Civil Case Jacket

SOM-L-001471-21 03/29/2023 Pg 1 of 32 Trans ID: LCV20231064597
NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION
DOCKET NO. A-3421-20
A-1440-21
A-1517-21
RISE AGAINST HATE, a N.J.

nonprofit corporation, and
ANDREW JUNG,
Plaintiffs-Respondents,
v.
CHERRY HILL TOWNSHIP,

and NANCY SAFFOS, in her
official capacity as Custodian of
Records for CHERRY HILL
TOWNSHIP,
Defendants-Appellants.
_____________________________
RISE AGAINST HATE.ORG, a

nonprofit organization and a
501(c)(3) public charity,
Plaintiff-Respondent,
v.
BRIDGEWATER TOWNSHIP, and

LINDA DOYLE, in her official
capacity as Records Custodian,
_____________________________
RISE AGAINST HATE.ORG, a

nonprofit organization and a
501(c)(3) public charity,
Plaintiff-Respondent,
v.
TOWNSHIP OF WEST DEPTFORD,

and LEE ANN DEHART, in her
official capacity as Records
Custodian,
_______________________________
Submitted July 11, 2022 – Decided March 29, 2023
Before Judges Currier, DeAlmeida and Enright.
On appeal from the Superior Court of New Jersey, Law

Division, Camden County, Docket No. L-0206-21,
Somerset County, Docket No. L-1471-21, and
Gloucester County, Docket No. L-1121-21.
Brown & Connery, LLP, attorneys for appellants in

Docket Nos. A-3421-20 and A-1517-21 (Michael J.
Miles and Jose A. Calves, on the briefs).
Savo, Schalk, Corsini, Gillespie, O'Grodnick & Fisher,

PA, attorneys for appellant in Docket No. A-1440-21
(Alexander G. Fisher and Matthew R. Flynn, on the
briefs).
A-3421-20
2
Pashman Stein Walder Hayden, PC, and Law Offices of

