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Burnett v. County of Bergen

April 27, 2009

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



On certification to the Superior Court, Appellate Division, whose opinion is reported at 402 N.J. Super. 319 (2008).

SYLLABUS BY THE COURT

(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).

The Court considers under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, a request by a commercial entity for the bulk release of eight million pages of land title records, extending over a period of twenty-two years, which the entity intends to include in a searchable database. Because the requested records contain citizens' social security numbers (SSNs), along with other personal identifiers, the Court determines whether the SSNs must be redacted before the records are released and, if so, whether the requestor or the custodian of the records must pay the cost of redaction.

On April 17, 2006, plaintiff Fred Burnett filed a formal request with the Bergen County Clerk (Bergen County) for microfilm copies of rolls of microfilm containing assignments of mortgages, deeds, discharges or satisfactions of mortgages, liens and other land title documents for the period spanning January 1984 to the present. Burnett sought the information on behalf of his employer, Data Trace Services, a technology company that operates land record databases for more than 200 counties in 25 states and sells electronic access to information it gathers. In total, Burnett's request encompassed about eight million pages of documents, stored on an estimated 2,559 rolls of microfilm. The requested records contain various personal identifiers including names, addresses, SSNs, signatures, and marital status. The parties exchanged correspondence on the request, but did not resolve when the documents would be ready or at what cost. Among other things, Bergen County advised that a disclaimer or watermark would appear on the copies so that they would not be mistaken for current, official records.

On August 30, 2006, Burnett filed a verified complaint and order to show cause seeking a declaratory judgment and injunction requiring Bergen County to inform him promptly of the copying fee and the date the records would be available. Bergen County responded that it did not have the capability, staffing, or budget financing to comply in light of the size of the request and the legal requirement that SSNs be redacted before the documents could be released. Because no technology existed to redact information directly from microfilm, Bergen County explained that the film would have to be converted to paper or an electronic format, then examined visually or scanned electronically so that SSNs could be masked or blocked. A bid obtained from a private vendor estimated the cost of copying, examining, and redacting the records at more than $460,000.

At argument, the trial court considered whether the records could be provided without redacting the SSNs. The court acknowledged that OPRA favors a broad right of access to government records, but found that the Legislature intended to provide against disclosure of information in which a person had a reasonable expectation of privacy. The court discussed federal and state laws concerning identity theft and privacy and found that they revealed a deep concern for the confidentiality of SSNs. Concluding that it was against the public interest to enable identity theft to take place, the court issued an order directing Bergen County to inform Burnett of the copying fee for the records, redact any SSNs from the records sought, and insert a watermark stating the date of copying on each document.

The Appellate Division affirmed on different grounds. 402 N.J. Super. 319 (2008). The panel concluded that redaction of the SSNs was not required by OPRA or other New Jersey statutes. However, the panel determined that the privacy protections guaranteed by article I, section 1 of the New Jersey Constitution required redaction of the SSNs due, in part, to the threat of harm from identity theft if SSNs were released in large numbers. The panel held further that Burnett had consented to the trial court's ruling on the watermark and could not challenge it on appeal.

HELD: Under the circumstances of this case, a balancing of the Open Public Records Act's twin aims of protecting a citizen's personal information and providing ready access to government records requires that Bergen County redact the social security numbers from the land title documents sought by the requestor before providing them. The cost of redaction will be borne by the requestor.

1. OPRA provides the citizens of this State with ready access to government records. The statute directs that all government records, as defined by N.J.S.A. 47:1A-1.1, shall be subject to public access and that any limitations on access shall be construed in favor of the public's right of access. OPRA broadly defines "government records" to include documents made, maintained or kept in the course of official government business. Two competing provisions of OPRA are relevant to this case. N.J.S.A. 47:1A-1 ("privacy clause" or "section 1") commands that public agencies must safeguard from public access a citizen's personal information if disclosure would violate the citizen's reasonable expectation of privacy. N.J.S.A. 47:1A-5(a) ("section 5") directs the redaction of any information that discloses the social security number, credit card number, unlisted telephone number or driver's license number of any person "except that a social security number contained in a record required by law to be made, maintained or kept on file by a public agency shall be disclosed when access to the document or disclosure of that information is not otherwise prohibited" by law. In other words, OPRA allows for disclosure of SSNs that happen to appear on documents that must otherwise be filed, and at the same time cautions against allowing access to records that would violate a citizen's reasonable privacy interest. In this case, those contrary aims collide. (Pp. 12-15).

