DOREEN FREGA VS. BOROUGH OF SADDLE RIVER (L-8197-18, BERGEN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: January 27, 2020
• Docket: A-2252-18T3
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2252-18T3

DOREEN FREGA,

Plaintiff-Respondent,

v.

BOROUGH OF SADDLE RIVER and JOY C. CONVERTINI, in her official capacity as Municipal Clerk and Records Custodian for the BOROUGH OF SADDLE RIVER,

Defendants-Appellants. ______________________________

Argued December 11, 2019 – Decided January 27, 2020

Before Judges Koblitz, Whipple and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8197-18.

Russel R. Huntington and Levi Jon Kool argued the cause for appellants (Huntington Bailey, LLP, attorneys; Russel R. Huntington, of counsel and on the brief; Levi Jon Kool, on the brief).

Walter M. Luers argued the cause for respondent. PER CURIAM

Defendants Borough of Saddle River and Joy Convertini, in her official

capacity as Municipal Clerk and Records Custodian for the Borough of Saddle

River, (collectively defendants) appeal from the January 7, 2019 order

requiring defendants to disclose to plaintiff Doreen Frega the list of hunters

participating in the deer cull implemented by the Borough and the list of

addresses of public and private properties where the cull is authorized to take

place, pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to

-13. Plaintiff is also one of the named plaintiffs in the separate, pending

litigation, Animal Protection League of New Jersey v. Borough of Saddle

River, Docket No. BER-L-006512-18.

Defendants argue the trial judge failed to give proper weight to the

threats made by individuals who oppose the deer cull and disclosing the lists

would invade the hunters' and property owners' reasonable expectation of

privacy. We disagree and affirm substantially for the reasons expressed by

Assignment Judge Bonnie J. Mizdol in her oral and written opinions.

In July 2018, the Borough implemented a Wildlife Management Plan

establishing a controlled deer cull for public safety and health concerns. The

Borough entered into a resolution authorizing the United Bowhunters of New

A-2252-18T3 2 Jersey (UBNJ) "to provide deer management services" for one year

"commencing with the 2018-2019 deer hunting season." The contract between

the Borough and UBNJ provided that upon notifying the police of their full

names, vehicle identifications, license plate numbers, and cell phone numbers,

UBNJ members were authorized "to conduct a cull on various Borough

properties and on certain private properties within the Borough, with

permission of the property owner." These properties "must have been

reviewed and approved by the Borough Administration, the Chief of Police

and UBNJ."

In September 2018, plaintiff submitted a written OPRA request to the

Borough seeking: (1) a list of hunters participating in the cull; (2) a map or list

of public and private properties on which the cull is authorized to take place;

and (3) audio recordings of two specific city council meetings. Convertini

granted plaintiff access to the audio recordings, but denied her request for the

list of hunters because "[n]o such documents exist," and the request for

properties on "reasonable expectation of privacy" grounds under N.J.S.A.

47:1A-1.

In November 2018, Convertini sent plaintiff's counsel an amended and

more detailed response to plaintiff's request, disclosing the location of one

A-2252-18T3 3 Borough property being used for the cull and acknowledging that a list of

hunters did in fact exist. Convertini continued to deny plaintiff access to the

list, stating that pursuant to N.J.S.A. 47:1A-1 and Executive Order 21 1 "the

records requested include personal identifiers," which, if disclosed, "would

result in unsolicited contact, intrusion or potential harm." She explained that

due to threats made against the supporters of the deer cull, the records should

not be disclosed.

Defense counsel provided an excerpt from a council meeting where an

unidentified man who opposed the deer cull stated: "You want to be ruthless

assassins. I can be a ruthless assassin too. All right, because the Italians have a

saying about that. The tongue—you know, it breaks bones. So I hope you

sleep well." After being asked by the mayor, Albert Kurpis, whether he was

threatening the governing body, he responded "absolutely not."

1 "[B]efore OPRA went into effect, Governor McGreevy issued Executive Order 21 . . . [which] declared that 'an individual's home address and home telephone number . . . shall not be disclosed,' except under limited circumstances." Brennan v. Bergen Cty. Prosecutor's Office, 233 N.J. 330, 338 (2018). This provision was rescinded and a study was ordered to determine "to what extent [such information] should be made publicly available." Ibid. A report was eventually issued, "[b]ut neither the legislative nor the executive branch, by law or executive order . . . adopted the [report's] recommendations." Id. at 339.