Eric A. Shore, attorneys for respondents (CJ Griffin and
Michael J. Zoller, of counsel and on the briefs).
The opinion of the court was delivered by
DeALMEIDA, J.A.D.
At issue is whether, in the circumstances presented here, members of the
public have an objectively reasonable expectation in the privacy of their email
addresses sufficient to protect them from disclosure under the Open Public
Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. We conclude members of the
public who submit their email addresses to receive electronic newsletters and
notices from a municipality have an objectively reasonable expectation that their
email addresses will not be disclosed to a non-government organization that
intends to send unsolicited emails to them to further the organization's political
and social objectives.
A-3421-20
3
I.
The facts in these consolidated matters are similar and not in dispute.
A-3421-20
Plaintiff Rise Against Hate (RAH) is a 501(c)(3) non-profit corporation
with an office in defendant Township of Cherry Hill. 1 RAH's purpose is to raise
public awareness about racism and civil rights and to inform the public about
the law. Among other things, the organization investigates racial disparities and
monitors municipalities to ensure that they, and their agents, employees, law
enforcement officers, and officials honor residents' civil rights.
Plaintiff Andrew Jung is a member of the board of advisors of RAH. He
is also the founder and Chair of Asian Hate Crimes Task Force (AHCTF), a
501(c)(3) non-profit organization that spreads awareness of hate crimes against
the Asian community and educates the public about Asian culture, history, and
current events.2
Defendant Nancy Saffos is the records custodian for Cherry Hill. On
December 7, 2020, and December 14, 2020, Jung filed OPRA requests with
1
In the record, plaintiff is referred to as both Rise Against Hate and Rise
Against Hate.Org.
2
At the time that Jung filed his complaint, AHCTF's formation as a non-profit
corporation was pending. It has since been granted non-profit status.
A-3421-20
4
Saffos seeking disclosure of three email subscriber lists maintained by Cherry
Hill, entitled "Notify Me," "Civil Alerts," and "Mayor's Weekly Update."
Members of the public subscribe to these lists by providing an email address at
which they consent to receive periodic newsletters and notices from the
municipality. When members of the public register for these lists, Cherry Hill
provides a disclaimer that their personal information will not be disclosed unless
required by law.
The December 7, 2020 request was filed on behalf of RAH, which intends
to use the subscriber lists to send unsolicited emails concerning RAH's
activities, investigations, and other matters relating to the civil rights of
historically marginalized communities. RAH intends to distribute information
it previously gathered regarding what it claims are racial disparities in policing
in Cherry Hill and gender-based pay discrimination by the township.
The December 14, 2020 request was filed by Jung in his capacity as Chair
of AHCTF, which also intends to use the subscriber lists to send unsolicited
emails to further the organization's objectives. RAH and AHCTF did not request
the names, street addresses, social security numbers, or other information of the
subscribers.
A-3421-20
5
Saffos denied both requests. Although recognizing that the subscriber
lists are government records, Saffos determined that the requested information
is protected from public disclosure by the personal privacy provision of N.J.S.A.
47:1A-1.
On January 22, 2021, RAH and Jung filed a complaint in the Law Division
alleging that the denial of the requests violated OPRA. Defendants cross-moved
pursuant to R. 4:6-2(e) to dismiss the complaint for failure to state a claim upon
which relief can be granted. 3
On June 11, 2021, the trial court issued a written opinion ordering
disclosure of the requested information and denying defendants' cross-motion to
dismiss the complaint. Noting the parties' agreement that the subscriber lists are
government records, the court found that the custodian had not raised a colorable
claim that disclosure of the email addresses on the subscriber lists would violate
3
In July 2020, a co-director of RAH filed an OPRA request on behalf of the
organization for the same information. Neither he nor the organization appealed
the denial of that request. The trial court rejected defendants' argument that the
December 7, 2020 request on behalf of RAH was time-barred because the denial
of the July 2020 request was not appealed. Cherry Hill did not address that
argument in its merits brief. We therefore deem any arguments with respect to
that claim waived. "[A]n issue not briefed is deemed waived." Pressler &
Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2023); Telebright Corp.,
Inc. v. Dir., N.J. Div. of Tax., 424 N.J. Super. 384, 393 (App. Div. 2012)
(deeming a contention waived when the party failed to include any arguments
supporting the contention in its brief).
A-3421-20
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the objectively reasonable expectations of privacy of the subscribers. The court
reasoned that disclosure of email addresses would be less invasive of privacy
than the disclosure of home addresses, which courts have found to be subject to
release when found in government records in some circumstances. The court
noted that email addresses can easily be changed and do not reveal the physical
location or, in many cases, the identity of the owner of the email address. In
addition, the court found that recipients of unsolicited emails from RAH and
AHCTF, if uninterested in receiving communications from those organizations,
can easily block, or divert to a spam folder, any future emails from them. The
court also noted that before subscribers submitted their email addresses, Cherry
Hill put them on notice that those addresses would be disclosed if required by
law. This fact, the court found, lessened any privacy interest.
Although not necessary in light of its finding that the custodian failed to
raise a colorable claim of privacy, the trial court undertook an analysis of the
factors set forth in Burnett v. Cnty. of Bergen, 198 N.J. 408, 427 (2009), to
determine whether any privacy interest in non-disclosure of the email addresses
was outweighed by the interest in public access to that information. The court
found the asserted privacy interest to be minimal because the requested
information revealed only email addresses and no personal identifiers
A-3421-20
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connecting those email addresses to any person. In addition, the court concluded
that the public would benefit from the dissemination by RAH and AHCTF of
information relating to government actions. On balance, the court found, had
the custodian made a colorable claim of privacy, the privacy interest would have
been outweighed by the benefit of disclosure.
A June 11, 2021 order directs Cherry Hill to disclose the subscriber lists
and denies defendants' cross-motion to dismiss the complaint.
A-1440-21
Defendant Linda Doyle is the records custodian for defendant Township
of Bridgewater. On September 17, 2021, an RAH officer submitted a request
for a copy of email distribution lists maintained by Bridgewater. Members of
the public subscribe to these lists by providing an email address at which they
consent to receive newsletters and notices from the municipality. RAH intends
to use the subscriber lists to send unsolicited emails concerning RAH's
activities, investigations, and other matters relating to the civil rights of
historically marginalized communities. RAH did not request the names, street
addresses, social security numbers, or other information of the subscribers.
A township official denied the request pursuant to N.J.S.A. 47:1A-1,
stating that although the requested information is a government record,
A-3421-20
8
disclosure of the email addresses would violate the reasonable expectation of
privacy of those who subscribed to the township's newsletters and notices.
RAH subsequently filed a complaint in the Law Division alleging that the
denial of its request violated OPRA and the common law right of access.
Defendants cross-moved to dismiss the complaint for failure to state a claim.
On December 13, 2021, the trial court issued an oral opinion ordering
disclosure of the requested information and denying Bridgewater's cross -
motion. The court found that the custodian made a colorable claim that
disclosure of the email addresses would violate the reasonable expectation of
privacy of the subscribers. After applying the Burnett factors, however, the
court concluded that although the members of the public who registered for the
township's newsletters and notices likely did not expect that their email
addresses would be disclosed to a non-government organization, the harm from
disclosure – the receipt of unsolicited emails and RAH's potential further
distribution of the email addresses to other organizations – can be ameliorated
by blocking or filtering technology. The court found this harm to be outweighed
by RAH's interest in obtaining the subscriber lists to effectuate the purposes of
the organization, which included disseminating information about government
actions. Thus, the court found that the requested information is not protected
A-3421-20
9
from disclosure under OPRA. In addition, after weighing RAH's interest in
disclosure of the email addresses against the privacy interest of the subscribers,
the court found that RAH also has a right to the requested information under the
common law right of access.
A December 13, 2021 order directs Bridgewater to produce the requested
information and denies the township's cross-motion to dismiss the complaint.
A-1517-21
On July 18, 2021, RAH submitted an OPRA request to defendant Lee Ann
DeHart, the records custodian for defendant Township of West Deptford. It
sought production of two email subscriber lists maintained by West Deptford:
"West Deptford Township News" and "RiverWinds Community Center News."
When subscribing to the lists, members of the public provide an email address
at which they consent to receive newsletters and notices from the municipality.
RAH did not request the names, street addresses, social security numbers, or
other information of the subscribers. It intends to use the subscriber lists to send
unsolicited emails concerning RAH's activities, investigations, and other matters
relating to the civil rights of historically marginalized communities.
DeHart denied the request. She determined that although the requested
information is a government record: (1) the email addresses are protected from
A-3421-20
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disclosure by N.J.S.A. 47:1A-1 because the members of the public who joined
the distribution lists have an objectively reasonable expectation that their email
addresses will not be disclosed to a non-government organization that intends to
use that information to send unsolicited emails furthering the organization's
objectives; and (2) disclosure of the requested information would not further the
purposes of OPRA to maximize public knowledge of the operations of municipal
government.
RAH subsequently filed suit in the Law Division, alleging that the denial
of its request violated OPRA and the common law right of access. West
Deptford cross-moved to dismiss the complaint, arguing that the requested
information is precluded from public disclosure by N.J.S.A. 47:1A-1.
On October 25, 2021, the trial court issued an oral opinion ordering
disclosure of the requested information and denying West Deptford's cross -
motion. The court found that DeHart had not advanced a colorable claim that
members of the public have an objectively reasonable expectation that email
addresses they submit to a municipality's newsletter distribution list will be
protected from public disclosure to a non-government organization. The court
found that "[a]ny objectively reasonable person knows that their email addresses
are regularly disclosed, sold, whatever the case may be and that's why we all
A-3421-20
11
have these spam emails in our inboxes." In addition, the court rejected West
Deptford's claim that disclosure of the email addresses would expose the email
address holders to cybersecurity threats. Noting that most email addresses do
not contain the addressee's full name, the court found that RAH's request
was so tailored that even if they had the email address

