(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that,
in the interests of brevity, portions of any opinion may not have been summarized).
Argued May 1, 1995 -- Decided July 19, 1995
GARIBALDI, J., writing for a unanimous Court.
Counties and municipalities are not required to maintain their tax lists on computer. Those that choose
to do so must maintain that data in a format consistent with the New Jersey Property Tax System MOD IV,
which was developed by the Division of Taxation. Essex County chose to establish and maintain computerized
records.
Higg-A-Rella, Inc. (HAR) is a private New Jersey company in the business of selling municipal tax-assessment data to real-estate brokers, attorneys, appraisers, and others. HAR sought to obtain from Essex
County a computer tape of the tax-assessment records of every municipality in the county. Although the County
provides those records in the form of paper lists, it refused to produce a copy of the computer tapes.
Higg-A-Rella and Blau Appraisal Company filed this action seeking access to a computer copy of the
tax-assessment lists. They sought relief under the Right to Know Law and the common-law right of access. The
trial court granted summary judgment in favor of defendants Essex County, Essex County Board of Taxation,
and various municipalities. The court held that the tax lists were not subject to the Right to Know Law because
they were not required to be "maintained." It also concluded that in respect of the common-law right of access,
HAR and Blau had not established that their interest in the records outweighed the County's right to determine
if and for how much it wanted to sell the computer tapes.
The Appellate Division agreed with the trial court on the inapplicability of the Right to Know Law but
held that HAR and Blau had made out a case for relief under the common-law right of access. The Supreme
Court granted the petitions for certification of the Essex County Board of Taxation and others.
HELD: Computer tapes of tax-assessment records are common-law documents and are subject to balanced
disclosure. Under the facts of this case, a balancing of the interests of the parties results in the release of the
records on computer tapes. The case is remanded to the trial court to determine what constitutes a "reasonable
fee" for the service to be provided.
1. Plaintiffs' claim to access under the Right to Know Law fails for two reasons. First, the records were not
"required to be maintained" by the County. Second, the Legislature has amended the Law to provide that the
right to gain access to computerized records subject to the Right to Know Law means the right to "receive
printed copies of such records." (pp. 6-10)
2. Plaintiffs have established a common-law interest in the sought-after records. Defendants have asserted no
interest in keeping the records confidential -- they are, in fact, public information. Under the common-law
balancing test, plaintiffs have the right to obtain computer copies of the tax-assessment lists. The amendment
to the Right to Know Law does not govern the application of the common-law right of access. (pp. 10-15)
3. The Court's holding is fact-specific and may not be generalized to all cases in which people seek computer copies of common-law public records. Traditional rules and practices geared towards paper records might not be appropriate for computer records. The form in which information is disseminated can be a factor in the use
and access to records. Those new considerations must be factored into the common-law balancing test between
the State's interest in nondisclosure and the public's right to access. (pp. 15-20)
4. The parties dispute what would constitute a "reasonable fee" for providing the computer tapes. The record
before the Court is insufficient for it to determine what that fee should be. The Court notes, however, that
simply capping the fee at the actual, direct cost of copying may not properly account for the real differences
between electronic and paper media. The Court also notes that there are a number of bills before the
Legislature addressing this complicated issue. In the absence of legislative action in this area, the courts must
decide the issue. Accordingly, the case is remanded to the trial court to determine the reasonable fee for a
computer-tape copy of the tax-assessment records. (pp. 20-24)
The judgment of the Appellate Division is AFFIRMED as MODIFIED, and the matter is REMANDED
to the Superior Court, Law Division, for further proceedings consistent with this opinion.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN, and STEIN join in
JUSTICE GARIBALDI's opinion. JUSTICE COLEMAN did not participate.
SUPREME COURT OF NEW JERSEY
A-155/156/157/158/159/
178 September Term 1994
HIGG-A-RELLA, INC., t/a
STATE INFORMATION SERVICE,
BLAU APPRAISAL COMPANY, and
ROBERT D. BLAU,
Plaintiffs-Respondents,
v.
