Privacy Study Commission Minutes
From the December 14, 2004 Meeting
Chairman Litwin called the meeting to order at 10:18a.m.
Chairman Litwin read the Open Public Meetings Statement.
Chairman Litwin led all present in the salute to the flag.
Ms. Mallon called the roll as follows:
Chairman Litwin asked for a motion to approve the minutes for the November 12, 2004 meeting.
Mr. Cevasco moved to approve the minutes with a second by Ms. Barber.
The minutes of the November 12, 2004 meeting were approved by a vote of 8-0.
Chairman Litwin noted that the Technology Report is the next item on the agenda.
Mr. Kearns stated that an update is being distributed to the Commission with changes from the members. Mr. Kearns noted that Mr. Cevasco had a concern regarding uncertified copies of birth records and that it should be addressed in the overall report.
Ms. Barber stated that the subcommittee reports are a part of the final report, however, she sought clarification of additional items in the report.
Mr. Kearns also noted that other items not included in subcommittee reports are to be added in the overall report.
Ms. Barber asked Ms. Jacobucci to speak about the final report.
Ms. Jacobucci stated that the final report would contain all the subcommittee reports and strategic recommendations as well as any other items that the Commission decides to address.
Chairman Litwin asked if the introduction would be complete by the December 20, 2004 meeting.
Ms. Jacobucci stated that the meeting on December 20, 2004 would address strategic recommendations and public comment. Ms. Jacobucci stated that the final report might need to be adopted after the December 20, 2004 meeting.
Mr. Cafferty stated that if a conference call meeting is to take place a speaker phone might need to be made available if the public wanted to hear the meeting.
Ms. Jacobucci stated that a phone would be made available, however, if the Commission prefers, another meeting can take place.
Ms. Barber asked if Mr. Cevasco would draft language to be included in the Technology Report to address the issue of uncertified birth records.
Mr. Kearns stated that he could draft language and add it to the Technology Report immediately so that the Commission members are able to review the language prior to the end of the meeting.
Mr. Cevasco stated that the language addressing uncertified copies should be included in Technology Report because the abuses are due to technology.
Judge Reavey stated that the recommendation that agencies review the abuses and adopt regulations should be in the strategic recommendations.
Chairman Litwin suggested moving to another item on the agenda until Mr. Kearns is finished adding the changes to the Technology Report.
Chairman Litwin asked if any other members had additional comments on the Technology Report.
Ms. Barber stated that she felt that the report was good.
Chairman Litwin asked for the Staff Update.
Ms. Jacobucci stated that the Governor’s Office approved the Special Directives Report and it will be up on the website by the end of the week. Ms. Jacobucci stated that the minutes and agendas are up on the website with the exception of the November 12, 2004 and December 2, 2004 meeting minutes.
Ms. Mallon stated that an e-mail was submitted to the Commission via the website regarding a title agency in Moorestown, NJ. Ms. Mallon stated that the agency has concerns regarding restriction on access to home addresses will raise costs and decrease tax revenues to municipalities.
Ms. Barber stated that these comments are consistent with other issues submitted to the Commission by other individuals in similar professions. Ms. Barber stated that the report on Home Addresses and Telephone Numbers includes a discussion on these issues.
Ms. Jacobucci noted that the report states that these restrictions are not to prohibit this type of business.
Ms. Barber stated that the e-mails sent to the Commission are a form of testimony and the Commission does not necessarily respond to all e-mails.
Ms. Jacobucci stated that not much e-mail has been received and that they can be included in the report as testimony.
Ms. Mallon stated that many of the e-mails received have been memorialized as testimony.
Ms. Jacobucci asked if it is the Commission’s wish not to respond at this time, but keep the e-mail as testimony.
Ms. Barber answered in the affirmative.
Ms. Barber stated that the ACLU representative will not be attending the meeting, however, a written submission will be sent via e-mail.
Chairman Litwin noted that the next item on the agenda is the Strategic Recommendations.
Ms. Mallon stated that this item was not included in the Commission packets; however, she would make copies and distribute them to the Commission.
Mr. Kearns stated that he finished incorporating the changes to the Technology Report. Mr. Kearns called attention to the paragraph on page 5 and read the changes to incorporate uncertified copies.