of a person, they would not have any other information
whatsoever, perhaps not even the name of the person,
which would raise a likelihood that their medical
records, or banking records, or any other personal
documentation could be access[ed] or compromised in
some fashion just because someone has your email
address.
In addition, the court noted that although the Legislature had recently amended
OPRA several times to expand the categories of personal information in
government records excluded from public disclosure, it had not protected email
addresses.
Although recognizing that its finding with respect to the absence of a
colorable claim of privacy effectively ended its analysis, the court addressed the
Burnett factors. Finding no interest in maintaining the privacy of the email
addresses, minimal harm from disclosure, and that RAH established a need for
access, the court concluded that release of the requested information would be
warranted under a Burnett analysis. The court did not analyze whether RAH is
entitled to disclosure of the requested information under the common law .
A-3421-20
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An October 25, 2021 order directs West Deptford to produce the requested
information and denies the township's cross-motion to dismiss the complaint.
In all three matters, the municipal defendants filed an appeal and the trial
court stayed its order directing disclosure of the requested information pending
appeal. We consolidated the appeals for purposes of argument and this opinion.
II.
We review de novo trial court decisions regarding the applicability of
OPRA and whether statutory exclusions from public disclosure of information
in government records have been met. O'Shea v. Twp. of W. Milford, 410 N.J.
Super. 371, 379 (App. Div. 2009); Asbury Park Press v. Cty. of Monmouth, 406
N.J. Super. 1, 6 (App. Div. 2009). "The purpose of OPRA is to maximize public
knowledge about public affairs in order to ensure an informed citizenry and to
minimize the evils inherent in a secluded process." O'Shea, 410 N.J. Super. at
379 (quoting Times of Trenton Publ'g Corp. v. Lafayette Yard Community Dev.
Corp., 183 N.J. 519, 535 (2005) (internal quotations omitted)). The statute
"shall be construed in favor of the public's right of access . . . ." N.J.S.A. 47:1A-
1. The records custodian has the burden to show that its denial of access was
authorized by law. N.J.S.A. 47:1A-6; Lagerkvist v. Off. of Governor, 443 N.J.
Super. 230, 234 (App. Div. 2015).
A-3421-20
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N.J.S.A. 47:1A-1 provides that "government records shall be readily
accessible for inspection, copying, or examination . . . with certain exceptions,
for the protection of the public interest . . . ." N.J.S.A. 47:1A-1. A
"[g]overnment record" includes
any . . . information stored or maintained electronically

