March 31, 2008
ELIZABETH MASON, PLAINTIFF-APPELLANT,
CITY OF HOBOKEN AND JAMES FARINA, CITY CLERK OF THE CITY OF HOBOKEN IN HIS PROFESSIONAL CAPACITY AS CITY CLERK OF THE CITY OF HOBOKEN, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4747-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 26, 2008
Before Judges Fuentes, Grall and Chambers.
Plaintiff Elizabeth Mason appeals from an order dismissing with prejudice her complaint for access to "all cell phone bills" for all employees of defendant, the City of Hoboken, during a period beginning July 1, 2004, and ending June 30, 2005. She also appeals from an order denying reconsideration of the dismissal. Plaintiff claimed that the City and its City Clerk, defendant James Farina, denied her rights of access under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and the common law.
We affirm the trial court's dismissal of plaintiff's allegation that the City violated OPRA by failing to give her detailed telephone billing records that disclose phone numbers called by City employees. Gannett N.J. Partners v. County of Middlesex, 379 N.J. Super. 205, 216-17 (App. Div. 2005). We reverse, however, the trial court's dismissal of plaintiff's claims based on redaction of the billing records the City gave to plaintiff, which do not include details showing the numbers called by employees. Because the City did not explain why its redactions were authorized by law, as required by N.J.S.A. 47:1A-5(g), or articulate a basis for its need to keep the redacted information confidential, as required by the common law, North Jersey Newspapers Co. v. Passaic County Bd. of Chosen Freeholders, 127 N.J. 9, 16-18 (1992), we remand those claims for further consideration.
The facts are not disputed. On June 30, 2005, plaintiff submitted a written request for public records on a form provided by the City. She asked to review "all cell phone bills for all city employees from July 1, 2004 to June 30, 2005 to include police and fire ([i]temized bills on each call)." Michael Mastrapasqua, a clerk in the office of the City Clerk, forwarded the request to the City's acting Business Administrator, Richard England. England told Mastrapasqua that the City would need at least twenty-one business days to compile the information and obtain a review by the City's attorney. By a voicemail message left on July 5 and letter dated July 6, 2005, Mastrapasqua informed plaintiff of the needed delay. By voicemail messages left on July 27 and August 1, 2005, Mastrapasqua told plaintiff that the documents requested were available for her review.
Plaintiff came to the City Clerk's office to review the documents on August 5, 2005. The City provided monthly bills issued by NEXTEL on an account in the City's name. The bills had been redacted.
The bills that the City provided contain information about monthly use of individual cell phones, not information about individual calls made on those cell phones. The categories of information reported on the bills are: "User Name/Mobile Number," "Adjustments, Access and Other Charges"; "Telecommunications Services Min:Sec Used/Charges"; "Messaging Messages/Charges"; "Nextel Online and Third Party Charges/Taxes KBytes/Charges"; "Nextel Direct Connect Min:Sec Used/Charges"; "Unit Taxes, Fees and Assessments"; and "Total Access and Usage." The foregoing headings are arranged from left to right across the top of the page of each bill. For each "User Name/Mobile Number," there is a single monthly entry for each category of time of use and charges. Thus, the bills reflect nothing about any individual call made by the holder of the phone.
The only information that the City redacted from each bill was listed under the heading "User Name/Mobile Number." No name, other than the City of Hoboken, and no number recognizable as a cell phone number appears. The City did not give plaintiff an explanation of the nature of the information that was redacted, whether user name or mobile number, or its reasons for making the redactions.
Plaintiff filed her complaint alleging violations of her rights under OPRA and the common law on September 16, 2005. The City did not provide the original bills to the trial court for in camera review or submit a certification that explained the redactions.*fn1
We first consider whether the trial court erred in dismissing plaintiff's complaint alleging violations of OPRA. Relying on this court's decision in Gannett, supra, 379 N.J. Super. at 216-17, the trial court concluded that OPRA does not require disclosure of telephone billing records of public employees, and, on that basis, the court concluded that plaintiff could not establish a violation based upon the redaction of the records.
