Carter v. Doe (In re N.J. Firemen's Ass'n Obligation to Provide Relief Applications Under the Open Pub. Records Act)

• Decision Date: 03 August 2017
• Docket Number: A–68 Sept. Term 2015,077097
• Citation: 166 A.3d 1125,230 N.J. 258
• Parties: In the MATTER OF the NEW JERSEY FIREMEN'S ASSOCIATION OBLIGATION TO PROVIDE RELIEF APPLICATIONS UNDER the OPEN PUBLIC RECORDS ACT Jeff Carter, Third–Party Plaintiff–Respondent, v. John Doe, Third–Party Defendant.
• Court: New Jersey Supreme Court

230 N.J. 258

166 A.3d 1125

In the MATTER OF the NEW JERSEY FIREMEN'S ASSOCIATION OBLIGATION TO PROVIDE RELIEF APPLICATIONS UNDER the OPEN PUBLIC RECORDS ACTJeff Carter, Third–Party Plaintiff–Respondent,

v.John Doe, Third–Party Defendant.

077097

A–68 Sept. Term 2015

Supreme Court of New Jersey.

Argued January 18, 2017

Decided August 3, 2017

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. Griffinargued the cause for respondent Jeff Carter (Pashman Stein, attorneys; C.J. Griffinand 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).

JUSTICE SOLOMON delivered the opinion of the Court.

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 Doe¹ —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, 69 A .3d 118 (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, 69 A .3d 118.

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 if responsive records are provided for Items No. 1 and 2 above.)

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 "hardship benefits are limited and are designed for those who did not directly contribute to and/or cause their resulting need for [such] benefits." Thus, Carter determined that it would be "an insult to deserving firefighters and their families" who justly acquire benefits if Doe was "receiving hardship benefits for behavior that appear[ed] to be caused entirely by [Doe's] own actions."

Five days later, 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. Carter also renewed his original request by stating that "the timeframe for my original request will resume on the next business day." Carter concluded his e-mail with a request for a copy of the policy and/or procedures governing how the Association processes relief applications.

The Association disclosed to Carter its program guidelines, the instructions it provides to prospective applicants, and other general materials describing the manner in which its Board of Trustees reviews applications. The Association refused to disclose Doe's records, claiming the detailed personal financial information contained in the application raised privacy concerns. Moreover, the Association claimed its application materials led applicants to believe that the entrusted information would remain confidential.

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. Specifically, Count One of the complaint sought an order:

a. Declaring that individual relief applications are of such a private nature that the [ ] Association or the local relief association shall be prevented from acknowledging the existence of individual applications and prohibited from releasing the same under ... [OPRA];

b. Declaring that a Requestor, in order to determine whether the [ ] Association or the local relief association is performing its duties appropriately, may request a series or date range of applications, but said applications may only be released upon the redaction of all personal information including the requestors' names, addresses, [and] account numbers.

The second count sought identical relief under the common law right of access. The Association maintained that the records were exempt from disclosure under both OPRA and the common law because disclosure would violate Doe's reasonable expectation of privacy. The Association also sought an order compelling Carter to demonstrate why Doe's financial records were not exempt from disclosure.

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. 47:1A–6, which vests the right to institute proceedings relating to OPRA solely in the records requestor. Carter also filed a counterclaim and a third-party complaint against Doe.² At that point, Carter further narrowed the scope of documents he sought to copies of checks issued to Doe.

In a supporting certification, Carter claimed that Doe was an elected fire commissioner and volunteer firefighter who was discharged for conduct unbecoming a township employee. Thus, according to Carter, Doe's privacy interest could not outweigh the public's interest in knowing whether the Association provided financial assistance to a government employee discharged for inappropriate conduct.

In a responsive certification, the Association's vice president explained that the organization's goal is to provide qualifying members with relief after an anonymous, non-discriminatory application evaluation process that protects the members' privacy and dignity during their time of need.

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, 968 A .2d 1151 (2009) (adopting factors announced in Doe v. Poritz , 142 N.J. 1, 88, 662 A .2d 367 (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....