Professional Documents
Culture Documents
Civil Case Jacket
Civil Case Jacket
Plaintiffs-Respondents,
v.
Defendants-Appellants.
_____________________________
Plaintiff-Respondent,
v.
Defendants-Appellants.
_____________________________
Plaintiff-Respondent,
v.
Defendants-Appellants.
_______________________________
A-3421-20
2
SOM-L-001471-21 03/29/2023 Pg 3 of 32 Trans ID: LCV20231064597
DeALMEIDA, J.A.D.
addresses sufficient to protect them from disclosure under the Open Public
public who submit their email addresses to receive electronic newsletters and
A-3421-20
3
SOM-L-001471-21 03/29/2023 Pg 4 of 32 Trans ID: LCV20231064597
I.
The facts in these consolidated matters are similar and not in dispute.
A-3421-20
public awareness about racism and civil rights and to inform the public about
the law. Among other things, the organization investigates racial disparities and
monitors municipalities to ensure that they, and their agents, employees, law
is also the founder and Chair of Asian Hate Crimes Task Force (AHCTF), a
the Asian community and educates the public about Asian culture, history, and
current events.2
December 7, 2020, and December 14, 2020, Jung filed OPRA requests with
1
In the record, plaintiff is referred to as both Rise Against Hate and Rise
Against Hate.Org.
2
At the time that Jung filed his complaint, AHCTF's formation as a non-profit
corporation was pending. It has since been granted non-profit status.
A-3421-20
4
SOM-L-001471-21 03/29/2023 Pg 5 of 32 Trans ID: LCV20231064597
Hill, entitled "Notify Me," "Civil Alerts," and "Mayor's Weekly Update."
which they consent to receive periodic newsletters and notices from the
municipality. When members of the public register for these lists, Cherry Hill
provides a disclaimer that their personal information will not be disclosed unless
required by law.
The December 7, 2020 request was filed on behalf of RAH, which intends
The December 14, 2020 request was filed by Jung in his capacity as Chair
of AHCTF, which also intends to use the subscriber lists to send unsolicited
emails to further the organization's objectives. RAH and AHCTF did not request
the names, street addresses, social security numbers, or other information of the
subscribers.
A-3421-20
5
SOM-L-001471-21 03/29/2023 Pg 6 of 32 Trans ID: LCV20231064597
lists are government records, Saffos determined that the requested information
47:1A-1.
On January 22, 2021, RAH and Jung filed a complaint in the Law Division
alleging that the denial of the requests violated OPRA. Defendants cross-moved
pursuant to R. 4:6-2(e) to dismiss the complaint for failure to state a claim upon
On June 11, 2021, the trial court issued a written opinion ordering
dismiss the complaint. Noting the parties' agreement that the subscriber lists are
government records, the court found that the custodian had not raised a colorable
claim that disclosure of the email addresses on the subscriber lists would violate
3
In July 2020, a co-director of RAH filed an OPRA request on behalf of the
organization for the same information. Neither he nor the organization appealed
the denial of that request. The trial court rejected defendants' argument that the
December 7, 2020 request on behalf of RAH was time-barred because the denial
of the July 2020 request was not appealed. Cherry Hill did not address that
argument in its merits brief. We therefore deem any arguments with respect to
that claim waived. "[A]n issue not briefed is deemed waived." Pressler &
Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2023); Telebright Corp.,
Inc. v. Dir., N.J. Div. of Tax., 424 N.J. Super. 384, 393 (App. Div. 2012)
(deeming a contention waived when the party failed to include any arguments
supporting the contention in its brief).
A-3421-20
6
SOM-L-001471-21 03/29/2023 Pg 7 of 32 Trans ID: LCV20231064597
than the disclosure of home addresses, which courts have found to be subject to
noted that email addresses can easily be changed and do not reveal the physical
location or, in many cases, the identity of the owner of the email address. In
addition, the court found that recipients of unsolicited emails from RAH and
can easily block, or divert to a spam folder, any future emails from them. The
court also noted that before subscribers submitted their email addresses, Cherry
Hill put them on notice that those addresses would be disclosed if required by
law. This fact, the court found, lessened any privacy interest.