Gannett clearly holds that OPRA does not require disclosure of telephone billing records that detail numbers called by a public employee. Ibid. In that case, this court relied upon N.J.S.A. 47:1A-9(b), which preserves executive and legislative privileges and grants of confidentiality previously established in case law, and on North Jersey Newspapers, supra, 127 N.J. at 16-18, which establishes the confidentiality of a public employee's detailed telephone billing records. Ibid. We also relied upon N.J.S.A. 47:1A-1.1, which requires redaction of unlisted numbers, and N.J.S.A. 47:1A-5(g), which permits a custodian to deny access when compliance would be burdensome. See id. at 21 (noting the burden involved in attempting to identify and redact unlisted phone numbers called by a public employee).
We agree with the trial court that Gannett permits a public agency to deny an OPRA request when the telephone bill at issue discloses phone numbers called by the public employee. To the extent that plaintiff sought billing records of that sort under OPRA, the City was authorized to deny that request for the reasons stated in Gannett, and the complaint was properly dismissed.
We must disagree, however, with the City's claim that Gannett applies to and authorizes the redactions the City made in this case. As previously explained, the bills the City provided to plaintiff do not include information that would disclose either the individuals or phone numbers called by public employees. Accordingly, Gannett does not resolve the questions raised by these bills or the City's redactions.
The City did not provide plaintiff with an explanation for the redactions as required by OPRA. The custodian of a public record must "state the 'specific basis' for the denial of access." Gannett, supra, 379 N.J. Super. at 215 (quoting N.J.S.A. 47:1A-5(g)). Thus, where information is redacted, the custodian must explain why that action is authorized. N.J.S.A. 47:1A-5(g). Moreover, when a person who is denied access files an action in Superior Court, the public agency has "the burden of proving that the denial of access is authorized by law."
N.J.S.A. 47:1A-6. Because the City made no attempt to demonstrate that its redactions were authorized by law or to provide the court with unredacted copies of the bills at issue for in camera review, plaintiff's claim based on the City's violation of OPRA was prematurely dismissed with prejudice. See Gannett, 379 N.J. Super. at 218-20 (discussing the trial court's obligation to review unredacted documents that an agency claims are partially exempt from disclosure). For that reason, we reverse and remand to permit the City to attempt to meet its burden of establishing that its redactions of these bills are authorized by law. See N.J.S.A. 47:1A-6.
Plaintiff also contends that it was error to dismiss her claim based on a common law right of access to the billing records she sought. We agree.
There is no real question that the bills at issue are public records within the meaning of the common law. These bills are necessary to the City's obligation to monitor its expenditure of public funds by its employees, and, on that basis, the bills fall within the common law's broad definition of "public record." Bergen County Improvement Auth. v. North Jersey Media Group, Inc., 370 N.J. Super. 504, 510-11, 517-18 (App. Div.), certif. denied, 182 N.J. 143 (2004); see Nero v. Hyland, 76 N.J. 213, 221-22 (1978).
On a claim of a right of access to common law public records, the court must balance the requestor's interest in acquiring the information against the agency's need for confidentiality. North Jersey Newspapers, supra, 127 N.J. at 20; see Bergen County, supra, 370 N.J. Super. at 519. The Supreme Court has recognized the importance of the public's interest in acquiring knowledge sufficient to "evaluate public officials' use or misuse of public telephones." North Jersey Newspapers, supra, 127 N.J. at 20. In this case, the City has yet to identify its need for keeping confidential the information it has redacted from these bills.
We conclude that the dismissal of plaintiff's common law claim was also premature. Because the City had not yet articulated a basis for resisting disclosure through redaction, the trial court was not in a position to balance the competing interests. Accordingly, we reverse the order of dismissal and remand for further proceedings.
Plaintiff also contends that Hoboken should be estopped from asserting that its cell phone billing records are confidential because it has disclosed such records in the past. We summarily reject that claim on the ground that it lacks sufficient merit to warrant discussion in a written opinion.
Affirmed in part; reversed in part and remanded.