Mr. Cevasco stated that the changes were acceptable to him.
Ms. Barber moved to accept the amended Technology Report with a second by Judge Reavey.
The Technology Report was approved by a vote of 8-0.
Ms. Jacobucci asked the Commission what they envisioned for the final report.
Mr. Cafferty stated each report had recommendations that were adopted, however, the strategic recommendations are not in any report nor was a study done in support of the recommendations. Mr. Cafferty stated that a discussion should to take place if the recommendations are to be more than what is addressed in the report.
Judge Reavey stated that the recommendations should be addressed again.
Ms. Barber stated that the strategic recommendations came about after the Special Directive Report was complete so the Commission could keep the recommendations in mind when completing the final report. Ms. Barber noted that the Special Directive Report recommended that an agency only collect the information needed, however, Commission members felt that it did not belong in the Special Directives Report, but as a separate recommendation in the final report. Ms. Barber stated that out of the eighteen (18) recommendations some also came out of brainstorming by the Commission and some of the recommendations need further input.
Judge Reavey noted that Ms. Barber’s recollection is correct and that the Commission should address the recommendations in this meeting.
Ms. Jacobucci outlined how she would set up the final report and sought comments.
Chairman Litwin agreed with Ms. Jacobucci’s outline of the final report.
Ms. Barber stated that some of the information in the recommendations should be included in the final report.
Chairman Litwin stated that the recommendations from the entire report should be in the Executive Summary.
Chairman Litwin asked the Commission to review the eighteen (18) recommendations and make comments.
Ms. Barber suggested that eliminating some recommendations
could shorten the list. Ms. Barber suggested that number six (6) be eliminated
because it is already in the Special Directives Report.
Ms. Barber also suggested that number eight (8) be eliminated from the list because it is also incorporated in the Special Directive Report.
Mr. Kearns noted that the Commission might want to include this recommendation because of past GRC decisions to not conduct a balancing test.
Ms. Mallon noted that in a recent case the GRC used a common law balancing test. Ms. Barber noted that the Westinghouse balancing test is a constitutional law balancing test and comes up when releasing a person’s home address violates the federal constitution. Ms. Barber noted that it is already in the Special Directives Report, which was approved by the Governor’s Office and suggested it be withdrawn from the strategic recommendations.
Ms. Barber asked if number seven (7) is a recommendation of the Data Practices Survey.
Chairman Litwin noted that this was not a recommendation of the Data Practices Survey and was added because it was a matter of money. Chairman Litwin also noted that the recommendation could be done scientifically by not surveying every municipality. Chairman Litwin also stated that without numbers one (1) or two (2) who would institute this recommendation.
Ms. Barber asked if the Commission could move on and return
to this recommendation.
Ms. Barber stated that number thirteen (13) is broader than what is in the Special Directives Report. Ms. Barber suggested returning to this recommendation.
Ms. Barber stated that recommendations fourteen (14) and fifteen (15) are broader than the Special Directives Report.
Ms. Barber noted that Ms. Fulton addressed recommendation
seventeen (17) in the last meeting.
Ms. Barber stated that number eighteen (18) has already
been addressed and can be eliminated.
Chairman Litwin suggested keeping recommendations one and two.
Mr. Kearns also noted that a privacy position is recommended in the Office of Information Technology and is not sure that it should be within the GRC. Mr. Kearns stated that the Commission does not have to suggest how it be done, but should take out some language.
Ms. Barber suggested taking out number one and two and replace with language from the Technology Report.
Mr. Kearns suggested leaving the recommendations in the report, but amending the language to fit with the language in the Technology Report.
Judge Reavey asked Mr. Cevasco to comment on recommendation three (3).
Mr. Cevasco stated that clerks have problems with other departments releasing information without their knowledge. Mr. Cevasco stated that a recommendation should be made to notify municipalities that clerks are the records custodians.
Mr. Kearns stated that OPRA allows for the clerk to be the custodian.
Mr. Cafferty noted that the penalty section of OPRA applies to all public officials.
Judge Reavey noted that the recommendation extends to all public agencies.
Ms. Jacobucci asked if item three (3) puts legal liability on the custodian.