Although not necessary in light of its finding that the custodian failed to
raise a colorable claim of privacy, the trial court undertook an analysis of the
factors set forth in Burnett v. Cnty. of Bergen, 198 N.J. 408, 427 (2009), to
was outweighed by the interest in public access to that information. The court
A-3421-20
7
SOM-L-001471-21 03/29/2023 Pg 8 of 32 Trans ID: LCV20231064597
connecting those email addresses to any person. In addition, the court concluded
that the public would benefit from the dissemination by RAH and AHCTF of
the custodian made a colorable claim of privacy, the privacy interest would have
A June 11, 2021 order directs Cherry Hill to disclose the subscriber lists
A-1440-21
the public subscribe to these lists by providing an email address at which they
consent to receive newsletters and notices from the municipality. RAH intends
historically marginalized communities. RAH did not request the names, street
A-3421-20
8
SOM-L-001471-21 03/29/2023 Pg 9 of 32 Trans ID: LCV20231064597
RAH subsequently filed a complaint in the Law Division alleging that the
denial of its request violated OPRA and the common law right of access.
On December 13, 2021, the trial court issued an oral opinion ordering
motion. The court found that the custodian made a colorable claim that
privacy of the subscribers. After applying the Burnett factors, however, the
court concluded that although the members of the public who registered for the
township's newsletters and notices likely did not expect that their email
actions. Thus, the court found that the requested information is not protected
A-3421-20
9
SOM-L-001471-21 03/29/2023 Pg 10 of 32 Trans ID: LCV20231064597
disclosure of the email addresses against the privacy interest of the subscribers,
the court found that RAH also has a right to the requested information under the
A-1517-21
On July 18, 2021, RAH submitted an OPRA request to defendant Lee Ann
When subscribing to the lists, members of the public provide an email address
at which they consent to receive newsletters and notices from the municipality.
RAH did not request the names, street addresses, social security numbers, or
other information of the subscribers. It intends to use the subscriber lists to send
DeHart denied the request. She determined that although the requested
information is a government record: (1) the email addresses are protected from
A-3421-20
10
SOM-L-001471-21 03/29/2023 Pg 11 of 32 Trans ID: LCV20231064597
disclosure by N.J.S.A. 47:1A-1 because the members of the public who joined
the distribution lists have an objectively reasonable expectation that their email
objectives; and (2) disclosure of the requested information would not further the
government.
RAH subsequently filed suit in the Law Division, alleging that the denial
of its request violated OPRA and the common law right of access. West
On October 25, 2021, the trial court issued an oral opinion ordering
motion. The court found that DeHart had not advanced a colorable claim that
found that "[a]ny objectively reasonable person knows that their email addresses
are regularly disclosed, sold, whatever the case may be and that's why we all
A-3421-20
11
SOM-L-001471-21 03/29/2023 Pg 12 of 32 Trans ID: LCV20231064597
have these spam emails in our inboxes." In addition, the court rejected West
Deptford's claim that disclosure of the email addresses would expose the email
not contain the addressee's full name, the court found that RAH's request
In addition, the court noted that although the Legislature had recently amended
government records excluded from public disclosure, it had not protected email
addresses.
colorable claim of privacy effectively ended its analysis, the court addressed the
addresses, minimal harm from disclosure, and that RAH established a need for
access, the court concluded that release of the requested information would be
warranted under a Burnett analysis. The court did not analyze whether RAH is
A-3421-20
12
SOM-L-001471-21 03/29/2023 Pg 13 of 32 Trans ID: LCV20231064597
An October 25, 2021 order directs West Deptford to produce the requested
In all three matters, the municipal defendants filed an appeal and the trial
court stayed its order directing disclosure of the requested information pending
appeal. We consolidated the appeals for purposes of argument and this opinion.
II.
in government records have been met. O'Shea v. Twp. of W. Milford, 410 N.J.
Super. 371, 379 (App. Div. 2009); Asbury Park Press v. Cty. of Monmouth, 406
N.J. Super. 1, 6 (App. Div. 2009). "The purpose of OPRA is to maximize public
minimize the evils inherent in a secluded process." O'Shea, 410 N.J. Super. at
379 (quoting Times of Trenton Publ'g Corp. v. Lafayette Yard Community Dev.