. . . that has been made, maintained or kept on file in
the course of . . . official business by any officer . . . of
the State or of any political subdivision thereof . . . or
that has been received in the course of . . . official
business by any such officer . . . .
[N.J.S.A. 47:1A-1.1.]
There is no dispute that the subscriber lists requested by RAH and AHCTF are
government records created with information maintained by officers of the
respective municipalities in the course of official business. See Paff v. Twp. of
Galloway, 229 N.J. 340 (2017) (electronic fields of information, including email
addresses, constituted government records under OPRA).
Defendants argue, however, the email addresses on the subscriber lists are
excluded from public disclosure because of privacy concerns. The statute
expressly excludes email addresses in public government records from
disclosure in three circumstances. "A government record shall not include[:]"
(1) "personal identifying information received by the Division of Fish and
Wildlife . . . in connection with the issuance of any license authorizing hunting
A-3421-20
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with a firearm" including the "email address . . . of any applicant or licensee
. . . [;]" (2) "information received by a member of the Legislature from a
constituent . . . including . . . information . . . contained in any e-mail or computer
data base . . . [;]" and (3) a "[p]ersonal firearms record," which includes the
"email address . . . of any applicant, licensee, registrant or permit holder."
N.J.S.A. 47:1A-1.1. These exclusions do not apply here.
In addition, N.J.S.A. 47:1A-5(a) provides that
[p]rior to allowing access to any government record, the

custodian thereof shall redact from that record any
information which discloses the social security number,
credit card number, unlisted telephone number, or
driver license number of any person, or . . . the home
address, whether a primary or secondary residence, of
any active, formerly active, or retired judicial officer,
prosecutor, or law enforcement officer, or . . . any
immediate family member thereof . . . . 4
The statute, which was amended several times in the recent past to expand
protection of personal information, L. 2020, c. 125 § 1 (excluding home
addresses of judicial officers from public disclosure); L. 2021, c. 19, § 18
(excluding records of certain marijuana convictions from public disclosure); L.
2021, c. 37 § 10 (excluding home addresses of immediate family members of
4
The statute permits, in some circumstances, disclosure of social security
numbers when they appear in documents required to be made, maintained or
kept on file by a public agency. N.J.S.A. 47:1A-5(a).
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judicial officers and others from public disclosure), does not include email
addresses of people who subscribe to municipal newsletters and notices.
To justify their redactions, defendants rely on a provision of OPRA that
concerns personal information more generally. N.J.S.A. 47:1A-1 provides that
"a public agency has a responsibility and an obligation to safeguard from public
access a citizen's personal information with which it has been entrusted when
disclosure thereof would violate the citizen's reasonable expectation of privacy
. . . ."
This provision requires government records custodians, when reviewing a
request for disclosure, to apply "a balancing test that weighs both the public's
strong interest in disclosure with the need to safeguard from public access
personal information that would violate a reasonable expectation of privacy."
Burnett, 198 N.J. at 427. The Supreme Court adopted the multi-factor
framework set forth in Doe v. Poritz, 142 N.J. 1, 88 (1995), to determine whether
the public interest justifies disclosure of personal information in a government
record. Those factors are:
(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
A-3421-20
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for access; and (7) whether there is an express statutory

mandate, articulated public policy, or other recognized
public interest militating toward access.
[Burnett, 198 N.J. at 427 (quoting Doe, 142 N.J. at 88).]
Three recent Supreme Court opinions apply the Doe factors to requests for
government records that public agencies argued contain private information.
Burnett involved a request for disclosure of documents relating to real
property, such as mortgages, deeds, construction liens, and releases from
judgment that had been filed with a county clerk over a twenty-two-year period.
Id. at 415. The requestor intended to compile the documents in an easily
searchable electronic database to which it would sell access. Ibid. The records,
which were otherwise "plainly subject to disclosure," id. at 428, contained social
security numbers (SSNs), implicating the privacy provision of OPRA. Id. at
416. The custodian sought to redact the SSNs pursuant to N.J.S.A. 47:1A -1,
arguing that the parties whose SSNs appeared in the documents had an
objectively reasonable expectation they would not be disclosed to the public.
Ibid.
With respect to the first two Doe factors, the Court recognized the public
interest in the availability of records relating to realty, given that "[t]he very
purpose of recording and filing them 'is to place the world on notice of their
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contents.'" Id. at 429 (quoting Dugan v. Camden Cnty. Clerk's Off., 376 N.J.
Super. 271, 279 (App. Div. 2005)). "Potential buyers and creditors rely on the
records to establish and protect their ownership interests." Ibid. (citing N.J.S.A.
46:22-1). In addition, the Court noted that SSNs are not required on the
documents in question and were likely added by lenders and others who prepared
them for filing. Ibid. Thus, the Court observed, it was unlikely that people
realized their SSNs were on documents subject to public inspection or would be
included in a computerized database available to be searched by anyone willing
to pay for access to their information. Id. at 429-30.
In addition, the Court observed that while SSNs might be available in
other public settings, that fact alone was not sufficient to erase the interest in
limiting dissemination of that information. Id. at 430. The Court also found an
elevated privacy interest because the SSNs appeared on the records along with
other personal information, such as names, addresses, marital status, and
mortgage details, ibid., and because the requestor intended to compile the
information in an easily searchable database. Id. at 430-31.
As for the potential harm from disclosure, the Court found of "particular
concern" the "significant risk of identity theft from disclosure of vast numbers
of SSNs." Id. at 431. This is so, the Court found, because "SSNs are unique
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identifiers. They are closely tied to a person's financial affairs and their
disclosure presents a great risk of harm." Ibid. "'[A]rmed with one's SSN, an
unscrupulous individual could obtain a person's welfare benefits or Social
Security benefits, order new checks at a new address on the person's checking
account, obtain credit cards, or even obtain that person's paycheck . . . .'" Ibid.
(quoting Greidinger v. Davis, 998 F.2d 1344, 1354-55 (4th Cir. 1993) (citations
and footnote omitted)).
With respect to factor five, the Court found that there were no safeguards
against unlimited disclosure of the SSNs once released. Id. at 434. The Court
also noted that the requestor had no demonstrated need for the SSNs and could
fulfill its objective without access to the SSNs. Ibid. The Court held,
[a]s a general rule, we do not consider the purpose

