LiVecchia v. MOUNT ARLINGTON
22 A.3d 140
N.J. Super. Ct. App. Div.2011Background
- OPRA dispute over access to municipal cell phone records and audiotape copies.
- Complainant sought records of September–October 2007 cell phone use by borough employees and the December 10, 2007 council meeting audiotapes.
- Borough redacted both telephone numbers and call destination locations; charged $14 for 26 pages of cell records and $5 per audiotape for copies.
- GRC ordered release of cell phone records with only numbers redacted and to refund $8.42 for audiotape copies; Borough appealed.
- Court applies Doe balancing test to privacy vs. public access and reviews GRC determinations for reasonableness and cost calculations.
- Decision affirms GRC order in full, mandating disclosure of destination locations and disallowing the $5 per tape cost as excessive/unsupported by actual costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether destination location of calls is exempt from disclosure. | Livecchia seeks location data to assess misuse of public funds. | Borough asserts privacy interest in call destinations. | Destinations must be disclosed; privacy not overriding. |
| Whether redaction of call destinations is permissible. | Redaction unnecessary to protect privacy; should disclose locations. | Redactions protect privacy interests in line with North Jersey Newspapers and Gannett. | Redaction of destinations not allowed; disclose locations. |
| Whether the audiotape copying fee reflects actual cost. | Excessive charge; must reflect actual duplication costs. | Fee justified by ordinance and cost accounting. | $5 per tape cost not supported; reimburse overcharges and reassess costs. |
| Whether GRC properly applied the Doe balancing test. | Doe factors support public access for accountability. | Balance privacy against public interest. | GRC correctly applied Doe balancing; disclosure required. |
Key Cases Cited
- North Jersey Newspapers Co. v. Passaic Cnty. Bd. of Chosen Freeholders, 127 N.J. 9 (1992) (privacy concerns in telephone records focused on caller identity; dicta on potential disclosure in misuse cases)
- Gannett N.J. Partners, LP v. Cnty. of Middlesex, 379 N.J. Super. 205 (App.Div. 2005) (confidentiality of telephone billing records; limits to disclosure of caller identities)
- Doe v. Poritz, 142 N.J. 1 (1995) (Doe balancing factors for privacy vs. access under OPRA/FOIA framework)
- Burnett v. Cnty. of Bergen, 198 N.J. 408 (2009) (advocates balancing privacy interests with public access under OPRA)
- Educ. Law Ctr. v. N.J. Dep't of Educ., 198 N.J. 274 (2009) (supports applying balancing framework to privacy and public records)