Burnett v. County of Bergen

Justice ALBIN,

dissenting.

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

I.

The opening provision of the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, provides that “government records shall be readily accessible for inspection, copying, or examination by the *441citizens of this State ... 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. Under OPRA, “[a] custodian shall permit access to a government record and provide a copy thereof in the medium requested if the public agency maintains the record in that medium.” N.J.S.A. 47:lA-5(d). A “ ‘[gjovemment record’ ” includes “microfilm” that a governmental agency has “made, maintained or kept on file in the course of ... its official business.” N.J.S.A. 47:1A-1.1. The realty records at the heart of this case— such as, deeds, releases, mortgages, and assignments and discharges of mortgages—are government records subject to OPRA. See ibid. Those records are kept in each county in either “large, well-bound books of good paper or by some other method as authorized pursuant to R.S. 47:1-5.” N.J.S.A. 46:19-1. One “other method” for maintaining those records is microfilm. Ibid.-, N.J.S.A. 47:1-5. The realty records at issue are preserved on microfilm.

Generally, “[pjrior to allowing access to any government record, the custodian thereof shall redact from that record any information which discloses [a] social security number.” N.J.S.A. 47:1A-5(a). However, “a social security number contained in a record required by law to be made, maintained or kept on file by a public agency shall be disclosed when access to the document or disclosure of that information is not otherwise prohibited----” Ibid. No one disputes that realty records are “required by law to be made, maintained or kept on file by a public agency.” Ibid. The clear language of the statute tells us that realty records are subject to public access—in the medium in which they are maintained, here, microfilm—regardless of the presence of social security numbers in those documents.1

*442In OPRA, the Legislature distinguished between government records that are not mandated by law to be kept on file—in those cases the county clerk must remove the social security numbers before making them accessible to the public—and those records containing social security numbers that the law mandates be kept on file—in those cases the clerk must make the records available to the public without redaction. See N.J.S.A. 47:lA-5(a). In the event the clerk decides to redact the social security numbers from the latter category of records, no provision of OPRA authorizes the clerk to pass along the cost to the requestor.

Contrary to our standard canons of statutory construction, the majority takes the expression of legislative intent in the preamble to OPRA to void a plainly- and precisely-worded statute, N.J.S.A. 47:lA-5(a). In the opening provision of OPRA, the Legislature made clear its general intent in passing that statute:

The Legislature finds and declares it to be the public policy of this State that:
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 disclosure thereof would violate the citizen’s reasonable expectation of privacy____
[N.J.S.A. 47:1A-1.)

In my view, the Legislature conclusively determined that the need for public access to government records outweighed the privacy interests of individuals when it provided in N.J.S.A. *44347:lA-5(a) that “a social security number contained in a record required by law to be made, maintained or kept on file by a public agency shall be disclosed when access to the document or disclosure of that information is not otherwise prohibited----” A generally-stated legislative finding and declaration ordinarily does not trump a specific and unambiguous statutory mandate. See Wilson v. Unsatisfied Claim & Judgment Fund Bd., 109 N.J. 271, 278, 536 A.2d 752 (1988) (“In general, when there is a conflict between general and specific provisions of a statute, the specific provisions will control.”); Norman J. Singer, 1A Sutherland Statutory Construction § 20.3 (6th ed. 2002) (“[Statements regarding scope or purpose of the act that appear in the preamble may aid the construction of doubtful clauses, but they cannot control the substantive provisions of the statute. The preamble ... cannot be used to discern the legislature’s intent if no doubt exists as to a statute’s meaning.” (footnote omitted)). The majority reads the preamble’s privacy provision to override a clearly-delineated legislative judgment, in particular, the redaction exception enumerated in N.J.S.A. 47:lA-5(a).

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

II.

