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Privacy Study Commission Meeting Minutes
September 19, 2003

Chairman Litwin called the meeting to order at 9:35 a.m.
Chairman Litwin read the Open Public Meetings Statement.
Chairman Litwin Closed the Open Meeting: The meeting was closed to discuss appointment and discipline matters that fall under the exceptions to the Open Meetings Act. Chairman Litwin read the Resolution for Closed Session.

Ms. Janukowicz called the roll as follows:
Present: Chairman Larry Litwin, Grayson Barber, Thomas Cafferty, George Cevasco, Richard DeAngelis (arrived at 9:37 a.m.), William Kearns, Pamela McCauley, Jack McEntee, Edithe Fulton and H. Lawrence Wilson.

Absent: John Hutchinson, Rosemary Karcher-Reavey and Karen Sutcliffe.

Also Present: Matthew U. Watkins, Director of Local Government Services, Joseph Monzo, Deputy Director of Local Government Services, Catherine Starghill, Legal Specialist of Local Government Services and Jean Janukowicz, Administrative Assistant of Local Government Services.

All DCA staff was excused except for Ms. Starghill.

Chairman Litwin opened the meeting again at 10:30 a.m.
Ms. Janukowicz called the roll as follows:
Present: Chairman Larry Litwin, Grayson Barber, Thomas Cafferty, George Cevasco, Richard DeAngelis, William Kearns, Pamela McCauley, Jack McEntee, Edithe Fulton and H. Lawrence Wilson.

Absent: John Hutchinson, Rosemary Karcher-Reavey and Karen Sutcliffe.

Also Present: Matthew U. Watkins, Director of Local Government Services, Catherine Starghill, Legal Specialist of Local Government Services and Jean Janukowicz, Administrative Assistant of Local Government Services.

Chairman Litwin led all present in the salute to the flag.
Mr. Kearns moved to approve the minutes of July 25, 2003 with a second by Mr. Cevasco. The motion was adopted on a call of ayes and nays as follows:

Ayes: Chairman Litwin, Ms. Barber, Mr. Cevasco, Mr. DeAngelis, Mr. Kearns, Ms. McCauley and Mr. Wilson.
Nays: None.
Abstain: Mr. Cafferty, Ms. Fulton and Mr. McEntee.

Presentation: Ian Shore, the Municipal Clerk of Paramus Borough, reported to the Commission what he described as an invasion of privacy resulting from an OPRA request. He stated that an OPRA request was made for the names, home addresses and home telephone numbers of the Paramus Borough Shade Tree Commission members. The requester had previously received a negative decision from the Commission relating to a tree on his property. Mr. Shore further stated that the requester used the personal information to harass the Commission members by trespassing on their residential property (including photographing the trees on their property). Mr. Shore also stated that the requester made the personal information available to his patients and encouraged them to visit the homes of the Commission members and write them letters in support of his opposition to the Commission's decision in his case.

Presentation: In Karen Sutcliffe's absence, Catherine Starghill gave the Data Practices in New Jersey presentation on the Data Practices Survey. Ms. Starghill explained that the survey would be disseminated to the state departments (and their affiliated agencies), county clerks, municipal clerks and other local government agencies. She reviewed the survey objectives and the survey with the Commission. Ms. Starghill stated that the survey would be accessible from the Commission's website. She also stated that the subcommittee would evaluate the results and report back to the Commission.

Commission Review of the Special Directive Report: The Special Directive Subcommittee submitted its report to the Commission. Ms. Grayson Barber led the review of this report, as chairperson of the subcommittee. (The report may be found at www.nj.gov/privacy/eo26.pdf).

Ms. Barber stated that the report responds to Governor McGreevey's Executive Order 26 directing the Commission to study the issue of whether and to what extent the home address and home telephone number of citizens should be made publicly available by public agencies. Ms. Barber also stated that the report includes (in summary form) the testimony of about 50 individuals testifying at the public hearings in June and the written comments received from individuals and organizations submitted before July 31, 2003. She further provided a verbal "table of content" as follows:

First Section - Background Information on the Special Directive and OPRA Second Section - Summary of Testimony and Written Comments
Third Section - Policy Alternatives
Fourth Section - Legal Analysis and Recommendations

She then gave a brief summary of each section.

