SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Court. In the interest of brevity, portions of an opinion may not have been summarized.
Ernest Bozzi v. City of Jersey City (A-12-20) (084392)
Argued March 15, 2021 -- Decided September 20, 2021
FERNANDEZ-VINA, J., writing for the Court.
The Court considers whether owning a dog creates an objectively reasonable expectation of privacy such that the owner’s personal information in the dog licensing record might be exempt from disclosure under the Open Public Records Act (OPRA).
Plaintiff Ernest Bozzi requested copies of defendant Jersey City’s most recent dog license records pursuant to OPRA and the common law right of access. Plaintiff, a licensed home improvement contractor, sought the information on behalf of his invisible fence installation business. Plaintiff noted that Jersey City may redact information relating to the breed of the dog, the purpose of the dog, and any phone numbers associated with the records. He sought only the names and addresses of the dog owners.
Jersey City denied plaintiff’s request on two grounds. First, Jersey City alleged that the disclosure would be a violation of the citizens’ reasonable expectation of privacy, contrary to N.J.S.A. 47:1A-1, by subjecting the dog owners to unsolicited commercial contact. Second, it expressed concern that such a disclosure may jeopardize the security of both dog-owners’ and non-dog-owners’ property. Plaintiff filed suit.
The trial court found the dog licensing records were not exempt and ordered Jersey City to provide the requested information. Despite finding no objectively reasonable privacy interest, the trial court went on to analyze the seven privacy factors set forth in Doe v. Poritz, 142 N.J. 1 (1995), finding each of them to be neutral or in support of plaintiff’s position. The Appellate Division affirmed, relying on Bozzi v. Borough of Roselle Park, 462 N.J. Super. 415 (App. Div. 2020), a nearly identical case involving the same OPRA petitioner. The Court granted certification. 246 N.J. 580 (2020).
HELD: Owning a dog is a substantially public endeavor in which people do not have a reasonable expectation of privacy that exempts their personal information from disclosure under the privacy clause of OPRA.
1. OPRA, at its core, was designed to promote transparency in the operation of government. According to the statute, “all government records shall be subject to public
1 access unless exempt,” and “any limitations on the right of access . . . shall be construed in favor of the public’s right of access.” N.J.S.A. 47:1A-1. The public’s right to disclosure, while broad, is not unlimited. The privacy clause of OPRA “directs agencies to safeguard personal information that, if disclosed, ‘would violate [a] citizen’s reasonable expectation of privacy.’” Brennan v. Bergen Cnty. Prosecutor’s Off., 233 N.J. 330, 339-40 (2018) (alteration in original) (quoting N.J.S.A. 47:1A-1). (pp. 10-12)
2. The Court reviewed the meaning of OPRA’s privacy clause in Brennan and concluded from the Legislature’s express exemption of names and addresses in certain contexts that, beyond those “select situations,” there is no “overarching exception for the disclosure of names or home addresses.” 233 N.J. at 337-38 (discussing N.J.S.A. 47:1A-1.1). The decision highlighted the Legislature’s continuing process of amending OPRA, which has not included the enactment of any such overarching exception. Id. at 338-39. The Brennan Court found that legislative inaction particularly significant in light of the recommendations in a 2004 report from the Privacy Study Commission. That report placed issues like the one presented in this case squarely before the Legislature, and the Legislature declined to act on them. The Court found in Brennan, and finds here, that the Legislature’s inaction with respect to the recommended exemptions strongly cautions against creating a judicial exemption in this context. (pp. 12-13)
3. When a request does not fall within an express exemption, a records custodian may still assert that the requested information should not be disclosed under the privacy clause. That clause requires the presentation of “a colorable claim that public access to the records requested would invade a person’s objectively reasonable expectation of privacy.” Id. at 342. The key to such a claim has been a distinction between actions and information typically kept private versus those extended to the public. Only after finding a privacy interest is a court required to look to the Doe factors to balance the need for disclosure against the privacy interest at stake. (pp. 13-14)
4. Here, the records are government records “kept on file in the course of . . . official business” and do not fall into any of the express exemptions in N.J.S.A. 47:1A-1.1. The commercial nature of plaintiff’s request is immaterial; he has the same right to the records as anyone else. OPRA’s privacy clause may nonetheless require a balancing of the twin aims of OPRA -- government transparency and an obligation to safeguard personal information -- if disclosure would “violate [a] citizen’s reasonable expectation of privacy.” N.J.S.A. 47:1A-1. But, under Brennan, there is no overarching exemption for the disclosure of names and addresses, and the Court finds no reasonable expectation of privacy in owning or licensing a dog. Owning a dog is, inherently, a public endeavor. Owners and their dogs are regularly exposed to the public during daily walks, grooming sessions, and veterinarian visits. Dog owners who continually expose their dogs to the public cannot claim that dog ownership is a private undertaking. (pp. 14-16)
2 5. While plaintiff here has requested only the names and addresses of dog owners, the Court stresses that there are other parts of the dog licensing records that would give rise to security concerns. Any similar disclosure of dog records should not include breed information or the purpose of the animal, and the names of dogs may need to be excluded. (p. 16)
6. Because Jersey City has not established a colorable claim that public access to the names and addresses of dog owners would violate a reasonable expectation of privacy, the Court need not conduct an extended Doe analysis. The Court agrees with the evaluation of the trial court that the factors collectively favor disclosure. The Court continues to abide by the plain language of OPRA and its fundamental policy favoring disclosure. (pp. 16-17)
The judgment of the Appellate Division is AFFIRMED.
