Burnett v. County of Bergen

968 A.2d 1151 BURNETT, PLAINTIFF-APPELLANT, FRED v. COUNTY OF BERGEN AND BERGEN COUNTY CLERK’S OFFICE, DEFENDANTS-RESPONDENTS. 17, 2008

Argued April November Decided 2009. (Riker, Lederman, appellant argued the cause for Stuart M. Lederman, Scherer, Perretti, attorneys; Mr. Danzig, Hyland & briefs). Carlson, L. on Brenda C. Liss Scott (Carbone Carbone, respondents argued the cause for John M. Faasse, attorneys). Fasano, amicus curiae New argued the cause for Michael J. Davison, (Lomurro, Eastman & Jersey Title Association Land Munoz, attorneys). bar, Mohr, of Columbia

Christopher A. a member of the District Industry Data Associ- argued the cause for amici curiae Consumer LexisNexis, ation, Professional Back- The National Association of Information Professionals ground Screeners and The Real Estate Curtin, (Graham Curtin, attorneys; Thomas R. Association brief). Fennelly, George N. on the C. Jones and Kathleen General, Scheindlin, argued Attorney cause Lewis A. Assistant (Anne Jersey Mil- Attorney for amicus curiae General of New General, At- gram, Attorney attorney; Nancy Kaplen, Assistant counsel). General, torney Barocas, Director, Legal American

Edward L. Civil Liberties Jersey argued Union of the cause for amici curiae American New Jersey Privacy Rights Clearing- Civil Liberties Union of and New (Mr. Barber, attorneys). Grayson house and Barocas opinion of Court. Chief Justice RABNER delivered the (OPRA) Open requires government that Public Records Act State, readily records “shall be accessible” to the citizens of this Underlying subject exceptions. to certain N.J.S.A. 47:1A-1. principle government directive is the bedrock that our works best public its are to the it serves. With when activities well-known public broad access to information about how state and local play governments operate, citizens and the media can a watchful curbing government spending guarding in role wasteful and against corruption and misconduct. simultaneously agencies safeguard requires public

OPRA “to access a citizen’s information” when disclo- expectation privacy.” person’s sure would a “reasonable violate squarely implicated by single Ibid. That concern is here request eight pages types, million of land title records of all twenty-two names, extending period years, contain over which numbers, addresses, security signatures of countless social request citizens of this State. The was made on behalf of a catalogue planning commercial business and sell the information by way easy-to-search computerized of an database. Were that to occur, an untold number of citizens face an increased risk of identity theft. ready government

OPRA’s aims—of access to records and twin protection personal information—require of a citizen’s a careful Here, balancing heavily of the interests at stake. that balance is influenced concerns about the bulk sale and disclosure of a large security plaintiff admitted- amount of social numbers—which need, ly part does not and which are not an essential of the addition, sought. requested In records are not related government. in transparency to OPRA’s core concern of case, tips balance of this circumstances the unusual Under one expectation of reasonable of the citizens’ favor redaction of individual disclosed after respect: the records can be the trial court’s agree with security We therefore social numbers. the cost of effect, conclusion that along its to that with order Appel- requestor. Because the by the should be borne redaction grounds, we affirm on different upheld Division redaction late portion part. also vacate modify judgment its We do not watermarking the documents but upholds judgment because it is moot. the issue further address

I. (Data Trace) technology ais Trace Information Services Data the title tools for company computer-based creates search terms, orga- compiles, Trace industry. simple In Data insurance gathers. it nizes, to title information and sells electronic access for more than company operates land record databases The companies to in 25 It enables title insurance counties states. using comput- them regional databases and to access connect title Trace employed is Data er Plaintiff Fred Burnett software. acting behalf. and is on its County Bergen Bergen County of and the

Defendants are the government of rec- capacity Clerk’s Office in their as custodians ords. 17, 2006, plaintiff request a formal "with the April

On filed copies of rolls of microfilm Bergen County Clerk for microfilm assignments mortgages, of containing following records: deeds, pendens, discharges/satisfactions mortgages, of lis miscella- vacations, neous, mortgages, mortgages, of construction releases (a waivers, liens, liens, tax institutional liens federal inheritance withdrew), judgment. request plaintiff and releases of Plain- later January spanning 1984 to sought period tiff records for the those total, plaintiff In asked for about the most current at the time. 2,559 documents, eight pages stored on an estimated million of microfilm, records con- from 1984 to 2006. The rolls names, addresses, including tained various identifiers (SSNs), security signatures, social numbers and information on support In request, plaintiff marital status. of the relied on OPRA, -13, right N.J.S.A. 47:1A-1 to and the common law access. County Bergen copies

The Clerk’s Office hard maintains of the records, inspection by public during for above available normal hours, copies and microfilm business the same records for security purposes. archival parties exchanged correspondence response to the re- quest ready but did not resolve when the documents would be or Among things, at what cost. other defendants advised that a appear copies they disclaimer or watermark on the so that would current, not be would mistaken official records. August plaintiff complaint

On filed a verified and order seeking declaratory judgment injunction to show cause requiring promptly copying defendants to inform him fee answer, and the date the records be In available. their they capability, staffing defendants asserted did “not have the or budgetary financing comply” light request of the size of the requirement and the that SSNs be redacted before the documents technology could be released. Because no exists redact infor- microfilm, directly explained mation defendants paper microfilm would have to be converted to or an electronic visually electronically and format then examined or scanned so According that SSNs could be masked or blocked. to a bid vendor, private from a copying, defendants obtained the cost of $460,000.1 examining, redacting the records than was more record, Elsewhere in the 6,449 microfilm, another bid estimates that rolls of containing frames, more than 19 million need to be at a of cost copied million. The record does not the approximately explain discrepancy. $1.3 more than twice the number of documents enhances both the Obviously, copying. concerns at issue and the cost of redaction and In this privacy opinion, eight pages, we use the number million consistent with defendant’s certification on this point. 2006, Honorable 25, appeared before the parties the

On October Superior Court. Moses, Assignment Judge of the Sybil R. then plaintiffs could receive argument was whether The focus of the Judge Moses they requested. copies of the records unredacted right granting citizens a broad acknowledged that OPRA favored noted that She also government of documents. access in “those in provide against disclosure Legislature intended to expectation priva person had a reasonable stances in which County Prosecutor’s cy.” (quoting Asbury v. Ocean Park Press (Law Div.2004)). N.J.Super. 864 A .2d 446 Office, 374 Thus, by addressing judge whether the trial framed the discussion OPRA, per N.J.S.A. exempt SSNs are from redaction under 47:lA-5(a), expectation of citizens have a reasonable or whether publicly document. The trial privacy in their SSNs on a recorded concerning proliferation court noted the of federal and state laws 47:1-16, including she identity privacy, N.J.S.A. which theft and “deep for the confiden Legislature’s found concern revealed tiality” Judge of SSNs. Moses concluded considering considering legislative states, the law sister action, the most recent legislation,

protecting! considering all of the which is numbers, Social Security pending an ... there was and is not only expectation either or has been enacted [Ajccordingly, I ... ... is in this... but interest implicated against interest to enable theft be identity conclude that it is the public encouraged and take place. under the common analyzed plaintiffs The trial court also claim plaintiffs commercial right and concluded that law of access outweighed by the getting documents was interest unaltered confidentiality of its citi- government’s protecting interest appeal. on pursue Plaintiff did not that claim zens’ SSNs. directing trial court issued an order on December (1) copying fee for the plaintiff defendants to inform (3) (2) records; sought; any from the records redact SSNs stating copying on each document. insert a watermark the date Appellate appealed. published opinion, In a Divi- Plaintiff grounds. on different Burnett sion affirmed the trial court’s order 418 343, 319, 322, County Bergen, N.J.Super. 954 A.2d