COUNTY OF ESSEX, a political
subdivision of the State of
New Jersey, Board of Trustees
of Essex County College,
TOWNSHIP OF CALDWELL, TOWNSHIP
OF CEDAR GROVE, CITY OF EAST
ORANGE, BOROUGH OF ESSEX FELLS,
TOWNSHIP OF FAIRFIELD, TOWNSHIP
OF GLEN RIDGE, TOWNSHIP OF
IRVINGTON, TOWNSHIP OF MAPLEWOOD,
TOWNSHIP OF MILLBURN, TOWNSHIP
OF MONTCLAIR, CITY OF NEWARK,
TOWNSHIP OF NORTH CALDWELL,
TOWNSHIP OF NUTLEY, CITY
OF ORANGE, TOWNSHIP OF SOUTH
ORANGE VILLAGE, TOWNSHIP OF
VERONA, and TOWNSHIP OF WEST
CALDWELL,
Defendants,
and
THE ESSEX COUNTY BOARD OF
TAXATION, AND THE MAYORS,
COUNCILS, AND ASSESSORS OF
THE FOLLOWING ESSEX COUNTY
MUNICIPALITIES, TOWNSHIP OF
BELLEVILLE, TOWNSHIP OF
BLOOMFIELD, TOWNSHIP OF
LIVINGSTON, TOWNSHIP OF
ROSELAND, and TOWNSHIP OF
WEST ORANGE,
Defendants-Appellants.
Argued May 1, 1995 -- Decided July 19, 1995
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
276 N.J. Super. 183 (1994).
Julian F. Gorelli, Deputy Attorney General,
argued the cause for appellant The Essex
County Board of Taxation (Deborah T. Poritz,
Attorney General of New Jersey, attorney;
Mark J. Fleming and Joseph L. Yannotti,
Assistant Attorneys General, of counsel).
Robert D. Blau argued the cause for
respondents (Blau & Blau, attorneys; Charles
E. Blau, of counsel).
Vincent A. Pirone, Director of Law, on behalf
of appellant Township of Bloomfield,
submitted a letter in lieu of brief relying
on the briefs filed and oral argument
presented on behalf of appellant The Essex
County Board of Taxation.
Sean F. Byrnes, on behalf of appellant
Township of Livingston, submitted a letter in
lieu of brief relying on the briefs filed and
oral argument presented on behalf of
appellant The Essex County Board of Taxation
(McCarter & English, attorneys).
Joseph G. Dooley, Jr., Municipal Attorney, on
behalf of appellant Township of West Orange,
submitted a letter in lieu of brief relying
on the briefs filed and oral argument
presented on behalf of appellant The Essex
County Board of Taxation.
Robert J. Giordano, on behalf of appellant
Township of Belleville, submitted a letter in
lieu of brief relying on the briefs filed and
oral argument presented on behalf of
appellant The Essex County Board of Taxation
(Giordano & Cataldo, attorneys).
Gabriel H. Halpern, on behalf of appellant
Township of Roseland, submitted a letter in
lieu of brief relying on the briefs filed and
oral argument presented on behalf of
appellant The Essex County Board of Taxation
(Fox and Fox, attorneys).
Nelson C. Johnson submitted a brief on behalf
of amici curiae The Press of Atlantic City
and Reporters Committee for Freedom of the
Press.
Henry H. Perritt, Jr., submitted a brief
amicus curiae, pro se.
The opinion of the Court was delivered by
GARIBALDI, J.
Plaintiff Higg-A-Rella, Inc., t/a State Information Service,
is a private New Jersey corporation in the business of selling
municipal tax-assessment data to real-estate brokers, attorneys,
appraisers, and other customers. State Information Service
sought to obtain from Essex County a computer tape of the tax-assessment records of every municipality within the county. The
computer tapes that State Information Service sought to copy
contain the same tax lists that are available in hard copy for
the public to inspect and photocopy at the Essex County Board of
Taxation. State Information Service has obtained such computer
copies of tax lists from several other New Jersey counties for a
fee. Although Essex County readily provides hard copies of the
lists, and although it concedes that copying the computer tapes
would involve minimal time and expense, it nonetheless refused to
provide a copy of the computer tapes.
Plaintiff Blau Appraisal, also a New Jersey corporation, is
a commercial real-estate appraiser. Plaintiff Robert Blau is an
attorney who owns property and pays taxes in Essex County. He is
the Vice President of Blau Appraisal. Both Blau Appraisal and
Robert Blau are customers of State Information Service.
