Higg-A-Rella, Inc. v. County of Essex

• Decision Date: 19 July 1995
• Docket Number: HIGG-A-RELL,INC
• Citation: 660 A.2d 1163,141 N.J. 35
• Parties: , t/a State Information Service, Blau Appraisal Company, and Robert D. Blau, Plaintiffs-Respondents, v. COUNTY OF ESSEX, a political subdivision of the State of New Jersey, Board of Trustees of Essex County College, Township of Caldwell, Township of Cedar Grove, City of East Orange, Borough of Essex Fells, Township of Fairfield, Township of Glen Ridge, Township of Irvington, Township of Maplewood, Township of Millburn, Township of Montclair, City of Newark, Township of North Caldwell, Township of Nutley, City of Orange, Township of South Orange Village, Township of Verona, and Township of West Caldwell, Defendants, and The Essex County Board of Taxation, and the Mayors, Councils, and Assessors of the Following Essex County Municipalities, Township of Belleville, Township of Bloomfield, Township of Livingston, Township of Roseland, and Township of West Orange, Defendants-Appellants.
• Court: New Jersey Supreme Court

Page 35

141 N.J. 35

660 A.2d 1163

HIGG-A-RELLA, INC., t/a State Information Service, Blau

Appraisal Company, and Robert D. Blau, Plaintiffs-Respondents, v. COUNTY OF ESSEX, a political subdivision of the State of New

Jersey, Board of Trustees of Essex County College, Township

of Caldwell, Township of Cedar Grove, City of East Orange,

Borough of Essex Fells, Township of Fairfield, Township of

Glen Ridge, Township of Irvington, Township of Maplewood,

Township of Millburn, Township of Montclair, City of Newark,

Township of North Caldwell, Township of Nutley, City of

Orange, Township of South Orange Village, Township of

Verona, and Township of West Caldwell, Defendants,

and

The Essex County Board of Taxation, and the Mayors,

Councils, and Assessors of the Following Essex County

Municipalities, Township of Belleville, Township of

Bloomfield, Township of Livingston, Township of Roseland,

and Township of West Orange, Defendants-Appellants.

Supreme Court of New Jersey.

Argued May 1, 1995.

Decided July 19, 1995.

Julian F. Gorelli, Deputy Atty. Gen., for appellant The Essex County Bd. of Taxation (Deborah T. Poritz, Atty. Gen., attorney; Mark J. Fleming and Joseph L. Yannotti, Asst. Attys. Gen., of counsel).

Robert D. Blau, Springfield, for respondents (Blau & Blau, attorneys; Charles E. Blau, of counsel).

Vincent A. Pirone, Director of Law, Bloomfield, on behalf of appellant Tp. of Bloomfield, submitted a letter in lieu of brief relying on the briefs filed and oral argument presented on behalf of appellant The Essex County Bd. of Taxation.

Sean F. Byrnes, Newark, on behalf of appellant Tp. of Livingston, submitted a letter in lieu of brief relying on the briefs filed and oral argument presented on behalf of appellant The Essex County Bd. of Taxation (McCarter & English, attorneys).

Joseph G. Dooley, Jr., Mun. Atty., on behalf of appellant Tp. of West Orange, submitted a letter in lieu of brief relying on the briefs filed and oral argument presented on behalf of appellant The Essex County Bd. of Taxation.

Robert J. Giordano, Belleville, on behalf of appellant Tp. of Belleville, submitted a letter in lieu of brief relying on the briefs filed and oral argument presented on behalf of appellant The Essex County Bd. of Taxation (Giordano & Cataldo, attorneys).

Gabriel H. Halpern, Piscataway, on behalf of appellant Tp. of Roseland, submitted a letter in lieu of brief relying on the briefs filed and oral argument presented on behalf of appellant The Essex County Bd. of Taxation (Fox and Fox, attorneys).

Nelson C. Johnson, Hammonton, submitted a brief on behalf of amici curiae The Press of Atlantic City and Reporters Committee for Freedom of the Press.

Henry H. Perritt, Jr., Villanova, submitted a brief amicus curiae, pro se.

The opinion of the Court was delivered by

GARIBALDI, J.

Plaintiff Higg-A-Rella, Inc., t/a State Information Service, is a private New Jersey corporation in the business of selling municipal tax-assessment data to real-estate brokers, attorneys, appraisers, and other customers. State Information Service sought to obtain from Essex County a computer tape of the tax-assessment records of every municipality within the county. The computer tapes that State Information Service sought to copy contain the same tax lists that are available in hard copy for the public to inspect and photocopy at the Essex County Board of Taxation. State Information Service has obtained such computer copies of tax lists from several other New Jersey counties for a fee. Although Essex County readily provides hard copies of the lists, and although it concedes that copying the computer tapes would involve minimal time and expense, it nonetheless refused to provide a copy of the computer tapes.

Plaintiff Blau Appraisal, also a New Jersey corporation, is a commercial real-estate appraiser. Plaintiff Robert Blau is an attorney who owns property and pays taxes in Essex County. He is the Vice President of Blau Appraisal. Both Blau Appraisal and Robert Blau are customers of State Information Service.