v. (App.Div.2008). Jersey panel

The statutes and conclud- canvassed relevant New exempt from ed that SSNs on records are the redaction OPRA, 327, (citing requirements of id. at 954 A.2d 483 N.J.S.A. 47:lA-5(a)), recognize danger and that other statutes redaction, 328-29, disclosing require SSNs did not id. at likewise (citing (prohibiting prospective 954 A.2d 483 N.J.S.A. 47:1-16 SSNs, by recording required of documents unless SSNs with law filed); 56:11-45, (prohibiting display to be N.J.S.A. :8-164 of SSNs by Identity under Theft Act unless document covered Prevention OPRA)). Nevertheless, panel competing found that “there are be can determine interests that must balanced before we whether included in the records should remain unredacted in docu- SSNs plaintiff gather, compile and sell to other users.” ments seeks 327-28, 954A.2d Id. at 483. panel privacy protections guaran- went on to examine the I, Jersey

teed article section 1 of the New Constitution. Id. at 332-35, panel 954 A.2d 483. The found that diverse “[w]hen information, name, SSN, address, pieces of such as a bank or mortgage signature, are assembled into a holder and simulated they sought by plaintiff package—as are the records to be compiled purposes—a in a commercial database and sold for 339, implicated.” (citing interest is Id. at 954 A.2d 483 (1995)). Poritz, Doe v. 142 N.J. 662 A.2d 367 Doe, employing balancing panel After test set forth important privacy required that the interests at stake concluded 343, panel redaction of the SSNs. Id. at 954 A.2d 483. The noted identity harm theft and other fraud if the real threat of 340-41, large Id. at 954 A.2d 483. SSNs were released number. provide It also found that SSNs were not essential to notice of names, property ownership addresses and lot and block when 341, plainly properties. numbers identified the Id. at 954 A.2d addition, panel sought In that the information 483. observed purposes. Id. at 954 A.2d 483. On was for commercial right privacy that the balance, concluded Appellate the Division protection Jersey “establishes Constitution under the New through of SSNs from disclosure Jersey citizens wholesale New realty Ibid. documents.” for masses of recorded requests OPRA watermarking requiring court’s order regard to the trial With to document, plaintiff consented panel concluded that the on each challenge it on could not argument and therefore ruling the at oral 343-45, 954 A.2d 483. appeal. Id. at 196 N.J. petition for certification. granted plaintiffs We (2008). 960A2d 389

II. Appellate Division argues the decision of Plaintiff that he seeks should be released and the documents should be reversed erred Appellate Division He contends that redaction. without in privacy in SSNs found right to creating a constitutional documents; bal- panel misapplied Doe’s realty that the recorded expectation of mistakenly found a reasonable ancing and test records; expressly prohibits defendants that OPRA privacy documents; that the redacting SSNs from recorded watermarking; and that agreement on parties not reach an did markings. permit not such OPRA does Appellate Division agree with the decision Defendants disclosing records before they properly in not and maintain acted have a constitutional redacting They argue that citizens them. SSNs; against of their protects disclosure privacy interest expectation privacy their a reasonable that individuals have SSNs; of SSNs from Jersey requires law redaction that New released; plaintiff con- they may be and documents before challenge trial court’s watermarking thus cannot sented on that issue. order following organizations: status to the granted amicus curiae

We (NJLTA); the Consumer Jersey Association Land Title the New LexisNexis, Association, Association of the National Industry Data Screeners, Background Professional and the Real Estate Informa- CDIA); (collectively tion Professionals Association the American Jersey Privacy Rights Union of Civil Liberties New and the ACLU); Clearinghouse (collectively Attorney and the General. plaintiff agree NJLTA and CDIA filed briefs on behalf of statutory arguments with his about OPRA. NJLTA adds that the computer technology to use of examine land title records will expense reduce the time and in title searches. CDIA involved challenges Appellate finding also Division’s of a constitutional right in this case. Attorney argues General that this can be on case decided

statutory grounds; the Court should therefore decline to question right privacy; reach the of a constitutional to that OPRA requires balancing a of interests when disclosure would violate a expectation privacy; citizen’s reasonable that redaction of SSNs test; required balancing matter this is under that and that prohibit watermarking. OPRA does not The ACLU maintains that disclosure of SSNs in this case would expectation violate a citizen’s reasonable both under State Constitution and OPRA.

III. by analyzing We start the statute. Because find that we language provides balancing OPRA’s for a of the interests in disclosure, privacy and and for redaction of SSNs under the case, circumstances of this we do not reach the constitutional question Appellate Division addressed and therefore do not Hennessey Eagle endorse its conclusion. See v. Coastal Point Oil (1992) Co., 81, 109, (Pollock, J., concurring) 129 N.J. 609 A.2d (“[Constitutional questions not should be reached and resolved absolutely imperative disposition litigation.” unless in the Saunders, (1977) 200, 229, (quoting State v. 75 N.J. 381 A.2d 333 (Clifford, J., 384, 389, dissenting))); Twp., 110 Bell v. N.J. Stafford (1988) (same). 541A.2d 692

A. requests plaintiff the documents To determine whether disclosed, Legislature’s expressed intent look to the should be we goal when Legislative paramount intent “is the through OPRA. and, indicator of that interpreting generally, the best statute Penn, v. 183 N.J. statutory language.” DiProspero intent is the (2005). 477, 492, 874A .2d1039 code, Legisla Jersey’s statutory

At the outset of New read phrases shall be that a statute’s “words and ture reminds us generally “given their their context” and and construed within end, must meaning.” 1:1-1. To that “statutes accepted N.J.S.A. construed entirety; part or section should be be read in their each provide every part other or section in connection with Riello, 210, 224, 948A.2d v. 195 N.J. harmonious whole.” Bedford Assets, (2008) 168 N.J. (citing Liquid Distribution In re 17-18, (2001)); Statutory on also 2A Sutherland 773 A.2d 6 see (6th 2002). § 46:05 ed. Construction unambigu and language in a statute “is clear When ous, not only interpretation,” courts should susceptible one interpretative Lozano v. Frank DeLuca look “to extrinsic aids.” (citation (2004) Constr., 842 A.2d 156 178 N.J. omitted). However, ambigu “if there is quotations internal marks plausible than one ity statutory language in the that leads to more evidence, legis ‘including interpretation, may turn to extrinsic we contemporaneous construc history, reports, committee and lative ” 492-93, A.2d 1039 DiProspero, supra, tion.’ 183 N.J. at Faugno, 182 N.J. (quoting Cherry Hill Manor Assocs. v. (2004)). “may resort to extrinsic evi 861 A. 2d 123 Courts also an result.” plain reading dence if a of the statute leads to absurd 493, Id. at 874A.2d 1039.