This appeal addresses whether plaintiffs are entitled to
obtain a computer copy -- as opposed to a hard copy -- of Essex
County's property tax-assessment list under either the Right-to
Know Law, N.J.S.A. 47:1A-1 to -4, or the common-law right of
access.
DefendantSee footnote 1 Essex County maintains a property tax list of every parcel of real estate in each of the county's municipalities pursuant to N.J.S.A. 54:4-55. According to that statute,
The county board of taxation shall . . . cause the . . . duplicates, certified by it to be a true record of the taxes assessed, to be delivered to the collectors of the various taxing districts in the county, and the tax lists shall remain in the office of the board as a public record.
Each municipality's tax assessor's office keeps a hard copy of its own list, and defendant Essex County Board of Taxation, in East Orange, keeps a hard copy of all of the lists. The lists contain the following information for each parcel: 1) street address and block and lot numbers; 2) brief description, including lot size and use; 3) assessed value, broken down into
land and improvements; 4) whether the parcel is subject to
farmland assessment, tax abatement, or any charitable or
statutory tax exemption; 5) name and address of the owner, if
different from the address of the parcel; and 6) if residential,
whether the owner is entitled to a deduction or exemption as a
senior citizen, veteran, disabled veteran, or surviving spouse of
a person in one of those categories.
Counties and municipalities are not required to maintain
their tax lists on computer. However, those that choose to do so
must maintain the data in a format consistent with the New Jersey
Property Tax System MOD IV, a data-processing system developed by
the New Jersey Division of Taxation. N.J.A.C. 18:12A-1.16(b).
Essex County has chosen to maintain a computerized record of
the tax-assessment data for every municipality in the county,
except Newark. The computer tapes are prepared by, and located
at, a data-processing center operated by Essex County College.
The computerized tax-assessment records maintained by Essex
County comply with state regulations, and the format of these
records conform to the MOD IV system.
Plaintiffs filed a complaint in lieu of prerogative writ
claiming that both the Right-to-Know Law and the common-law right
of access entitled them to copies of the computer tapes. The
trial court granted summary judgment for defendants.
265 N.J.
Super. 616 (Law Div. 1993). The court held that the computer
tapes were not Right-to-Know documents because they are not
required to be maintained. The court held that plaintiffs could
also not prevail under the common law because their commercial
interest in computer copies did not counterbalance defendants'
right to decide if and for how much they wished to sell the
tapes, which had been prepared at significant expense to the
taxpayers. Id. at 625. The court also found that the fact that
plaintiffs had ready access to hard copies mitigated their
interest in obtaining computer copies. Id. at 624.
The Appellate Division reversed.
276 N.J. Super. 183
(1994). Although agreeing with the trial court that the computer
tapes were not Right-to-Know documents, the Appellate Division
found that plaintiffs' legitimate commercial interest was
sufficient to warrant access under the common law. Id. at 191.
The court below remanded to the Law Division for determination of
a reasonable fee, but ordered that such fee could offset only the
direct cost to the Board of Taxation of copying the tapes, not
the cost of compiling them. Ibid.
We granted defendants' petition for certification.
139 N.J. 440 (1995).
[T]he conceptual models of our Right-to-Know Law do not seem readily adaptable to data collected in this information age . . . .
[Atlantic City Convention Center
Auth. v. South Jersey Publishing
Co.,
135 N.J. 53, 66 (1994).]
If a document is a Right-to-Know public record, then New
Jersey citizens have the absolute right "to inspect such records.
. . . to copy such records by hand, and . . . to purchase copies
of such records." N.J.S.A. 47:1A-2. The Right-to-Know Law has
no standing requirement, and citizens need make no showing of
interest to exercise their rights under the Right-to-Know Law.
However, the definition of a public record for purposes of the
Right-to-Know Law is narrow. A Right-to-Know public record is
one that is "required by law to be made, maintained or kept on
file by any" agency or body of the State or any of its
subdivisions. Ibid.
We have often found that the Right-to-Know Law does not
provide citizens with access because the documents to which they
seek access fall outside the narrow definition of a Right-to-Know
public record. E.g., North Jersey Newspapers Co. v. Passaic
County Bd. of Chosen Freeholders,
127 N.J. 9 (1992) (holding that
elected body's phone bills were not Right-to-Know records because
body was not required to keep records of parties called); South
Jersey Publishing Co. v. New Jersey Expressway Auth.,
124 N.J. 478 (1991) (holding that memo of understanding from executive
meeting about employee's termination was not Right-to-Know
document because not required to be kept); Nero v. Hyland,
76 N.J. 213 (1978) (holding that character investigations ordered by
governor in contemplation of nomination were not Right-to-Know
documents because not required to be made, maintained, or kept).
