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Brennan v. Bergen County Prosecutor's Office

Supreme Court of New Jersey

May 23, 2018

WILLIAM J. BRENNAN, Plaintiff-Appellant,

          Argued January 17, 2018

          On certification to the Superior Court, Appellate Division.

          Donald F. Burke, Jr., argued the cause for appellant (Law Office of Donald F. Burke, attorney; Donald F. Burke, on the brief).

          Craig P. Bossong argued the cause for respondents (Florio Perrucci Steinhardt & Fader, attorneys; John M. Carbone, of Carbone and Faasse, on the brief).

          CJ Griffin argued the cause for amicus curiae Libertarians for Transparent Government (Pashman Stein Walder Hayden, attorneys; CJ Griffin, of counsel and on the brief).

          RABNER, C.J., writing for the Court.

         In this appeal, the Court considers whether the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, requires disclosure of the names and addresses of successful bidders at a public auction of government property.

         An auction was held at the Bergen County Law and Public Safety Institute to sell sports memorabilia seized by the Bergen County Prosecutor's Office. There were thirty-nine successful bidders.

         Plaintiff William Brennan submitted a request to the Prosecutor's Office, based on OPRA and the common law, for "[r]ecords of payment received from all winning bidders" and "[c]ontact information for each winning bidder." The Prosecutor's Office offered redacted copies of receipts that did not include the buyers' names or addresses. The Office explained that it had sent the buyers letters to ask if they would consent to disclosure of their personal information. For buyers who consented, the Office represented it would provide unredacted receipts.

         Days later, plaintiff filed a complaint that asserted he was entitled to the requested records under OPRA and the common law right of access. The Bergen County Prosecutor's Office and its custodian of records filed a motion to dismiss. The trial court denied the motion but declined to order immediate disclosure. The court found that the winning bidders did not have a reasonable expectation of privacy in their personal information under OPRA. However, the court granted defendants ten more days to contact the winning bidders and advise them either to object to the release of their personal information or to move to intervene.

         The Prosecutor's Office sent a letter to the successful bidders. Based on the responses, the Prosecutor's Office declined to provide plaintiff the unredacted records.

         The trial court directed defendants to release the requested information under OPRA. The court analyzed defendants' privacy argument under the factors outlined in Doe v. Poritz. 142 N.J. 1, 88 (1995), and found that the buyers' privacy interest was "limited, " in that most names and addresses are already publicly available from various sources. Likewise, because the information was not "private, " the court found that the potential for harm was "relatively miniscule." The court noted that plaintiff sought names and addresses, not social security numbers. As a result, any concern that disclosure would create a security risk for the buyers was "only speculative."

         The Appellate Division reversed. The panel weighed the Doe factors and concluded that the buyers had a reasonable expectation of privacy in their names and addresses because the purchase of sports memorabilia could reveal that an individual is a collector and "could make the bidders targets of theft." Finally, the panel observed that the interest in government accountability would not be served by disclosure. For similar reasons, the Appellate Division found that plaintiff was not entitled to disclosure under the common law.

         The Court granted plaintiff's petition for certification. 230 N.J. 357 (2017).

         HELD: Courts are not required to analyze the Doe factors each time a party asserts that a privacy interest exists. A party must first present a colorable claim that public access to records would invade a person's reasonable expectation of privacy. It is not reasonable to expect that details about a public auction of government property will remain private. OPRA calls for disclosure of records relating to the auction.

         1. OPRA provides that "all government records shall be subject to public access unless exempt, " and "any limitations on the right of access . . . shall be construed in favor of the public's right of access." N.J.S.A. 47:1A-1.