Corp., 183 N.J. 519, 535 (2005) (internal quotations omitted)). The statute
"shall be construed in favor of the public's right of access . . . ." N.J.S.A. 47:1A-
1. The records custodian has the burden to show that its denial of access was
A-3421-20
13
SOM-L-001471-21 03/29/2023 Pg 14 of 32 Trans ID: LCV20231064597
[N.J.S.A. 47:1A-1.1.]
There is no dispute that the subscriber lists requested by RAH and AHCTF are
Galloway, 229 N.J. 340 (2017) (electronic fields of information, including email
Defendants argue, however, the email addresses on the subscriber lists are
A-3421-20
14
SOM-L-001471-21 03/29/2023 Pg 15 of 32 Trans ID: LCV20231064597
data base . . . [;]" and (3) a "[p]ersonal firearms record," which includes the
The statute, which was amended several times in the recent past to expand
4
The statute permits, in some circumstances, disclosure of social security
numbers when they appear in documents required to be made, maintained or
kept on file by a public agency. N.J.S.A. 47:1A-5(a).
A-3421-20
15
SOM-L-001471-21 03/29/2023 Pg 16 of 32 Trans ID: LCV20231064597
judicial officers and others from public disclosure), does not include email
"a public agency has a responsibility and an obligation to safeguard from public
access a citizen's personal information with which it has been entrusted when
. . . ."
request for disclosure, to apply "a balancing test that weighs both the public's
strong interest in disclosure with the need to safeguard from public access
Burnett, 198 N.J. at 427. The Supreme Court adopted the multi-factor
framework set forth in Doe v. Poritz, 142 N.J. 1, 88 (1995), to determine whether
A-3421-20
16
SOM-L-001471-21 03/29/2023 Pg 17 of 32 Trans ID: LCV20231064597
Three recent Supreme Court opinions apply the Doe factors to requests for
judgment that had been filed with a county clerk over a twenty-two-year period.
searchable electronic database to which it would sell access. Ibid. The records,
which were otherwise "plainly subject to disclosure," id. at 428, contained social
416. The custodian sought to redact the SSNs pursuant to N.J.S.A. 47:1A -1,
arguing that the parties whose SSNs appeared in the documents had an
Ibid.
With respect to the first two Doe factors, the Court recognized the public
interest in the availability of records relating to realty, given that "[t]he very
purpose of recording and filing them 'is to place the world on notice of their
A-3421-20
17
SOM-L-001471-21 03/29/2023 Pg 18 of 32 Trans ID: LCV20231064597
contents.'" Id. at 429 (quoting Dugan v. Camden Cnty. Clerk's Off., 376 N.J.
Super. 271, 279 (App. Div. 2005)). "Potential buyers and creditors rely on the
records to establish and protect their ownership interests." Ibid. (citing N.J.S.A.
46:22-1). In addition, the Court noted that SSNs are not required on the
documents in question and were likely added by lenders and others who prepared
them for filing. Ibid. Thus, the Court observed, it was unlikely that people
other public settings, that fact alone was not sufficient to erase the interest in
limiting dissemination of that information. Id. at 430. The Court also found an
elevated privacy interest because the SSNs appeared on the records along with
mortgage details, ibid., and because the requestor intended to compile the
As for the potential harm from disclosure, the Court found of "particular
concern" the "significant risk of identity theft from disclosure of vast numbers
of SSNs." Id. at 431. This is so, the Court found, because "SSNs are unique
A-3421-20
18
SOM-L-001471-21 03/29/2023 Pg 19 of 32 Trans ID: LCV20231064597
identifiers. They are closely tied to a person's financial affairs and their
disclosure presents a great risk of harm." Ibid. "'[A]rmed with one's SSN, an
Security benefits, order new checks at a new address on the person's checking
account, obtain credit cards, or even obtain that person's paycheck . . . .'" Ibid.
(quoting Greidinger v. Davis, 998 F.2d 1344, 1354-55 (4th Cir. 1993) (citations
With respect to factor five, the Court found that there were no safeguards
against unlimited disclosure of the SSNs once released. Id. at 434. The Court
also noted that the requestor had no demonstrated need for the SSNs and could
fulfill its objective without access to the SSNs. Ibid. The Court held,
A-3421-20
19
SOM-L-001471-21 03/29/2023 Pg 20 of 32 Trans ID: LCV20231064597
[Id. at 435.]
Finally, the Court noted that the Legislature had "expressed increasingly
[Id. at 437.]