The Right-to-Know Law's "requirement that documents 'be
made, maintained or kept on file,' has been strictly construed."
Home News Publishing Co. v. State,
224 N.J. Super. 7, 11 (App.
Div. 1988). Hence, we agree with the trial court and the
Appellate Division that because the computer tapes were not
required to be made or maintained, they are not Right-to-Know
public documents. As the opinion below noted, "[T]he maintenance
of this computerized conglomeration of the municipal assessment
records by the board is not required by any statute nor regulated
by the Division of Taxation. . . . [T]he consolidated magnetic
tape or tapes are merely 'a convenient means' by which the county
board can perform its mandated functions." 276 N.J. Super. at
187-88.
We came to a similar conclusion last year in Atlantic City,
supra,
135 N.J. 53. The plaintiffs in that case sought to copy
audio tapes made in a meeting of a public body's executive
session. The defendants made the tapes to assist in preparing
the official minutes, which were clearly Right-to-Know public
records. In this case, there is a slightly different
relationship between the paper and computer copies because they
are really "twice-recorded data." In Atlantic City, we found
that the minutes were Right-to-Know records but the audio tapes
were not: The minutes were required to be made; the audio tapes
were not required to be made. Likewise, in this case, although
defendants must make and maintain the lists, nothing requires
them to make the computer tapes. The computer tapes are
therefore not Right-to-Know documents.
Plaintiffs' statutory claim fails for another reason.
Shortly after the Appellate Division had filed its opinion, the
Legislature amended the Right-to-Know Law as follows:
The right of the citizens of this State
to inspect and copy public records pursuant
to [the Right-to-Know Law] shall with respect
to the copying of records maintained by a
system of data processing or image
processing, be deemed to refer to the right
to receive printed copies of such records.
[L. 1994, c. 140, § 8 (codified at
N.J.S.A. 47:1A-2.1) (emphasis
added).]
The legislative history reveals that the Legislature
intended to circumscribe the public's right under the Right-to-Know Law to receive copies of public records in computer form.
The Assembly State Government Committee Statement explains the
Legislature's intent in amending the Right-to-Know Law:
The committee adopted amendments to this bill
to . . . clarify that the public's right
under the right to know law to obtain a copy
of a public record shall, with respect to
records "maintained by a system of data
processing or image processing", take the
form of a right to receive a printed copy of
the record.
[Assembly State Government
Committee, Statement to Assembly
Bill No. 972 (committee
amendments), at 3 (May 2, 1994)
(emphasis added).]
Because the expressed legislative intent of section 8 is to "clarify" rather than to change the Right-to-Know Law, the
statute's clarifying provisions regarding the Right-to-Know Law
apply now, notwithstanding that the effective date for Chapter
140 is July 1, 1995. Ibid.; L. 1994, c. 140, § 11.
The Legislature has considered replacing the Right-to-Know
Law with a legislative scheme more in step with the information
age. See S. 906, 206th Leg., 1st Sess. (1994); A. 659, 206th
Leg., 1st Sess. (1994); A. 2371, 206th Leg., 1st Sess. (1994).
Nonetheless, the format of the copies one is entitled to under
the Right-to-Know Law has not changed as technology has
developed. The current, narrowly drawn Right-to-Know Law still
does not entitle citizens to obtain computer copies. See Chapin
v. Freedom of Info. Comm'n,
577 A.2d 300 (Conn. App.) (holding
that Connecticut's Freedom of Information Act, Conn. Gen. Stat.
Ann. §§ 1-7 to 1-21k, entitles requestor to only hard copy of
computer document because of section 1-19a of statute, which is
substantially similar to L. 1994, c. 140, § 8), cert. denied,
580 A.2d 56 (Conn. 1990).
Although the Right-to-Know Law makes a narrow class of documents unqualifiedly available, the common law makes a much broader class of documents available, but on a qualified basis. Atlantic City, supra, 135 N.J. at 60. Common-law records are any "records 'made by public officers in the exercise of public functions.'" North Jersey Newspapers, supra, 127 N.J. at 13 (quoting Nero, supra, 76 N.J. at 222). "These materials include
almost every document recorded, generated, or produced by public
officials, whether or not 'required by law to be made, maintained
or kept on file,' as required under" the Right-to-Know Law.