2. A literal reading of section 5's language about SSNs could lead to absurd results. Nothing in section 5 would prevent a felon with multiple, prior convictions for identity theft, who has no legitimate reason for access, from requesting and obtaining records containing millions of SSNs linked to particular names and addresses. The Court doubts that the Legislature intended this result. After reviewing OPRA's legislative history, the Court determines to harmonize the language in sections 1 and 5 and balance the interests advanced: ready access to government documents while safeguarding citizens' reasonable expectations of privacy. To balance these interests, the Court adopts the factors set forth in Doe v. Poritz, 142 N.J. 1, 88 (1995), which examine (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. (Pp. 15-22).

3. Here, the realty records Burnett seeks are government records under OPRA. But for the SSNs, the documents are plainly subject to disclosure. Section 5's obligation to redact SSNs does not apply because the SSNs in question are contained in realty records required by law to be made, maintained, or kept on file by a public agency. However, OPRA's privacy clause is directly implicated because the requested documents contain SSNs along with the names, addresses, signatures, and marital status of a substantial number of New Jersey residents. The Court therefore applies the factors outlined in Doe to the facts of this case. (Pp. 23-24).

4. Considering the first two factors-the type of records sought and the information they contain-the Court notes that the requested documents contain details about ownership of properties along with personal information about the owners. The Court acknowledges that these are public records and that the individual records are available and will remain available for copying and inspection at clerks' offices. Nevertheless, the Court explains that the bulk disclosure of the records to a company planning to include them in a searchable, electronic database would eliminate the practical obscurity that now envelops them, thereby altering the privacy interest implicated by disclosure of the information. Privacy interests may fade when information is a matter of public record, but they are not nonexistent. (Pp. 24-28).

5. Factors three and four address the potential for harm from disclosure. Burnett's plan to place documents containing SSNs in a centralized, easy-to-search computer database presents the risk of identity theft linked to the misuse of SSNs. Furthermore, there is no practical way to give advance notice to an untold number of citizens whose personal identifiers would be disclosed under Burnett's request. These citizens had no reason to expect that their SSNs might be sold for inclusion in a searchable, computerized database and they would not know to request that their SSNs be deleted before they are disseminated more widely. (Pp. 28-32).

6. The fifth factor is the adequacy of safeguards to prevent unauthorized disclosure. Here, there would be no meaningful control over dissemination of the SSNs after the release of the records. Nothing would prevent Burnett's customers from using the database for inappropriate purposes and nothing would prevent Burnett from reselling the database or placing it on the Internet if its marketing approach were to change. With regard to the sixth factor, the need for access, Burnett concedes that it has no need for the information the trial court ordered redacted, and wants only the underlying documents. Although the Court explains that it does not consider the purpose behind an OPRA request as a general rule, when legitimate privacy concerns exist that require a balancing of interests and consideration of the need for access, it is appropriate to ask whether unredacted disclosure will further the core purposes of OPRA, i.e., to maximize public knowledge about public affairs in order to ensure an informed citizenry and to minimize the evils inherent in a secluded process. OPRA's goals are not furthered by disclosing SSNs that belong to private citizens to commercial compilers of computer databases. Were a similar request made by an investigative reporter or public interest group examining land recording practices of local government, this factor would weigh differently in the balancing test. (Pp. 32-34).

7. The final factor focuses on whether an express statutory mandate, public policy, or recognized public interest favors public access. The Court notes N.J.S.A. 47:1-16, adopted in 2005, which expressly prohibits the printing or displaying of an individual's SSN on documents intended for public recording with any county recording authority. The Court notes also the Identity Theft Prevention Act, effective January 1, 2006, which prohibits public posting or displaying of SSNs or intentionally communicating or otherwise making SSNs available to the public, but exempts records made available under OPRA. N.J.S.A. 56:8-164(a)(4). Although data aggregators like Burnett provide a benefit to the public by making title searches more efficient and less expensive, easy access to unredacted records at a central, computerized location also provides easy access to the SSNs on those records, which can lead to serious consequences. (Pp. 34-36).

