On certification to the Superior Court, Appellate Division, whose opinion is reported at 276 N.J. Super. 183 (1994).
The opinion of the Court was delivered by Garibalid, J. Chief Justice Wilentz and Justices Handler, Pollock, O'Hern, and Stein join in Justice Garibaldi's opinion. Justice Coleman did not participate.
The opinion of the court was delivered by: Garibaldi
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
Higg-A-Rella, Inc. etc., et al. v. County of Essex, etc., et al. (A-155/156/157/158/159/178-94)
Argued May 1, 1995 -- Decided July 19, 1995
GARIBALDI, J., writing for a unanimous Court.
Counties and municipalities are not required to maintain their tax lists on computer. Those that choose to do so must maintain that data in a format consistent with the New Jersey Property Tax System MOD IV, which was developed by the Division of Taxation. Essex County chose to establish and maintain computerized records.
Higg-A-Rella, Inc. (HAR) is a private New Jersey company in the business of selling municipal tax-assessment data to real-estate brokers, attorneys, appraisers, and others. HAR sought to obtain from Essex County a computer tape of the tax-assessment records of every municipality in the county. Although the County provides those records in the form of paper lists, it refused to produce a copy of the computer tapes.
Higg-A-Rella and Blau Appraisal Company filed this action seeking access to a computer copy of the tax-assessment lists. They sought relief under the Right to Know Law and the common-law right of access. The trial court granted summary judgment in favor of defendants Essex County, Essex County Board of Taxation, and various municipalities. The court held that the tax lists were not subject to the Right to Know Law because they were not required to be "maintained." It also concluded that in respect of the common-law right of access, HAR and Blau had not established that their interest in the records outweighed the County's right to determine if and for how much it wanted to sell the computer tapes.
The Appellate Division agreed with the trial court on the inapplicability of the Right to Know Law but held that HAR and Blau had made out a case for relief under the common-law right of access. The Supreme Court granted the petitions for certification of the Essex County Board of Taxation and others.
HELD: Computer tapes of tax-assessment records are common-law documents and are subject to balanced disclosure. Under the facts of this case, a balancing of the interests of the parties results in the release of the records on computer tapes. The case is remanded to the trial court to determine what constitutes a "reasonable fee" for the service to be provided.
1. Plaintiffs' claim to access under the Right to Know Law fails for two reasons. First, the records were not "required to be maintained" by the County. Second, the Legislature has amended the Law to provide that the right to gain access to computerized records subject to the Right to Know Law means the right to "receive printed copies of such records." (pp. 6-10)
2. Plaintiffs have established a common-law interest in the sought-after records. Defendants have asserted no interest in keeping the records confidential -- they are, in fact, public information. Under the common-law balancing test, plaintiffs have the right to obtain computer copies of the tax-assessment lists. The amendment to the Right to Know Law does not govern the application of the common-law right of access. (pp. 10-15)
3. The Court's holding is fact-specific and may not be generalized to all cases in which people seek computer copies of common-law public records. Traditional rules and practices geared towards paper records might not be appropriate for computer records. The form in which information is disseminated can be a factor in the use and access to records. Those new considerations must be factored into the common-law balancing test between the State's interest in nondisclosure and the public's right to access. (pp. 15-20)
4. The parties dispute what would constitute a "reasonable fee" for providing the computer tapes. The record before the Court is insufficient for it to determine what that fee should be. The Court notes, however, that simply capping the fee at the actual, direct cost of copying may not properly account for the real differences between electronic and paper media. The Court also notes that there are a number of bills before the Legislature addressing this complicated issue. In the absence of legislative action in this area, the courts must decide the issue. Accordingly, the case is remanded to the trial court to determine the reasonable fee for a computer-tape copy of the tax-assessment records. (pp. 20-24)
The judgment of the Appellate Division is AFFIRMED as MODIFIED, and the matter is REMANDED to the Superior Court, Law Division, for further proceedings consistent with this opinion.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN, and STEIN join in JUSTICE GARIBALDI's opinion. JUSTICE COLEMAN did not participate.
Plaintiff Higg-A-Rella, Inc., t/a State Information Service, is a private New Jersey corporation in the business of selling municipal tax-assessment data to real-estate brokers, attorneys, appraisers, and other customers. State Information Service sought to obtain from Essex County a computer tape of the tax-assessment records of every municipality within the county. The computer tapes that State Information Service sought to copy contain the same tax lists that are available in hard copy for the public to inspect and photocopy at the Essex County Board of Taxation. State Information Service has obtained such computer copies of tax lists from several other New Jersey counties for a fee. Although Essex County readily provides hard copies of the lists, and although it concedes that copying the computer tapes would involve minimal time and expense, it nonetheless refused to provide a copy of the computer tapes.
Plaintiff Blau Appraisal, also a New Jersey corporation, is a commercial real-estate appraiser. Plaintiff Robert Blau is an attorney who owns property and pays taxes in Essex County. He is the Vice President of Blau Appraisal. Both Blau Appraisal and Robert Blau are customers of State Information Service.
This appeal addresses whether plaintiffs are entitled to obtain a computer copy -- as opposed to a hard copy -- of Essex County's property tax-assessment list under either the Right-to-Know Law, ...