Shuttleworth v. City of Camden,
258 N.J. Super. 573, 582 (App.
Div.) (quoting N.J.S.A. 47:1A-2), cert. denied,
133 N.J. 429
(1992).
However, the common-law right of access to this broad
category of records is contingent on two factors. First, the
person seeking access must "establish an interest in the subject
matter of the material." South Jersey Publishing, supra, 124
N.J. at 487 (citing Irval Realty, Inc. v. Board of Pub. Util.
Comm'rs,
61 N.J. 366, 372 (1972)). Second, "the citizen's
common-law right to gain access to [common-law] public records
requires a balancing of interests." Techniscan Corp. v. Passaic
Valley Water Comm'n,
113 N.J. 233, 236 (1988) (citing McClain v.
College Hosp.,
99 N.J. 346 (1985)). Unlike a citizen's absolute
statutory right of access, a plaintiff's common-law right of
access must be balanced against the State's interest in
preventing disclosure. South Jersey Publishing, supra, 124 N.J.
at 498. Finally, the common-law process, unlike the Right-to-Know process, "should be 'flexible and adaptable to different
circumstances.'" Techniscan, supra, 113 N.J. at 236 (quoting
McClain, supra, 99 N.J. at 362).
As an initial matter, we hold that the computer tapes are
common-law documents, subject to balanced disclosure. They are
indisputably made by (or at the behest of) public officers in the
exercise of public functions. They are produced by public
officials. "That our previous definition of a common-law record
was drawn from sources that spoke in terms of traces of ink on
paper does not limit its scope. The essence of the common-law is
its adaptability to changing circumstances." Atlantic City,
supra, 135 N.J. at 64 (holding that audio tapes, although not
Right-to-Know public records, are common-law public records).
Likewise, we find that in view of rapidly advancing technological
changes in storing information electronically, computer tapes
also can be common-law public records.
Next, we examine whether plaintiffs have demonstrated an
interest in the computer tapes, and we find that they have.
Plaintiffs seek copies of the tapes to use in their legitimate
for-profit enterprises. The requisite interest necessary to
accord a plaintiff standing to obtain copies of public records
may be either "'a wholesome public interest or a legitimate
private interest.'" Loigman v. Kimmelman,
102 N.J. 98, 112
(1986) (quoting City of St. Matthews v. Voice of St. Matthews,
Inc.,
519 S.W.2d 811, 815 (Ky. 1974)). Plaintiffs have
demonstrated their legitimate private need, and they need not
make any greater showing to satisfy the requirement that they
have an interest in the material.
The degree of interest demonstrated by the person seeking
access becomes important only in the context of the balancing
test. That "balancing process [is] 'concretely focused upon the
relative interests of the parties in relation to [the] specific
materials.'" Atlantic City, supra, 135 N.J. at 60 (quoting
McClain, supra, 99 N.J. at 361). To gain access, that person's
interest in disclosure of the document must outweigh the State's
interest in nondisclosure. In numerous cases, we have described
the State's interest in nondisclosure as stemming from the need
to maintain the confidentiality of the information sought. E.g.,
Ibid.; South Jersey Publishing, supra, 124 N.J. at 488;
Techniscan, supra, 113 N.J. at 236; Loigman, supra, 102 N.J. at
105, 112; McClain, supra, 99 N.J. at 355. Nero, supra, 76 N.J.
at 224. Specifically,
[a]s the considerations justifying
confidentiality become less relevant, a party
asserting a need for the materials will have
a lesser burden in showing justification. If
the reasons for maintaining confidentiality
do not apply at all in a given situation, or
apply only to an insignificant degree, the
party seeking disclosure should not be
required to demonstrate a compelling need.
Defendant asserts that the recently enacted amendment to the Right-to-Know Law, L. 1994, c. 140, § 8, should affect the common-law balancing test because the amendment demonstrates the
public's interest, as expressed by the Legislature, in disclosing
only hard copies of computerized records. Although the amendment
is a factor to be considered, the Right-to-Know definition of a
public document is much narrower than the definition under the
common law. Moreover, in enacting that amendment, the
Legislature did not indicate that the amendment curtailed the
common-law right of access to public records. Such a conclusion
would effectively deny the public the right ever to obtain
computer copies of public records. Before we would attribute
such a drastic intent to the Legislature, that intent would have
to be clear.