B. by ready government records provides OPRA access to Hoboken, 51, City 196 N.J. citizens of this State. See Mason v. (2008). 64-65, govern- 951 A2d 1017 The statute directs that “all subject exempt,” public ment records shall be to access unless and “any right limitations on the of access ... shall be construed of access.” N.J.S.A 47:1A-1. Con- public’s right favor of aims, broadly “government sistent with those the statute defines made, kept documents maintained or in the records” to include business, twenty-one government exempts but course of official from the definition. N.J.S.A 47:1A-1.1. categories of information plain language competing particular OPRA’s has two sections to ease: relevance this

(1) obligation public agencies section command that have “an l’s safeguard to a citizen’s information access it disclosure thereof with which has been entrusted when would N.J.S.A. expectation privacy,” the citizen’s reasonable violate provision”); (“privacy “privacy 47:1A-1 clause” or (2) “[pjrior allowing any to to section 5’s directive that access record, government thereof shall redact from that custodian number, any security record information discloses the social which number, number, telephone or license credit card unlisted driver any except security ”... that a number person; number of social made, required by to be maintained or contained a record law kept public agency shall be disclosed when access to on file the document or disclosure of that information is not otherwise 47:lA-5(a); N.J.S.A. see also N.J.S.A. 47:1A- by” law, prohibited 1.1. words,

In other OPRA allows for disclosure of SSNs filed, happen appear on that must be documents otherwise against allowing at the same time the statute cautions access records that violate a citizen’s reasonable interest. collide, contrary may plaintiffs request Those aims sometimes as demonstrates. substantive, parts though are section

Both statute appears beginning, it at the no less than section 5. Section 1 is preface preamble. nor a It has no telltale “whereas” neither

423 appears after OPRA’s preamble. It appear in a clauses that often body of the clause, part of the making provision enactment Bd., Planning 105 Inc. v. S. Brunswick Enterprises, PRB law. 20:03; Sutherland, § (1987); su,pra, 5,1, 1A A.2d 1099 N.J. 518 privacy expressed in the very language § Plus the 2A id. 47:04. reasons not offer nature: it does its substantive clause reveals instead, do; it preambles typically why adopted, as OPRA was imposes an Specifically, it implementation. on the law’s focuses against disclosure of agencies protect to obligation on contrary to reasonable run information which would privacy interests. of OPRA’s substantive nature focused on the

Other courts have Township, 358 South Brunswick In Serrano v. privacy clause. Appellate (App.Div.2003),the 1004 N.J.Super. 817 A.2d by a tape a 911 call made public access to a of Division allowed The defendant before the crime. a few hours homicide defendant noted object. ruling, In its the Court did not [OPRA’s] declaration of the “public policy” that it is reasonable anticipate respecting will be considered reasonable the “citizen’s expectation privacy” Council] and the courts. provision Records [Government extensively by claim has been asserted. because no here, however, does not confront us privacy subject we leave to the of a claim with tape, In the absence respect “citizen’s reasonable occasions of the expectation priva- for other interpretation on such occasions declared N.J.S.A. 47:1A-1. the issues Plainly, presented cy” might recognize challenging, entail a and we they and could be complex balancing [of] ... the extent and [relevant] interests consideration reasonable if between the “citizen’s expectation nature of the any, interplay, “construe[] forth in N.J.S.A. 47:1A-1, also mandate, and the set privacy” right. right on that limitations in the statute of access” any favor of the public’s (final original).] [Id. alteration in 817 A2d 1004 368-69, at Serrano, denied access to a the Law Division Relying part on victim, finding after wrenching” tape of a “chilling, disclosing government justified not privacy clause OPRA’s Press, supra, Asbury Park the facts of the case. record under things, 330-31, Among 446. other N.J.Super. at 864 A.2d privacy in of the victim’s support protection trial court found 424 legislative history

OPRA’s as as the “words chosen in Section well 1 of OPRA.” Ibid. (GRC),

The Government an Records Council informal mediation OPRA, program designed disputes to resolve under has also relied privacy addressing provision requests on the in for access to See, government e.g., Dep’t of Corr., records. Catrell v. N.J. GRC (Feb. 2007) 28, Complaint (citing privacy No. 2006-121 OPRA’s provision denying of disclosure visitor’s list that contained names, relationships, partial addresses SSNs of inmate’s visitors); Records, Ridge Bernstein v. Boro Park Custodian of of 2005) 14, Complaint (July (citing priva GRC No. 2005-99 OPRA’s cy provision denying dog disclosure of names and addresses of entrepreneur seeking to license owners to start electric fence business). Press, Asbury

Consistent with Serrano and Park other courts acknowledged import privacy have substantive of OPRA’s provision. County See Courier v. News Hunterdon Prosecutor’s 373, 5, Office, N.J.Super. (App.Div.2003) 380 n. 817 A.2d 1017 possibility (recognizing privacy provision of claim under in review ing request tape, noting argument for 911 but that no was expectation privacy); advanced based on caller’s reasonable of see Works, City Dep’t also John Does v. Trenton Pub. (D.N.J.2008) 560, 567, F.Supp.2d (noting 570-71 OPRA’s provision public agencies observing is a “command[]” balancing analysis of a provision). GRC’s use to enforce that Plaintiff require concedes OPRA could be read to a balanc- situations, ing specific but interests limited not when there is statutory cases, language that an In addresses issue. such he argues, Legislature already balancing. has done He points requirement section 5’s SSNs be redacted before allowed, they access is unless are contained in a record agency maintain on must file.

Ordinarily, specific language prece in a statute takes general language. dence over more Wilson v. Claim Unsatisfied (1988). 278, Bd., 271, 536 A.2d 752 Judgment 109 N.J. & Fund construction, statutory section 5’s approach to Under that common l’s more prevail over section precise language about SSNs would However, because a literal broadly privacy warning. worded results, stop cannot at lead to absurd we reading of section 5 could Dep’t, 197 N.J. M.S. v. Millbum Police plain language. its See 493, 250, (2008); N.J. at DiProspero, supra, 183 962A.2d 515 Bank, 1039; 162 N.J. Turner v. First Union Nat’l 874A.2d (1999). 740 A .2d1081 prevent nothing language in the of section 5 would example,

For theft, identity for who has multiple, prior a felon convictions with access, obtaining legitimate requesting for no reason particular linked to names and containing records millions of SSNs Indeed, 5, looking only plaintiffs request for at section addresses. identifiers, personal that contain eight pages million of documents period twenty-two years, would have to be extending a of over identity theft.2 That granted serving an inmate time for even to be; Legislature intended. cannot doubt the so we Legislature plaintiffs actual doubt the envisioned We likewise request adopted recognize OPRA. is “[i]t when it We anticipate all frequently legislation a draftsman of to difficult for Hence cases against his them. situations and measure words inevitably language of the used application arise in a literal which legislative design.” incompatible the would lead to results with Sec., Corp. Employment Div. 25 Capitol New Bar & Grill v. 160, 135 A.2d(1957). 155, N.J. language in approach is to harmonize the The better the each section advances: sections 1 and 5 and balance interests safeguarding ready government documents while access to any prevents person convicted of indictable N.J.S.A. 47:1A~2.2 "a who is seeking government containing personal information offense ... [from] including family/' pertaining person's In victim or the victim's their SSNs. to the instance, protection right limited of access shall be denied. That broad-based, general inquiry presents. likely like the one this case not cover a Bedford, expectation privacy. supra, citizen’s reasonable See Sutherland, 224, 1272; 46:05, supra, §§ 2A 195 N.J. at 948 A.2d 47:06.

