WILLIAM J. BRENNAN, Plaintiff-Appellant,
BERGEN COUNTY PROSECUTOR'S OFFICE; FRANK PUCCIO, CUSTODIAN OF RECORDS FOR THE BERGEN COUNTY PROSECUTOR'S OFFICE, Defendants-Respondents.
January 17, 2018
certification to the Superior Court, Appellate Division.
F. Burke, Jr., argued the cause for appellant (Law Office of
Donald F. Burke, attorney; Donald F. Burke, on the brief).
P. Bossong argued the cause for respondents (Florio Perrucci
Steinhardt & Fader, attorneys; John M. Carbone, of
Carbone and Faasse, on the brief).
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.
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.
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
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.
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.
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.
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
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.
Court granted plaintiff's petition for certification. 230
N.J. 357 (2017).
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.
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.
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)
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)
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)
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)
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)
judgment of the Appellate Division is
REVERSED, and the requested records are
JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA,
SOLOMON, and TIMPONE join in CHIEF ...