8. The Court finds that the twin aims of public access and the protection of personal information weigh in favor of redacting SSNs from the requested records before releasing them. The Court limits this holding to the facts of this case involving a bulk request for millions of realty records, spanning decades, containing a substantial number of SSNs the requestor does not need, whose dissemination via a centralized computer database would pose an increased risk of identity theft to countless individuals with no possibility of advance notice to those individuals and where the request does not further OPRA's core aim of transparency in government. With regard to costs, OPRA provides that costs may be passed on to requestors and allows for recovery of actual duplication costs. In addition, requestors may be assessed costs for preparation work. Bergen County forwarded Burnett the bid for the anticipated actual cost of redaction and duplication of the requested records. Although the cost may prove prohibitively expensive, it is still less than the statutorily mandated maximum of $0.25 per page. The Court agrees, therefore, with the trial court's ruling that the cost of redaction and duplication is to be borne by Burnett. (Pp. 37-38).

9. With regard to the watermark, the Court finds that the parties did not enter a mutual, binding agreement on the issue of watermarking. Instead, their agreement was conditioned on the assumption that the cost of watermarking would be minimal. However, watermarking will add $20,000 to the cost, which is not within the "minimal" amount the parties contemplated or agreed to. Although no court has reviewed plaintiff's substantive arguments about whether OPRA authorizes watermarking of public records, the Court declines to do so now, finding that the issue is moot because Burnett indicated before the trial court, Appellate Division, and this Court that he would not pursue the requested records if required to pay the estimated cost that was obtained by Bergen County. If plaintiff changes his mind and decides to pay for the redacted records, he can petition the trial court for a ruling on the merits of watermarking. (Pp. 38-41).

The judgment of the Appellate Division is AFFIRMED in part, as MODIFIED, and REVERSED in part.

JUSTICE ALBIN, DISSENTING, joined by JUSTICE LONG, is of the opinion that OPRA requires Bergen County to provide the requested records at the cost of reproducing the microfilm, and although the Clerk is at liberty to remove SSNs from the records, it must bear the cost.

JUSTICES LaVECCHIA, WALLACE, RIVERA-SOTO and HOENS join in CHIEF JUSTICE RABNER's opinion. JUSTICE ALBIN, joined by JUSTICE LONG, filed a separate, dissenting opinion.

The opinion of the court was delivered by: Chief Justice Rabner

Argued November 17, 2008

The Open Public Records Act (OPRA) requires that government records "shall be readily accessible" to the citizens of this State, subject to certain exceptions. N.J.S.A. 47:1A-1. Underlying that directive is the bedrock principle that our government works best when its activities are well-known to the public it serves. With broad public access to information about how state and local governments operate, citizens and the media can play a watchful role in curbing wasteful government spending and guarding against corruption and misconduct.

OPRA simultaneously requires public agencies "to safeguard from public access a citizen's personal information" when disclosure would violate a person's "reasonable expectation of privacy." Ibid. That concern is squarely implicated here by a single request for eight million pages of land title records of all types, extending over a period of twenty-two years, which contain names, addresses, social security numbers, and signatures of countless citizens of this State. The request was made on behalf of a commercial business planning to catalogue and sell the information by way of an easy-to-search computerized database. Were that to occur, an untold number of citizens would face an increased risk of identity theft.

OPRA's twin aims -- of ready access to government records and protection of a citizen's personal information -- require a careful balancing of the interests at stake. Here, that balance is heavily influenced by concerns about the bulk sale and disclosure of a large amount of social security numbers -- which plaintiff admittedly does not need, and which are not an essential part of the records sought. In addition, the requested records are not related to OPRA's core concern of transparency in government.

Under the unusual circumstances of this case, the balance tips in favor of the citizens' reasonable expectation of privacy in one respect: the records can be disclosed after redaction of individual social security numbers. We therefore agree with the trial court's order to that effect, along with its conclusion that the cost of redaction should be borne by the requestor. Because the Appellate Division upheld redaction on different grounds, we affirm and modify its judgment in part. We also vacate the portion of the judgment that upholds watermarking the documents but do not address the issue further because it is moot.

I.

Data Trace Information Services (Data Trace) is a technology company that creates computer-based search tools for the title insurance industry. In simple terms, Data Trace compiles, organizes, and sells electronic access to title information it gathers. The company operates land record databases for more than 200 counties in 25 states. It enables title insurance companies to connect regional title databases and to access them using computer software. Plaintiff Fred Burnett is employed by Data Trace and is acting on its behalf.

Defendants are the County of Bergen and the Bergen County Clerk's Office in their capacity as custodians of government records.

On April 17, 2006, plaintiff filed a formal request with the Bergen County Clerk for microfilm copies of rolls of microfilm containing the following records: assignments of mortgages, deeds, discharges/satisfactions of mortgages, lis pendens, miscellaneous, mortgages, releases of mortgages, vacations, construction liens, federal liens, inheritance tax waivers, institutional liens (a request plaintiff later withdrew), and releases of judgment. Plaintiff sought those records for the period spanning January 1984 to the most current at the time. In total, plaintiff asked for about eight million pages of documents, stored on an estimated 2,559 rolls of microfilm, from 1984 to 2006. The realty records contained various personal identifiers including names, addresses, social security numbers (SSNs), signatures, and information on marital status. In support of the request, plaintiff relied on OPRA, N.J.S.A. 47:1A-1 to -13, and the common law right of access.

The Bergen County Clerk's Office maintains hard copies of the above records, available for inspection by the public during normal business hours, and microfilm copies of the same records for archival and security purposes.

The parties exchanged correspondence in response to the request but did not resolve when the documents would be ready or at what cost. Among other things, defendants advised that a disclaimer or watermark would appear on the copies so that they would not be mistaken for current, official records.

On August 30, 2006, plaintiff filed a verified complaint and order to show cause seeking a declaratory judgment and injunction requiring defendants to inform him promptly of the copying fee and the date the records would be available. In their answer, defendants asserted they did "not have the capability, staffing or budgetary financing to comply" in light of the size of the request and the requirement that SSNs be redacted before the documents could be released. Because no technology exists to redact information directly from microfilm, defendants explained that the microfilm would have to be converted to paper or an electronic format and then examined visually or scanned electronically so that SSNs could be masked or blocked. According to a bid defendants obtained from a private vendor, the cost of copying, examining, and redacting the records was more than $460,000.*fn1

On October 25, 2006, the parties appeared before the Honorable Sybil R. Moses, then Assignment Judge of the Superior Court. The focus of the argument was whether plaintiffs could receive unredacted copies of the records they requested. Judge Moses acknowledged that OPRA favored granting citizens a broad right of access to government documents. She also noted that the Legislature intended to provide against disclosure in "those instances in which a person had a reasonable expectation of privacy." (quoting Asbury Park Press v. Ocean County Prosecutor's Office, 374 N.J. Super. 312, 331 (App. Div. 2004)). Thus, the trial judge framed the discussion by addressing whether SSNs are exempt from redaction under OPRA, per N.J.S.A. 47:1A-5(a), or whether citizens have a reasonable expectation of privacy in their SSNs on a publicly recorded document. The trial court noted the proliferation of federal and state laws concerning identity theft and privacy, including N.J.S.A. 47:1-16, which she found revealed the Legislature's "deep concern for the confidentiality" of SSNs. 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 . . . there was and is not only an expectation of privacy . . . but . . . 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 trial court also analyzed plaintiff's claim under the common law right of access and concluded that plaintiff's commercial interest in getting unaltered documents was outweighed by the government's interest in protecting the confidentiality of its citizens' SSNs. Plaintiff did not pursue that claim on appeal.

The trial court issued an order on December 4, 2006 directing defendants to (1) inform plaintiff of the copying fee for the records; (2) redact any SSNs from the records sought; and (3) insert a watermark stating the date of copying on each document.

Plaintiff appealed. In a published opinion, the Appellate Division affirmed the trial court's order on different grounds. Burnett v. County of Bergen, 402 N.J. Super. 319, 322, 343 (App. Div. 2008).