We find that under the common-law balancing test, plaintiffs
have the right to obtain computer copies of the tax-assessment
lists. The computer tapes are common-law public records;
plaintiffs have a legitimate interest in them; and defendants
assert no interest whatsoever in keeping the computerized lists
confidential. Initially, defendants claimed that release of
certain information in computer form would risk unwarranted
intrusion into the privacy of property taxpayers. Before this
Court, defendants, represented by the Attorney General, have
rescinded that argument. We find that, given the very public
nature of the information in the lists, defendants properly chose
not to pursue the confidentiality/privacy claim. The State has
no interest in confidentiality: The lists contain simple, non-evaluative data that have historically been available to the
public, and that do not give rise to expectations of privacy.
See Szikszay v. Buelow,
436 N.Y.S.2d 558, 563 (Sup. Ct. 1981)
(requiring county to provide computer copy of property tax-assessment roll in part because of "the history of public access
to assessment records"). However, defendants maintained that
plaintiffs lacked the requisite interest under the common-law
right to access. We disagree. As discussed above, where the
governmental interest in confidentiality is nonexistent, the
person seeking access need not make a compelling showing.
Because defendants assert no interest in confidentiality,
plaintiffs' legitimate private interest is clearly sufficient to
entitle them to computer copies of the tax lists.
We emphasize, however, that our holding is fact-specific, and may not be generalized to all cases in which people seek computer copies of common-law public records. Instances may indeed arise in which, as defendants originally argued, release of computer tapes could trigger a high interest in confidentiality, even though the same information is readily available on paper. See, e.g., Kestenbaum v. Michigan State Univ., 327 N.W.2d 783 (Mich. 1982) (denying access to computer copy of student directory on privacy grounds, even though it was readily available in hard copy). Thus, we do not adopt plaintiffs' argument that this case is exactly analogous to Moore v. Board of Chosen Freeholders, 39 N.J. 26 (1962). In that case,
we essentially held that the right to hand copy common-law public
documents translated directly into an equivalent right to
photocopy them. We decline to make a similarly broad holding
here: Although hand copies and photocopies are effectively
similar, the same cannot be said of photocopies and computer
copies.
Hence, although our common law is flexible, we are adapting
it to the information age incrementally. For example, we rely on
the common law's flexibility to apply principles from prior cases
to this case, even though those prior cases are factually
distinguishable from this case in subtle ways. On the one hand,
precedent requires the person seeking access to "establish an
interest in the subject matter of the material he or she is
seeking." South Jersey Publishing, supra, 124 N.J. at 487
(emphasis added) (citing Irval, supra, 61 N.J. at 372).
According to precedent, the State's interest is primarily in the
confidentiality of the information involved, and the balancing
process focuses on the character of the materials sought to be
disclosed. Techniscan, supra, 113 N.J. at 237; Loigman, supra,
102 N.J. at 112. Our focus on whether the documents contain
factual or evaluative information, McClain, supra, 99 N.J. at
363, also goes to the subject matter, as did our observation in
Atlantic City, supra, that "[i]f the . . . minutes . . .
accurately reflect the substance of the official action,
disclosure of the tapes would be unnecessary." 135 N.J. at 68.
On the other hand, plaintiffs, who already have access to hard
copies of the tax lists, are clearly interested in the format of
the computer tapes. Our cases have not squarely addressed this
obvious consequence of the advent of computerization, but our
common law can accommodate the needs of this case.
In considering how the common law should treat the question
of information in different formats, we look not to the Right-to-Know Law, but to cases in other jurisdictions and to cases
interpreting the federal Freedom of Information Act (FOIA),
5 U.S.C.A.
§552. We thus reject the Attorney General's contention
that the amendment to the Right-to-Know Law -- limiting the
statutory right to copy to the right to obtain hard copies -
should shape our common law. See supra at ___ (slip op. at 14-15).
