposed
amendment to OPRA to exempt the disclosure of names and addresses imbedded
in public records has not come to fruition. Bill S. 2819 (2013) provided any
"portion of a personal government record which discloses any personal
information, including the name and address, of any person[,]" is exempt from
OPRA. The bill defined a "[p]ersonal government record" as "a government
record that pertains solely to a pet or home alarm system permit, license, or
registration." Ibid. The bill did not become law. The Legislature, however,
did pass L. 2013, c. 116, which resulted in an amendment to N.J.S.A. 47:1A-
1.1, exempting the disclosure of a person's "name, address, social security
number, [or] telephone number" who applies for a personal firearm or hunting
license. L. 2013, c. 116, § 1.
To further illustrate the Legislature's decision not to amend OPRA to
exempt the disclosure of citizens' names and home addresses, we look back to
the month shortly after its enactment. A provision of Exec. Order No. 21 stated
OPRA exempted the disclosure of names and home addresses, this was
rescinded in Exec. Order No. 26.11 To address the issue, the rescinding order
further directed the Privacy Study Commission "to promptly study the issue of
whether and to what extent the home address and home telephone number of
citizens should be made publicly available by public agencies." Exec. Order
No. 26 ¶5, 34 N.J.R. 3043(b) (Aug. 13, 2002). After holding hearings, the
Commission's final report in 2004 recommended, among other things, non-
disclosure of home telephone numbers, and individuals' home addresses under
OPRA, and "[i]ndividuals should be permitted to opt out of disclosure of their
See footnote 8.
home addresses." STATE OF NEW JERSEY PRIVACY STUDY COMMISSION , FINAL
REPORT: PRIVACY STUDY COMMISSION 16 (2004),
df?sequence=1&isAllowed=y. Despite many OPRA amendments since that
final report was issued, those recommendations have not been incorporated into
the law through legislative action or executive order. Brennan, 233 N.J. at 338-
39. Thus, it is apparent that absent some specific exemption in OPRA, a citizen's
name and address should be disclosed. Because the municipalities can point to
no such exemption regarding a licensee’s name and address set forth in a dog
license, plaintiff's request should have been granted.
We are mindful that through technology, our citizenry has constantly
received unwanted solicitation by emails, or calls to their home phones and cell
phones, from for-profit and non-profit entities offering their services. In fact,
those solicitations are probably viewed as more of a nuisance than the mailings
plaintiff intends to send. Our legislative bodies have heard the public's outcry
and have stepped in and created do-not-call registries regarding such
solicitations. See N.J.S.A. 56:8-127; 47 U.S.C. § 227. Accordingly, should the
Legislature disagree with interpretation of OPRA, it can override our ruling by
adding more definitive restrictions beyond those presently delineated in OPRA
or other laws regarding the access to information that citizens seek. See J.H. v.
R&M Tagliareni, LLC, 239 N.J. 198, 247-48 (2019) (Rabner, C.J. dissenting).
Given our conclusion that plaintiff is entitled to the requested information
under OPRA, we need not address his common law claim. See Brennan, 233 N.J. at 343.