C. history balancing legislative supports also OPRA’s expressed in sections 1 and 5 of the statute. The Senate interests hearings government conducted on access to records on 9, Dealing March See with Public Access to Govern- 2000. Issues 351, 573, 161, Hearing ment Records: on S. S. S. and S. 866 (N.J. 2000) Comm., Judiciary Leg. [Hearing]. the S. 209th Before time, At the a number of related bills were under consideration. Among legislation, them Senator Robert Martin’s draft S. was (N.J. 2000), Leg. primary 209th which was focus hearing. basic structure of the bill called for records to be public except exemptions. certain There no lan- made was guage protecting privacy rights. in the draft about

Throughout hearing, repeatedly Senator Norman Robertson questions about the disclosure of information. In voiced words, “my only ... his conbern is that we could create situation inadvertently many, unqualified right created an where we have many legitimate privacy impact documents that on the inter- will Hearing, supra, est of citizens in the state.” at 10. He stressed going things of couldn’t that “there are to be whole host we possibly anticipate,” like access to addresses of battered women’s records, public’s right shelters and E-ZPass where the to know against legitimate privacy balanced interests of individu- should be pressed als. at Senator Robertson both to maintain Id. 10-11. access, right requires balancing the common of such a law which interests, statutory protections right include of the to of and to 9-11, 31-34, privacy any at in new law. Id. 76-80. Robertson emphasized try piece to craft a of that “whenever we sit down case, legislation, always competing In this there are interests.... right competition of a between the of access there is somewhat right privacy____” Id. at and the 76. 2003, Bill Senate Martin introduced hearing, the Senator

After colleague advanced. protection his incorporated very the which 2000). added, (N.J. 2003, A new section was Leg. See S. 209th and an obli- responsibility public agency “a has providing that infor- personal safeguard public access a citizen’s gation to from thereof disclosure it has been entrusted when mation with which privacy.” expectation of the citizen’s reasonable violate legislation proposed language part remained That Ibid. 47:1A-1. codified at N.J.S.A. privacy provision now and is the competing command that alongside OPRA’s principle appears public, unless readily accessible to the shall be all documents specifically exempted. Ibid. therefore, support for a history, offers direct legislative

OPRA’s strong in public’s interest weighs both the balancing test that public access safeguard need to the disclosure with privacy. expectation of a reasonable information that would violate D. access, in we OPRA’s interests To balance constitutional Although Doe considered guidance. Doe for look to Law, by Megan’s it relied on case law implicated privacy interests the Freedom of statutory privacy provisions under concerning 82-86, (FOIA). Doe, 662 A.2d supra, 142 N.J. at Information Act applies the Similarly, Records Council 367. the Government statutory privacy claims addressing outlined in Doe factors Ho-Ho-Kus, GRC Com v. Boro OPRA. See Merino under 2004). 8, clearly identifies (July Because Doe plaint No. 2003-110 key inquiries, adopt its factors here: the we (3) (2) (1) might contain; or the information it does of record type requested; (4) injury disclosure; nonconsensual for harm potential any subsequent (5) generated; the record was to the which from disclosure relationship (6) degree safeguards of need disclosure; unauthorized prevent adequacy (7) articulated mandate, there is an statutory whether access; express militating recognized interest toward access. or other policy, public (citation marks and internal 142 N.J. at 662 A.2d 367 [Doe, quotation supra, omitted).] TV. apply principles. realty plaintiff records We now above statute, government By under seeks are records OPRA. by county recording records must be maintained on file officer by in books or some other authorized method. well-bound Bergen County keeps N.J.S.A. 46:19-1. the records both hard records, then, copy microfilm format. The would be accessi- 47:lA-5(d). through ble either medium. N.J.S.A.

Our concern is with the SSNs contained those records. But SSNs, plainly subject for the documents are to disclosure. obligation apply

Section 5’s to redact SSNs does not here question because the SSNs in are contained in records made, kept by “required law to be maintained or on file 47:lA-5(a). public agency.” Although N.J.S.A. we later look to Jersey strongly public policy other statutes that reveal how New SSNs, disfavors the disclosure of those laws do not “otherwise prohibit[ sought Looking disclosure of the records ]” here. Ibid. 5, then, only subject at section the records are to disclosure. argue Defendant and amici that disclosure of of millions records containing SSNs and other identifiers “would violate the expectation privacy.” citizen’s reasonable of N.J.S.A. 47:1A-1. agree. privacy provision directly implicated OPRA’s We is here requested along because the documents contain SSNs with the names, addresses, signatures, and marital status of a substantial Jersey number of New residents. We therefore turn to the balancing competing test outlined Doe to harmonize OPRA’s redacting concerns and evaluate whether disclosure without SSNs proper is in this case.

A. together: type We consider Doe’s first two factors sought they the information contain. Plaintiff asks deeds, copies assignments mortgages, diseharges/satisfac- mortgages, mortgages, pendens, mortgages, tions of lis releases of waivers, liens, vacations, liens, inheritance tax federal construction through from 1984 2006. judgment period for the and releases of ownership of various realty contain details about Those documents information about owners. properties along personal with records sure, disclosure of the points favor To be a number records, required to They are redacting them. without first generally See recording, kept. maintained and accepted for be recording 46:18, :19, 47:1, :2, purpose of and very N.J.S.A. :3. notice of their contents.” place the world on filing them “is to 271, 279, N.J.Super. County Office, 376 Dugan v. Camden Clerk’s rely buyers and creditors (App.Div.2005). Potential 870 A .2d624 ownership interests. protect their records to establish and on the addition, realty records are In individual See N.J.S.A. 46:22-1. available, inspection at available, copying for remain will placed According plaintiff, eleven counties have clerks’ offices. plaintiff During argument, oral on the Internet. records eight of those counties had unredacted that he believed advised (One prior county all records dated online. later removed prospectively N.J.S.A 47:1-16—which to October when filing—went requires the of SSNs from documents before removal effect.) though, justify cannot unchallenged practices, into Those privacy interest. a violation of a reasonable question realty records in do not It bears mention that voluntarily may add- require SSNs. While some individuals have information, they signed likely is more off on ed that it fact, In one married prepared by lenders or others. documents couple Bergen County Clerk in 2005 and asked to wrote to the They surprised public record. were remove their SSNs from the mortgage on a filed 1996. to find that the information was They explained they that SSNs were not needed also understood they initially realized that the on the document. Even if had SSNs, and that the record would be available document contained County, unlikely Bergen it is inspection at the record vault might up they anticipated their information end or others computerized, in a commercial database a decade or more after- ward. may at a

The fact that SSN be available clerk’s office person’s expectation privacy altogether. eliminate a does not Doe, As the Court noted in through “home addresses often are available sources such as publicly telephone registration organized lists, ‘[in] directories and voter but an there are few society, divulged facts that are not at one time or another to another.’ The interest privacy [in FOIA] 6 the control of individual’s

protected by Exemption ‘encompass[es] concerning controlling An in information his or her individual’s interest person.’ regarding the dissemination of information matters does not dissolve personal because that information be available to the in form.” some simply may public (alterations original) (quoting [142 N.J. at 662 A.2d 367 in U.S. 83, Dep’t of Defense 114 Autk, 487, 501, 1006, 1015, v. Fed. Labor Relations 510 U.S. S.Ct. 127 L.Ed.2d (1994) (citation omitted)).] 337 325, Accordingly, although the Doe Court found that information Megan’s “may public, under Law be available to the in some form other, plaintiff or that does not mean has no interest [that] 84, 367; limiting 142 A.2d its dissemination.” N.J. at 662 see also (2008) Reid, 389, 386, (recognizing State v. 194 N.J. 945 A .2d 26 expectation privacy reasonable of in subscriber information under Constitution, notwithstanding State disclosure to Internet service McAllister, 17, 25, 31-33, providers); State v. 184 N.J. 875 A.2d (2005) (recognizing expectation privacy 866 in bank reasonable Constitution, notwithstanding records under State disclosure banks).

