On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-2589-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Nugent.
This appeal requires us to address the issue of whether a mailing list setting forth the names and addresses of self-identified "senior citizens" is subject to the dissemination provision of the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. The list was compiled by defendant County of Union to allow for distribution of a Senior Newsletter. Plaintiff Tina Renna requested a copy of the mailing list, but defendant resisted providing the list in full. Instead, it redacted the addresses of persons appearing on the mailing list, asserting that the senior citizens' privacy interests precluded disclosure of this information under OPRA.
Plaintiff brought an action challenging the redaction of the addresses. The trial judge concluded that plaintiff was entitled to the addresses. In addition, the judge ordered defendant to pay enhanced fees and costs to plaintiff's attorney.
Defendant appeals both issues. While we affirm the order requiring defendant to provide an unredacted list, we urge the use of a disclaimer informing those who voluntarily submit their names and addresses for such a list that such listing is subject to disclosure under OPRA. As to the counsel fees, we remand for further proceedings, and in all other respects, we affirm.
The relevant facts are simply stated. Defendant compiled a list of names and addresses of senior citizens residing in Union County for purposes of contacting those residents through the Union County Senior Newsletter. Although the genesis of the list is not set forth in the record, according to defendant, "senior constituents may add their name to the Senior mailing list at various sign[-]ups and events throughout the County." The newsletter provides information about services and programs of interest to senior citizens in Union County. According to Sebastian D'Elia, the Communications Director in the County Office of Communications and Public Information, defendant never notified any of the individuals named on the list of the possibility that their home addresses could be disclosed to third parties. More important, the record is devoid of any limitation on those who are not senior citizens from signing up for and receiving the newsletter.
Plaintiff maintains a website titled "Union County Watchdog" (the Watchdog). Through this website, plaintiff informs the public of information related to Union County, including county meeting minutes, ordinances, resolutions and public employee salary information. Plaintiff seeks access to the mailing list so that the Watchdog may disseminate information in furtherance of the Watchdog's non-profit civic activities, which includes monitoring the Union County government and holding government officials accountable.
To this end, plaintiff requested a copy of the list under OPRA. Defendant's custodian of records provided a list of names to plaintiff, redacting the home addresses associated with the names listed. Defendant did this based on the privacy exemption under OPRA. N.J.S.A. 47:1A-5.*fn1
Plaintiff then filed a complaint against defendant, alleging a violation of OPRA due to the redaction of the list members' home addresses. Plaintiff sought an order requiring defendant to provide her with a complete unredacted list and an award of counsel fees.
In a written opinion, Judge Brock determined that plaintiff was entitled to an unredacted copy of the list. The judge applied the factors enunciated by the Supreme Court in Burnett v. County of Bergen, 198 N.J. 408 (2009), to balance OPRA's twin aims of protecting a citizen's personal information, when disclosure would violate a person's reasonable expectation of privacy, and providing ready access to government records to promote transparency in government. Id. at 414. Specifically, the judge found that the lack of a nexus between the names and addresses of the individuals to any other personal identifier, such as a social security number, reduced any potential effect on those individuals' privacy interests. She found that the balance weighed in favor of granting access to the list members' addresses and that the custodian failed to establish that withholding the addresses was authorized under OPRA.
This appeal followed. On appeal, defendant asserts that the judge failed to consider that those signing up for the newsletter were never informed that their home addresses would be subject to disclosure. Defendant also claimed that in balancing the interests in the OPRA analysis, the judge failed to appropriately consider that senior citizens are particularly vulnerable to crime and fraud. As to the award of counsel fees, defendant asserts that the fee enhancement should not have been allowed because the factors identified in New Jerseyans for Death Penalty Moratorium v. N.J. Dep't of Corr., 185 N.J. 137 (2005) (NJDPM), were not properly considered.
Defendant argues that a failure to redact home addresses will result in a breach of its OPRA-mandated obligation to safeguard constituents' private information. Defendant concedes that an individual's home address is not found in OPRA's list of exceptions requiring redaction but argues that since the home addresses are attached to another personal identifier - status as senior citizen - the addresses should not be disclosed.
In sum, defendant's argument is premised on the assertion that the trial court failed to give sufficient weight to three specific factors enunciated in Doe v. Poritz, 147 N.J. 1 (1995). It argues that the court failed to adequately consider: (1) the potential for harm in any subsequent nonconsensual disclosure; (2) the adequacy of safeguards to prevent unauthorized disclosure; and (3) the existence of any express statutory mandate, articulated public policy, or other recognized public interest militating toward access.*fn2
Plaintiff counters by asserting that home addresses are public records, which are not subject to any categorical exception to disclosure. Specifically, plaintiff contends that while there is a limited privacy exception for home addresses, only when home addresses are attached to other personal identifiers does an ...