A-2252-18T3 4 In addition, without publicly disclosing the names of the individuals who

posted, defense counsel provided the following "posts" from Facebook:

a. "That may be right Kurpis – you've had two lawsuits slapped on your town, your political career as well as most of your Council is destroyed and next your practice on Rt. 17 is going to take a major hit."

b. "A torture chamber for those deer not yet dead! I'd sooner see Kurpis and the council hanging from the scaffold for their evil deeds. How does Dr. Death Kurpis live with himself??"

c. "I hate our mayor and council . . . . They are sick and disgusting people . . . Now is the time to stop . . . . Everyone would like to beat the hell out of the entire bunch of them . . . they will get it back in spades. . . . Watch . . . . people are very upset . . . No reason for this killing . . . . How can Kurpis run a practice being such an evil man . . . ."

d. "I pray they each are a victim of their own crime."[2]

Although plaintiff did not make these remarks or any other threatening

comments, defendants note that several of her co-plaintiffs in the pending

litigation were responsible for the statements.

We review "determinations about the applicability of OPRA and its

exemptions" de novo. Carter v. Doe (In re N.J. Firemen's Ass'n Obligation),

2 We reproduce this portion of counsel's certification as written.

A-2252-18T3 5 230 N.J. 258, 273-74 (2017). "OPRA was 'designed to promote transparency

in the operation of government.'" Id. at 276 (quoting Sussex Commons

Assocs., LLC v. Rutgers, 210 N.J. 531, 541 (2012)). "[T]o ensure an informed

citizenry and to minimize the evils inherent in a secluded process," the

Legislature enacted OPRA with the purpose to provide the public with broad

access to "government records," unless an exemption applies. Ibid. A

"government record" is a document "made, maintained or kept on file in the

course of . . . official business." N.J.S.A. 47:1A-1.1.

Of the over twenty exemptions listed in the statute, "OPRA does not

contain a broad-based exception for the disclosure of names and home

addresses that appear in government records." Brennan v. Bergen Cty.

Prosecutor's Office, 233 N.J. 330, 338 (2018). The statute does impose a duty

upon a public agency "to safeguard from public access a citizen's personal

information with which it has been entrusted when disclosure thereof would

violate the citizen's reasonable expectation of privacy." N.J.S.A. 47:1A-1.

Upon reviewing OPRA's legislative history, our Supreme Court found

that the statute's competing "aims—of ready access to government records and

protection of a citizen's personal information—require a careful balancing of

the" following factors:

A-2252-18T3 6 (1) the type of record requested; (2) the information it does or might contain; (3) the potential for harm in any subsequent nonconsensual disclosure; (4) the injury from disclosure to the relationship in which the record was generated; (5) the adequacy of safeguards to prevent unauthorized disclosure; (6) the degree of need for access; and (7) whether there is an express statutory mandate, articulated public policy, or other recognized public interest militating toward access.

[Burnett v. County of Bergen, 198 N.J. 408, 427 (2009) (quoting Doe v. Poritz, 142 N.J. 1, 88 (1995)) (adopting the Doe factors originally applied to privacy interests under Megan's Law, N.J.S.A. 2C:7-1 to -11, to OPRA requests).]

The agency who denied the request has "the burden of proving that the denial

of access is authorized by law," N.J.S.A. 47:1A-6, and "must first present a

colorable claim that public access to records would invade a person's

reasonable expectation of privacy," before performing the Doe balancing test,

Brennan, 233 N.J. at 333.

Defendants argue that the judge should have given more weight to the

threats the supporters of the deer cull received. They explain that when

denying plaintiff's request, they determined "the disclosure of the records

would almost inevitably result in harm to . . . citizens" who participated in the

cull, and therefore the participants' and property owners' reasonable

A-2252-18T3 7 expectation of privacy "substantially outweighed" plaintiff's interest in the

information.

When an agency denies a request to disclose government records, it

"must present 'specific reliable evidence sufficient to meet a statutorily

recognized basis for confidentiality.'" Carter, 230 N.J. at 277 (quoting Courier

News v. Hunterdon Cty. Prosecutor's Office, 358 N.J. Super. 373, 382-83

(App. Div. 2003)). "Absent such [specific reliable evidence], a citizen's right

of access is unfettered." Ibid. (alteration in original) (quoting Courier News,

358 N.J. Super. at 383).

In Brennan, defendants denied plaintiff's request for the names and

addresses of successful bidders who participated in a public auction of

government property due to privacy concerns. Brennan, 233 N.J. at 332. Our

Supreme Court held that because "[t]he bidders knew that they were

participating in a public auction . . . . And the participants knew that they

were bidding on seized property forfeited to the government," a reasonable

expectation of privacy did not exist. Id. at 342-43. The Court explained that

"it was unreasonable for a buyer to expect that the information requested

would remain private" since "a public auction is a quintessential public event

that calls for transparency." Id. at 343. Furthermore, the concern that

A-2252-18T3 8 disclosure of the names and addresses would make the bidders targets of theft

was too speculative. Ibid.

Just like "the public has a right to know what property was sold, at what

price, and to whom, " ibid., the public has a right to know who has volunteered

to participate in the deer cull and where the deer cull is authorized to take

place, especially considering what the judge described as "the dangers inherent

in a cull." By way of example, Judge Mizdol noted that "a parent with

children has the right to know if hunters will be operating powerful cros sbows

on a neighbor's property."

Judge Mizdol correctly found that "[j]ust as . . . Brennan determined that

it is not reasonable for bidders at a public auction to expect their information

remain private, property owners and [hunters] voluntarily partaking in a public

deer hunt cannot establish a colorable claim of privacy."

While the judge made mention of the Doe factors in her opinion, she did

not provide an extended analysis of those factors because defendants failed to

present a colorable claim of privacy. Although we agree that no privacy claim

was substantiated by specific reliable evidence, we will briefly review the Doe

factors. No dispute exists regarding the type of record and the information

contained, the first two Doe factors. Plaintiff requested a list of the hunters

A-2252-18T3 9 participating in the cull and a list of properties where it would take place.

These lists qualify as government records because they were "made,

maintained or kept on file in the course of . . . business by any . . . authority of

the State." N.J.S.A. 47:1A-1.1.

The third and fourth Doe factors "address the potential for harm from

disclosure." Burnett, 198 N.J. at 431. Although plaintiff did not make any

threatening remarks, defendants argue that because alleged threats were made

by plaintiff's co-plaintiffs in pending litigation, "there is a potential for harm."

The risk of harm that the disclosure to the plaintiff will result in violence

based on the threats made at the council meeting and on Facebook is as

speculative as the risk of theft expressed by the defendants in Brennan.

Defendants also argue disclosure "would potentially chill residents and hunters

from participating in the program . . . resulting in an increase in an already

significant public health crisis." Neither here nor in Brennan did the

defendants support their risk of harm claims with any evidence.

When affirming the redaction of social security numbers from a

plaintiff's request to access land title records, our Supreme Court held that

such numbers are unique identifiers, which if disclosed could result in

"alarming and potentially financially ruinous" harm, as supported by statistical

A-2252-18T3 10 evidence. Burnett, 198 N.J. at 431-32 (quoting Greidinger v. Davis, 988 F.2d

1344, 1354-55 (4th Cir. 1993)). With regard to financial assistance

applications, our Supreme Court similarly explained that because "the potential

harm that could be created by the release of this information is unlimited ,"

such information need not be disclosed. Carter, 230 N.J. at 280.

Judge Mizdol explained that the purported threats here were "simply

hyperbolic expressions of animosity toward the practice of hunting."

Furthermore, defendants' argument that disclosure would cause participants to

withdraw from the program is not supported by any evidence. As plaintiff

notes in her brief, the florid language was "directed at the governing body, not

at [the] hunters or residents" partaking in the cull.

As to the fifth Doe factor assessing the safeguards to prevent

unauthorized disclosure, unlike a social security number or perhaps a birth

date, a name and address is not generally recognized as confidential

information. No promise of confidentiality was made by the Borough in its

resolution to implement the cull nor its contract with the UBNJ. Thus,

concerns about unauthorized disclosure are minimal.

The final two factors examine the need for access and look at whether a

statutory mandate or public policy requires disclosure. The purpose of an

A-2252-18T3 11 OPRA request is not considered unless "legitimate privacy concerns exist that

require a balancing of interests and consideration of the need for access."

Burnett, 198 N.J. at 435. A court may then ask whether "disclosure will

further the core purposes of OPRA: 'to maximize public knowledge about

public affairs in order to ensure an informed citizenry and to minimize the

evils inherent in a secluded process.'" Ibid. (quoting Mason v. City of

Hoboken, 196 N.J. 51, 64 (2008)). Plaintiff discusses in her brief that such

information will inform her "about the efficacy of the deer cull or the risks . . .

[w]ithout [which] . . . [she] cannot meaningfully address these issues in the

public domain." OPRA's purpose favors disclosure, regardless of whether

plaintiff could achieve her goal through different means. 3

Affirmed.

3 Defendants rely on various decisions by the Government Record Council (GRC), which "has routinely recognized that names and home addresses may be exempt from disclosure" where access to such information may result in unsolicited contact or potential harm. OPRA expressly states that "[a] decision of the [GRC] shall not have value as a precedent for any case initiated in Superior Court." N.J.S.A. 47:1A-7(e). Only when a case is directly appealed from the GRC, do we give deference to GRC decisions. Paff v. Galloway, 229 N.J. 340, 356 n.7 (2017).

A-2252-18T3 12