In Bozzi v. Jersey City, (A-12-20/084392) (Decided September 20, 2021), the Supreme Court of New Jersey held that owning a dog is a substantially public endeavor in which people do not have a reasonable expectation of privacy that exempts their personal information from disclosure under the privacy clause of the state’s Open Public Records Act (OPRA).
Facts of Bozzi v. Jersey City
Plaintiff Ernest Bozzi requested copies of defendant Jersey City’s most recent dog license records pursuant to OPRA and the common law right of access. Plaintiff, a licensed home improvement contractor, sought the information on behalf of his invisible fence installation business. Plaintiff noted that Jersey City may redact information relating to the breed of the dog, the purpose of the dog, and any phone numbers associated with the records. He sought only the names and addresses of the dog owners.
In denying the OPRA request, Jersey City cited two grounds. First, Jersey City maintained that the disclosure would be a violation of the citizens’ reasonable expectation of privacy, contrary to N.J.S.A. 47:1A-1, by subjecting the dog owners to unsolicited commercial contact. Second, it expressed concern that such a disclosure may jeopardize the security of both dog-owners’ and non-dog-owners’ property. Bozzi subsequently filed suit.
The trial court found the dog licensing records were not exempt and ordered Jersey City to provide the requested information. Despite finding no objectively reasonable privacy interest, the trial court went on to analyze the seven privacy factors set forth in Doe v. Poritz, 142 N.J. 1 (1995), finding each of them to be neutral or in support of plaintiff’s position. The Appellate Division affirmed, relying on Bozzi v. Borough of Roselle Park, 462 N.J. Super. 415 (App. Div. 2020), a nearly identical case involving the same OPRA requestor.
NJ Supreme Court’s Decision in Bozzi v. Jersey City
The New Jersey Supreme Court affirmed. “We affirm the judgment of the Appellate Division and find that owning a dog is a substantially public endeavor in which people do not have a reasonable expectation of privacy that exempts their personal information from disclosure under the privacy clause of OPRA,” Justice Faustino Fernandez-Vina wrote. “Owning a dog is, inherently, a public endeavor.
In his opinion, Justice Fernandez-Vina emphasized that the privacy clause of OPRA “directs agencies to safeguard personal information that, if disclosed, ‘would violate [a] citizen’s reasonable expectation of privacy.’” He further explained that the court reviewed the privacy clause in Brennan v. Bergen Cnty. Prosecutor’s Off., 233 N.J. 330, 339-40 (2018) and “concluded from the Legislature’s express exemption of names and addresses in certain contexts that, beyond those ‘select situations,’ there is no ‘overarching exception for the disclosure of names or home addresses.’”
Justice Fernandez-Vina also noted that the Brennan Court found that legislative inaction particularly significant in light of the recommendations in a 2004 report from the Privacy Study Commission, which placed issues like the one presented in the case squarely before the Legislature, and the Legislature declined to act on them. “We found in Brennan, and we continue to find here, that the Legislature’s inaction with respect to the recommended exemptions strongly cautions against creating a judicial exemption in this context,” he wrote.
The opinion went on to explain that when an OPRA request does not fall within an express exemption, a records custodian may still assert that the requested information should not be disclosed under the privacy clause. The clause requires the presentation of “a colorable claim that public access to the records requested would invade a person’s objectively reasonable expectation of privacy.” According to Justice Fernandez, “the key to such a claim has been a distinction between actions and information typically kept private versus those extended to the public.” Only after finding a privacy interest is a court required to look to the Doe factors to balance the need for disclosure against the privacy interest at stake.
Applying those principles, the court concluded that Jersey City had failed to present a colorable claim that the disclosure of the requested dog license records would invade a dog owner’s reasonable expectation of privacy. In support, the court cited that the records are government records “kept on file in the course of . . . official business” and do not fall into any of the express exemptions in N.J.S.A. 47:1A-1.1. It further found that the commercial nature of plaintiff’s request was immaterial.
As Justice Fernandez-Vina went on to explain, OPRA’s privacy clause may nonetheless require a balancing of the twin aims of OPRA — government transparency and an obligation to safeguard personal information — if disclosure would “violate [a] citizen’s reasonable expectation of privacy.” Here, the court concluded there is no reasonable expectation of privacy in owning or licensing a dog. “Owning a dog is, inherently, a public endeavor,” he wrote. “Owners and their dogs are regularly exposed to the public during daily walks, grooming sessions, and veterinarian visits. Dog owners who continually expose their dogs to the public cannot claim that dog ownership is a private undertaking.”
“Because Jersey City has not established a colorable claim that public access to the names and addresses of dog owners would violate a reasonable expectation of privacy, the court need not conduct an extended Doe analysis,” Fernandez-Vina further continued. “The court agrees with the evaluation of the trial court that the factors collectively favor disclosure.”
While plaintiff in the case requested only the names and addresses of dog owners, the court stressed that there are other parts of the dog licensing records that would give rise to security concerns. It advised that any similar disclosure of dog records should not include breed information or the purpose of the animal, and the names of dogs may need to be excluded.