This appeal addresses whether plaintiffs are entitled to obtain a computer copy--as opposed to a hard copy--of Essex County's property tax-assessment list under either the Right-to-Know Law, N.J.S.A. 47:1A-1 to -4, or the common-law right of access.

I

Defendant (1) Essex County maintains a property tax list of every parcel of real estate in each of the county's municipalities pursuant to N.J.S.A. 54:4-55. According to that statute,

The county board of taxation shall ... cause the ... duplicates, certified by it to be a true record of the taxes assessed, to be delivered to the collectors of the various taxing districts in the county, and the tax lists shall remain in the office of the board as a public record.

Each municipality's tax assessor's office keeps a hard copy of its own list, and defendant Essex County Board of Taxation, in East Orange, keeps a hard copy of all of the lists. The lists contain the following information for each parcel: 1) street address and block and lot numbers; 2) brief description, including lot size and use; 3) assessed value, broken down into land and improvements; 4) whether the parcel is subject to farmland assessment, tax abatement, or any charitable or statutory tax exemption; 5) name and address of the owner, if different from the address of the parcel; and 6) if residential, whether the owner is entitled to a deduction or exemption as a senior citizen, veteran, disabled veteran, or surviving spouse of a person in one of those categories.

Counties and municipalities are not required to maintain their tax lists on computer. However, those that choose to do so must maintain the data in a format consistent with the New Jersey Property Tax System MOD IV, a data-processing system developed by the New Jersey Division of Taxation. N.J.A.C. 18:12A-1.16(b).

Essex County has chosen to maintain a computerized record of the tax-assessment data for every municipality in the county, except Newark. The computer tapes are prepared by, and located at, a data-processing center operated by Essex County College. The computerized tax-assessment records maintained by Essex County comply with state regulations, and the format of these records conform to the MOD IV system.

Plaintiffs filed a complaint in lieu of prerogative writ claiming that both the Right-to-Know Law and the common-law right of access entitled them to copies of the computer tapes. The trial court granted summary judgment for defendants. 265 N.J.Super. 616, 628 A.2d 392 (Law Div.1993). The court held that the computer tapes were not Right-to-Know documents because they are not required to be maintained. The court held that plaintiffs could also not prevail under the common law because their commercial interest in computer copies did not counterbalance defendants' right to decide if and for how much they wished to sell the tapes, which had been prepared at significant expense to the taxpayers. Id. at 625, 628 A.2d 392. The court also found that the fact that plaintiffs had ready access to hard copies mitigated their interest in obtaining computer copies. Id. at 624, 628 A.2d 392.

The Appellate Division reversed. 276 N.J.Super. 183, 647 A.2d 862 (1994). Although agreeing with the trial court that the computer tapes were not Right-to-Know documents, the Appellate Division found that plaintiffs' legitimate commercial interest was sufficient to warrant access under the common law. Id. at 191, 647 A.2d 862. The court below remanded to the Law Division for determination of a reasonable fee, but ordered that such fee could offset only the direct cost to the Board of Taxation of copying the tapes, not the cost of compiling them. Ibid.

We granted defendants' petition for certification. 139 N.J. 440, 655 A.2d 443 (1995).

II

[T]he conceptual models of our Right-to-Know Law do not seem readily adaptable to data collected in this information age....

[Atlantic City Convention Center Auth. v. South Jersey Publishing Co., 135 N.J. 53, 66, 637 A.2d 1261 (1994).]

If a document is a Right-to-Know public record, then New Jersey citizens have the absolute right "to inspect such records. ... to copy such records by hand, and ... to purchase copies of such records." N.J.S.A. 47:1A-2. The Right-to-Know Law has no standing requirement, and citizens need make no showing of interest to exercise their rights under the Right-to-Know Law. However, the definition of a public record for purposes of the Right-to-Know Law is narrow. A Right-to-Know public record is one that is "required by law to be made, maintained or kept on file by any" agency or body of the State or any of its subdivisions. Ibid.

We have often found that the Right-to-Know Law does not provide citizens with access because the documents to which they seek access fall outside the narrow definition of a Right-to-Know public record. E.g., North Jersey Newspapers Co. v. Passaic County Bd. of Chosen Freeholders, 127 N.J. 9, 601 A.2d 693 (1992) holding that elected body's phone bills were not Right-to-Know records because body was not required to keep records of parties called); South Jersey Publishing Co. v. New Jersey Expressway Auth., 124 N.J. 478, 591 A.2d 921 (1991) (holding that memo of understanding from executive meeting about employee's termination was not Right-to-Know document because not required to be kept); Nero v. Hyland, 76 N.J. 213, 386 A.2d 846 (1978) (holding that character investigations ordered by governor in contemplation of nomination were not Right-to-Know documents because not required to be made, maintained, or kept).

The Right-to-Know Law's "requirement that documents 'be made, maintained or kept on file,' has been strictly construed." Home News Publishing Co. v. State, 224 N.J.Super. 7, 11, 539 A.2d 736 (App.Div.1988). Hence, we agree with the trial court and the Appellate Division that because the computer tapes were not required to be made or maintained, they are not...