JUSTICE PIERRE-LOUIS, dissenting, stresses that OPRA’s core purpose is to promote transparency in the operation of government and that, although OPRA itself states that the law is to “be construed in favor of the public’s right of access,” it also directs the safeguarding of personal information if disclosure “would violate the citizen’s reasonable expectation of privacy.” N.J.S.A. 47:1A-1. In Justice Pierre-Louis’s view, that reasonable expectation of privacy should recognize every citizen’s right not to have each and every piece of information provided to the government divulged for reasons that do not further the purpose of OPRA, and the fact that information may be available elsewhere does not eliminate a person’s reasonable expectation of privacy altogether. Noting that the information sought here -- name, address, and dog ownership -- taken together, is not public, Justice Pierre-Louis finds it reasonable that dog owners would have expected that the information they provided to Jersey City for the sole purpose of complying with the law by obtaining a dog license would remain private. Justice Pierre- Louis reviews the Doe privacy factors and finds that five out of seven factors also militate against disclosure.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, and SOLOMON join in JUSTICE FERNANDEZ-VINA’s opinion. JUSTICE PIERRE- LOUIS filed a dissent, in which JUSTICE ALBIN joins.
3 SUPREME COURT OF NEW JERSEY A-12 September Term 2020 084392
Ernest Bozzi,
Plaintiff-Respondent,
v.
City of Jersey City and Irene McNulty,
Defendants-Appellants.
On certification to the Superior Court, Appellate Division.
Argued Decided March 15, 2021 September 20, 2021
Maura E. Connelly, Assistant Corporation Counsel, argued the cause for appellants (Peter J. Baker, Jersey City Law Department Corporation Counsel, attorneys; Maura E. Connelly and John McKinney, Assistant Corporation Counsel, on the brief).
Donald M. Doherty, Jr., argued the cause for respondent (Donald M. Doherty, Jr., on the brief).
Carl R. Woodward, III, argued the cause for amici curiae New Jersey State League of Municipalities and New Jersey Institute of Local Government Attorneys (Carella, Byrne, Cecchi, Olstein, Brody & Agnello, attorneys; Carl R. Woodward, III, on the brief).
Megan Iorio, of the District of Columbia bar, admitted pro hac vice, argued the cause for amicus curiae
1 Electronic Privacy Information Center (Barry, Corrado, Grassi and Electronic Privacy Information Center, attorneys; Frank L. Corrado, Megan Iorio, and Alan Butler, of the District of Columbia bar, admitted pro hac vice, on the brief).
CJ Griffin argued the cause for amicus curiae Libertarians for Transparent Government (Pashman Stein Walder Hayden, attorneys; CJ Griffin, of counsel and on the brief).
JUSTICE FERNANDEZ-VINA delivered the opinion of the Court.
In this case we are called on to determine whether owning a dog creates
an objectively reasonable expectation of privacy such that the owner’s
personal information in the dog licensing record might be exempt from
disclosure under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1
to -13.
