OPRA Requires Disclosure of the Names of Successful Bidders at Public Auctions of Government Property

Brennan v. Bergen County Prosecutor’s Office, 233 N.J. 330 (2018).  This opinion by Chief Justice Rabner, for a unanimous Supreme Court, addressed an issue that arose under the Open Public Records Act, N.J.S.A. 47:1A-1 to -13 (“OPRA”).  The Bergen County Prosecutor’s Office held a public auction of sports memorabilia that it had seized in the course of its business.  There were 39 successful bidders.  Plaintiff filed an OPRA request for, among other things, contact information for those bidders.  The Prosecutor’s Office declined to produce the buyers’ names or addresses unless they consented, and they did not consent.

Plaintiff sued under OPRA and the common law right of access.  The issue came down to the validity of the bidders’ right to privacy, since OPRA directs agencies not release information that, if disclosed, “would violate [a] citizen’s reasonable expectation of privacy.”  The Supreme Court, in Doe v. Poritz, 142 N.J. 1, 88 (1995), addressed criteria for the privacy inquiry.  The Law Division concluded that any privacy right that the bidders had was limited, since their identities are available from other public sources.  And there was little potential for harm in revealing their names and addresses, as opposed to confidential information such as social security numbers.  Thus, the Law Division ruled for plaintiff and directed that the requested information be revealed.

The Appellate Division reversed.  That court weighed the Doe factors and concluded that the bidders had a reasonable expectation of privacy because revelation of their names would disclose that they were collectors and might make them the targets of thieves.  The Supreme Court granted review and reversed, reinstating the result in the Law Division after reviewing de novo the legal issue presented.

After discussing OPRA and its policies generally, Chief Justice Rabner noted that “the Legislature has chosen to prevent disclosure of home addresses in select situations.”  But there is no “broad-based exception for the disclosure of names and home addresses that appear in government records,” and none of the specific exceptions to disclosure applied here.

The ultimate holding was that courts need not consider the Doe privacy factors in every case, but only where an opponent of disclosure shows a “reasonable” expectation of privacy.  That did not occur here.  Chief Justice Rabner observed that “[f]orfeiture proceedings and public auctions of forfeited property are not conducted in private.”  Among other things, public notice is generally required prior to a public auction, and a public auction, by definition, takes place in public.  Thus, it was unreasonable for bidders to expect privacy.  “If anything, the sale of government property at a public auction is a quintessential public event that calls for transparency,” as “the public has a right to know what property was sold, at what price, and to whom.”