Mr. Thomas Cafferty started the discussion by stating that he believes the analysis of the report is seriously flawed in several respects.

His First Point of Objection to the Analysis of the Report:

Mr. Cafferty stated that the report (at page 25) concludes that the legislative findings section of OPRA (or the preamble) forms a substantive exemption or right to deny access to records. He asserted that the legislative findings simply state the interests that the legislature had to balance when it enacted the substantive provisions of the Act that follow the preamble. He further asserted that finding a substantive right in the preamble is legally impermissible. In support of his position, Mr. Cafferty cited PBR Enterprises vs. South Brunswick Planning Board, 105 N.J. 1 (1987). He stated that the court in this case found that the preamble can neither limit nor extend the meaning of a statute which is clear.

Mr. Cafferty also stated that if one assumes that a substantive right to deny access to government records is created in the preamble, then the report is silent on another right created in the preamble - the right of the public to have access to all government records unless such access is exempt by the statute (or other enabling legislation or order of the Governor).

Mr. Cafferty then concluded that logic suggests that there are actually two substantive rights that may be derived from the preamble - the right for public access to all government records, as well as a right to deny access to government records. Mr. Cafferty further asserted that the report should not acknowledge one right that the subcommittee found in the preamble to the exclusion of the other right that may be similarly found in the preamble.

His Second Point of Objection to the Analysis of the Report:

Mr. Cafferty also objected to the constitutional analysis relating to home addresses in the report. He asserted that the report states, "and citizens of New Jersey have such a reasonable expectation of privacy in their home addresses because the constitution of the United States confers that right." He then stated that the cases cited and analysis presented to support this position in the report provide a severe over-reading of what the U.S. Supreme Court meant in those cases.

Mr. Cafferty stated that the U.S. Supreme Court found the right of privacy under the14th Amendment and characterized that right under two different theories. The first is the right of privacy as related to "individual autonomy," which he concluded does not apply to an individual's privacy interest in his or her home address (as does the report). The second is the right of privacy related to "confidentiality" or an individual's interest in avoiding the disclosure of highly personal information. Mr. Cafferty stated that this theory of the right to privacy is applicable to an individual's privacy interest in his or her home address. However, he further stated that this privacy interest must implicate a fundamental right that the United States Constitution confers on an individual (or a right implicit in the orderly concept of liberty).

In support of his position, Mr. Cafferty cited Kallstrom v. City of Columbus, 136 F.3rd 1055 (1998). He stated that in this case the attorney for drug dealers sought the names and addresses from the personnel files of the police officers involved in their arrest. He further stated that the court found that the release of the information invaded the police officers' privacy because it exposed them to a substantial risk of harm that was likely or perceived since the personnel files also contained the names and home addresses of members of their families. Mr. Cafferty also stated that this finding of a right to privacy in the personal information of the police officers (including their home addresses) implicated their fundamental interest of personal safety.

Mr. Cafferty also cited Alkella vs. Michigan Dept. of Police, 67 Fed Supp.2nd 716 (1999). He stated that the court in this case rejected an invasion of privacy claim of a homeowner whose address appeared on a sexual predator registry (based on a previous owner). Mr. Cafferty asserted that the court held that the plaintiff had no constitutional right of privacy in that address. He further asserted that the court stated that whenever the U.S. Supreme Court justified the non-disclosure of an individual's home address, it has done so based on a statute and not the constitution.

Mr. Cafferty also discussed the report's reliance on Paul P. v. Verniero, 170 F.3d 396 (3rd Cir. 1999). He characterized the court's statement that home addresses are entitled to some privacy protection, whether or not so required by a statute, as a very narrow holding. Mr. Cafferty further discussed the report's reliance on Doe vs. Poritz, 142 N.J. 1 (1995). He stated that the issue in that case was not whether the plaintiff had a privacy interest in his address but whether the inclusion of plaintiff's address, along with other information, implicated any privacy interests. Finally, he stated that the cases cited in the report do not support the proposition that, as a matter of constitutional law, the disclosure of home address invades an individual's right of privacy.

