Tuesday, January 19, 2010

New Jersey Supreme Court protects social security numbers

In the case Burnett v. County of Bergen, 198 N.J. 408; 968 A.2d 1151 (N.J. 2009), the New Jersey Supreme Court wrote of access to public records:

The Open Public Records Act (OPRA) requires that government records "shall be readily accessible" to the citizens of this State, subject to certain exceptions. N.J.S.A. 47:1A-1. Underlying that directive is the bedrock principle that our government works best when its activities are well-known to the public it serves. With broad public access to information about how state and local governments operate, citizens and the media can play a watchful role in curbing wasteful government spending and guarding against corruption and misconduct.

In this particular case, the New Jersey Supreme Court had to decide how to handle the presence of confidential information (specifically social security numbers) with a public record:

Under the unusual circumstances of this case, the balance tips in favor of the citizens' reasonable expectation of privacy in one respect: the records can be disclosed after redaction of individual social security numbers.

The case is interesting in that LexisNexis was involved in amicus brief -- the Consumer Data Industry Association, LexisNexis, the National Association of Professional Background Screeners, and the Real Estate Information Professionals Association (collectively CDIA)-- wherein CDIA argued in favor of the plaintiff (for disclosure of SSN) and challenging the Appellate Division's finding of a constitutional right to privacy in this case. [The Supreme Court did not reach the issue of a right to privacy under the New Jersey Constitution.]

The LexisNexis posture was apparent in a factual discussion of identity theft issues:

Even more alarming are statistical findings by the FTC. Nearly ten million Americans--almost five percent of the adult population in the United States--had been victimized by identity theft during a twelve-month period from 2002 to 2003. FTC, Identity Theft Survey Report 13 (2003), available at www.ftc.gov/os/2003/09/ synovatereport.pdf. Of those, 3.25 million [***46] had their personal information misused to open new accounts, obtain new loans, or commit theft, fraud or other crimes. Ibid. According to a different survey, about 8.3 million adults discovered they were victimized by identity theft in 2005. FTC, 2006 Identity Theft Survey Report 4 (2007), available at www.ftc.gov/os/2007/11/SynovateFinalReport ID-Theft2006.pdf.

Amicus CDIA questions how many of those complaints relate to misappropriated SSNs as opposed to stolen credit cards or other items. Such a debate misses the point: identity theft today is real, and it is directly linked to the misuse of exposed or stolen SSNs. Plaintiff's plan to place documents containing SSNs in a centralized, easy-to-search computer database presents just such a risk.

Separately, on agreements entered into in court:

We do not find that both sides entered a mutual, binding agreement on the issue of watermarking. Their agreement was qualified; it was conditioned on the assumption that the cost of watermarking would be minimal. At the time, defendant thought the fee "would [not] be anything substantial." As it turned out, watermarking will add $ 20,000 to the cost. We cannot find that $ 20,000 was within the "minimal" amount the parties contemplated or agreed to. See Kupper v. Barger, 33 N.J. Super. 491, 494, 111 A.2d 73 (App.Div.1955) (finding that enforcement of a stipulation entered into by attorneys in open court "is denied where there appears to have been an absence of mutuality of accord between the parties or their attorneys in some substantial particulars, or the stipulated agreement is incomplete in some of its material and essential terms").


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