In this case, Data Trace Information Services, a national title technology company, requested that the Bergen County Clerk’s *444Office copy microfilm of realty documents covering the years 1984 to 2006.2 Data Trace intends to use the information to create an electronic title search database, which presumably will make title searches more accessible and affordable to businesses and the public. The objective of recording realty documents is to notify the public of property ownership and rights. See N.J.S.A. 46:21-1; see also Dugan v. Camden County Clerk’s Office, 376 N.J.Super. 271, 279, 870 A.2d 624 (App.Div.) (“Indeed, the purpose of recording or filing the [realty] documents and providing public access to them is to place the world on notice of their contents.”), certif. denied, 184 N.J. 209, 876 A.2d 283 (2005).

Currently, to conduct a title search, a person must go to a county clerk’s office and review the records one document at a time, the same way land purchasers, title insurers, and lawyers have searched realty records for the past two hundred years. Information technology of the twenty-first century now presents a better way. It is recognized that “[a]ceess to electronic aggregated public records ... provides important political, social, and economic benefits. Commercial entities are necessarily involved in the gathering, analysis, and distribution of public record data because of the complexity of the work and the financial resources required.” Brian N. Larson & Genelle I. Belmas, Second Class for the Second Time: How the Commercial Speech Doctrine Stigmatizes Commercial Use of Aggregated Public Records, 58 S.C. L.Rev. 935, 937 (2007). Thus, Data Trace—a commercial data aggregator engaged in a profit-making enterprise—would be advancing one of the primary purposes of the State’s recording statutes: placing the public on notice of financial or other interests that a party may have in a piece of property. Access to an electronic database would substantially save time and expense for potential creditors, purchasers, title searchers, and others whose only other recourse to examine realty records is a cumbersome trip to a county clerk’s office.

*445It bears mentioning that OPRA does not distinguish between requestors, giving a superior right of public access to records to one class of persons over another. The majority’s balancing test now requires an inquiry into the motives of the requestor, compelling county clerks and even judges to classify requestors into favored and non-favored categories. Who is to say that the bulk release of records to a journalist or academic rather than a commercial vendor will promote a greater public good that outweighs an individual’s privacy interests? The majority has turned the clear language of N.J.S.A. 47:lA-5(a) into a theory of relativity that might allow only preferred persons and causes access to bulk release of public records.

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

III.

I do not believe that in enacting OPRA the Legislature intended to distinguish between direct, personal access to realty records in a county clerk’s office and access through electronic means. Under the majority’s approach, Data Trace can visit a clerk’s office and copy'—with portable photocopiers or scanners—the realty records one document at a time, social security numbers and all, without offending the statute, and then place the information it has acquired on its electronic database. If, at some point in the future, the expected profit exceeds the cost, that is how this commercial data aggregator will proceed. That has been the *446experience of the judiciary and is one reason why the Administrative Office of the Courts has not erected artificial barriers for the bulk release of court records that are available in electronic form. However, by supplanting N.J.S.A 47:lA-5(a) and applying its judicially-crafted balancing test, the majority prohibits the realty records from being transferred to Data Trace in a cost-effective way, thus deterring the bulk release of those public records.

Under OPRA, “[i]f the custodian of a government record asserts that part of a particular record is exempt from public access ... the custodian shall delete or excise from a copy of the record that portion which the custodian asserts is exempt from access and shall promptly permit access to the remainder of the record.” N.J.S.A. 47:lA-5(g) (emphasis added). The import of this provision is that the record custodian, not the requestor, shoulders the responsibility for redacting any portion of a record that the custodian believes is protected from public access. Of course, here, we know that N.J.S.A. 47:lA-5(a) does not require the redaction of social security numbers from realty records. It is the Bergen County Clerk who, on her own, decided that those numbers should be deleted from any realty records. The majority concedes that the requestor here may view those documents, or even copy them, at the Clerk’s Office in their unredacted form. See ante at 428-29, 968 A2d at 1162-63. Thus, although the requestor must pay for duplication and reproduction fees, the Clerk should have to bear the cost of redaction on which she insists. Those costs should not be considered a “special service charge.” See N.J.S.A. 47:lA-5(e) to -5(d).