         The law also places the burden on the public agency to prove that it appropriately denied a request. N.J.S.A. 47:1A-6. At the same time, the statute declares that a public agency must "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. 47:1 A-l (emphasis added), (pp. 8-9)

         2. The statute lists twenty-three exemptions. N.J.S.A. 47:1A-1.1. Several exemptions encompass names and home addresses but prevent their release only in limited situations. Aside from those particular exemptions, however, OPRA does not contain a broad-based exception for the disclosure of names and home addresses that appear in government records. That issue has been debated before, and a report issued in 2004 recommended certain limits on disclosure. Neither the legislative nor the executive branch, by law or executive order, has adopted the recommendations, (pp. 9-12)

         3. In Burnett v. County of Bergen, the Court considered "a single request for eight million pages of land title records of all types, . . . which contain[ed] names, addresses, social security numbers, and signatures of countless citizens." 198 N.J. 408, 414 (2009). To balance the statute's competing aims-ready access to government records while safeguarding a citizen's reasonable expectation of privacy-the Court looked to the factors identified in Doe, 142 N.J. at 88. Id. at 428-37. The Court considered and balanced the factors and concluded that they weighed in favor of redacting social security numbers-not home addresses-from the requested records. Id. at 437-38. In Carter v. Doe (In re N.J. Firemen's Ass'n Obligation), the Court once again turned to the Doe factors to analyze a privacy claim. 230 N.J. 258, 279-80 (2017). The plaintiff sought copies of financial assistance applications and hardship payments made to firefighters through the Firemen's Association. Id. at 267-68. The Association noted that the records sought contained "the complete personal financial history of individual applicants." Id. at 280. After a review of the Doe factors, the Court declined to order disclosure of the records. Ibid, (pp. 12-14)

         4. Neither Burnett nor Carter, however, requires courts to analyze the Doe factors every time a party asserts that a privacy interest exists. In Asbury Park Press v. County of Monmouth, for example, the Court saw "no reason to analyze the Doe factors" when disclosure "would not violate any reasonable expectation of privacy." 201 N.J. 5, 7 (2010). As OPRA states, it is only "when disclosure . . . would violate the citizen's reasonable expectation of privacy" that a public agency must safeguard records from public access. N.J.S.A. 47:1A-1 (emphasis added). Before an extended analysis of the Doe factors is required, a custodian must present a colorable claim that public access to the records requested would invade a person's objectively reasonable expectation of privacy. The custodians in Burnett and Carter raised serious privacy concerns that established far more than a colorable claim. The threshold showing they presented justified a searching analysis of the Doe factors. By contrast, the custodian in Asbury Park Press did not present a colorable privacy claim at the outset. When a claim of privacy falls short in that way, there is no need to resort to the Doe factors, (pp. 14-16)

         5. In this case, defendants did not present a colorable claim in support of their privacy argument. Forfeiture proceedings and public auctions of forfeited property are not conducted in private. Before the State can subject property to forfeiture, it must file a complaint and give notice to "any person known to have a property interest in the article." N.J.S.A. 2C:64-3(a) to (c). If contested, the matter is then aired in court. N.J.S.A. 2C:64-3(f). In addition, the Legislature generally requires government entities to provide public notice in advance of a public auction. See, e.g.. N.J.S.A. 40A:14-157(a); N.J.S.A. 52:27B-68; N.J.S.A. 39:3-40.3(b)(1). Viewed objectively, it was unreasonable for a buyer to expect that the information requested would remain private. If anything, the sale of government property at a public auction is a quintessential public event that calls for transparency. To guard against possible abuses, the public has a right to know what property was sold, at what price, and to whom. OPRA's plain terms call for disclosure of that type of recorded information, including the names and addresses of successful bidders. To hold otherwise would jeopardize OPRA's purpose: to maximize public knowledge about public affairs in order to ensure an informed citizenry and to minimize the evils inherent in a secluded process. The privacy interest asserted in this case was limited, and the risk of harm was speculative. Because disclosure is required under OPRA, the Court does not reach plaintiff's claim under the common law. (pp. 16-18)

         The judgment of the Appellate Division is REVERSED, and the requested records are ordered disclosed.


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