Opinion
DOCKET NO. A-3475-10T3
02-27-2013
FRANK PONCE, Plaintiff-Respondent, v. TOWN OF WEST NEW YORK and CARMELA RICCIE, In Her Official Capacity as TOWN OF WEST NEW YORK'S CLERK AND RECORDS CUSTODIAN, Defendants-Appellants.
Joseph R. Mariniello, Jr., argued the cause for appellants (Mariniello & Mariniello, P.C., attorneys; Mr. Mariniello, on the brief). Walter M. Luers argued the cause for respondent.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Graves, and Harris.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-6267-10.
Joseph R. Mariniello, Jr., argued the cause for appellants (Mariniello & Mariniello, P.C., attorneys; Mr. Mariniello, on the brief).
Walter M. Luers argued the cause for respondent. PER CURIAM
In this appeal, we are asked to determine whether the identity of an individual who files an illegal parking complaint with a local police department is subject to public disclosure under the Open Public Records Act, (OPRA), N.J.S.A. 47:1A-1 to -13, or alternatively under our State's common law of right of access. Defendants, the Town of West New York and Carmela Riccie, the Town Clerk and designated custodian of government records under N.J.S.A. 47:1A-1.1, appeal from the order of the Law Division granting plaintiff Frank Ponce's application to review an un-redacted recording of a 911 call made to the West New York Police Department reporting an alleged illegal parking violation. The recording reveals the identity of the caller who complained that plaintiff's car was blocking his driveway.
The trial court held that the caller's ostensible expectation of privacy in this context is subordinate to the public's right to access and review a "government record," as defined in N.J.S.A. 47:1A-1.1 under OPRA. Under the facts presented here, we affirm. As we noted in Serrano v. South Brunswick Township, 358 N.J. Super. 352, 364 (App. Div. 2003), recordings of 911 calls fall within the definition of a "government record" under N.J.S.A. 47:1A-1. The trial court found that the concerns identified by defendants here in favor of withholding the caller's identity are based on mere speculation, unsupported by either competent evidence or sound public policy. We agree.
Ordinarily, a citizen's identity when making a Title 39 complaint is easily accessible to the public as part of the official police record. None of the concerns articulated by the Supreme Court in Burnett v. County of Bergen, 198 N.J. 408, 427 (2009), are applicable here. The recording does not reveal any personal or private information. Plaintiff seeks only to know the identity of his accuser. There is no rational basis in favor of cloaking with confidentiality the identity of a person calling the local police department to report an alleged illegal parking violation merely because of the method employed in making such a complaint. If the complainant had appeared at the police station to personally file a complaint about plaintiff's alleged illegal parking, the complaining witness's name and address would have been part of the complaint. Such a document clearly falls within the definition of government record under N.J.S.A. 47:1A-1.1, and consequently is subject to public disclosure.
I
We gather the following facts from the record developed before the trial court.
On September 4, 2010, the West New York Police Department received a telephone call from a resident alleging that plaintiff's vehicle was blocking his driveway. In response, a police officer was dispatched to the caller's address; plaintiff's car was towed and plaintiff was issued a citation for illegal parking.
Because the caller complained that plaintiff's vehicle was blocking his driveway, plaintiff is aware of the caller's exact address. Following our own guidelines, we have not included that information in this opinion because it is not relevant to our discussion.
On September 15, 2010, plaintiff submitted an electronic OPRA request to defendant Riccie, in her capacity as the custodian of government records, seeking "all recorded police department communication from 9/3/10 at 10:00 p.m. to 9/4/10 at 2:00 a.m." At defendant's request, plaintiff agreed to amend the request to seek only "a recorded phone conversation regarding a driveway blockage complaint as well as the recorded conversation between [the] dispatcher and the officer dispatched to the location."
On September 27, 2010, Riccie responded to plaintiff's OPRA request as follows:
Mr. Ponce:The legal opinion, in the form of an email to Riccie, starts by restating the narrow scope of plaintiff's amended request. The attorney then stated the following:
The audio C.D. you requested is available. Please come to the Town Clerk's Office between the hours of 9:00 a.m. and 4:00 p.m. (Monday thru Friday) to retrieve same.
Please be advised that portions of the tape have been redacted and are not releasable based upon the advice of our Town
Attorney. I direct your attention to his legal opinion below.
[I]t is our recommendation that the conversations and recordings regarding the driveway blockage be redacted and not released, pursuant to GRC Final Decision 2004-128. In that decision, the GRC recognized that "[a custodian] should weigh the privacy interest(s) of the individual who made (a) complaint with the Police Department against the individual seeking the information . . . ." In that case, "[a]ccording to the Police Department's submissions, a citizen reportedly telephoned the Department with a [noise] complaint about noise at 9:30 P.M." The Council concluded that "It is reasonable to conclude that disclosure of the citizen's name, address and phone number could result in unsolicited contact and confrontation between the citizen and the OPRA complainant and/or its agents or representatives."
[(Alterations in original).]