Plaintiff Ernest Bozzi submitted a request to the City of Jersey City
(Jersey City) for dog license records in order to solicit customers for his
invisible fencing business. He sought only the names and addresses of dog
owners. Jersey City denied his request, objecting on the ground that such a
disclosure would violate the dog owners’ reasonable expectation of privacy.
The trial court found no privacy interest prohibiting disclosure and
ordered Jersey City to comply with plaintiff’s request. The Appellate Division
2 affirmed, relying on Bozzi v. Borough of Roselle Park, 462 N.J. Super. 415
(App. Div. 2020), a nearly identical case involving the same OPRA petitioner.
We affirm the judgment of the Appellate Division and find that owning a
dog is a substantially public endeavor in which people do not have a
reasonable expectation of privacy that exempts their personal information from
disclosure under the privacy clause of OPRA.
I.
A.
We begin by summarizing the pertinent facts and procedural history.
On November 27, 2018, plaintiff Ernest Bozzi requested copies of Jersey
City’s most recent dog license records pursuant to OPRA and the common law
right of access. Plaintiff is a licensed home improvement contractor, and he
sought the information on behalf of his invisible fence installation busine ss. In
his request, plaintiff noted that Jersey City may redact information relating to
the breed of the dog, the purpose of the dog -- if it is a service or law
enforcement animal -- and any phone numbers associated with the records. He
sought only the names and addresses of the dog owners.
Jersey City denied plaintiff’s request a month later, objecting to the
release of the information on two grounds. First, Jersey City alleged that the
disclosure would be a violation of the citizens’ reasonable expectation of
3 privacy, contrary to N.J.S.A. 47:1A-1, by subjecting the dog owners to
unsolicited commercial contact. And second, it cited a decision by the
Government Records Council (GRC), Bernstein v. Borough of Park Ridge,
GRC Complaint No. 2005-99 (July 2005), for its concern that such a disclosure
may jeopardize the security of both dog-owners’ and non-dog-owners’
property, as well as potentially put the dogs themselves at risk for theft.
Plaintiff filed suit, and the trial court issued an order to show cause
requiring Jersey City to demonstrate why the records should be exempt from
disclosure. Jersey City submitted two certifications to support its position, one
from its Chief of Police and a second from its Project Manager in the
Department of Public Safety.
The Chief of Police certified that the Police Division was “exceptionally
concerned” about the release of the names of dog owners for a number of
reasons. For one, those residing at addresses known not to have dogs on the
premises may be exposed as more vulnerable to robbery or burglary. Further,
disclosure may expose the locations of victims who have fled from threats,
stalking, and other harm. And finally, knowing an address has a dog may
encourage wrongdoers to bring a weapon.
The Project Manager’s certification detailed the results of his search for
reported thefts of dogs in Jersey City. According to his search, there were five
4 dogs reported stolen in 2018 -- three from yards, one from an apartment, and
one taken by a friend entrusted to walk the dog.
At the conclusion of argument, the trial court found the dog licensing
records were not exempt and ordered Jersey City to provide the requested
information to plaintiff. The trial court acknowledged the potential for privacy
concerns but concluded that “someone who simply registers their dog [does
not have] a[n] objectively reasonable belief that it’s going to be kept private or
confidential.” Despite this finding, the trial court went on to analyze the seven
Doe privacy factors, 1 finding each of them to be neutral or in support of
plaintiff’s position.
Jersey City appealed, and the Appellate Division summarily affirmed,
relying on its published decision in Bozzi v. Borough of Roselle Park, in which
the same plaintiff sought the same information from a different defendant.
In Roselle Park, the Appellate Division permitted under OPRA the
disclosure of the names and addresses of those who obtained dog licenses. 462
N.J. Super. at 428. After determining that GRC rulings would “not dictate [the
court’s] decision”2 because they had “no precedential value in [the]
1 Doe v. Poritz, 142 N.J. 1 (1995). 2 The Borough of Roselle Park and the City of Summit had argued that Bernstein v. Borough of Park Ridge, GRC Complaint No. 2005-99 (July 14, 2005), supported their positions because the GRC determined that an 5 consideration of OPRA appeals,” ibid., the court found that residents of
Summit and Roselle Park did not “have a reasonable expectation of privacy in
their names and addresses when they appl[ied] for a dog license,” id. at 429.
