Burnett v. County of Bergen
| Decision Date | 27 April 2009 |
| Docket Number | A-43 September Term 2008 |
| Citation | 198 N.J. 408,968 A.2d 1151 |
| Parties | Fred BURNETT, Plaintiff-Appellant, v. COUNTY OF BERGEN and Bergen County Clerk's Office, Defendants-Respondents. |
| Court | New Jersey Supreme Court |
for amici curiae Consumer Data Industry Association, LexisNexis, The National Association of Professional Background Screeners and The Real Estate Information Professionals Association (Graham Curtin, attorneys; Thomas R. Curtin, George C. Jones and Kathleen N. Fennelly, Morristown, on the brief).
Lewis A. Scheindlin, Assistant Attorney General, argued cause for amicus curiae Attorney General of New Jersey (Anne Milgram, Attorney General, attorney; Nancy Kaplen, Assistant Attorney General, of counsel).
Edward L. Barocas, Legal Director, American Civil Liberties Union of New Jersey argued the cause for amici curiae American Civil Liberties Union of New Jersey and Privacy Rights Clearinghouse (Mr. Barocas and Grayson Barber, attorneys).
The Open Public Records Act (OPRA) requires that government records "shall be readily accessible" to the citizens of this State, subject to certain exceptions. N.J.S.A. 47:1A-1. Underlying that directive is the bedrock principle that our government works best when its activities are well-known to the public it serves. With broad public access to information about how state and local governments operate, citizens and the media can play a watchful role in curbing wasteful government spending and guarding against corruption and misconduct.
OPRA simultaneously requires public agencies "to safeguard from public access a citizen's personal information" when disclosure would violate a person's "reasonable expectation of privacy." Ibid. That concern is squarely implicated here by a single request for eight million pages of land title records of all types, extending over a period of twenty-two years, which contain names, addresses, social security numbers, and signatures of countless citizens of this State. The request was made on behalf of a commercial business planning to catalogue and sell the information by way of an easy-to-search computerized database. Were that to occur, an untold number of citizens would face an increased risk of identity theft.
OPRA's twin aims—of ready access to government records and protection of a citizen's personal information—require a careful balancing of the interests at stake. Here, that balance is heavily influenced by concerns about the bulk sale and disclosure of a large amount of social security numbers—which plaintiff admittedly does not need, and which are not an essential part of the records sought. In addition, the requested records are not related to OPRA's core concern of transparency in government.
Under the unusual circumstances of this case, the balance tips in favor of the citizens' reasonable expectation of privacy in one respect: the records can be disclosed after redaction of individual social security numbers. We therefore agree with the trial court's order to that effect, along with its conclusion that the cost of redaction should be borne by the requestor. Because the Appellate Division upheld redaction on different grounds, we affirm and modify its judgment in part. We also vacate the portion of the judgment that upholds watermarking the documents but do not address the issue further because it is moot.
Data Trace Information Services (Data Trace) is a technology company that creates computer-based search tools for the title insurance industry. In simple terms, Data Trace compiles, organizes, and sells electronic access to title information it gathers. The company operates land record databases for more than 200 counties in 25 states. It enables title insurance companies to connect regional title databases and to access them using computer software. Plaintiff Fred Burnett is employed by Data Trace and is acting on its behalf.
Defendants are the County of Bergen and the Bergen County Clerk's Office in their capacity as custodians of government records.
On April 17, 2006, plaintiff filed a formal request with the Bergen County Clerk for microfilm copies of rolls of microfilm containing the following records: assignments of mortgages, deeds, discharges/satisfactions of mortgages, lis pendens, miscellaneous, mortgages, releases of mortgages, vacations, construction liens, federal liens, inheritance tax waivers, institutional liens (a request plaintiff later withdrew), and releases of judgment. Plaintiff sought those records for the period spanning January 1984 to the most current at the time. In total, plaintiff asked for about eight million pages of documents, stored on an estimated 2,559 rolls of microfilm, from 1984 to 2006. The realty records contained various personal identifiers including names, addresses, social security numbers (SSNs), signatures, and information on marital status. In support of the request, plaintiff relied on OPRA, N.J.S.A. 47:1A-1 to -13, and the common law right of access.
The Bergen County Clerk's Office maintains hard copies of the above records, available for inspection by the public during normal business hours, and microfilm copies of the same records for archival and security purposes.
The parties exchanged correspondence in response to the request but did not resolve when the documents would be ready or at what cost. Among other things, defendants advised that a disclaimer or watermark would appear on the copies so that they would not be mistaken for current, official records.
On August 30, 2006, plaintiff filed a verified complaint and order to show cause seeking a declaratory judgment and injunction requiring defendants to inform him promptly of the copying fee and the date the records would be available. In their answer, defendants asserted they did "not have the capability, staffing or budgetary financing to comply" in light of the size of the request and the requirement that SSNs be redacted before the documents could be released. Because no technology exists to redact information directly from microfilm, defendants explained that the microfilm would have to be converted to paper or an electronic format and then examined visually or scanned electronically so that SSNs could be masked or blocked. According to a bid defendants obtained from a private vendor, the cost of copying, examining, and redacting the records was more than $460,000.1
On October 25, 2006, the parties appeared before the Honorable Sybil R. Moses, then Assignment Judge of the Superior Court. The focus of the argument was whether plaintiffs could receive unredacted copies of the records they requested. Judge Moses acknowledged that OPRA favored granting citizens a broad right of access to government documents. She also noted that the Legislature intended to provide against disclosure in "those instances in which a person had a reasonable expectation of privacy." (quoting Asbury Park Press v. Ocean County Prosecutor's Office, 374 N.J.Super. 312, 331, 864 A.2d 446 (Law Div.2004)). Thus, the trial judge framed the discussion by addressing whether SSNs are exempt from redaction under OPRA, per N.J.S.A. 47:1A-5(a), or whether citizens have a reasonable expectation of privacy in their SSNs on a publicly recorded document. The trial court noted the proliferation of federal and state laws concerning identity theft and privacy, including N.J.S.A. 47:1-16, which she found revealed the Legislature's "deep concern for the confidentiality" of SSNs. Judge Moses concluded that
considering the most recent legislative action, considering the law in sister states, protect[ing] Social Security numbers, considering all of the legislation, which is either pending or has been enacted ... there was and is not only an expectation of privacy ... but ... the public interest is implicated in this.... [A]ccordingly, I conclude that it is against the public interest to enable theft identity to be encouraged and take place.
The trial court also analyzed plaintiff's claim under the common law right of access and concluded that plaintiff's commercial interest in getting unaltered documents was outweighed by the government's interest in protecting the confidentiality of its citizens' SSNs. Plaintiff did not pursue that claim on appeal.
The trial court issued an order on December 4, 2006 directing defendants to (1) inform plaintiff of the copying fee for the records; (2) redact any SSNs from the records sought; and (3) insert a watermark stating the date of copying on each document.
Plaintiff appealed. In a published opinion, the Appellate Division affirmed the trial court's order on different grounds. Burnett v. County of Bergen, 402 N.J.Super. 319, 322, 343, 954 A.2d 483 (App.Div.2008).
The panel canvassed relevant New Jersey statutes and concluded that SSNs on realty records are exempt from the redaction requirements of OPRA, id. at 327, 954 A.2d 483 (citing N.J.S.A. 47:1A-5(a)), and that other statutes that recognize the danger of disclosing SSNs likewise did not require redaction, id. at 328-29, 954 A.2d 483 (). Nevertheless, the panel found that "there are competing interests that must be...
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