town-crier_facebookOn Wednesday, the NJ Supreme Court issued its decision in William J. Brennan v. Bergen County Prosecutor’s Office, a case that examined the Open Public Records Act’s competing interests of government transparency and individual privacy. In this case, the Court was asked to determine whether OPRA compels disclosure of documents containing the names and addresses of persons who successfully bid at an auction of public property?

Unfortunately, as is often the case, transparency interests prevailed to the detriment of privacy concerns.  The Court found that those who participate in a public auction for public property are aware that their names, addresses and other information which they have provided will be available to the public.  Therefore, there is no reasonable expectation of privacy which must be protected and the unredacted records should be disclosed.

Also, in this case, the Court created what appears to be a new rule for whenever courts are tasked with examining the release of records and balancing transparency with privacy.  Typically, when privacy considerations are presented as reason for withholding disclosure under an OPRA request, courts would use what is known as Doe factors to analyze whether privacy would trump the need for disclosure.  The Doe factors examine, among other things; the type of record requested, the information contained in those records, the potential harm of disclosure, and the degree of need for access to the records.

In the case at hand, the Court determined that “courts are not required to analyze Doe factors each time a party asserts that a privacy interest exists.  A party must first present a colorable claim that public access to records would invade a person’s reasonable expectation of privacy.”  Based on this, it would appear that courts must now first examine the threshold questions of whether or not a reasonable expectation of privacy exists prior to examining the Doe factors.  Where a colorable claim of a reasonable expectation of privacy has not been made, the courts will not need to examine the Doe factors.  While on many occasions lower courts have seemingly made this threshold determination, the Court’s ruling in Brennan sets out a more bright-line requirement for courts to do so.

You should review this decision with your municipal attorney and your records custodian for more information on this ruling and the impact on your municipality.

Contact: Frank Marshall, Esq., League Staff Attorney, FMarshall@njslom.org or 609-695-3481 x137.