behind OPRA requests. See [Michelson v. Wyatt, 379
N.J. Super. 611, 620 (App. Div. 2005)]. An entity
seeking records for commercial reasons has the same
right to them as anyone else. However, when legitimate
privacy concerns exist that require a balancing of
interests and consideration of the need for access, it is
appropriate to ask whether unredacted disclosure will
further the core purposes of OPRA: "'to maximize
public knowledge about public affairs in order to ensure
an informed citizenry and to minimize the evils
inherent in a secluded process.'" [Mason v. City of
Hoboken, 196 N.J. 51, 64 (2008) (quoting Asbury Park
Press v. Ocean Cnty. Prosecutor's Off., 374 N.J. Super.
312, 329 (Law Div. 2004))]; see also Nat'l Archives &
Records Admin. v. Favish, 541 U.S. 157, 172 [(2004)]
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(noting that under [the Freedom of Information Act], to

give effect to exemptions protecting personal privacy
of citizens, "the usual rule that the citizen need not offer
a reason for requesting the information must be
inapplicable").
[Id. at 435.]
The Court concluded that "[n]either of OPRA's goals is furthered by disclosing
SSNs that belong to private citizens to commercial compilers of computer
databases. Were a similar request made by an investigative reporter or public
interest group examining land recording practices of local government, this
factor would weigh differently in the balancing test." Ibid.
Finally, the Court noted that the Legislature had "expressed increasingly
strong concerns against disclosure of SSNs in recent years" through the
enactment of statutes prohibiting the inclusion of SSNs on documents filed with
a county recording authority. Id. at 435-36. The Court held that
[o]n balancing the above factors, we find that the twin

aims of public access and protection of personal
information weigh in favor of redacting SSNs from the
requested records before releasing them. In that way,
disclosure would not violate the reasonable expectation
of privacy citizens have in their personal information.
[Id. at 437.]
In Brennan v. Bergen Cnty. Prosecutor's Off., 233 N.J. 330, 333 (2018), a
county prosecutor's office held a public auction to sell sports memorabilia it had
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previously seized. All bidders submitted a registration form that included their
names, addresses, telephone numbers, and email addresses. Ibid. There were
thirty-nine successful bidders. Id. at 334. After a news report raised questions
about the authenticity of the items, the prosecutor's office offered the successful
bidders refunds. Ibid.
Brennan submitted an OPRA request for the contact information for each
winning bidder. Ibid. The prosecutor's office produced receipts issued to the
winning bidders "that did not include the buyers' names or addresses." Ibid.
Brennan filed suit in the Law Division, alleging a violation of OPRA.
After applying the Doe factors, the trial court ordered release of the
unredacted records. Ibid. The court found the privacy interest "limited" because
the buyers' names and addresses were already publicly available from various
sources. Ibid. The court also concluded that the risk of harm from disclosure
was "relatively miniscule." Ibid. We reversed. We also applied the Doe factors,
but concluded that the privacy interest was significant because the release of the
buyers' names and addresses would reveal that they are collectors of valuable
memorabilia, which might make them targets for theft. Ibid. In addition, we
reasoned that the interest in government accountability was not served by
disclosure because the buyers "were not responsible for any government actions
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in connection with the auction." Id. at 336. We, therefore, found that Brennan
was not entitled to the release of unredacted versions of the records. Ibid.
The Supreme Court reversed. The Court emphasizes that Burnett does not
"require[] courts to analyze the Doe factors every time a party asserts that a
privacy interest exists." Id. at 341. As the Court explained,
[i]n Asbury Park Press v. County of Monmouth, for