That SSNs are combined with other information ele- Doe, privacy In the vates concern at stake. Court noted plaintiff the issue “not has a interest in his was whether address, address, plaintiffs along but whether the inclusion of with information, implicates any privacy 142 other interest.” N.J. at 83, earlier, realty appear 662 A.2d 367. As noted SSNs records addresses, names, status, along signa- information on marital with tures, mortgage. and details about one’s addition, realty company

In bulk disclosure of records to a searchable, planning in a electronic database to include them envelops those obscurity that now practical eliminate the Supreme County Office. As Bergen Clerk’s at the observed, difference between “there is a vast has Court diligent search of courthouse after a might be found records that archives, throughout police stations files, county and local clearing single in a summary located country computerized and a Reporters Comm. Dep’t Justice v. of information.” U.S. house 1468, 1477, Press, 109 S.Ct. 489 U.S. Freedom For reason, (1989). “compilation of For that L.Ed.2d privacy interest alters the information hard-to-obtain otherwise Ibid. information.” implicated by disclosure of that Committee, govern- and federal the state Reporters In Doe did ments, That pieces of information. respectively, assembled prepared the here; attorneys or individuals happen private not reason: are instructive another But the cases records. this case composite documents—in they highlight the fact computer made available a searchable records that would be broadly more than database—implicate privacy concerns much one item alone. documents with informa short, may fade In “interests in when record, they not non-existent.” but are is a matter of tion Comm., 87, Doe, (citing Reporters 662 A.2d 367 supra, 142 N.J. at 15, 15,109 at 1476 n. 103L.Ed.2d supra, at 763 n. S.Ct. at 489 U.S. 15). on file in for SSNs in n. The same is true 789 a clerk’s office.

B. potential for harm factors in Doe address The next two identify significant risk of is the particular Of concern disclosure. of SSNs. of vast numbers theft from disclosure person’s They closely tied to a unique identifiers. are SSNs are presents great a risk of harm. their disclosure financial affairs and individual could obtain a welfare an [A]rmed SSN, person’s with one’s unscrupulous a new address on that order new checks at benefits, or Social benefits Security checking or even obtain the cards, pay- obtain credit account, person’s person’s the harm that can be stated, inflicted from the disclosure of a check____Succinctly alarming an SSN to individual is ruinous. unscrupulous potentially financially [Greidinger v. Davis, (4th Cir.1993) (citations 988 F.2d 1354-55 and footnote omitted).] (FTC) warned, people As the Federal Trade Commission has who impersonate obtain SSNs can victims and use their SSNs “to accounts, opening gain existing facilitate the new access accounts, theft, identity employment, commit medical seek FTC, government Security obtain benefits.” in Numbers: SSNs (2008), http://www.ftc.gov/os/2008/12/-P & ID available at Theft 075414ssnreport.pdf. Jersey Legislature noted the link New between disclosure identity passed Identity

of SSNs and theft it when Theft in purpose Prevention Act 2005. A core of that “to law was Security ensure that the Social numbers of the citizens of the Jersey State of are New less accessible order to detect and prevent identity 56:ll-45(h); theft.” N.J.S.A. U.S. see also Gov’t Office, 07-752, Accountability Security Publ’n No. Social Num- Availability bers: Federal Actions Could Further Decrease Records, (2007), Though Public Other Vulnerabilities Remain 14 (“SSNs www.gao.gov/new.items/d07752.pdf available at ... are key piece of information used to create false for financial identities identity.”). misuse or assume another [to] individual’s alarming findings by Nearly Even more are statistical the FTC. ten percent population million Americans—almost five of the adult by identity during the United States—had been victimized theft FTC, period Identity twelve-month from 2002 to 2003. Theft (2003), Survey Report www.ftc.gov/os/2003/09/ available at those, synovatereport.pdf. Of 3.25 million had their infor- accounts, open loans, mation misused to obtain new new or commit theft, According fraud or other crimes. Ibid. to a different survey, they about 8.3 million adults discovered victimized were identity FTC, theft in 2005. Identity Survey Report 4 Theft (2007), www.ftc.gov/os/2007/ll/SynovateFinalReport available at ID-Theft2006.pdf. many complaints relate to questions of those

Amicus CDIA how cards or other opposed to stolen credit misappropriated SSNs as today point: identity theft is misses the items. Such a debate exposed or stolen real, directly to the misuse of and it is linked in containing SSNs a plan place to documents SSNs. Plaintiffs presents just such a centralized, computer database easy-to-search risk. before, eight pages million plaintiff seeks

As noted downplay twenty-two years. In an effort spanning documents harm, only a fraction of suggests NJLTA that the risk of amicus They experi- Florida’s pages might contain SSNs. cite to those pages of recorded it redacted 30 million ence when only percent 2.6 dating back to 1970 and found documents 208,000 guide, Using Florida’s outcome as a required redaction. and other eight pages sought contain SSNs million would by any account. number identifiers—a substantial percentage apply to New NJLTA contends that a lower records, smaller, yield the risk of Jersey but even if the actual is great. harm remains simply practical way no compound problem,

To there is person- give untold number of citizens whose advance notice to an request. pending OPRA al identifiers would be disclosed under century ago. quarter a None have Some of them filed documents expect might their SSNs now be sold for inclusion reason to result, searchable, those indi- computerized database. As a request that their SSNs be deleted not know to viduals would widely.3 v. they more See Michelson before are disseminated out, statutes, published points allow for notice to be Certain as the dissent laws, however, 447-48, newspapers. post 968 A.2d at 1173. Those See at be, action, are, unfolding people address situations where or should aware of strong public example, For or have to watch out for written notice. reason sheriff, any given public see before notice is for the sale of real estate 2A:61-1, prior would have received direct notice of the NJ.S.A. owner long Similarly, potential public underlying action in advance. bidders on strong notices and contracts have a incentive to be on the lookout upcoming SeeNJ.S.A. 40A:11-23. advertisements of bids. Wyatt, N.J.Super. (App.Div.2005) 880 A .2d 458 (noting evaluating need for care in whether access to information under OPRA “is inimical to ... the individual interests of the persons sought, particularly about information is whom when request ... those individuals have not received notice of the concerns”). express are unable to their C. adequacy safeguards prevent The fifth is the factor Simply put, meaning- unauthorized there be no disclosure. would ful control over dissemination of the SSNs after the release of the records.

Plaintiff, technology company operates land record data- states, in 25 bases for more than 200 counties would be free to use represented records as it sees fit. It has that it intends develop computerized clearinghouse paying of records for customers.

Disclosure of the unredacted records thus raises a number of Nothing prevent plaintiffs paying risks. would customers from Also, using inappropriate purposes. nothing the database for prevent reselling plaintiff its searchable database or placing marketing approach it if on the Internet its were to change.

