This post was also written by Frederick Lah.
A New Jersey appellate court has affirmed a lower court’s order requiring a county to make available an unredacted list of names and mailing addresses of senior citizens pursuant to the state’s Open Public Records Act (OPRA).
The list at issue was compiled by the County of Union to allow for distribution of a senior citizen newsletter. The operator of a website called “Union County Watchdog” requested a copy of the list so that she could disseminate information in furtherance of her website’s non-profit civic activities, which included informing the public of government matters. The County had provided the list but only after redacting the mailing addresses, asserting that the senior citizens’ privacy interests precluded disclosure under a provision of OPRA which requires that prior to disclosure, the custodian must redact a person’s “social security number, credit card number, unlisted telephone number, or driver license number.”
The County conceded that a mailing address did not appear on the list of OPRA’s redaction exceptions, but instead argued that the addresses in this instance were linked to another identifier — status as “senior citizen.” The court rejected this argument, likening status as a “senior citizen” to status as a “homeowner,” neither of which serve as meaningful identifiers:
“[o]ur concern is that the term ‘senior citizen’ is too broad a label to fall within the purview of a meaningful identifier. It is without definition or parameters. We are not convinced that the designation ‘senior citizen’ is any more of a personal identifier than the label ‘homeowner’ … We contrast this with the unique identifier of a social security number.”
The court’s refusal to treat status as a subgroup of citizens as a personal identifier may be seen as a contrast from the recent trend of some U.S. courts to extend the definition of personal information (in certain contexts) to cover data elements not traditionally considered to fit the category, such as ZIP codes. For our previous analysis of the recent privacy litigation surrounding the treatment of ZIP codes, click here.
The court also found that the potential harms that would result from the disclosure, such as unsolicited door-to-door contact or direct mailing, were minimal, noting that the list members had originally signed up to receive information about government services, and that was the type of information the Watchdog site intended to send. The court’s stance is in line with the general lack of privacy regulations in the U.S. addressing direct mailing or door-to-door solicitations. It is interesting to note that these potential harms of increased solicitations or inconveniences (not recognized as meaningful by the court here) are often the type of harms that plaintiffs attempt to recover in class action litigation brought after a data breach or theft.
The tension between personal privacy and strong public policies favoring open public records is often the underlying theme in cases where access to government records is at issue. Under this particular set of circumstances, the court ruled in favor of the public interest of having open records over the need to preserve individual privacy, despite the fact that a vulnerable class of senior citizens was involved. The court noted, though, that some of the privacy concerns could be abated by providing notice to those people who sign up to receive the newsletter that their names and addresses are subject to OPRA.