example, the Court ordered disclosure of a settlement
agreement between the County of Monmouth and an
employee. 201 N.J. 5, 6 (2010). The employee had
filed a lawsuit claiming sex discrimination, harassment,
retaliation, and a hostile work environment. Id. at 6.
The County relied on OPRA's privacy clause to try to
prevent disclosure of the agreement. Id. at 6-7.
Noting that the case was "a far cry from Burnett," the
Court quickly dispensed with the argument. Ibid. The
Court explained that "OPRA's privacy clause has no
application here because this case does not implicate
the concerns raised in Burnett." Id. at 7. The Court
also saw "no reason to analyze the Doe factors" when
"a former county employee chose to file a public action
– a complaint against the County which was available
to the public" – and the matter would have unfolded in
open court had the case not settled. Ibid. Disclosure of
the settlement, the Court observed, "would not violate
any reasonable expectation of privacy." Ibid.
[Ibid.]
The Court clarified its holding in Burnett, as it was interpreted in Asbury
Park Press: "before an extended analysis of the Doe factors is required, a
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custodian must present a colorable claim that public access to the records
requested would invade a person's objectively reasonable expectation of
privacy." Id. at 342. When the custodian does "not present a colorable privacy
claim at the outset . . . there is no need to resort to the Doe factors." Ibid.
Applying that standard, the Court concluded that the custodian at the
prosecutor's office did not present a colorable claim of privacy in the names and
addresses of the successful bidders. As the Court explained, "[t]he bidders knew
that they were participating in a public auction" and "that they were bidding on
seized property forfeited to the government." Ibid. In addition, the Court noted,
"[f]orfeiture proceedings and public auctions of forfeited property are not
conducted in private." Ibid. Statutes require the filing of a complaint before
property can be forfeited and public notice in advance of the auction. Ibid. The
Court concluded:
[a]ll of those circumstances undermine the notion that

a bidder could reasonably expect the auction in this case
to be cloaked in privacy. Viewed objectively, it was
unreasonable for a buyer to expect that the information
requested would remain private. If anything, the sale
of government property at a public auction is a
quintessential public event that calls for transparency.
To guard against possible abuses, the public has a right
to know what property was sold, at what price, and to
whom. OPRA's plain terms call for disclosure of that
type of recorded information, including the names and
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addresses of successful bidders. To hold otherwise

would jeopardize OPRA's purpose . . . .
[Id. at 343.]
Recently, in Bozzi v. City of Jersey City, 248 N.J. 274, 278 (2021), the
owner of an invisible fence installation business submitted an OPRA request for
a copy of Jersey City's dog license records. He noted that the city may "redact
information relating the breed of the dog, the purpose of the dog – if it is a
service or law enforcement animal – and any phone numbers associated with the
records. He sought only the names and addresses of the dog owners." Ibid. He
intended to use the information to solicit customers for his business. Id. at 277.
The city denied the request, asserting that disclosure of the names and
addresses of dog license applicants would violate their objectively reasonable
expectations of privacy. Id. at 278. In addition, the city noted that disclosure
"may jeopardize the security of both dog-owners' and non-dog-owners' property,
as well as potentially put the dogs themselves at risk for theft." Ibid.
After the requestor filed suit alleging a violation of OPRA, the city
submitted a certification from its Police Chief, expressing "exceptional[]
concern[]" about release of the information. Ibid. He certified that
those residing at addresses known not to have dogs on

the premises may be exposed as more vulnerable to
robbery or burglary. Further, disclosure may expose
A-3421-20
24
the locations of victims who have fled from threats,

stalking, and other harm. And finally, knowing an
address has a dog may encourage wrongdoers to bring
a weapon.
[Ibid.]
A second certification stated there were five reported dog thefts in the city in
the year preceding the request. Id. at 279.
The trial court concluded that the information was not excluded from
public disclosure. Ibid. We affirmed. Id. at 279-80.
On appeal, the Supreme Court noted that there is no express statutory
exemption from public disclosure for names and home addresses appearing in
dog license applications. Id. at 284. Thus, the Court observed, the requested
information could be protected from disclosure only if it fell within the m ore
general privacy provision of N.J.S.A. 47:1A-1. Id. at 285.
As the Court held, "[i]t is . . . the ownership and licensing of a dog that
would have to provide a reasonable expectation of privacy for Jersey City to
make . . . a colorable claim. And it is here that Jersey City's claim fails, because
we find no reasonable expectation of privacy in owning or licensing a dog." Id.
at 286. The Court found that
[o]wning a dog is, inherently, a public endeavor.

Owners – and the dogs themselves – are regularly
exposed to the public during daily walks, grooming
A-3421-20
25
sessions, and veterinarian visits. Many owners