Citing Doe v. Poritz, 142 N.J. 1 (1995), and relying on both the GRC decision and our opinion in Serrano, supra, 358 N.J. Super. at 268-69, defendants' counsel concluded as follows:
The plaintiffs in Doe challenged the constitutionality of the Community Notification Act, N.J.S.A. 2C:7-6 to -11, commonly referred to as Megan's Law. Id. at 12. Doe was decided by the Supreme Court six years before the Legislature adopted OPRA. The Court adopted the Doe balancing test in Burnett to resolve the competing interests between privacy and access under OPRA. Burnett, supra, 198 N.J. at 427.
In light of the nature of the requested information, and the need therefore, it appears that the privacy interests of the individuals who seek the support or assistance of the police department outweigh the interests of the public to general disclosure, under the OPRA statute. As such the record as redacted (copy attached) should be released.
On November 12, 2010, plaintiff filed a verified complaint in the Law Division seeking access to the caller's identity under both OPRA and our State's common law right of access. In paragraph one of the complaint, plaintiff alleged that the "recorded communication with the West New York Police Department . . . formed the basis of a criminal complaint against Plaintiff."
We infer that this statement refers to the parking citation plaintiff received for allegedly blocking the caller's driveway. Such a citation is not, of course, a criminal offense. Defendants have filed a motion to supplement the appellate record to include a copy of the citation issued to plaintiff on September 4, 2010, and a copy of a "Traffic Violations Disposition Form" from the Deputy Administrator of the West New York municipal court showing that the citation issued against plaintiff based on N.J.S.A. 39:4-138(d), prohibited parking in front of a private driveway, was dismissed on November 10, 2010. We hereby grant this motion and will consider these documents as part of the appellate record in this case.
Following the expedited process required under N.J.S.A. 47:1A-6, the trial court conducted a summary proceeding on the return date of plaintiff's order to show cause. See also Courier News v. Hunterdon Cnty. Prosecutor's Office, 358 N.J. Super. 373, 378-79 (App. Div. 2003). After considering the arguments of counsel and applying the seven factors adopted by the Court in Burnett, the trial court held in plaintiff's favor. The Law Division judge gave the following explanation in support of her ruling:
The Court set out the following factors:
(1) the type of record requested; (2) the information it does or might contain; (3) the potential for harm in any subsequent nonconsensual disclosure; (4) the injury from disclosure to the relationship in which the record was generated; (5) the adequacy of safeguards to prevent unauthorized disclosure; (6) the degree of need for access; and (7) whether there is an express statutory mandate, articulated public policy, or other recognized public interest militating toward access.
[Burnett, supra, 198 N.J. at 427 (quoting Doe, supra, 142 N.J. at 88).]
In balancing those seven factors in this case[,] there is certainly no statutory mandate articulating a reason why the information shouldn't be disclosed. It's necessary for the Court to engage in the independent balancing of the town's interest in protecting the caller's identity and the complainant's need for the redacted - - the un-redacted information.
The type of information requested by plaintiff is not particularly sensitive or confidential. When the caller made a complaint [to] the police department that
someone was blocking his or her driveway he or she could reasonably expect that his name may be revealed in connection with the complaint. There has not been evidence presented to suggest that revealing the caller's identity or the call itself would result in any serious harm or confrontation between the caller and the - - and the plaintiff. It may in fact be helpful for the plaintiff to know the information in order to challenge his parking violation. And I'm going to grant your order to show cause within, I think you said 20 days, the un-redacted recorded record will be supplied to the plaintiff.
As noted in footnote 3, infra, the parking citation was dismissed by the West New York Municipal Court, rendering this particular issue moot. The question of access under OPRA survives, however, because a requestor under OPRA need only show that the information falls within the meaning of a government record under N.J.S.A. 47:1A-1.1. Thereafter, it is the custodian's responsibility to provide the requested records.
II
Distilled to their essence, defendants' arguments are predicated on the notion that if plaintiff learns the identity of his accuser he will retaliate in some fashion, thus discouraging the average person from reporting incidents to the police via the 911 emergency system. As a preliminary matter, we question whether a blocked driveway falls under the category of events worthy of utilizing the 911 calling system. In addition to this policy concern, we are in complete agreement with the trial judge's observation that defendants' fear concerning plaintiff's likelihood of retaliation are based on mere speculation. Defendants have not presented any evidence of past hostility between these two individuals. Absent compelling reasons, which are conspicuously absent in this record, few can argue that in a free society an accused is not entitled to know the identity of his accuser.
It is the public policy of this State that "government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions, for the protection of the public interest." N.J.S.A. 47:1A-1. In an action instituted to access government records, "[t]he public agency shall have the burden of proving that the denial of access is authorized by law." N.J.S.A. 47:1A-6. Here, the trial court properly found that the public's right of access and transparency outweighed the government's interest in favor of confidentiality. See In re Readoption with Amendments of Death Penalty Regulations, 367 N.J. Super. 61, 74, (App. Div.), certif. denied, 182 N.J. 149 (2004). None of the concerns in favor of confidentiality articulated by the Court in Burnett, supra, 198 N.J. at 427, are applicable here.
Because we affirm the trial court's opinion based exclusively on OPRA, we do not reach any arguments advanced by the parties under the common law right of access.
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Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION