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Burnett v. County of Bergen

August 22, 2008

FRED BURNETT, PLAINTIFF-APPELLANT,
v.
COUNTY OF BERGEN AND BERGEN COUNTY CLERK'S OFFICE, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-6482-06.

The opinion of the court was delivered by: Parker, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued October 24, 2007

Before Judges Wefing, Parker and Coleman.

Plaintiff Fred Burnett appeals from an order entered on December 4, 2006 directing defendants Bergen County and the Bergen County Clerk's Office to submit a written bid detailing the costs of copying the government records requested by plaintiff under the Open Public Records Act (OPRA). Plaintiff appeals from those paragraphs of the order requiring defendants to redact and remove social security numbers (SSNs) from the records; requiring each document be watermarked*fn1 with the copying date; and denying plaintiff's request for counsel fees and costs. We affirm.

Plaintiff is an employee of Data Trace Information Systems (DTIS), "a national title technology company that creates computer-based searching tools for the title insurance industry." DTIS operates "land record databases for over 200 counties in 25 states." According to Kathleen Donovan, the Bergen County Clerk, DTIS "is a compiler and reseller of public and private information which is compiled and gathered on individuals." Plaintiff represents the interests of his employer, DTIS.

In September 2003, plaintiff filed a complaint with the Government Records Council (GRC), an administrative body created under OPRA as an alternative to the Superior Court for addressing access to public records. N.J.S.A. 47:1A-6 and -7. On April 4, 2006, plaintiff withdrew his GRC complaint after two years of litigation because he believed he would not prevail before the GRC and wished "to minimize further uncertainty and delay."

On April 17, 2006, plaintiff filed a Government Records Request Form with the Bergen County Clerk, requesting "microfilm copies of the rolls of microfilm containing the follow[ing] recorded and filed documents from the Books listed below, from the corresponding Beginning Book Number through the most current book." The request named thirteen kinds of realty documents, including deeds, liens, and various mortgage-related documents. Plaintiff grounded his request in OPRA and the common law.

Christine Healey, who is responsible for the information and technology services in the Bergen County Clerk's Office, stated in her certification that plaintiff's request seeks "approximately [eight million] pages of documents which are stored on an estimated 2,559 rolls of archival microfilm." Healey certified that the job would cost in excess of $460,000. Because the Clerk's Office does not have record-imaging technology to allow identification and redaction of SSNs, each microfilm document must be copied to paper or an electronic format.

On April 25, 2006, Donovan advised plaintiff of two deficiencies in his request: (1) it was not filed with the "centralized custodian of the designated records" as required by OPRA; and (2) his ending date for production of the documents was not sufficiently specific. Nevertheless, the Clerk accepted the request and explained the procedure for obtaining bids from an outside vendor to do the copying. She asked plaintiff to choose one of the two procedures for processing the request.

On May 5, 2006, plaintiff responded, choosing a bid process and clarifying the order of copying that he preferred. On May 10, Donovan confirmed the bidding procedure and stated that the copies "will all contain the disclaimer and watermarking as we have discussed."

On May 22, 2006, plaintiff complained that Donovan had not yet advised him of the date on which he could expect to receive the bid. He also denied any agreement with respect to disclaimers and watermarkings, explaining that any discussions had been during settlement negotiations in the prior OPRA proceedings before the GRC and that no agreement had been reached.

In August 2006, plaintiff filed a verified complaint and order to show cause seeking to compel defendants to provide microfilmed copies of all land title records from 1984 to the present. The records sought in the complaint were the same as those specified in plaintiff's April 17, 2006 OPRA request.

On October 25, 2006, the order to show cause was argued in the trial court. After hearing the arguments, Judge Sybil R. Moses rendered a decision on the record ordering defendants to provide the requested records with all SSNs redacted at plaintiff's expense. The trial court found that while the records were accessible under both OPRA and the common law, the right of access did not extend to SSNs appearing on the documents.

Judge Moses noted that "[a] citizen's right . . . to access the public records is not absolute." In determining whether the information sought under OPRA must be released, Judge Moses identified three issues to be considered. First, whether the requested material constituted a public record; second, whether the request sufficiently described the documents sought; and third, the gravamen of plaintiff's claims, whether the law exempted disclosure of SSNs, requiring their redaction before releasing the nearly eight million pages of documents. Judge Moses found that the parties did not dispute that the requested records were public records under OPRA and that plaintiff's request was adequate. Judge Moses began her analysis of the third issue by stating:

When analyzing an OPRA request, and whether or not Social Security numbers are exempt from disclosure I will interpret OPRA in [pari materia] with New Jersey, federal, and sister state statutes and regulations to determine if the requested information is considered confidential, and whether access to the information is inimical to the public interest.

Quoting Michelson v. Gannett, 379 N.J. Super. 611, 621 (App. Div. 2005), the judge commented that "[w]hen the requested material appears on its face to encompass legislatively recognized confidentiality concerns, a court should presume that the release of the government record is not in the public interest." The judge considered Asbury Park Press v. Ocean County Prosecutor's Office, 374 N.J. Super. 312, 331 (Law Div. 2004), in determining that the Legislature intended to prevent disclosure of information -- specifically SSNs -- in "those instances in which a person had a reasonable expectation of privacy."

The judge also considered the Identity Theft Prevention Act (ITPA), passage of which was pending at the time of argument, and the laws of Connecticut and New York addressing identity theft. The judge noted that "[o]ther states, including the Federal Government, have already enacted[,] or are in the process of [enacting,] similar privacy laws to increase the protection of Social Security numbers." Judge Moses concluded that considering the most recent legislative action, considering the law in sister states, protect[ing] Social Security numbers, considering all of the legislation, which is either pending or has been enacted . . . the public interest is implicated in this. . . . [A]ccordingly, I conclude that it is against the public interest to enable theft identity to be encouraged and take place.