The court pointed out that “people who own dogs frequently walk them
in public places and ordinarily do not conceal their status.” Ibid. And
although the court acknowledged that receiving unsolicited mail from
plaintiff’s business may be irritating, it found no risk of “identity theft or other
unwelcomed consequences” that might create an expectation of privacy. Id. at
429-30. Finally, the Appellate Division was persuaded by the fact that the
Legislature had previously tried and failed to amend OPRA to exempt the
disclosure of names and addresses in connection with pet licenses. Id. at 430-
31.
This Court then granted Jersey City’s petition for certification. 246 N.J.
580 (2020). We also granted the motions of the Libertarians for Transparent
Government (LFTG), the Electronic Privacy Information Center (EPIC), the
New Jersey State League of Municipalities (League), and the New Jersey
Institute of Local Government Attorneys (NJILGA) to participate as amici
curiae.
individual had a reasonable expectation of privacy in information provided to a municipality for the purpose of obtaining a dog license. 6 II.
Jersey City contends that the names and addresses sought by plaintiff for
the expressed purpose of commercial solicitation are protected by the privacy
exception of OPRA. The core of Jersey City’s argument is that dog owners
have a reasonable expectation of privacy in their names and addresses listed on
their dog licenses. Jersey City further argues that the commercial nature of the
request does not promote government transparency or achieve any of the main
goals of OPRA.
As for the Doe factors, Jersey City posits that they weigh heavily in
favor of non-disclosure. Jersey City highlights that there are no safeguards to
prevent subsequent unauthorized disclosures and that plaintiff could therefore
publish or sell the names and addresses he receives through his request. Since
some dogs are used for protection, Jersey City argues that releasing that
information jeopardizes safety by publicizing which residences have dogs and
which do not. Finally, the City raises the concern that fear of the disclosure of
personal information may discourage dog owners from registering their
animals.
7 B.
Amicus curiae EPIC aligns itself with Jersey City and first contends that
federal courts have found a colorable privacy interest in names and addresses
contained in public records when disclosure of that information could lead to
unwanted solicitations. Second, EPIC maintains that the Federal Constitution
includes a right to informational privacy and that the Freedom of Information
Act (FOIA), the federal analog to OPRA, encompasses an individual’s right to
informational privacy. Finally, EPIC argues that requests for information that
are justified only by commercial interests do not serve the purpose of OPRA.
It urges this Court to adopt a rule that those who request personal information
in a government record must make a threshold showing of a public interest that
serves the core purpose of OPRA.
C.
Amici curiae the League and NJILGA also align themselves with Jersey
City. They argue, in a joint brief, that the disclosure of a digital compilation of
names and addresses of dog owners violates those persons’ reasonable
expectation of privacy. Walking a dog in public, amici contend, does not
disclose the owner’s name and address and therefore does not undermine the
privacy interest.
8 D.
Plaintiff counters that Jersey City has failed to make a colorable claim
that disclosure of the requested dog license records would invade a dog
owner’s objectively reasonable expectation of privacy. He submits that owners
of dog licenses do not have an objectively reasonable expectation of privacy
under this Court’s precedent in Brennan v. Bergen County Prosecutor’s Office,
233 N.J. 330 (2018), because the names and addresses contained in dog
licenses are not the type of information the typical person keeps secret.
Plaintiff also stresses that nothing in OPRA bars his request simply
because of its commercial nature. He points out that New Jersey law has never
deemed a requestor’s proposed commercial use of the records as incompatible
with OPRA and that all limitations on access under OPRA should be construed
in favor of providing access.
E.
Amicus curiae LFTG aligns itself with Bozzi to argue that no objectively
reasonable person would believe that their ownership of a dog is a private fact ,
given that dogs are constantly exposed to public view. Even if Jersey City has
made a colorable claim of privacy, LFTG submits that balancing the privacy
factors in Doe compels disclosure.
9 LFTG emphasizes that OPRA does not require records custodians to
consider the reason for a given request. It points out that the Legislature has
failed to advance a number of bills that would have denied commercial
requestors access to records under OPRA. LFTG also stresses that OPRA
expressly exempts driver’s license numbers and personal identifying
information of those who hold hunting and firearm licenses but that the
Legislature has declined to exempt that same information for holders of dog
licenses.
III.
This Court’s review of issues involving statutory interpretation is
plenary. In re N.J. Firemen’s Ass’n Obligation, 230 N.J. 258, 273 (2017).