D. The sixth factor assesses the need for access. Plaintiff concedes it has for the the trial court no need information ordered homebuyers, redacted. While lenders creditors must—and ownership, plaintiff do—have access to records of admits that it any security may has “no interest social numbers that be Rather, requested plain- property contained real records.” documents, SSNs, underlying require tiff wants the which do not to add to its commercial database. rule, purpose not consider the general we do

As a Michelson, N.J.Super. at supra, 379 requests. See OPRA behind entity seeking records for commercial 458. An 880 A.2d However, anyone else. right to them as has the same reasons balancing of require a privacy concerns exist that legitimate when access, appropriate for it is of the need interests and consideration pur the core further unredacted disclosure will to ask whether “ public knowledge about public maximize poses of OPRA: ‘to citizenry and to minimize informed in order to ensure an affairs Mason, supra, 196 process.’” inherent in a secluded the evils Press, 64, Asbury supra, 374 (quoting Park at 951 A.2d 1017 N.J. 446); & 329, also Nat’l Archives 864 A.2d see N.J.Super. at Admin, Favish, 157, 172, 124S.Ct. v. 541 U.S. Records FOIA, give to 319, to effect (noting that under 158 L.Ed. 2d 335 citizens, rule privacy “the usual protecting personal exemption requesting informa for the need not offer a reason that the citizen inapplicable”). must be tion disclosing by SSNs goals is furthered

Neither of OPRA’s computer compilers of belong private citizens to commercial to investigative request by made an a similar databases. Were recording prac- examining land public group interest reporter or differently in weigh government, this factor would tices of local balancing test. the

E. express is an statuto focuses on there The final factor “whether public mandate, policy, recognized other ry public or articulated Doe, 88, at public supra, 142 N.J. in favor of access. interest” A .2d367. increasingly strong concerns Legislature expressed has 2005, years. In after OPRA’s in recent

against disclosure of SSNs it adopted 47:1-16 and made Legislature N.J.S.A. passage, the 1, expressly prohibits any That October 2005. law effective entity, “print[ing] or any public private or person, and Security number Social displaying] any manner an individual’s any public recording any county document for on intended -with 47:l-16(a). recording authority.” N.J.S.A. a document Whenever SSN, presented filing recording authority for contains a “the shall delete, strike, expunge prior obliterate or that number otherwise 47:l-16(b). recording the document.” N.J.S.A. result, presented filing

aAs documents for on or after October 1, SSNs, longer requests no contain will extraneous present plain- those records will not issues raised 47:1-16, only. application. though, prospective tiffs N.J.S.A. is Had the statute directed that counties redact retroactively, source, providing funding might without law questions against have raised about the rule unfunded local man- Const, VIII, 2, 15(a); § dates. See N.J. art. 52U3H-2. N.J.S.A. afterward, Shortly Legislature again emphasized its concern against public adopted Identity disclosure of SSNs when it (ITPA), 2005, Theft Prevention Act P.L. c. 226. The into law went January specifically recognized effect on 2006. The ITPA possible” giving need to limit access SSNs “whenever to avoid may kept private.” access to information “an individual want earlier, 56:ll-45(g). Legislature pro- N.J.S.A As noted also public purpose claimed as a valid the need “to ensure that the Security Jersey Social numbers of the citizens of the State of New prevent identity are to detect less accessible order theft.” 56:ll-45(h). end, prohibits any person, To that the ITPA N.J.S.A public private entity, publicly posting displaying or or from or SSNs, 56:8-164(a)(l), intentionally communicating N.J.S.A or or making public, otherwise SSNs available to the N.J.S.A. 56:8- 164(a)(4). any exempts coverage records made law OPRA, 56:8-164(e), available under N.J.S.A and therefore does directly pending not resolve ease. safeguarding the importance

Federal law also underscores of See, 405(c)(2)(C)(viii)(I) e.g., (stating § SSNs. U.S.C.A. persons “that are or SSNs obtained maintained authorized confidential, any pursuant provision of law ... shall and no be SSNs); any person authorized shall disclose such” 5 U.S.C.A. “person- 552(b)(6) FOIA of (precluding public § disclosure under a of would constitute ... files the disclosure which nel and similar v. privacy”); Sherman personal of clearly unwarranted invasion (5th Cir.2001) Army, 244 365-66 Dep’t F.3d U.S. of SSNs). of (interpreting preclude FOIA to disclosure public interest is submit that the aggregators plaintiff like Data Through use of realty records. by releasing well-served less more efficient and technology, they can make title searches public. Rather thereby provide a benefit to expensive, and through book after book of requiring to look than title searchers onsite, computer at a termi- county can be done searches promise lays the Alongside that nal the click of a mouse. with records at highlights: easy access to unredacted problem this case central, provide easy access to computerized location can also records, to serious conse- on those which can lead the SSNs quences.

F. factors, balancing find that the twin aims On the above we weigh in personal information protection access and of redacting requested from the records before releas favor SSNs ing way, them. In that disclosure would not violate the reasonable information. expectation citizens have their holding unique is limited to the facts before us: This records, decades, spanning request bulk for millions of requestor contain a number of SSNs the does which substantial need, computer not via a centralized database whose dissemination identity pose an risk of theft to countless individu increased individuals, als, possibility notice to those with no of advance transpar request further OPRA’s core aim of where the does not applied ency government. balancing of interests must be This case, facts, might by another result be case and under different proper. provides may passed request

OPRA that costs be on to recovery duplication ors. The statute allows for of actual costs. 47:lA-5(b). addition, may requestors N.J.S.A. In be assessed preparation responding request. costs for involved in to a work 47:lA-5(c) (allowing special See N.J.S.A reasonable service charge reproduced using ordinary equip when records cannot be extraordinary reproduction expenditure ment or involves of time 47:lA-5(d) effort); (allowing special and N.J.S.A. reasonable charge manipulation” required). if “a substantial amount of is microfilm, plaintiff requests,

To redact SSNs from rolls of as County Bergen pay private need to vendor to convert the format, paper films to or an electronic and then examine them visually electronically or scan them so that SSNs can be masked process accomplished ordinary and blocked. That cannot be with effort, equipment, manipu- extra time and and entails calls for the contemplated by lation microfilm records—costs that are 5(c) (d). sections County plaintiff anticipated forwarded a bid for the actual duplication eight pages

cost of redaction million of records. recognize may prove prohibitively expensive. We the cost But $460,000 original high, is it than while estimate is still less statutorily per page. mandated maximum of N.J.S.A. $0.25 47:lA-5(b). Accordingly, agree ruling trial we with the court’s duplication the cost of redaction and is to be borne plaintiff.

V. cause, hearing At the on the order to on October show Judge skillfully guided parties Moses settlement on a toward amicably attempted number of issues. One area she to resolve was the microfilmed records could be whether “watermarked” so copies provided by apparent that it would be the records were originals. (By Clerk’s office on a certain date and not “water- documents, marking” information is embedded into them which removed.) approach cannot be altered or That was intended to the date might updated after that be over records avoid confusion lien discharged or a mortgage is example, when a copying—for filed. that include a disclaimer agreed to hearing, both sides

At the documents, “assuming the cost is on the be watermarked would afterward, to terms parties could not come minimal.” When diagonally on copying date to insert a ordered them Judge Moses obscure the contents way that not in a would each document document. authority provided no argued that OPRA appealed and

Plaintiff successfully argued Defendant watermarking public records. by their parties bound that the were Appellate to the Division upheld the trial court’s thus agreement. Appellate Division of the issue. addressing the merits order without both sides entered agree. do not find that do not We We watermarking. Their mutual, binding agreement on the issue of assumption on the qualified; it was conditioned agreement was time, watermarking be minimal. At the that the cost of would anything be substantial.” thought [not] the fee “would defendant $20,000 out, watermarking to the cost. We add As it turned will $20,000 amount the the “minimal” find that was within cannot Barger, Kupper v. contemplated agreed or to. See parties (finding (App.Div.1955) 111 A.2d 73 N.J.Super. attorneys open stipulation entered into of a enforcement been an absence of appears to have where there court “is denied attorneys in some parties or their mutuality of accord between the incomplete agreement is stipulated particulars, or the substantial terms”). essential of its material and some argu plaintiffs substantive yet No court has reviewed watermarking authorized OPRA ments about whether now, part time so for the first decline to do records. We Indeed, in her efforts to resolve moot. the issue is because “go if he case, plaintiff specifically asked Judge Moses $400,000 for redac- pay more than required to ahead” if he were “No,” you really responded it?” tion. “Do want she asked. plaintiff. relying He added he was not on the estimated cost necessary Security because “we don’t think it’s to redact Social Court, plaintiff argues expense numbers.” Before this the of “effectively requested redaction renders the documents unavail- public.” plaintiff changes able to the If mind his and decides to records, pay petition for redacted he can the trial court for a ruling watermarking. colloquy on the merits of on the Based Judge argument appeal, before Moses on the issue is now moot.

