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Carter v. Doe

Supreme Court of New Jersey

August 3, 2017

JEFF CARTER, Third-Party Plaintiff-Respondent,
v.
JOHN DOE, Third-Party Defendant.

          Argued January 18, 2017

         On certification to the Superior Court, Appellate Division, whose opinion is reported at 443 N.J.Super. 238 (App. Div. 2015).

          John C. Gillespie and George M. Morris argued the cause for appellant New Jersey State Firemen's Association (Parker McCay, attorneys; Stacy L. Moore, Jr., on the briefs).

          C.J. Griffin argued the cause for respondent Jeff Carter (Pashman Stein, attorneys; C.J. Griffin and Walter M. Luers, of counsel and on the briefs).

          Thomas J. Cafferty argued the cause for amicus curiae New Jersey Press Association (Gibbons, attorneys; Thomas J. Cafferty, Nomi I. Lowy, and Lauren James-Weir, on the briefs).

         SOLOMON, J., writing for the Court.

         The issue in this appeal is whether, after a public entity denies a citizen's record request, the New Jersey

         Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and the common law right of access preclude the public entity from instituting a proceeding under the Declaratory Judgment Act (DJA), N.J.S.A. 2A: 16-50 to -62. The Court also decides whether the records sought in this case-financial relief checks that the New Jersey Firemen's Association (Association) issued to one of its members, John Doe-are exempt from disclosure under OPRA and the common law right of access.

         Plaintiff Jeff Carter submitted a request for the Association to release Doe's financial relief application and supporting documentation, as well as the relief checks the Association provided to Doe. Carter's motivation for the request was to publicize the fact that Doe had been charged with endangering the welfare of a child and consequently resigned from his position with the Millstone Valley Fire Department. It was Carter's belief that Doe should not "receiv[e] hardship benefits for behavior that appear[ed] to be caused entirely by [Doe's] own actions."

         The vice president of the Association denied Carter's request via e-mail, stating that relief applicants have a reasonable expectation of privacy that would be violated if their application materials, which contain detailed personal financial information, were disclosed. In an e-mail response, Carter reiterated that, because he did not seek any "legitimately defined privileged or exempt information, " the Association was obligated to release the requested financial records with the appropriate redactions. The Association refused to disclose Doe's records, claiming the detailed personal financial information contained in the application raised privacy concerns.

         When efforts to amicably resolve the matter proved unsuccessful, the Association filed a declaratory judgment complaint and proposed order to show cause to establish its obligation to disclose the financial records that Carter requested. The trial court agreed with the Association that applicants have a personal right of privacy in their relief applications and entered the Association's order to show cause. After retaining counsel, Carter filed his opposition to the order to show cause, seeking dismissal of the complaint and arguing that the Association's declaratory judgment action was barred by section 6 of OPRA, N.J.S.A. 47:1 A-6, which vests the right to institute proceedings relating to OPRA solely in the records requestor.

         The trial court reviewed in camera Doe's financial relief application and, after oral argument, denied Carter's request for dismissal. After applying the seven factors outlined in Burnett v. County of Bergen, 198 N.J. 408, 427 (2009) (adopting factors announced in Doe v. Poritz, 142 NI 1, 88 (1995), to analyze OPRA), the court held that OPRA's privacy exemption barred release of relief applications, names of applicants, and amounts paid through the Association's financial assistance programs. The court then balanced the six factors set forth in Loigman v. Kimmelman, 102 N.J. 98, 113 (1986), and determined that the common law did not require disclosure.

         Appearing pro se, Carter appealed. The Appellate Division reversed, holding that OPRA provides the exclusive remedy in cases involving public records requests and that the Legislature made clear that only requestors are entitled to seek review of OPRA decisions. 443 N.J.Super. 238, 245 (App. Div. 2015). In addition, the Appellate Division found that neither OPRA's privacy exemption, nor the privacy considerations encompassed in the common law right of access, could shield Doe's payment records. Id. at 269.

         The Court granted the Association's petition for certification. 224 N.J. 528 (2016).

         HELD: OPRA does not, in all instances, prohibit a public entity from instituting proceedings under the Declaratory Judgment Act to determine whether records are subject to disclosure. After carefully balancing the public's interest in accessing information against the private interest in confidentiality, the Court finds that the relief checks to Doe are exempt from disclosure under OPRA and the common law right of access.

         1. By vesting New Jersey courts with the "power to declare rights, status and other legal relations, whether or not further relief is or could be claimed, " N.J.S.A. 2A: 16-52, the DJA provides all individuals and organizations, public or private, with a forum to present bona fide legal issues to the court for resolution, N.J.S.A. 2A: 16-53. A declaratory judgment claim is ripe for adjudication only when there is an actual controversy, meaning that the facts present concrete contested issues conclusively affecting the parties' adverse interests. There is ordinarily no reason to invoke the provisions of the DJA where another adequate remedy is available, (pp. 13-16)

         2. OPRA was designed to promote transparency in the operation of government and makes all government records presumptively accessible to the public unless an exemption applies. N.J.S.A. 47:1A-1. OPRA's twenty-one exemptions are to be "construed in favor of the public's right of access[.]" N.J.S.A. 47:1A-1. If a records request is denied, section 6 of OPRA provides that the requesting party may "institute a proceeding to challenge the custodian's decision by filing an action in Superior Court" or with the Government Records Council. N.J.S.A. 47:lA-6. (pp. 16-17)

         3. OPRA recognizes a privacy exception by requiring public agencies "to safeguard from public access a citizen's personal information" when "disclosure thereof would violate the citizen's reasonable expectation of privacy." N.J.S.A. 47:1 A-l; Burnett, supra, 198 NX at 414, 427-28. When OPRA's privacy exemption is at issue, the Burnett seven-factor balancing test is applied to determine whether the citizen's interest in privacy outweighs the public's interest in governmental transparency, (pp. 17-18)

