NOT FOR PUBLICATION WITHOUT THE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
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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
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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).
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