VI. above, modify For the forth reasons set we affirm and the judgment Appellate relating of the Division of disclosure the records, requested question watermarking on reverse the of because the issue is moot. ALBIN, dissenting.

Justice majority opinion directly unambig- The contravenes a clear and records, mandating public accessibility government uous statute 47:lA-5(a), and, so, doing against N.J.S.A. in strikes a blow governmental transparency age. Today, in the electronic the records; tomorrow, realty are documents denied with this case as precedent, touching important public policy other documents on kept judicially-sanctioned issues be sealed in will the realm of “practical obscurity”—the dusty storage room. shelves some realty Because to microfilm access records maintained in statute, Bergen County by Clerk’s Office is dictated I cannot join majority fashioning judicially-acceptable alternative respectfully result. I therefore dissent.

I. opening provision (OPRA), Open The Public Records Act -13, provides “government N.J.S.A. 47:1A-1 to records shall readily inspection, copying, be accessible or examination right access any limitations on ... and of this State citizens right of access.” public’s in favor of be construed ... shall OPRA, permit ac- shall custodian “[a] Under N.J.S.A 47:1A-1. in the copy thereof provide a government record and to a cess maintains the record public agency requested if the medium ” “ 47:lA-5(d). ‘[gjovemment record’ A N.J.S.A. that medium.” “made, main- agency has governmental “microfilm” that includes ... its official business.” in the course of kept or on file tained of this case— at the heart N.J.S.A. 47:1A-1.1. dis- deeds, releases, assignments and as, mortgages, and such subject to OPRA. government records charges mortgages—are “large, county in either kept are each ibid. Those records See method as by some other good paper or books of well-bound One 46:19-1. 47:1-5.” N.J.S.A. pursuant to R.S. authorized Ibid.-, maintaining records is microfilm. those “other method” for preserved on are realty records at issue N.J.S.A. 47:1-5. The microfilm. record, any allowing government

Generally, “[pjrior to access to any informa- from that record thereof shall redact the custodian security N.J.S.A. 47:1A- social number.” tion discloses [a] which 5(a). However, in a record security number contained “a social by public made, kept on file a by maintained or required to be law or disclo- access to the document agency shall be disclosed when prohibited----” Ibid. is not otherwise sure of that information “required by to be realty are law disputes that records No one agency.” Ibid. The made, by public a kept or on file maintained are that records language of the statute tells us clear they main- in are subject public access—in the medium which to tained, here, presence of social secu- microfilm—regardless of the rity in documents.1 numbers those security Legislature provision numbers for the deletion of social The made no 2005, 1, county the date before October filed with clerks' offices on documents 99, 47:l-16(a) § 2. N.J.S.A. became effective. See L. c. N.J.S.A. 47:1-16 entity, print including any public private provides person, shall or "[n]o now that any Security display any number on individual's Social manner an or OPRA, Legislature distinguished government In the between kept records that are not mandated law to be on file—in those county security cases the clerk must remove the social numbers making public—and before them accessible to the those records containing security kept social numbers that the law mandates be on file—in the clerk those cases must make the records available 47:lA-5(a). public to the redaction. In without See N.J.S.A. the security event the clerk decides to redact the social numbers from records, category provision the latter of no of OPRA authorizes pass along requestor. the clerk to the to cost the construction, Contrary statutory to our standard canons of the majority expression legislative preamble the takes intent the statute, precisely-worded plainly- to OPRA to void a N.J.S.A. 47:lA-5(a). OPRA, opening provision Legislature In the general passing made clear its intent in that statute: Legislature finds and declares it to be the of this State that: public policy agency obligation safeguard a has a and an from public responsibility public access a citizen’s information with which it has been entrusted when disclosure thereof would violate the citizen’s reasonable expectation privacy____ 47:1A-1.) [N.J.S.A. view, my Legislature conclusively In determined public government outweighed for need access provided of individuals it interests when N.J.S.A. recording recording document intended for with public any county authority.” redacting 47:1-16, Under clerk is NJ.S.A. for social county responsible security 47:1—16(b)("When- recording. numbers documents for N.J.S.A. presented recording recording ever a document is with presented any county number, and that document Social authority displays person’s Security recording expunge delete, strike, shall obliterate or otherwise authority document.”). recording number the to prior (codified Moreover, Act, the Prevention 2005, Theft L. c. Identity 56), scattered sections of Titles 2C and which the disclosure of social prohibits 56:8-164(e) numbers, does not records. See NJ.S.A. security apply realty ("Nothing in this shall to documents that are recorded or section apply required Statutes.”). to be to the to Title 47 of the Revised Had the open public pursuant Legislature intended to for the deletion of on social numbers security provide 2005, records before it could have done so. realty certainly 47:lA-5(a) in a record security number contained “a social made, kept by public file a or on maintained required by law to be the or disclo access to document agency be disclosed when shall A prohibited----” is not otherwise of that information sure ordinarily does finding legislative and declaration generally-stated statutory unambiguous mandate. See specific and trump a not Bd., 271, 109 N.J. Judgment & Fund Claim Wilson v. Unsatisfied (“In (1988) there is a conflict general, when A.2d 752 statute, specific provisions of a the general specific and between control.”); Singer, 1A Statu Norman J. Sutherland provisions will 2002) (“[Statements (6th regarding § 20.3 ed. tory Construction may preamble aid appear in the purpose of the act scope or clauses, they the but cannot control construction of doubtful ... cannot be preamble The provisions of the statute. substantive exists as to a intent if no doubt legislature’s used to discern (footnote omitted)). majority The reads meaning.” statute’s legis clearly-delineated a provision to override preamble’s exception enumerated redaction judgment, particular, lative 47:lA-5(a). in N.J.S.A. public the need for evidently concluded that Legislature

The individually or in bulk— records—whether government access to including democracy, purposes a number of essential serves transparency public awareness. fostering governmental right access out- that the Legislature has determined security social weighs the risk of harm individuals whose Nothing in the government records. appear in certain numbers county chooses to redact social suggests that if a clerk statute kept on microfilm security numbers aggregator or data by person, a commercial requested whether clerk then is allowed to Prize-winning reporter, that the Pulitzer merely twenty-fold the cost of requestor more than charge the releasing documents unredacted.