The judge also addressed plaintiff's request under a common law analysis. In applying the balancing test articulated by the New Jersey Supreme Court in Loigman v. Kimmelman, 102 N.J. 98 (1986), Judge Moses determined "the effect that disclosure of Social Security numbers may have on citizens of this county . . . who put their Social Security numbers on deeds, liens, [and] mortgages . . . is significant." She concluded that plaintiff's commercial interest in social security numbers was outweighed by the government's interest in maintaining the confidentiality of its citizens' Social Security numbers (SSNs).

An order memorializing Judge Moses' decision was entered on December 4, 2006. Plaintiff filed a timely notice of appeal. The New Jersey Land Title Association was granted amicus curiae status and submitted a brief in support of plaintiff's position. In this appeal, plaintiff argues that the trial court erred in (1) ordering redaction of SSNs; (2) ordering the insertion of a watermark on each document; and (3) denying its application for counsel fees.

I.

The Legislature and the courts have consistently struggled to maintain a balance between the public's right to know and the individual's right to privacy with respect to certain personal information. Here, the question posed is whether a private, commercial enterprise has the right to gather SSNs in order to compile a database for sale to other private, commercial entities for profit.

A. The New Jersey Statutes

In 2002, the Legislature enacted the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, replacing New Jersey's Right to Know Law, N.J.S.A. 47:1A-2 to -4, which was "built on the State's longstanding public policy favoring ready access to most public records."*fn2 Serrano v. South Brunswick Twp., 358 N.J. Super. 352, 363 (App. Div. 2003). New Jersey's public policy favors "access to sufficient information to enable the public to understand and evaluate the reasonableness of the public body's action." South Jersey Pub. Co. v. N.J. Expressway Auth., 124 N.J. 478, 494-95 (1991); accord, Kuehne Chem. Co., Inc. v. N. Jersey Dist. Water Supply Comm'n, 300 N.J. Super. 433, 438 (App. Div.), certif. denied, 151 N.J. 466 (1997).

In OPRA, the Legislature declared that "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." N.J.S.A. 47:1A-1. The Legislature also declared that

[A]ll government records shall be subject to public access unless exempt from such access by [N.J.S.A. 47:1A-1 et seq.] . . . any other statute; resolution of either or both houses of the Legislature; regulation promulgated under the authority of any statute or Executive Order[;] . . . Rules of Court; any federal law, federal regulation or federal order. [N.J.S.A. 47:1A-1.]

The courts should narrowly construe exceptions to the right of access. Serrano, supra, 358 N.J. Super. at 363.

The Legislature, however, tempered public access rights with its finding and declaration 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." N.J.S.A. 47:1A-1. Moreover,

"[b]alancing public access rights and privacy rights in a reasonable and reasoned manner has been an important part of our Judiciary's tradition." Associate Justice Barry T. Albin, Report of the Supreme Court Special Committee on Public Access to Court Records, 25 (2007).

Under OPRA, the term "government record" does not include that portion of any document which discloses a person's SSN. N.J.S.A. 47:1A-1.1. Prior to allowing access to a government record, the government custodian of that record must redact that portion of the document disclosing the SSN unless the SSN is part of a record "required by law to be made, maintained or kept on file by a public agency." N.J.S.A. 47:1A-5a.

There is no dispute that the realty records sought by plaintiff are government records statutorily required to be maintained on file by the county recording officer and that SSNs are part of those records, thereby falling within the OPRA exception to non-disclosure of SSNs. See N.J.S.A. 46:19-1; Dugan v. Camden County Clerk's Office, 376 N.J. Super. 271 (App. Div.); certif. denied, 184 N.J. 209 (2005). Plaintiff argues, therefore, that OPRA itself requires the SSNs to be released. In our view, however, there are competing interests that must be balanced before we can determine whether SSNs included in the records should remain unredacted in documents plaintiff seeks to gather, compile and sell to other users.

In 2005, the Legislature obviously recognized the danger of disclosing SSNs in public documents and adopted N.J.S.A. 47:1-16, effective October 1, 2005. The statute provides that "No person, including any public or private entity, shall print or display in any manner an individual's Social Security number on any document intended for public recording with any county recording authority." N.J.S.A. 47:1-16(a). Prior to recording a document, the recording authority must "delete, strike, obliterate or otherwise expunge" a SSN on a document that has been presented for recording. N.J.S.A. 47:1-16(b). These provisions do not apply, however, to documents originating with a court or taxing authority; documents that when filed by law constitute a non-consensual lien against an individual; any publicly recorded documents required by law to contain a SSN; or any documents filed with or recorded by a County Surrogate. N.J.S.A. 47:1-16(c). In other words, the realty documents filed with the county clerks and sought by plaintiff are excepted from the required redaction of SSNs under N.J.S.A. 47:1-16(a).

The Legislature went even further to protect SSNs in adopting the ITPA, effective January 1, 2006. In enacting the ITPA, the Legislature declared that

g. Social Security numbers are frequently used as identification numbers in many computer files, giving access to information an individual may want kept private and allowing an easy way of linking data bases. Therefore, it is wise to limit access to an individual's Social Security number whenever possible; and

h. It is therefore a valid public purpose for the New Jersey Legislature to ensure that the Social Security numbers of the citizens of the State of New Jersey are less accessible in order to detect and prevent identity theft and to enact certain other protections and remedies ...


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