Whether an OPRA exemption applies is a question of law subject to de novo
review. Id. at 273-74.
This Court’s objective in statutory construction “is to effectuate
legislative intent,” and “[t]he best source for direction on legislative intent is
the very language used by the Legislature.” Gilleran v. Township of
Bloomfield, 227 N.J. 159, 171-72 (2016). The words in a statute are to “be
given their generally accepted meaning” and “read and construed with their
context.” N.J.S.A. 1:1-1. “If the language is clear, the court’s job is
10 complete.” In re Expungement Application of D.J.B., 216 N.J. 433, 440
(2014). We look to extrinsic sources to determine legislative intent “[o]nly if
the words of the enactment are shrouded in ambiguity,” Zabilowicz v. Kelsey,
200 N.J. 507, 513 (2009), “lead[] to more than one plausible interpretation,”
DiProspero v. Penn, 183 N.J. 477, 492-93 (2005), or would lead to absurd
results, Burnett v. County of Bergen, 198 N.J. 408, 425 (2009).
On review, this Court presumes that the Legislature is aware of the
judicial construction given its enactments. N.J. Democratic Party, Inc. v.
Samson, 175 N.J. 178, 195 n.6 (2002).
B.
OPRA, at its core, was “designed to promote transparency in the
operation of government,” Sussex Commons Assocs., LLC v. Rutgers, 210 N.J.
531, 541 (2012), with a purpose “to maximize public knowledge about public
affairs in order to ensure an informed citizenry and to minimize the evils
inherent in a secluded process,” Mason v. City of Hoboken, 196 N.J. 51, 64
(2008) (quoting Asbury Park Press v. Ocean Cnty. Prosecutor’s Off., 374 N.J.
Super. 312, 329 (Law Div. 2004)). According to the statute, “all government
records shall be subject to public access unless exempt,” and “any limitations
on the right of access . . . shall be construed in favor of the public’s right of
access.” N.J.S.A. 47:1A-1.
11 The public’s right to disclosure, while broad, is not unlimited. Kovalcik
v. Somerset Cnty. Prosecutor’s Off., 206 N.J. 581, 588 (2011). The privacy
clause of OPRA “directs agencies to safeguard personal information that, if
disclosed, ‘would violate [a] citizen’s reasonable expectation of privacy.’”
Brennan, 233 N.J. at 339-40 (alteration in original) (quoting N.J.S.A. 47:1A-
1).
This Court recently reviewed the meaning of OPRA’s privacy clause in
Brennan. We explained that OPRA contains twenty-three explicit exemptions
from disclosure, including any “personal identifying information” -- a person’s
name and address -- received “in connection with the issuance of any license
authorizing hunting with a firearm.” Id. at 337-38 (quoting N.J.S.A. 47:1A-
1.1). We concluded from the Legislature’s express exemption of names and
addresses in certain contexts that, beyond those “select situations,” there is no
“overarching exception for the disclosure of names or home addresses.” Id. at
337-38.
Our decision highlighted the Legislature’s continuing process of
amending OPRA, which has not included the enactment of any such
overarching exception. Id. at 338-39. We found that legislative inaction
particularly significant in light of the recommendations in the 2004 report from
the Privacy Study Commission, created by Governor McGreevy in 2002
12 through Executive Order No. 21. Ibid. The recommendations in that report
included not disclosing home telephone numbers; notifying individuals that
their home addresses may be disclosed; and giving individuals the opportunity
to use an address of record specifically for disclosure purposes. See Final
Report, https://dspace.njstatelib.org/xmlui/bitstream/handle/10929/22262/
c58152004.pdf?sequence=1&isAllowed=y. Those recommendations thus
placed issues like the one presented in this case squarely before the
Legislature, and the Legislature declined to act on them. See Brennan, 233
N.J. at 339. We found in Brennan, and we continue to find here, that the
Legislature’s inaction with respect to the recommended exemptions strongly
cautions against creating a judicial exemption in this context.