Although our Right to Know Law is not
coterminous with the common-law right of
access to public records, we believe that our
common-law principles will be better informed
by reference to concepts that have gained
acceptance in jurisdictions whose freedom-of-information laws include such common-law
records and substantive standards for
determination of materials that are exempted
from disclosure. We refer to such codes only
for the guidance they provide. The model for
most state freedom-of-information laws is the
federal Freedom of Information Act . . . .
information and not form. The court held that a government agency that had made information available in a reasonably accessible format (microfiche) did not have to make it available in the format requested (computer tape). Id. at 762-63. In short, the agency did not have to make "twice-recorded information . . . available in the format selected by the requester." Id. at 762. Dismukes remains good law, but a later federal case, although factually distinguishable, seems to diverge on the question of format. Petroleum Information Corp. v. United States Department of Interior, 976 F.2d 1429 (D.C. Cir. 1992), involved not "twice-recorded data," but data that was available in many and varied paper documents, as well as in a preliminary computer compilation of those paper documents made by the Bureau of Land Management. The Bureau sought to avoid copying the database pursuant to a FOIA request partly on the ground that the data was available elsewhere. The Bureau argued that because the requestor had access to the information through the paper documents, the requestor must have been seeking the computer copy to uncover the Bureau's deliberative process (a FOIA exemption, 5 U.S.C.A. §552(b)(5)). The court responded: "But the Bureau itself has effectively described the difficulties of using the paper source documents; [the requestor] cannot be faulted for seeking to avoid the trouble of amassing information the Bureau has already collected." Id. at 1437. Although clearly uneasy with the holding in Dismukes, the circuit court
distinguished it on the grounds that the information requested in
Petroleum Information was not twice-recorded, and the paper
source documents were not a reasonably accessible form of the
information that was in the database. Id. at 1437 n.11.
Cases from other states are more directly analogous to this
case, and point more clearly toward availability of computer
copies. For example, as noted above, although the court in
Kestenbaum, supra,
327 N.W.2d 783, approved withholding of a
computer copy of a student directory on privacy grounds, the
court in Szikszay, supra, 436 N.Y.S.
2d at 563, discounted privacy
concerns and required provision of a computer copy of a county
tax-assessment roll. In Menge v. City of Manchester,
311 A.2d 116, 119 (1973), which also involved a computerized property tax
roll, the New Hampshire Supreme Court came to substantially the
same conclusion as the Szikszay court. Accord Associated Tax
Serv., Inc. v. Fitzpatrick,
372 S.E.2d 625 (Va. 1988); cf.
Brownstone Publishers v. Department of Bldgs.,
550 N.Y.S.2d 564,
566 (Sup. Ct.), aff'd,
560 N.Y.S.2d 642 (App. Div. 1990).
We remain committed to providing citizens with convenient
and efficient public access to government information.
Nonetheless, we recognize that the traditional rules and
practices geared towards paper records might not be appropriate
for computer records. Release of information on computer tape in
many instances is far more revealing than release of hard copies,
and offers the potential for far more intrusive inspections.
Unlike paper records, computerized records can be rapidly
retrieved, searched, and reassembled in novel and unique ways,
not previously imagined. For example, doctors can search for
medical-malpractice claims to avoid treating litigious patients;
employers can search for workers'-compensation claims to avoid
hiring those who have previously filed such claims; and credit
companies can search for outstanding judgments and other
financial data. Thus, the form in which information is
disseminated can be a factor in the use of and access to records.
Those new considerations must be factored into the common-law
balancing test between the State's interest in nondisclosure and
the public's right to access. In this case, however, the State's
interest in nondisclosure is minimal. Supra at ___ (slip op. at
15).
The Attorney General, in representing the Essex County Board of Taxation, reflects the State's legitimate interest in preserving the potential commercial value of the State's databases, even while serving the public's need for convenient access. The cost of computerization is substantial. Under both the Right-to-Know Law and the common law, the fee must be reasonable, and cannot be used as a tool to discourage access. Moore, supra, 39 N.J. at 31; Home News Publishing Co. v. Department of Health, 239 N.J Super. 172, 182 (App. Div. 1990). Historically, a reasonable fee meant one that did not exceed the
actual cost of copying. Moore, supra, 39 N.J. at 31. Plaintiffs
thus assert that the fee for the computer tapes of the tax-assessment lists should reflect only the cost of the physical
tape and the hours required to make the copy. The trial court
disagreed, noting that "the computer tapes represent a tremendous
amount of data entry, at taxpayer expense. I see no reason why
defendants should not decide whether they wish to sell it, and at
what price." 265 N.J. Super. at 625. The Appellate Division,
however, in remanding this matter for a determination of a
reasonable fee, effectively ordered that that fee reflect only
the direct cost of copying the tapes, and not the cost of
compiling them. 276 N.J. Super. at 191 ("The matter is remanded
to the trial judge to determine the reasonable cost to prepare a
duplicate list . . . on the particular electronic medium sought
by plaintiffs.").