The panel canvassed relevant New Jersey statutes and concluded that SSNs on realty records are exempt from the redaction requirements of OPRA, id. at 327 (citing N.J.S.A. 47:1A-5(a)), and that other statutes that recognize the danger of disclosing SSNs likewise did not require redaction, id. at 328-29 (citing N.J.S.A. 47:1-16 (prohibiting prospective recording of documents with SSNs, unless SSNs required by law to be filed); N.J.S.A. 56:11-45, :8-164 (prohibiting display of SSNs under Identity Theft Prevention Act unless document covered by OPRA)). Nevertheless, the panel found that "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." Id. at 327-28.

The panel went on to examine the privacy protections guaranteed by article I, section 1 of the New Jersey Constitution. Id. at 332-35. The panel found that "[w]hen diverse pieces of information, such as a name, SSN, address, bank or mortgage holder and simulated signature, are assembled into a package --- as they are in the records sought by plaintiff to be compiled in a database and sold for commercial purposes -- a privacy interest is implicated." Id. at 339 (citing Doe v. Poritz, 142 N.J. 1, 87 (1995)).

After employing the balancing test set forth in Doe, the panel concluded that the important privacy interests at stake required redaction of the SSNs. Id. at 343. The panel noted the real threat of harm from identity theft and other fraud if SSNs were released in large number. Id. at 340-41. It also found that SSNs were not essential to provide notice of property ownership when names, addresses and lot and block numbers plainly identified the properties. Id. at 341. In addition, the panel observed that the information sought was for commercial purposes. Id. at 343. On balance, the Appellate Division concluded that the right of privacy under the New Jersey Constitution "establishes protection for New Jersey citizens from wholesale disclosure of SSNs through OPRA requests for masses of recorded realty documents." Ibid.

With regard to the trial court's order requiring watermarking on each document, the panel concluded that plaintiff consented to the ruling at oral argument and therefore could not challenge it on appeal. Id. at 343-45.

We granted plaintiff's petition for certification. 196 N.J. 593 (2008).

II.

Plaintiff argues that the decision of the Appellate Division should be reversed and the documents he seeks should be released without redaction. He contends that the Appellate Division erred in creating a constitutional right to privacy in SSNs found in recorded realty documents; that the panel misapplied Doe's balancing test and mistakenly found a reasonable expectation of privacy in the records; that OPRA expressly prohibits defendants from redacting SSNs from recorded realty documents; that the parties did not reach an agreement on watermarking; and that OPRA does not permit such markings.

Defendants agree with the decision of the Appellate Division and maintain they acted properly in not disclosing records before redacting them. They argue that citizens have a constitutional privacy interest that protects against disclosure of their SSNs; that individuals have a reasonable expectation of privacy in their SSNs; that New Jersey law requires redaction of SSNs from documents before they may be released; and that plaintiff consented to watermarking and thus cannot challenge the trial court's order on that issue.

We granted amicus curiae status to the following organizations: the New Jersey Land Title Association (NJLTA); the Consumer Data Industry Association, LexisNexis, the National Association of Professional Background Screeners, and the Real Estate Information Professionals Association (collectively CDIA); the American Civil Liberties Union of New Jersey and the Privacy Rights Clearinghouse (collectively ACLU); and the Attorney General.

NJLTA and CDIA filed briefs on behalf of plaintiff and agree with his statutory arguments about OPRA. NJLTA adds that the use of computer technology to examine land title records will reduce the time and expense involved in title searches. CDIA also challenges the Appellate Division's finding of a constitutional right to privacy in this case.

The Attorney General argues that this case can be decided on statutory grounds; that the Court should therefore decline to reach the question of a constitutional right to privacy; that OPRA requires a balancing of interests when disclosure would violate a citizen's reasonable expectation of privacy; that redaction of SSNs in this matter is required under that balancing test; and that OPRA does not prohibit watermarking.

The ACLU maintains that disclosure of SSNs in this case would violate a citizen's reasonable expectation of privacy under both the State Constitution and OPRA.

III.

We start by analyzing the statute. Because we find that OPRA's language provides for a balancing of the interests in privacy and disclosure, and for redaction of SSNs under the circumstances of this case, we do not reach the constitutional question the Appellate Division addressed and therefore do not endorse its conclusion. See Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81, 109 (1992) (Pollock, J., concurring) ("[C]onstitutional questions should not be reached and resolved unless absolutely imperative in the disposition of the ...


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