City/State Location of Calls to/from Public Employees’ Government-Provided Cellphones are Not Private

Livecchia v. Borough of Mount Arlington, 421 N.J. Super. 24 (App. Div. 2011).  North Jersey Newspapers Co. v. Passaic Cty. Bd. of Freeholders, 127 N.J. 9 (1992), held that “the people and places [a public official] calls on a telephone” were exempt from disclosure under the Open Public Records Act, N.J.S.A. 47:1A-1 to -13 (“OPRA”).  In this case, a citizen sought disclosure only of the city and state from which public employees’ calls on government-issued cellphones emanated and to which they were made.  The Appellate Division upheld a ruling by the Goverment Records Council (“GRC”) that disclosure of this information was required.  Judge Lihotz wrote the opinion.

Plaintiff wanted to know “whether cell phones were being used for personal, rather than government, business without reimbursement and whether municipal employees made calls from home during working hours” while absent from work.  She made an OPRA request for municipal cell phone records.  The Borough produced the records, but redacted the phone numbers and the destinations of the calls made, on the grounds that that information was private and not required to be disclosed under OPRA.  Plaintiff objected to that.  When the parties could not resolve their dispute, plaintiff filed a “Denial of Access Complaint” with the GRC, the administrative agency created to address such issues.

The GRC ruled for plaintiff and “concluded the redaction of the destination location of the cell phone calls was a violation of N.J.S.A. 47:1A-5(g) because no privacy issues were ‘implicated by the disclosure of a generic city and state without any personal identifiers such as a telephone number.'”  The Appellate Division affirmed that ruling, noting in a lengthy discussion of the standard of review that the court was to give the GRC “substantial deference.”

Judge Lihotz observed that OPRA requires “ready access to government documents while safeguarding the citizen’s reasonable expectation of privacy.”  The court was required to balance those interests.  The Borough, however, “advance[d] a wholesale rejection” of the need to do such balancing, asserting that “the privacy interest [recognized by North Jersey Newspapers] universally prevails.”  The Borough “never explained … how revealing the city and state called … could possibly impede the privacy rights of either the caller or the person called.”

The panel rejected the Borough’s position.  Plaintiff conceded that it was proper to redact the phone numbers called.  She did not seek the identity of the persons called.  What she did request– the “destination location” of the calls– “would not impinge upon any individual privacy interests.”  The basis for the decision in North Jersey Newspapers, Judge Lihotz wrote, was concern about disclosure of the identity of the caller or the person called.  Since that concern was absent here, the Borough’s reliance on North Jersey Newspapers was misplaced.

As Judge Lihotz concluded, “[r]ooting out the possible misuse of the public fisc and abuse of the taxpayers’ trust is the bedrock upon which OPRA rests.”  Many OPRA requests are blunderbuss, overbroad demands, often motivated by private or purely political agendas.  Here, plaintiff’s request was narrowly tailored to get information that the public would want to know, while not violating individual privacy.  The Appellate Division got it right.