When a request does not fall within an express exemption, a records
custodian may still assert that the requested information should not be
disclosed under the privacy clause. That clause requires the presentation of “a
colorable claim that public access to the records requested would invade a
person’s objectively reasonable expectation of privacy.” Id. at 342. The key to
such a claim has been a distinction between actions and information typically
kept private versus those extended to the public: social security numbers in
land title records in Burnett and financial relief checks in Carter both presented
serious privacy concerns, while the results of a public auction in Brennan and
13 the settlement agreement between a county and an employee resulting from the
employee’s filing of a public complaint in Asbury Park did not. See Burnett,
198 N.J. at 437; Carter, 230 N.J. at 267; Brennan, 233 N.J. at 342; Asbury Park
Press v. County of Monmouth, 201 N.J. 5, 6 (2010).
Only after finding a privacy interest is a court required to look to the
Doe factors adopted by this Court in Burnett to balance the need for disclosure
against the privacy interest at stake. See 198 N.J. at 428.
IV.
Applying those principles here, we conclude that Jersey City has failed
to present a colorable claim that the disclosure of the requested dog license
records would invade a dog owner’s reasonable expectation of privacy. We
therefore affirm the Appellate Division’s judgment.
We make two initial points. First, it is clear that the dog license records
sought in this case are government records “kept on file in the course of . . .
official business” and do not fall into any of the express exemptions in OPRA.
N.J.S.A. 47:1A-1.1. Second, the commercial nature of plaintiff’s request is
immaterial to our analysis; he “has the same right to [the records] as anyone
else.” Burnett, 198 N.J. at 435.
We therefore turn to OPRA’s privacy clause, which may nonetheless
require a balancing of the twin aims of OPRA -- government transparency and
14 an obligation to safeguard personal information -- if disclosure of the records
would “violate [a] citizen’s reasonable expectation of privacy.” N.J.S.A.
47:1A-1.
Our decision in Brennan clearly precludes any reading of OPRA that
would provide an overarching exemption for the disclosure of names and
addresses. See Brennan, 233 N.J. at 388. It is, therefore, the ownership and
licensing of a dog that would have to provide a reasonable expectation of
privacy for Jersey City to make such a colorable claim. And it is here that
Jersey City’s claim fails, because we find no reasonable expectation of privacy
in owning or licensing a dog.
Owning a dog is, inherently, a public endeavor. Owners -- and the dogs
themselves -- are regularly exposed to the public during daily walks, grooming
sessions, and veterinarian visits. Many owners celebrate their animals on
social media or bumper stickers, inherently public platforms. Some people put
up signs stating that there is a dog at the residence; others frequent certain
parks or establishments specifically made for dogs and dog owners. Some
owners even enter their dogs into public shows, events, and competitions. Dog
owners who continually expose their dogs to the public cannot claim that dog
ownership is a private undertaking. Just like the participants in the public
15 auction in Brennan, dog owners are fully aware of the public exposure of their
actions.
While plaintiff here has requested only the names and addresses of dog
owners, we stress that there are other parts of the dog licensing records that
would give rise to security concerns. Any similar disclosure of dog records
should not include breed information, which poses a risk to public safety given
the high value of certain purebred dogs. Further, the purpose of the animal
-- whether it is a companion or a service or a law enforcement dog -- must be
kept confidential for the health and safety of the owners and the dogs. Finally,
the names of dogs may need to be excluded, given that many people use the
names of their beloved pets as passwords or answers to important security
questions.
Because Jersey City has not established a colorable claim that public
access to the names and addresses of dog owners would violate a reasonable
expectation of privacy, we need not conduct an extended Doe analysis.
Burnett, 198 N.J. at 428. Suffice it to say, we agree with the thorough
evaluation of the trial court that the factors collectively favor disclosure.
We are bound by the language of OPRA and the intent of the Legislature
in safeguarding personal information. The inadequacies complained of by
Governor McGreevy and the recommendations made by the Privacy Study
16 Commission were not corrected or adopted by the Legislature. Thus, we
continue to abide by the plain language of the statute and its fundamental
policy favoring disclosure.
We affirm the judgment of the Appellate Division.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, and SOLOMON join in JUSTICE FERNANDEZ-VINA’s opinion. JUSTICE PIERRE-LOUIS filed a dissent, in which JUSTICE ALBIN joins.
17 Ernest Bozzi,
JUSTICE PIERRE-LOUIS, dissenting.
The government, at all levels, demands a plethora of personal
information from its citizens who must file tax returns, census reports,
applications for licenses, and other various records as part of the everyday
incidents of life. But not all of the information we are compelled to give the
government belongs in the public domain.
The core purpose of the Open Public Records Act (OPRA) is to
“promote transparency in the operation of government,” Sussex Commons
Assocs., LLC v. Rutgers, 210 N.J. 531, 541 (2012), and “to maximize public
knowledge about public affairs in order to ensure an informed citizenry and to
minimize the evils inherent in a secluded process,” Mason v. City of Hoboken,
196 N.J. 51, 64 (2008) (quoting Asbury Park Press v. Ocean Cnty.
Prosecutor’s Off., 374 N.J. Super. 312, 329 (Law Div. 2004)). The release of
1 the names and addresses of all persons who applied for a dog license in a
municipality does not implicate the core purpose of OPRA.
Although OPRA itself states that the law is to “be construed in favor of
the public’s right of access,” it also directs the safeguarding of personal
information if disclosure “would violate the citizen’s reasonable expectation of
privacy.” N.J.S.A. 47:1A-1. That reasonable expectation of privacy should
recognize every citizen’s right not to have each and every piece of information
provided to the government divulged for reasons that do not further the
purpose of OPRA.
In the present case, the OPRA request involves the release of names and
addresses of dog license holders in Jersey City. Although those records do not
implicate the traditional government operations the Legislature intended
OPRA to shed light on, the majority finds no reasonable expectation of privacy
in the information and holds that the records must be released. Because I find
that there exists an objectively reasonable privacy interest in the records and
that the privacy interest outweighs the need for disclosure pursuant to OPRA, I
respectfully dissent.
2 I.
In enacting OPRA, the Legislature included a carve-out to safeguard
from disclosure the release of information that would violate the citizenry’s
reasonable expectation of privacy. N.J.S.A. 47:1A-1. In addition to the
statute’s express exemptions of certain types of records from disclosure,
OPRA’s privacy provision is a catch-all that captures those records that are not
specifically exempted by the Legislature but are nevertheless subject to a
reasonable expectation of privacy. Indeed, it would be quite difficult to
delineate every possible government record in which disclosure would
encroach upon the citizenry’s reasonable expectation of privacy. The privacy
provision thus enables OPRA both to capture any privacy interests not
specifically identified by the plain language of the statute and to account for
the evolution of privacy interests over time.
It is a fact of life that residents of this State and country are obligated to
provide a certain amount of information to the government. But the fact that
we are required by law to provide information to the entities by which we are
governed does not mean that we do not retain some element of privacy in our
personal information. It matters not that, in our modern world, some of our
personal information is available from a variety of sources, including the
3 pervasive, far-reaching internet. The fact that information may be available
elsewhere “does not eliminate a person’s reasonable expectation of privacy
altogether.” Burnett v. County of Bergen, 198 N.J. 408, 430 (2009). The
question here is whether the government must act as a clearinghouse of that
information, even in circumstances where a privacy interest exists and the
information sought has no relation to the purpose behind OPRA.
In the present case, it is undisputed that in order to legally own a dog in
Jersey City, residents are required to register their names, addresses, and the
breed of their dog, among other things, to obtain a dog license. When Jersey
City residents, acting as good citizens, register their dogs and obtain licenses,
it is difficult to imagine that they believe the information provided to their
local government in compliance with the law will be subject to widespread
distribution to anyone who makes a request under the guise of transparency of
government functions.
Plaintiff, and the majority, assert that owning a dog is a public endeavor
because dog owners often walk their dogs in public. Certainly, people with
dogs do not hide the fact of ownership when they go out in public with their
pets. But dog owners appearing in public with their dogs do not do so while
simultaneously advertising their full names and addresses. The information
sought here -- name, address, and dog ownership -- taken together, is not
4 public, and it is unlikely that dog owners envisioned that the government
would turn over that information to the general public wholesale pursuant to
OPRA requests.
Defendants argue that dissemination of the dog license information,
which invites unsolicited contact or intrusion, is protected by OPRA’s privacy
exception because dog license holders have a reasonable expectation that their
information will not be disseminated for the purpose of commercial
solicitation. I agree with the majority that the purpose behind the request is
generally not relevant to our threshold inquiry of whether a reasonable
expectation of privacy exists. Our case law has made clear that an entity
seeking records for a commercial purpose has the same right to available
records as anyone else. See Burnett, 198 N.J. at 435. But defendants’
argument that dog owners have a privacy interest in preventing the general
dissemination of their information, which could lead to unwanted contact and
intrusion, is compelling. The right to be left alone and not have the
government, which has been entrusted with your information, serve as a
conduit for such intrusion is entirely reasonable.