         4. The DJA provides broad access to our courts as a means by which rights, obligations and status may be adjudicated in cases involving a controversy that has not yet reached the stage at which either party may seek a coercive remedy. Conversely, OPRA limits access to the courts by conferring the right to initiate a suit only upon the requestor, after a public agency's denial of access. N.J.S.A. 47:1 A-6. Here, The Association and Carter had "genuine differences" as to the Association's duty to disclose under OPRA. However, the Association's denial of access extinguished the controversy because the Association had determined its legal obligation with regard to the relief checks. At that point, it was not appropriate for the Association to rely on the DJA because the controversy had reached a stage at which Carter could seek a coercive remedy by way of section 6 of OPRA. Section 6 of OPRA's special procedure for review of an agency's denial must prevail over the general DJA statute. After an agency has denied a request, only the requestor may seek judicial review of the agency's decision, (pp. 19-20)

         5. Although the Court determines that the Association's DJA action is moot, in the interest of judicial economy, it nevertheless decides whether OPRA's privacy exception applies to the relief checks issued to Doe. As this case presents a clash between two of OPRA's key competing interests-disclosure and protection of privacy interests- the Court applies the seven-factor test adopted in Burnett. Because all factors weigh in favor of non-disclosure, the Association properly denied Carter's request in order to protect Doe's privacy interest in the records, (pp. 21-23)

         6. Like OPRA, when confidentiality concerns are raised under the common law right of access, courts balance the requestor's interest in disclosure against the government's interest in confidentiality. Loigman, supra, 102 N.J. at 108. A balancing of the six Loigman factors in this case militates against disclosure. On balance, the public's interest in access does not outweigh the Association's interest in non-disclosure. The Court finds that the dangers inherent in disclosure of confidential information for public dissemination are so obvious that Doe's privacy interest prevails over the public interest in disclosing the information, (pp. 23-27)

         The judgment of the Appellate Division is REVERSED.

          JUSTICE ALBIN, CONCURRING, expresses the view that OPRA governs a records request, whether a public entity's records custodian denies the request or does not respond to the request. In other words, a records custodian, who intends to deny a records request but does not verbalize the denial, cannot invoke the DJA to do an end run around the dictates of OPRA.

          CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA and TEMPONE join in JUSTICE SOLOMON'S opinion. JUSTICE ALBIN filed a separate, concurring opinion.

          OPINION

          SOLOMON, JUSTICE

         We are asked to decide whether, after a public entity denies a citizen's record request, the New Jersey Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and the common law right of access preclude the public entity from instituting a proceeding under the Declaratory Judgment Act (DJA), N.J.S.A. 2A:16-50 to -62. We also decide whether the records sought in this case -- financial relief checks that the New Jersey Firemen's Association (Association) issued to one of its members, John Doe[1] -- are exempt from disclosure under OPRA and the common law right of access.

         A month after the Appellate Division declared the Association to be a "public entity, " Paff v. N.J. State Firemen's Ass'n, 431 N.J.Super. 278, 290 (App. Div. 2013), plaintiff Jeff Carter submitted a request for the Association to release Doe's financial relief application and supporting documentation, as well as the relief checks the Association provided to Doe. The Association refused, contending that disclosure would compromise the reasonable expectation of privacy that applicants, such as Doe, have when seeking its assistance. Carter renewed his request, claiming he was entitled to certain payroll records with appropriate redactions.

         The Association responded by filing a declaratory judgment action to obtain a judicial determination of its responsibilities under OPRA when it is asked to disclose the personal financial information of its members. Carter answered, counterclaimed, and filed a third-party complaint against Doe. At that point, Carter narrowed his records request to the relief checks paid to Doe.

         The trial court found that, under OPRA and the common law, Doe's privacy interest outweighed the public's interest in disclosure. The Appellate Division reversed and held that the Association's DJA complaint was improper because OPRA exclusively vests the requestor, not the custodian, with the right to institute a proceeding. The Appellate Division also determined that Doe's privacy interest was not substantial enough to outweigh the public's interest in government transparency.

         We reverse the judgment of the Appellate Division and conclude that OPRA does not, in all instances, prohibit a public entity from instituting proceedings under the DJA to determine whether records are subject to disclosure. In addition, after carefully balancing the public's interest in accessing information against the private interest in confidentiality, we find that the relief checks to Doe are exempt from disclosure under OPRA and the common law right of access.

         I.

         The record before us reveals the following. Statutorily created in 1885, L.1885, c. 122, § 24, the Association is vested with the mission to provide welfare and death benefits to qualified active and retired volunteer, part-time, and paid firefighters and their families. Until June 2013, the Association operated as a private entity. Paff, supra, 431 N.J.Super. at 290 .

         A month after it was designated a "public agency, " ibid., the Association received its first OPRA request, in which Carter sought the following:

1. Copies of record(s) (including attachments) submitted by [Doe], Local 501 agent(s), and/or NJSFA agent(s) seeking financial benefits described in the "BACKGROUND" section above from January 1, 2008 through July 15, 2013.
2. Copies of record(s) (including attachments) sent to [Doe], Local 501 agent(s), and/or NJSFA agent(s) disbursing financial benefits described in the "BACKGROUND" section above from January 1, 2008 through July 15, 2013.
3. If no record(s) are responsive to Items No. 1 or 2 above, then copies of the front and back of every check providing relief and/or similar benefits, both State and Local, paid to [Doe] between January 1, 2008 through July 15, 2013. (Note that checks are not required ...

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