II. Services, case, a national title Trace Information In this Data Bergen County Clerk’s requested that the technology company, 444 realty years copy covering

Office microfilm of documents the 1984 to 2006.2 Data Trace intends to use the information to create an database, presumably electronic title search which will make title searches more accessible and affordable to businesses and the public. objective recording realty notify of documents is to 46:21-1; public property ownership rights. of and See N.J.S.A. Dugan County Office, N.J.Super. see also v. Camden 376 Clerk’s (“Indeed, (App.Div.) purpose A.2d 624 870 of record [realty] ing filing providing public or documents and access to contents.”), place them is to the world on notice of their certif. (2005). denied, 209, 184 N.J. 876 A.2d 283 search, Currently, person go a title to conduct a must to a county and clerk’s office review the records one document at a time, insurers, way purchasers, lawyers the same land title and realty past years. have searched records for the two hundred technology twenty-first century presents Information a now way. recognized aggregat- better It is to electronic “[a]ceess public provides social, ... important political, ed necessarily economic benefits. Commercial entities are involved analysis, gathering, public in the distribution record data complexity because of the of the work and the financial resources Belmas, required.” Brian N. & Larson Genelle I. Second Class Speech the Second Time: How the Commercial Doctrine for Records, Stigmatizes Aggregated Commercial Use Public 58 (2007). Thus, S.C. L.Rev. Data Trace—a commercial data aggregator engaged profit-making in a enterprise—would be ad- vancing primary purposes recording one of the of the State’s placing statutes: on notice of financial or other interests party may piece property. that a in a have Access to an substantially expense electronic database would save time and creditors, potential searchers, purchasers, title and others whose only other recourse to examine records is cumbersome trip county to a clerk’s office. Burnett, case, Trace, Fred this the interests of Data plaintiff represents

which the documents at issue. seeks distinguish does not between mentioning that OPRA

It bears public access to records giving superior right of requestors, majority’s balancing test The persons over another. one class requestor, compel- motives of the requires inquiry an into the now classify requestors into county judges to ling clerks and even say that the bulk categories. is to and non-favored Who favored than a journalist or academic rather of records to a release good greater public a that out- promote commercial vendor will majority has turned privacy interests? The weighs an individual’s 47:lA-5(a) theory of into a relativi- language clear of N.J.S.A. the only preferred persons and causes access ty might allow that public release of records. bulk represent a Trace does not

Obviously, majority, to the Data requested by reproduce the microfilm on file favored cause. To However, Trace, $19,000. the Data the cost be about County release the documents unless Bergen Clerk refused to security they any numbers. The cost were first scrubbed of social security searching redacting any social numbers would and $460,000. cost-prohibitive amount has the approximately be That records—cloaking deterring effect of access to the them real-world obscurity.” argues “practical Data Trace that the statute does county compel requestor to bear such a not authorize a clerk to prohibitive agree. I cost.

III. enacting Legislature I that in OPRA the intended do not believe direct, distinguish realty between access to county through electronic means. Un- clerk’s office and access majority’s approach, the Trace can visit a clerk’s office der Data realty copy'—with portable photocopiers or scanners—the all, time, security records one document at a social numbers and statute, offending place it and then the information without If, acquired point at some in the has on its electronic database. cost, future, expected profit is how this exceeds aggregator proceed. data That has been the commercial will why experience judiciary and is one reason the Administra- erected artificial barriers for the tive Office of the Courts has not bulk release of court records that are available electronic form. 47:lA-5(a) However, by supplanting applying its N.J.S.A test, majority prohibits judicially-crafted balancing being Trace in a records from transferred to Data cost-effective way, deterring public thus the bulk release of those records. OPRA, government of a record asserts

Under the custodian “[i]f exempt ... part particular of a record is access copy from a of the record that the custodian shall delete or excise exempt portion which the custodian asserts is from access and promptly permit to the remainder of the record.” shall access added). 47:lA-5(g) (emphasis import provi- of this N.J.S.A. custodian, requestor, that the record not the shoulders the sion is redacting any portion of a that responsibility for record the course, protected public from access. Of custodian believes is 47:lA-5(a) here, require that does not the we know N.J.S.A. security realty It redaction of social numbers from records. is the who, own, County Bergen Clerk on her decided that those num- any realty majority bers should be deleted from records. The documents, may requestor concedes that the here view those or them, copy at the Office in their unredacted form. even Clerk’s Thus, 428-29, although A2d at 1162-63. the See ante at fees, requestor pay duplication reproduction the must Clerk should have to bear the cost of redaction on which she “special not be a insists. Those costs should considered service 47:lA-5(e) -5(d). charge.” N.J.S.A. to See

IV. standard, majority’s balancing the Data Trace Even under release of the documents on micro- should not have been denied Bergen meager film based on the record before the Court. The County realty on objected Clerk to the bulk release of the security unsuspect- large numbers of social numbers of basis aggregator, ing individuals be released to a commercial data example of presented the Court with but one yet the Clerk but one a record. And security numbers on such social placed security numbers on example, apparently, the social were individuals. unbeknownst to the concerned the document seems, realty Clerk, records for other made no effort to cull the it having containing security numbers. Without social documents security of documents with social any knowledge of the number Clerk, records, and now the requested in the the numbers extrapolating that one exam- majority, wildly speculates—in identity exposed to of our citizens be ple—that a multitude will least, obligation to conduct a very At the the Clerk had the theft. search, and, basis, a reasonable estimate reasonable on that make The Clerk failed to do that. of the number of documents involved. concern, Last, majority’s the which if were to take to heart we record, is, might public ante at a convicted felon misuse how 1160-61, 424-25, a reason to close down 968A2d at one could find records, kept in the State House or a access to all whether courthouse.

Y. majority objective that the seeks achieve. I understand may majority’s view not be public policy perspective, From believe, that, majority I My quarrel with the is unreasonable. policy goals in the clear Legislature has set forth its intended 47:lA-5(a). language of N.J.S.A documents it has my opinion, In Data Trace is entitled to the microfilm on file in requested solely reproducing at the cost of liberty County The Clerk is at Bergen Clerk’s Office. might appear on the any security remove social numbers records, the cost. One alternative requested but must bear notice, public advance approach put the Clerk is to on media, go and allow individuals to through print and electronic security request of a social the Clerk’s Office to deletion appears a document that does not if such an identifier on number long regarded has been by require one. That form of notice law parties communication to who have adequate as an means of See, legally-cognizable e.g., at interests stake. N.J.S.A. 2A:61-1 (requiring public by government notice for sales of real estate actors); (requiring N.J.S.A. 40A:11-23 advertisements for bids). approach protect contract Such an the individual’s requirements interests and be faithful to the disclosure 47:lA-5(a). mandated N.J.S.A.

Today’s majority opinion significantly will close the door to the Open potentially far-reaching Public Records Act and ad- have consequences to the dissemination of information maintained verse governmental in state offices. Appellate grant

I Data would reverse the Division Trace’s request. expressed, respectfully For the reasons I dissent. joins opinion. in this

Justice LONG part part—Chief For as in affirmance modified/reversal LaVECCHIA, WALLACE, Justice RABNER and Justices RIVERA-SOTO and HOENS—5.

Dissenting—Justices LONG and ALBIN—2.

968 A.2d 1174 KING, THE AN IN MATTER OF S. DORELL ATTORNEY AT LAW. 29, April 2009. ORDER Disciplinary having Review Board filed with the Court its 08-130, concluding DORELL KING of decision DRB S. 1980, VERONA, was admitted to the bar of this State who suspended practice from the since June who has been law

Case Details

Case Name: Burnett v. County of Bergen

Court Name: Supreme Court of New Jersey

Date Published: Apr 27, 2009

Citation: 968 A.2d 1151

Docket Number: A-43 September Term 2008

Court Abbreviation: N.J.