Unlike the public auction in Brennan v. Bergen County Prosecutor’s
Office, licensing a dog in New Jersey is hardly “a quintessential public event
that calls for transparency.” See 233 N.J. 330, 343 (2018). It is reasonable
5 that dog owners would have expected that the information they provided to
Jersey City for the sole purpose of complying with the law by obtaining a dog
license would remain private. Therefore, I would find that there is a
reasonably objective privacy interest in the dog license records.
Because I believe that defendants have presented a colorable claim that
the OPRA request would invade dog license holders’ reasonable expectation of
privacy, I next turn to the factors identified in Doe v. Poritz, 142 N.J. 1, 88
(1995), to balance that privacy interest against the public’s interest in
disclosure of the records. In Burnett, this Court adopted the following seven
privacy factors outlined in Doe to assess whether disclosure pursuant to OPRA
was appropriate in light of the privacy concerns:
(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, 198 N.J. at 427 (quoting Doe, 142 N.J. at 88).]
In my view, five out of the seven factors (factors three through seven) militate
against disclosure in this case. Regarding factor three, there is certainly
potential for harm from disclosure of these records. Although OPRA protects 6 from disclosure the personal information of crime victims in government
records,1 the reality is that many crimes, particularly domestic violence
offenses, go unreported. Thus, victims who never reported the crimes
committed against them are not classified as victims in any government
databases, and their information therefore would not be shielded against such a
records request. Unfortunately, dog license records could be used by those
with nefarious intentions as an avenue to obtain the addresses of crime victims,
or others seeking anonymity, if the requestor knows that the victim owns a dog.
In assessing the harm to the relationship between citizens and the
government in factor four, there is a concern that residents might decide to
forego registering their dogs or providing other types of information to their
local governments for fear that every piece of information provided will be
subject to public disclosure. Regarding factor five, there do not appear to be
any safeguards in place to prevent the unauthorized disclosure of the
information central to this case once it is disseminated.
Last, turning to factors six and seven, although our courts do not
generally consider the purpose behind OPRA requests, “when legitimate
privacy concerns exist that require a balancing of interests and consideration of
the need for access, it is appropriate to ask whether . . . disclosure will further
1 See N.J.S.A. 47:1A-2.2 and :4-2 to -4. 7 the core purposes of OPRA.” Burnett, 198 N.J. at 435. In assessing the need
for access here, it is evident that nothing in plaintiff’s request for dog license
records to promote his invisible fence business furthers OPRA’s purpose of
informing the public about government activities and guarding against
corruption and misconduct. There is, therefore, no great need for access here.
The articulated public interest of transparency in government, which normally
weighs in favor of disclosure, is simply absent in this case because the records
fall outside traditional areas of public concern that actually shine a light on
government functions. And the non-disclosure of this information would do
nothing to jeopardize OPRA’s core purpose because the request has no
connection whatsoever to the objective behind OPRA.2
2 Although I do not believe these records should be subject to wholesale disclosure pursuant to OPRA, I do think that this information could be made accessible in limited circumstances pursuant to the common law right of access. As was discussed during oral argument, there may be situations, for example, in which someone is terrified of dogs and seeks information about dog license holders in a particular neighborhood where they are looking to buy a house. That person could make a particularized showing for information on dog license holders in a certain neighborhood pursuant to the common law right of access. Unlike OPRA requests, a requestor seeking documents under the common law must “establish an interest in the subject matter of the material” and the “right to access must be balanced against the State’s interest in preventing disclosure.” Keddie v. Rutgers, 148 N.J. 36, 50 (1997) (quotations omitted). In such circumstances, limited records can be made available under the common law where appropriate. In contrast, the application of OPRA would require the widespread distribution of information on every single dog license holder in a municipality. 8 II.
The privacy provision in OPRA is meant to guard against the disclosure
of information in which citizens have a reasonable expectation of privacy. In
light of the Court’s decision today, it appears the bar to making a colorable
privacy claim is so high that there may be very few privacy interests that
OPRA will respect.
For those reasons, I respectfully dissent.