In Brennan v. Bergen Cnty. Prosecutor's Off., 233 N.J. 330, 333 (2018), a
county prosecutor's office held a public auction to sell sports memorabilia it had
A-3421-20
20
SOM-L-001471-21 03/29/2023 Pg 21 of 32 Trans ID: LCV20231064597
previously seized. All bidders submitted a registration form that included their
names, addresses, telephone numbers, and email addresses. Ibid. There were
thirty-nine successful bidders. Id. at 334. After a news report raised questions
about the authenticity of the items, the prosecutor's office offered the successful
Brennan submitted an OPRA request for the contact information for each
winning bidder. Ibid. The prosecutor's office produced receipts issued to the
winning bidders "that did not include the buyers' names or addresses." Ibid.
After applying the Doe factors, the trial court ordered release of the
unredacted records. Ibid. The court found the privacy interest "limited" because
the buyers' names and addresses were already publicly available from various
sources. Ibid. The court also concluded that the risk of harm from disclosure
was "relatively miniscule." Ibid. We reversed. We also applied the Doe factors,
but concluded that the privacy interest was significant because the release of the
buyers' names and addresses would reveal that they are collectors of valuable
memorabilia, which might make them targets for theft. Ibid. In addition, we
disclosure because the buyers "were not responsible for any government actions
A-3421-20
21
SOM-L-001471-21 03/29/2023 Pg 22 of 32 Trans ID: LCV20231064597
in connection with the auction." Id. at 336. We, therefore, found that Brennan
was not entitled to the release of unredacted versions of the records. Ibid.
The Supreme Court reversed. The Court emphasizes that Burnett does not
"require[] courts to analyze the Doe factors every time a party asserts that a
Noting that the case was "a far cry from Burnett," the
Court quickly dispensed with the argument. Ibid. The
Court explained that "OPRA's privacy clause has no
application here because this case does not implicate
the concerns raised in Burnett." Id. at 7. The Court
also saw "no reason to analyze the Doe factors" when
"a former county employee chose to file a public action
– a complaint against the County which was available
to the public" – and the matter would have unfolded in
open court had the case not settled. Ibid. Disclosure of
the settlement, the Court observed, "would not violate
any reasonable expectation of privacy." Ibid.
[Ibid.]
A-3421-20
22
SOM-L-001471-21 03/29/2023 Pg 23 of 32 Trans ID: LCV20231064597
custodian must present a colorable claim that public access to the records
privacy." Id. at 342. When the custodian does "not present a colorable privacy
claim at the outset . . . there is no need to resort to the Doe factors." Ibid.
Applying that standard, the Court concluded that the custodian at the
prosecutor's office did not present a colorable claim of privacy in the names and
addresses of the successful bidders. As the Court explained, "[t]he bidders knew
that they were participating in a public auction" and "that they were bidding on
seized property forfeited to the government." Ibid. In addition, the Court noted,
property can be forfeited and public notice in advance of the auction. Ibid. The
Court concluded:
A-3421-20
23
SOM-L-001471-21 03/29/2023 Pg 24 of 32 Trans ID: LCV20231064597
[Id. at 343.]
Recently, in Bozzi v. City of Jersey City, 248 N.J. 274, 278 (2021), the
a copy of Jersey City's dog license records. He noted that the city may "redact
information relating 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." Ibid. He
intended to use the information to solicit customers for his business. Id. at 277.
The city denied the request, asserting that disclosure of the names and
expectations of privacy. Id. at 278. In addition, the city noted that disclosure
as well as potentially put the dogs themselves at risk for theft." Ibid.
After the requestor filed suit alleging a violation of OPRA, the city
A-3421-20
24
SOM-L-001471-21 03/29/2023 Pg 25 of 32 Trans ID: LCV20231064597
[Ibid.]
A second certification stated there were five reported dog thefts in the city in
The trial court concluded that the information was not excluded from
exemption from public disclosure for names and home addresses appearing in
dog license applications. Id. at 284. Thus, the Court observed, the requested
information could be protected from disclosure only if it fell within the m ore
As the Court held, "[i]t is . . . the ownership and licensing of a dog that
make . . . a colorable claim. And it is here that Jersey City's claim fails, because
A-3421-20
25
SOM-L-001471-21 03/29/2023 Pg 26 of 32 Trans ID: LCV20231064597
[Ibid.]