Ms. Barber answered in the affirmative and suggested that number three (3) be withdrawn from the list because of the lack of discussion and public input on the definition of personal information.
Mr. Cafferty agreed with Ms. Barber’s suggestion.
Mr. Cafferty stated that item thirteen (13) should be kept in the recommendations and suggested that there is not an obligation to separately mail a notice and clarification is needed on this recommendation.
Ms. Barber stated that a line should be added to public forms that indicate that the information contained in the record might be disclosable pursuant to OPRA.
Ms. Fulton noted that banks and pharmacies send out privacy notices to consumers.
Chairman Litwin noted that municipalities often collect more information than needed, which is covered by recommendation thirteen (13) and eight (8).
Ms. Jacobucci noted that the recommendations address personal information versus the Special Directive Report, which only deals with home addresses and telephone numbers. Ms. Jacobucci noted that citizens who are not familiar with OPRA might view the disclaimer as disclosing any information on the record they are filing.
Chairman Litwin recommended revising the recommendation.
Mr. Cafferty noted that the recommendation should include that information provided on this form might be disclosed to the public unless otherwise exempt by law.
Mr. Kearns agreed with the language suggested by Mr. Kearns.
Mr. Cevasco stated that custodians and municipalities should not have to shoulder the cost of the requests, which is outlined in four (4).
Ms. Barber suggested eliminating number five (5) because more discussion is needed prior to making this recommendation.
Mr. Cafferty agreed.
Ms. Barber stated that number seven (7) is going to be adopted by the Commission.
Chairman Litwin and Judge Reavey answered in the affirmative.
Ms. Barber noted that number nine (9) is a recommendation that kept coming up throughout the Commission’s meetings.
Chairman Litwin noted that it is fine if a municipality wants to gather information separately, however, it should not be a part of the official form.
Ms. Barber suggested that individuals have a right to view the type of information being gathered about them and have an opportunity to dispute it and/or fix it if it is incorrect.
Ms. Barber noted that number ten (10) came directly from Federal Privacy Act of 1974; however, the Commission has not had an opportunity to discuss this recommendation and for that reason the Commission might possibly want to eliminate this recommendation.
Mr. Cafferty and Mr. Kearns stated that they had no problem with keeping this recommendation.
Ms. Barber stated that she agreed to keep the recommendation on the list.
Ms. Barber suggested that number eleven (11) is from the Fair Information Practices and Federal Privacy Act of 1974 and that federal agencies do have to explain in the federal register what information they are collecting and why, but to impose a similar requirement on State agencies would be beyond their capabilities. Ms. Barber noted that this recommendation should be eliminated.
Chairman Litwin noted that number nine (9) covers this issue as well.
Mr. Cafferty suggested clarification on the language in number twelve (12) specifically redisclosing information. Mr. Cafferty noted that OPRA time periods might change and certain implications might change.
Ms. Barber noted that this recommendation is practiced in Europe, but not standard practice in the United States.
Mr. Kearns voiced his concern about this recommendation.
Mr. Cafferty suggested that fourteen (14) be eliminated because of lack of discussion or clarification.
Mr. Cafferty noted that some public records might become incomplete as a consequence.
Mr. Kearns agreed and noted that this issue should be addressed in the case of an ongoing study.
Mr. Kearns recommended revising number fifteen (15) to eliminate personal information.
Mr. Kearns and Mr. Cafferty stated that they do not agreed with number sixteen (16) as a secondary issue.
Ms. Barber suggested eliminating number sixteen (16).
Chairman Litwin and Judge Reavey agreed.
Mr. Kearns noted that the Commission agreed to strike seventeen (17) and eighteen (18).
Chairman Litwin agreed.
Ms. Jacobucci noted that an updated version would be distributed to the Commission prior to the next meeting.
Chairman Litwin asked for final comments from the Commission members.
Ms. Fulton noted that the Vice President of NJEA would be testifying at the public hearing.
Chairman Litwin asked for public comment and hearing none, asked for a motion to adjourn until 1:00 pm.
Judge Reavey moved to adjourn until 1:00 pm with a second by Mr. Cafferty.
Chairman Litwin adjourned the meeting at 11:25 am. Respectfully submitted,
Larry Litwin, Chairman