celebrate their animals on social media or bumper
stickers, inherently public platforms. Some people put
up signs stating that there is a dog at the residence;
others frequent certain parks or establishments
specifically made for dogs and dog owners. Some
owners even enter their dogs into public shows, events,
and competitions. Dog owners who continually expose
their dogs to the public cannot claim that dog ownership
is a private undertaking. Just like the participants in the
public auction in Brennan, dog owners are fully aware
of the public exposure of their actions.
[Ibid.]
Because it concluded that the Jersey City custodian did not state a colorable
claim that public disclosure of the requested information would violate an
objectively reasonable expectation of privacy, the Court did not apply the Doe
factors to determine if disclosure was permitted. Id. at 287.
We have carefully considered the record in light of these precedents and
conclude that the trial courts erred when they found that the requested
information is not protected from public disclosure.
We agree with the trial courts that no provision of OPRA expressly
excludes from public disclosure the email addresses of people who subscribe to
municipal newsletters and notices. As detailed above, the Legislature identified
three circumstances in which email addresses in government records are
categorically excluded from disclosure. None of those circumstances apply
A-3421-20
26
here. We think it significant that N.J.S.A. 47:1A-1.1 expressly protects from
disclosure information about constituents stored in a computer database by a
member of the Legislature, but does not extend that protection to such
information in possession of municipal officials. The Legislature appears to
have drawn a deliberate distinction between themselves and municipal officials
with respect to information of the type requested here. We do not think,
however, that the Legislature intended to subject email addresses in municipal
records to public disclosure in every circumstance.
In addition, N.J.S.A. 47:1A-5(a) contains a detailed list of personal
information in government records that must be redacted before disclosure. That
list does not include email addresses. Unlike in Burnett, the Legislature has not
enacted a statute expanding protection for email addresses in the government
records of municipalities.5
5
The significance of the omission of email addresses from N.J.S.A. 47:1A-5(a)
must be considered in light of the 2004 report from the Privacy Study
Commission, created by Governor McGreevey in 2002, through Executive
Order No. 21. The Commission recommended that for purposes of OPRA, email
addresses be treated in the same manner as unlisted telephone numbers, which
are protected from disclosure in N.J.S.A. 47:1A-5(a). See Privacy Study
Commission, Final Report 12 (2004). The Legislature has not adopted that
recommendation. The Supreme Court found legislative inaction with respect to
a recommendation of the Commission "strongly cautions against creating a
judicial exception" that effectuates the unadopted recommendation. Bozzi, 248
A-3421-20
27
The only provision under which the information requested here may be
protected from disclosure is the personal information privacy provision of
N.J.S.A. 47:1A-1. We conclude that the custodians made colorable claims that
disclosure of the email addresses would invade the reasonable expectations of
privacy of the people who subscribed to municipal newsletters and notices. It
is a colorable proposition that people who register for the passive electronic
receipt of information from a municipality do not expect their email addresses
will be disclosed to non-government organizations that intend to send them
unsolicited emails furthering the organizations' political and social objectives.
We also conclude that an expectation of privacy in these circumstances is
objectively reasonable and outweighs what we find to be the minimal public
interest advanced by disclosure of the requested information. We apply the Doe
factors in turn:
(1) As we explained, the information sought is the email addresses of
people who subscribed to receive municipal newsletters and notices;
N.J. at 284-85 (citing Brennan, 233 N.J. at 339). We do not view our holding
today as creating a categorical exemption for email addresses. We instead
interpret the long-standing privacy provision in N.J.S.A. 47:1A-1 to apply to
email addresses in the circumstances presented in these appeals.
A-3421-20
28
(2) The requested information contains email addresses, which are
generally widely publicly disclosed and, in this instance, voluntarily given to
municipal officials. The context in which this information was disclosed,
however, underscores the reasonableness of an expectation that the email
addresses would not be further disclosed to non-government organizations. By
consenting to the passive receipt of periodic, generic newsletters and notices,
the subscribers are not participating in an inherently public act, seeking to
influence government decision making, or engaging in a dialogue with public
officials or employees about public business. They merely consented to receive
information from government officials that will be sent to anyone else who
subscribes to the newsletters and notices;
(3) We acknowledge that the harm from disclosure of the requested
information is likely minimal. RAH and AHCTF admit that they intend to send
unsolicited emails to the addresses on the subscriber lists. While it is likely that
some recipients of the unsolicited emails will be interested in the information
they convey, it is equally likely that other recipients will disagree with the
political and social objectives of the organizations or will simply wish not to be
contacted by them. We recognize that unsolicited emails are an unfortunate
reality of modern life. We do not agree, however, that their inevitability means
A-3421-20
29
that people should be subjected to additional unsolicited emails from
organizations, which may have political and social objectives with which they
disagree, merely because they consented to receiving newsletters and notices
from a municipality. Although unwanted emails can be filtered, screened, or
blocked, they remain a nuisance, particularly in light of the absence of
limitations on further distribution of the subscriber lists once release d;
(4) We think it is likely that at least some members of the public will
be deterred from subscribing to municipal newsletters and notices if subscriber
lists are subject to public disclosure. The value of being able to passively
receive information from municipal officials may be outweighed in the minds
of some people by the prospect of receiving unsolicited emails from non-
government organizations furthering the organizations' political and social
objectives;
(5) While there is no practical way to prevent RAH and AHCTF from
further distributing the email addresses, the groups have not expressly indicated
that they intend to share the subscriber lists with other organizations;
(6) We disagree that RAH and AHCTF made a showing of need for the
requested information. Nothing in the record suggests that the organizations
will be unable to distribute emails to the public furthering their objectives
A-3421-20
30
without the municipal subscriber lists. The organizations are free to compile
subscriber lists of their own from people who consent to receiving emails from
them. While the municipal subscriber lists provide an inexpensive and easy way
for RAH and AHCTF to disseminate information, those lists are not essential to
accomplishing that goal;
(7) We also find that disclosure would not further the public interest.
The purpose of OPRA is to facilitate transparency in government. Given the
passive nature in which municipal newsletters and notices are sent, disclosure
of subscriber lists does little to enlighten the public about the operations of
government. As noted above, the subscriber lists do not identify people who
have engaged government officials in discussions about public business. They
are, instead, a list of email addresses of people who consented to the one-way
receipt of generic information.
We conclude that in the circumstances presented here, the objectively
reasonable interest in privacy associated with protecting the email addresses on
the subscriber lists outweighs the limited public interest that would be advanced
by public disclosure. The trial courts erred when they ordered disclosure of the
requested information under OPRA.
A-3421-20
31
In the Bridgewater and West Deptford complaints, RAH alleged it is
entitled to disclosure of the requested information under the common law right
of access. The trial court in Bridgewater found that disclosure was required
under the common law. The trial court in West Deptford did not address the
issue. No party raises the common law on appeal. We have weighed the factors
applicable to a common law claim for access to government records, Keddie v.
Rutgers, the State Univ., 148 N.J. 36, 50 (1997), and conclude that the interest
in maintaining the privacy of the email addresses on the subscriber list s
outweighs any interest RAH and AHCTF have in accessing that information.
The orders on appeal are reversed to the extent they require the disclosure
of the requested information pursuant to OPRA and/or the common law and deny
defendants' cross-motions. We remand the matters for further proceedings
consistent with this opinion, given that attorney's fees were awarded by the trial
courts with respect to information we conclude is not subject to disclosure . We
do not retain jurisdiction.
Reversed and remanded.
A-3421-20
32