Because it concluded that the Jersey City custodian did not state a colorable
objectively reasonable expectation of privacy, the Court did not apply the Doe
conclude that the trial courts erred when they found that the requested
excludes from public disclosure the email addresses of people who subscribe to
A-3421-20
26
SOM-L-001471-21 03/29/2023 Pg 27 of 32 Trans ID: LCV20231064597
member of the Legislature, but does not extend that protection to such
list does not include email addresses. Unlike in Burnett, the Legislature has not
records of municipalities.5
5
The significance of the omission of email addresses from N.J.S.A. 47:1A-5(a)
must be considered in light of the 2004 report from the Privacy Study
Commission, created by Governor McGreevey in 2002, through Executive
Order No. 21. The Commission recommended that for purposes of OPRA, email
addresses be treated in the same manner as unlisted telephone numbers, which
are protected from disclosure in N.J.S.A. 47:1A-5(a). See Privacy Study
Commission, Final Report 12 (2004). The Legislature has not adopted that
recommendation. The Supreme Court found legislative inaction with respect to
a recommendation of the Commission "strongly cautions against creating a
judicial exception" that effectuates the unadopted recommendation. Bozzi, 248
A-3421-20
27
SOM-L-001471-21 03/29/2023 Pg 28 of 32 Trans ID: LCV20231064597
The only provision under which the information requested here may be
N.J.S.A. 47:1A-1. We conclude that the custodians made colorable claims that
is a colorable proposition that people who register for the passive electronic
factors in turn:
N.J. at 284-85 (citing Brennan, 233 N.J. at 339). We do not view our holding
today as creating a categorical exemption for email addresses. We instead
interpret the long-standing privacy provision in N.J.S.A. 47:1A-1 to apply to
email addresses in the circumstances presented in these appeals.
A-3421-20
28
SOM-L-001471-21 03/29/2023 Pg 29 of 32 Trans ID: LCV20231064597
information from government officials that will be sent to anyone else who
information is likely minimal. RAH and AHCTF admit that they intend to send
unsolicited emails to the addresses on the subscriber lists. While it is likely that
they convey, it is equally likely that other recipients will disagree with the
political and social objectives of the organizations or will simply wish not to be
reality of modern life. We do not agree, however, that their inevitability means
A-3421-20
29
SOM-L-001471-21 03/29/2023 Pg 30 of 32 Trans ID: LCV20231064597
organizations, which may have political and social objectives with which they
(4) We think it is likely that at least some members of the public will
lists are subject to public disclosure. The value of being able to passively
objectives;
(5) While there is no practical way to prevent RAH and AHCTF from
further distributing the email addresses, the groups have not expressly indicated
that they intend to share the subscriber lists with other organizations;
(6) We disagree that RAH and AHCTF made a showing of need for the
A-3421-20
30
SOM-L-001471-21 03/29/2023 Pg 31 of 32 Trans ID: LCV20231064597
without the municipal subscriber lists. The organizations are free to compile
subscriber lists of their own from people who consent to receiving emails from
them. While the municipal subscriber lists provide an inexpensive and easy way
for RAH and AHCTF to disseminate information, those lists are not essential to
(7) We also find that disclosure would not further the public interest.
passive nature in which municipal newsletters and notices are sent, disclosure
of subscriber lists does little to enlighten the public about the operations of
government. As noted above, the subscriber lists do not identify people who
are, instead, a list of email addresses of people who consented to the one-way
the subscriber lists outweighs the limited public interest that would be advanced
by public disclosure. The trial courts erred when they ordered disclosure of the
A-3421-20
31
SOM-L-001471-21 03/29/2023 Pg 32 of 32 Trans ID: LCV20231064597
entitled to disclosure of the requested information under the common law right
of access. The trial court in Bridgewater found that disclosure was required
under the common law. The trial court in West Deptford did not address the
issue. No party raises the common law on appeal. We have weighed the factors
Rutgers, the State Univ., 148 N.J. 36, 50 (1997), and conclude that the interest
outweighs any interest RAH and AHCTF have in accessing that information.
The orders on appeal are reversed to the extent they require the disclosure
of the requested information pursuant to OPRA and/or the common law and deny
consistent with this opinion, given that attorney's fees were awarded by the trial
A-3421-20
32