Mr. Cafferty proposed that the subcommittee recommend the creation of categories of individuals whose home addresses and telephone numbers are exempt from disclosure or recommend that the records custodians be given the discretion to deny access when there is clear evidence of the substantial likelihood of harm or threat resulting from the disclosure of personal information.

Mr. George Cevasco stated that, as a Municipal Clerk, he believes that the public has a reasonable expectation of privacy when they give their personal information to his office. He agreed that there should be categories of records that are accessible and non- accessible. He stated that he also agreed with the majority of the report. He stated, however, that he does not agree with the recommendation that the home addresses and telephone numbers of certain categories of individuals should be exempt from disclosure. He stated that he does not believe that the safety of a particular group is any more important than that of another group.

Mr. Richard DeAngelis stated that he felt the release of the report at this time is premature because the work of the Commission (as a whole) is not yet complete. He further stated that the entire study must be complete in order for the Commission to make meaningful recommendations. He stated that he believes the work of each subcommittee is dependent upon the work of all the other subcommittees. He also stated that it is important to evaluate every aspect of this study before carving out exemptions from disclosure under the law. He asserted that the Commission must understand the use of government records before it can meaningfully recommend that some records should be exempt from disclosure. He concluded by stating that the Commission does not have the information it needs to make these recommendations.

Mr. William Kearns stated that he agreed with the majority of the report but acknowledged that the interests relevant to this report are complex. He stated that he is concerned that the report suggests that records custodians have more discretion than they really do (see page 36 of the report - "The Special Directive Subcommittee recommends that records custodians act with an abundance of caution..."). He also stated that home addresses should be generally available with few exceptions. He further stated that the Commission members should come back to the next meeting with more comments on the report.

Ms. Edithe Fulton stated that the members of the New Jersey Education Association should be among the categories of individuals whose home addresses and telephone numbers are exempt from disclosure.

Timeline Update: Ms. Starghill asked the Commission to review the timeline and contact her with any questions. She also directed the Commission to review the 2004 calendar to select meeting dates. The Commission chose the following meetings dates for 2004: January 16, February 20, March 19, April 16, May 7, June 4, June 18, and July 16.

Mr. Kearns moved to accept the 2004 meeting dates with a second by Mr. Cevasco. The motion was adopted on a call of ayes and nays as follows:

Ayes: Chairman Larry Litwin, Grayson Barber, Thomas Cafferty, George Cevasco, Richard DeAngelis, William Kearns, Pamela McCauley, Jack McEntee, Edithe Fulton and H. Lawrence Wilson.

Nays: None

Abstain: None

Subcommittee Reports were given as follows:

Special Directive: Ms. Grayson stated that she had no further report.

New Jersey Practices: In Karen Sutcliffe's absence, Ms. Starghill stated that in an effort to disseminate the survey, the subcommittee was meeting with the state departments' liaisons next Thursday and that she would be contacting the professional organizations for the other groups of survey participants (i.e. tax collectors, school district administrators, etc.).

Outside New Jersey: Ms. Grayson stated earlier that she had no further report.

Public Interest: In Rosemary Karcher-Reavey's absence, Ms. Starghill stated that the public hearings for comment on the Special Directive Report will be held on November 6, 11 and 12. She also stated that she would send out a communication regarding the public hearings to the Commission and post it on the Commission's website.

Technology: Mr. Kearns stated that he had spoken with Ms. Starghill regarding the next steps for this subcommittee and that he would prepare a discussion document and schedule a meeting soon.

Commercial Use: Mr. Cafferty stated that the subcommittee had fallen behind schedule due to the efforts that went into the Special Directive Report, but that he would speak with Ms. Starghill and schedule a subcommittee meeting soon.

Staff Update: Ms. Starghill highlighted the latest public comments that were received and included in the meeting folders. She also highlighted the recent news articles written on the Commission and those articles emailed to the Commission by Mr. Kearns. Ms. Starghill further stated that the Data Practices Survey would be posted on the Commission's website by Monday.

Chairman Litwin opened the meeting for public comment. Hearing no one, Mr. Kearns moved to adjourn with a second from Mr. Cevasco.

Chairman Litwin adjourned the meeting at 12:18 p.m.


Respectfully submitted,


Larry Litwin, Chairman

 

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