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Gayle Ann Livecchia v. Borough of Mount Arlington

July 13, 2011


On appeal from the Government Records Council, No. 2008-80.

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



Argued March 16, 2011

Before Judges Axelrad,*fn1 R. B. Coleman and Lihotz.

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

In this matter arising under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, we examine whether a reasonable right to privacy precludes release of the destination location of cellular calls made by municipal employees using government-issued cellular phones. The Borough of Mount Arlington (the Borough) appeals from a Government Records Council (GRC) order directing it to release the cell phone records, redacting only the telephone numbers called, and to refund overcharges for duplicating audiotapes of a borough council meeting.*fn2 The Borough challenges the propriety of the GRC order, urging additional redaction is warranted because the Supreme Court has established a privacy interest exists in the people and places one calls. The Borough also argues the GRC erred in ordering a refund of the charges for audiotape replication, which properly included a charge for the cost of the equipment to create the copied audiotape.

Telephone records of a public entity, which are government records as defined under OPRA, may contain some information subject to an individual's privacy interests, such as the telephone number called. However, we reject the Borough's argument suggesting the opinions establishing a right to privacyin telephone records shields the destination location of the calls from public scrutiny. See North Jersey Newspapers Co. v. Passaic Cnty. Bd. of Chosen Freeholders, 127 N.J. 9, 18 (1992); Gannett N.J. Partners, LP v. Cnty. of Middlesex, 379 N.J. Super. 205, 215 (App. Div. 2005). We hold that when limiting a public record request, OPRA's emphasis on access mandates the public entity clearly demonstrate a claim of privacy in all redacted information.

Here, in balancing these countervailing interests, the Borough has failed to show that the destination location of the calls made by municipal employees triggers a protected privacy right, similar to that sheltering the release of telephone numbers or names of persons called. Accordingly, OPRA's presumption favoring public access to the call location information prevails, and we affirm the order of the GRC.

I. Complainant Gayle Ann Livecchia submitted OPRA demands seeking copies of audiotapes recording the Borough's December 10, 2007 council meeting and cell phone records for all borough employees for September and October 2007.*fn3 Livecchia sought to verify whether the authorized limits of cell phone use were exceeded, including whether cell phones were being used for personal, rather than government, business without reimbursement and whether municipal employees made calls from home during working hours. To effectuate her requests, upon notice by the Borough, Livecchia paid $5.00 each for two audiotapes of the council meeting, a fee set by the Borough of Mount Arlington Code § 4-25(D), and $14.00 for twenty-six pages of cell phone records.

When releasing the records, the Borough informed Livecchia "some portions of the documents [we]re redacted as some of the information contained therein [wa]s not considered disclosable as a government record pursuant to OPRA." Both the numbers and destination of the itemized calls were removed. Livecchia asked for cell phone records without redaction and objected to the cost of replicating the audiotapes, suggesting it exceeded the actual cost. The Borough declined to alter its position, remaining steadfast to its initial explanation that redacting the information was permitted because of privacy interests and the audiotape charge was set by ordinance.

Livecchia filed a "Denial of Access Complaint" with the GRC. The GRC provides a forum to facilitate the mediated or adjudicated resolution of disputes regarding access to government records. N.J.S.A. 47:1A-7(b). Livecchia's complaint alleged the Borough violated OPRA by wrongly redacting the destination location included on the cell phone bills and imposing an unreasonable charge for producing audiotapes. After reviewing the parties' submissions, including supporting documentation, the GRC issued an interim order on November 19, 2009.

First, the agency concluded the redaction of the destination location of the cell phone calls was a violation of N.J.S.A. 47:1A-5(g) because no privacy issues were "implicated by the disclosure of a generic city and state without any personal identifiers such as a telephone number[.]" The Borough was ordered to release the cell phone records without removing "the city and state of the location of the cell phone calls" and to certify its compliance. Second, relying on Libertarian Party of Cent. N.J. v. Murphy, 384 N.J. Super. 136, 140-41 (App. Div.), remanded on other grounds by, 188 N.J. 487 (2006), the GRC required additional information to determine whether the audiotape charges exceeded the actual cost of providing the copy, as provided by N.J.S.A. 47:1A-5(b). The Borough was required to certify its costs, which could not include labor or other overhead expenses associated with making the copy, refund any excess charges and verify its compliance.

The Borough supplied additional documentation and sought reconsideration, N.J.A.C. 5:105-2.10, and a stay of the order, N.J.A.C. 5:105-2.12(f). At the GRC's request, the parties completed a Balancing Test Chart, detailing the alleged privacy interests implicated by disclosure of the information and the reasons Livecchia sought disclosure. The Borough supported redacting the information because it fell within a person's expectation of privacy interests. See North Jersey Newspapers, supra, 127 N.J. at 18 (stating a person's expectation of privacy extends to telephone records). Livecchia expressed a need to obtain the call location information to determine whether borough employees were using municipal cell phones for personal use without reimbursement and to prove whether the Borough Administrator used the phone for personal calls from home, while absent from work.

The Executive Director considered the submissions and issued supplemental findings and recommendations. On April 8, 2010, the GRC unanimously adopted those findings and recommendations and entered its order. The order stated the Borough "failed to bear [the] burden of proof that the redactions made to the requested cell phone bills were authorized[,]" N.J.S.A. 47:1A-5(g), or necessary and did not sustain its burden to warrant reconsideration of the GRC's November 19, 2009 Order. The Borough was ordered to produce the records without redacting the call locations and to refund $8.42 of the charge collected for the audiotapes. This appeal ensued. N.J.S.A. 47:1A-7(e).

II. A.Our limited review is guided by well-settled principles. Univ. Cottage Club of Princeton N.J. Corp. v. N.J. Dep't. of Envtl. Prot., 191 N.J. 38, 48 (2007). We are obliged to afford substantial deference to decisions of state administrative agencies. Cooper Univ. Hosp. v. Jacobs, 191 N.J. 125, 140 (2007); St. Peter's Univ. Hosp. v. Lacy, 185 N.J. 1, 13-15 (2005). Generally, actions of administrative agencies are entitled to a presumption of reasonableness. E. Orange Bd. of Educ. v. N.J. Sch. Constr. Corp., 405 N.J. Super. 132, 143 (App.Div.) (citing City of Newark v. Natural Res. Council, 82 N.J. 530,539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245(1980)), certif. denied, 199 N.J. 540 (2009). We do not substitute our judgment for that of the agency, Div. of Alcoholic Beverage Control v. Maynards, Inc., 192 N.J. 158, 183 (2007), and afford substantial deference to an agency's interpretation of the statute it is charged with enforcing. R & R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999). We will not upset the ultimate determination of an agency unless it is shown to be arbitrary, capricious or unreasonable. Paff v. N.J. Dep't of Labor, 392 N.J. Super. 334, 340 (App. Div. 2007). Consequently, our role is limited to four inquiries: (1) whether the agency's decision comports with federal and state constitutional requirements; (2) whether the agency's action is supported by express or implied legislative ...

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