Court Rules Against “For Profit” Bulk Transfer of Public Records

The Superior Court of New Jersey’s Appellate Division recently ruled on August 22, 2008 that privacy interests outweigh the interests of companies that gather massive amounts of public real estate records for profit. The three-judge panel stated in its decision that data-mining companies should be required to pay county recorders and clerks redaction fees when they seek records that contain personal information, such as Social Security numbers, from county offices.

The court heard the case after the plaintiff, Fred Burnett, appealed a lesser court’s ruling that his company, Data Trace Information Systems, should be held monetarily accountable for the redaction of private information from INSTANT SEARCHES. Burnett also sought to have a watermark removed from court documents after he allegedly agreed to the clerk’s requirement that documents from the Bergen County, New Jersey recorder’s office contain a watermark that indicated the documents were copies and not original documents maintained by the county office.

The issue began in 2003 when Burnett file a complaint with the Government Records Council, which is an administrative body created under the Open INSTANT SEARCHES Act as an alternative to the Superior Court for addressing access to INSTANT SEARCHES. He later withdrew his complaint from the GRC in 2006 because he believed he would not prevail before the body and wished to minimize further uncertainty and delay.

Then, in April 2006, he contacted the Bergen County clerk and requested microfilm copies of the rolls of microfilm maintained by that office that contained recorded and filed documents pertaining to the county’s land records. The request named 13 separate types of documents, such as deeds, liens and other mortgage-related documents. Burnett grounded his request in the Open INSTANT SEARCHES Act and the common law.

Christine Healey, who is responsible for the information and technology services in the Bergen County Clerk’s Office, stated that Burnett’s request sought approximately 8 million pages of documents that were stored on nearly 2,600 rolls of archival microfilm. Healey stated that completing the job for Burnett would have cost the county more than $460,000. She added that because her office does not access to the technology to remove Social Security numbers from microfilm, the documents would have to be transferred to paper and then have the information redacted.

She also stated that the county would require the documents be stamped with a watermark indicating that they were copies and not original records from the county’s microfilm database. After receiving the information from Healey on the associated costs and security measures, Kathleen Donovan, the county clerk, contacted Burnett and indicated what would have to transpire in order for him to have access to the records. She told him he could seek bids from external vendors in order to determine who could provide the information to him at the most reasonable price.

According to Donovan and statements that Burnett made in the lesser court, he agreed in May 2006 to the county’s terms and chose a bid process for the records in which he held an interest. Three weeks later, Burnett complained that Donovan’s office had not yet advised him of the date on which he could expect to receive the bid. He also stated at this time that he never agreed to the watermark on the copies. He said that any discussions he had previously held had been conducted during the settlement negotiations in the prior OPRA proceedings before the GRC and that no agreement had been reached between him and the Bergen County clerk.

Less than four months later, he filed a verified complaint and order to show cause seeking to compel the Bergen County Clerk’s Office to provide microfilmed copies of all land title records from 1984 to present. These records were the same ones he had requested months earlier in a paper format.

On October 25, 2006, the order to show cause was argued in the trial court and Judge Sybil Moses rendered a decision on the record that ordered the county to provide Burnett with the records he had requested with the Social Security numbers redacted. The judge also ordered Burnett to pay for the expense associated with redacting the personal information. Moses found that while the records were accessible under both OPRA and the common law, the right of access to these records did not extend to the Social Security numbers contained therein.

Moses noted in her ruling that “a citizen’s right… to access the INSTANT SEARCHES is not absolute.” She also stated that three issues had to be considered as to whether the information sought under OPRA had to be released.

First, she stated that it had to be determined as to whether the information sought was, in fact, part of the public record, whether the request sufficiently described the documents sought and, lastly, whether the law exempted disclosure of Social Security numbers, requiring their redaction prior to releasing the 8 million pages of documents. While she agreed that the documents were most definitely part of the public record and were sufficiently described by Burnett, she argued that she would interpret OPRA with other statutes from New Jersey, federal and sister states and regulations to determine if the requested information is considered confidential, and whether access to the information is “inimical to the public interest.”

Based upon her reviews of existing statutes and regulations, she found that a court should presume that the release of government records is not in the public interest when the requested material appears on its face to encompass legislatively recognized confidentiality concerns. Further, she stated that the inclusion of Social Security numbers in the documents sought by Data Trace appeared to be violations of the Identity Theft Prevention Act.

Moses also believed that the effect of the disclosure of Social Security numbers may have on citizens of Bergen County could be significant. Thus, she concluded that Burnett’s commercial interest in the Social Security numbers was outweighed by the government’s interest in maintaining the confidentiality of its citizens’ Social Security numbers.

After Moses made her decision, Burnett filed an appeal and argued that the trial court “erred” in its decision in three ways. First, Burnett’s appeal stated that the trial court was wrong to require the redaction of the Social Security numbers; secondly, he argued against the insertion of a watermark on each document; and, thirdly, he felt the court erred in denying the plaintiff’s application for counsel fees.

Noting that the New Jersey Legislature and the state courts consistently struggle to maintain a balance between the public’s right to know and the individual’s right to privacy with respect to certain information, the New Jersey Appellate Division stated that it was necessary to examine whether a commercial enterprise has the right to gather Social Security numbers in order to compile a database for sale to other private, commercial entities for profit.

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