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SOM-L-001471-21 03/29/2023 Pg 1 of 32 Trans ID: LCV20231064597

NOT FOR PUBLICATION WITHOUT THE

SUPERIOR COURT OF NEW JERSEY

RISE AGAINST HATE, a N.J.

CHERRY HILL TOWNSHIP,

RISE AGAINST HATE.ORG, a

BRIDGEWATER TOWNSHIP, and

capacity as Records Custodian,

RISE AGAINST HATE.ORG, a

TOWNSHIP OF WEST DEPTFORD,

Submitted July 11, 2022 – Decided March 29, 2023

Before Judges Currier, DeAlmeida and Enright.

On appeal from the Superior Court of New Jersey, Law

Brown & Connery, LLP, attorneys for appellants in

Savo, Schalk, Corsini, Gillespie, O'Grodnick & Fisher,

Pashman Stein Walder Hayden, PC, and Law Offices of

The opinion of the court was delivered by

At issue is whether, in the circumstances presented here, members of the

public have an objectively reasonable expectation in the privacy of their email

Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. We conclude members of the

notices from a municipality have an objectively reasonable expectation that their

email addresses will not be disclosed to a non-government organization that

intends to send unsolicited emails to them to further the organization's political

and social objectives.

Plaintiff Rise Against Hate (RAH) is a 501(c)(3) non-profit corporation

with an office in defendant Township of Cherry Hill. 1 RAH's purpose is to raise

enforcement officers, and officials honor residents' civil rights.

Plaintiff Andrew Jung is a member of the board of advisors of RAH. He

501(c)(3) non-profit organization that spreads awareness of hate crimes against

Defendant Nancy Saffos is the records custodian for Cherry Hill. On

Saffos seeking disclosure of three email subscriber lists maintained by Cherry

Members of the public subscribe to these lists by providing an email address at

to use the subscriber lists to send unsolicited emails concerning RAH's

activities, investigations, and other matters relating to the civil rights of

historically marginalized communities. RAH intends to distribute information

it previously gathered regarding what it claims are racial disparities in policing

in Cherry Hill and gender-based pay discrimination by the township.

Saffos denied both requests. Although recognizing that the subscriber

is protected from public disclosure by the personal privacy provision of N.J.S.A.

which relief can be granted. 3

disclosure of the requested information and denying defendants' cross-motion to

the objectively reasonable expectations of privacy of the subscribers. The court

reasoned that disclosure of email addresses would be less invasive of privacy

release when found in government records in some circumstances. The court

AHCTF, if uninterested in receiving communications from those organizations,

determine whether any privacy interest in non-disclosure of the email addresses

found the asserted privacy interest to be minimal because the requested

information revealed only email addresses and no personal identifiers

information relating to government actions. On balance, the court found, had

been outweighed by the benefit of disclosure.

and denies defendants' cross-motion to dismiss the complaint.

Defendant Linda Doyle is the records custodian for defendant Township

of Bridgewater. On September 17, 2021, an RAH officer submitted a request

for a copy of email distribution lists maintained by Bridgewater. Members of

to use the subscriber lists to send unsolicited emails concerning RAH's

activities, investigations, and other matters relating to the civil rights of

addresses, social security numbers, or other information of the subscribers.

A township official denied the request pursuant to N.J.S.A. 47:1A-1,

stating that although the requested information is a government record,