This record does not provide sufficient information to
allow the Court to determine the reasonable fee or what costs
should be included in determining that fee. Nonetheless, without
deciding what costs the fee should reflect, we observe that
simply capping the fee at the actual, direct cost of copying may
not properly account for the real differences between electronic
and paper media. Those differences were sufficient to motivate
this action, and they might have implications for the fee that a
public body charges for electronic copies. Defendants assert
that limiting the fee to actual costs would violate the growing
public policy of shifting the cost of developing and maintaining
computerized public records from taxpayers generally to those who
use them, and even profit from them, directly. According to
defendants, such a limited fee structure would discourage further
computerization. In Techniscan, supra, we addressed that issue,
even though the plaintiff in that case sought computer printouts,
and not electronic copies. We observed: "No party discussed
whether the allowable costs of any requested copying were
sufficient to the circumstances. The Legislature is considering
further clarification of the relative interests of for-profit
information-gathering services and public bodies." 113 N.J. at
237 n.1.
We also note that the Legislature, in enacting and
considering bills to update the State's public-access law in a
variety of areas, has consistently addressed the impact of
technology on costs and fees. Section 1(a) of L. 1994, c. 54
authorizes the Administrative Office of the Courts to "develop
and operate an automated data processing system that allows the
public to access court information." Section 1(b) authorizes us
to adopt fee schedules, and section 1(c) provides that the
"proceeds collected . . . shall be deposited in the 'Court
Computer Information System Fund' . . . dedicated to the
development, establishment, operation and maintenance of
computerized court information systems in the judiciary." In an
example of proposed legislation, S. 906, 206th Leg., 1st Sess.
(1994), and A. 659, 206th Leg., 1st Sess. (1994), which would
replace the Right-to-Know Law, both provide:
A custodian may . . . permit access to
government records by remote electronic means
or provide the requestor with a computer copy
of the records. The fee . . . shall include
direct and indirect costs, but shall not
exceed the reasonable cost to the agency of
making such access available to the requestor
or of creating and transmitting the computer
copy . . . to the requestor.
Clearly, the public's right to access to government information in this technological age presents complicated issues with widespread ramifications. Resolution of such major policy issues lies more properly with the Legislature. Ultimately, the Legislature must determine how and at what cost the public shall be entitled to receive electronic records. Until the Legislature acts in this field, however, courts must decide those issues.
Hence, we remand to the trial court to determine what is a reasonable fee to charge plaintiffs for a copy of Essex County's computer tape of the tax-assessment lists.
Chief Justice Wilentz and Justices Handler, Pollock, O'Hern, and Stein join in Justice Garibaldi's opinion. Justice Coleman did not participate.
NO. A-155/56/57/58/59/78 SEPTEMBER TERM 1994
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
HIGG-A-RELLA, INC., et al.,
Plaintiffs-Respondents,
v.
COUNTY OF ESSEX, et al.,
Defendant,
and
THE ESSEX COUNTY BOARD OF TAXATION, et al.,
Defendants-Appellants.
DECIDED July 19, 1995
Chief Justice Wilentz PRESIDING
OPINION BY Justice Garibaldi
CONCURRING OPINION BY
DISSENTING OPINION BY
AFFIRM &
REMAND CHIEF JUSTICE WILENTZ X JUSTICE HANDLER X JUSTICE POLLOCK X JUSTICE O'HERN X JUSTICE GARIBALDI X JUSTICE STEIN X JUSTICE COLEMAN --------------- ----------- -------------
Footnote: 1 In the original complaint, plaintiffs named only Essex County as a defendant. Plaintiffs then amended their complaint to include Essex County College as a defendant because the College's data processing center had assembled the tapes. Subsequently, pursuant to the trial court's order, plaintiffs, in their second amended complaint, joined the Essex County Board of Taxation and all Essex County municipalities as defendants.