IV.

Even under the majority’s balancing standard, Data Trace should not have been denied release of the documents on microfilm based on the meager record before the Court. The Bergen County Clerk objected to the bulk release of realty records on the basis that large numbers of social security numbers of unsuspecting individuals would be released to a commercial data aggregator, *447but yet the Clerk presented the Court with but one example of social security numbers on such a record. And in that one example, apparently, the social security numbers were placed on the document unbeknownst to the concerned individuals. The Clerk, it seems, made no effort to cull the realty records for other documents containing social security numbers. Without having any knowledge of the number of documents with social security numbers in the requested realty records, the Clerk, and now the majority, wildly speculates—in extrapolating from that one example—that a multitude of our citizens will be exposed to identity theft. At the very least, the Clerk had the obligation to conduct a reasonable search, and, on that basis, make a reasonable estimate of the number of documents involved. The Clerk failed to do that.

Last, if we were to take to heart the majority’s concern, which is, how might a convicted felon misuse a public record, ante at 424-25, 968 A2d at 1160-61, one could find a reason to close down access to all public records, whether kept in the State House or a courthouse.

Y.

I understand the objective that the majority seeks to achieve. From a public policy perspective, the majority’s view may not be unreasonable. My quarrel with the majority is that, I believe, the Legislature has set forth its intended policy goals in the clear language of N.J.S.A 47:lA-5(a).

In my opinion, Data Trace is entitled to the documents it has requested solely at the cost of reproducing the microfilm on file in the Bergen County Clerk’s Office. The Clerk is at liberty to remove any social security numbers that might appear on the requested realty records, but must bear the cost. One alternative approach for the Clerk is to put the public on advance notice, through the print and electronic media, and allow individuals to go to the Clerk’s Office to request deletion of a social security number if such an identifier appears on a document that does not by law require one. That form of notice has long been regarded as an adequate means of communication to parties who have *448legally-cognizable interests at stake. See, e.g., N.J.S.A. 2A:61-1 (requiring public notice for sales of real estate by government actors); N.J.S.A. 40A: 11-23 (requiring advertisements for public contract bids). Such an approach would protect the individual’s privacy interests and be faithful to the disclosure requirements mandated by N.J.S.A. 47:lA-5(a).

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

I would reverse the Appellate Division and grant Data Trace’s request. For the reasons expressed, I respectfully dissent.

Justice LONG joins in this opinion.

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

Dissenting—Justices LONG and ALBIN—2.

The Legislature made no provision for the deletion of social security numbers on documents filed with county clerks' offices before October 1, 2005, the date N.J.S.A. 47:1-16 became effective. See L. 2005, c. 99, § 2. N.J.S.A. 47:l-16(a) now provides that "[n]o person, including any public or private entity, shall print or display in any manner an individual's Social Security number on any *442document intended for public recording with any county recording authority.” Under NJ.S.A. 47:1-16, a county clerk is responsible for redacting social security numbers from documents presented for recording. N.J.S.A. 47:1—16(b) ("Whenever a document is presented for public recording with any county recording authority and that document displays a person’s Social Security number, the recording authority shall delete, strike, obliterate or otherwise expunge that number prior to recording the document.”).

Moreover, the Identity Theft Prevention Act, L. 2005, c. 226 (codified in scattered sections of Titles 2C and 56), which prohibits the disclosure of social security numbers, does not apply to realty records. See NJ.S.A. 56:8-164(e) ("Nothing in this section shall apply to documents that are recorded or required to be open to the public pursuant to Title 47 of the Revised Statutes.”). Had the Legislature intended to provide for the deletion of social security numbers on realty records before 2005, it certainly could have done so.

Fred Burnett, the plaintiff in this case, represents the interests of Data Trace, which seeks the documents at issue.