Going Once . . . Going Twice . . . Sold! To The Person Who Cannot Remain Anonymous!

by:  Peter J. Gallagher (@pjsgallagher

While data breaches and cyber security are, unfortunately, regular topics on the nightly news, a New Jersey trial court recently dealt with a much more low-tech privacy issue. In Brennan v. Bergen County Prosecutor’s Office, the trial court addressed the “intriguing question” (the court’s words, not necessarily mine) of “whether the winning bidders in a public auction have a reasonable expectation of privacy in their personal information transmitted to a public agency in connection with their participation in [a public] auction.” In other words, if you are the winning bidder at a public auction, must the public entity that held the auction produce documents revealing your identity in response to an OPRA request? In Brennan, the trial court’s answer was a qualified yes.

In Brennan, the Bergen County Prosecutor’s Office seized baseball memorabilia from an individual who it alleged had illegally sold prescription drugs. The memorabilia was later sold at an auction administered by a third-party that the prosecutor’s office hired to handle the auction. Plaintiff filed an OPRA request seeking, among other things, documents that would reveal the identities of the winning bidders at the auction – registration forms and bid documents that revealed names and phone numbers of the winning bidders. The prosecutor’s office refused to provide this information, claiming that the winning bidders reasonably expected that their identities would not be made public. Plaintiff sued to compel the production of the documents.

The trial court (mostly) sided with plaintiff. It began by noting that OPRA’s disclosure requirements are only triggered if the information requested qualifies as a “government record,” a term that is defined broadly in the statute. In Brennan, the prosecutor’s office argued that the documents requested by plaintiff were not “government records,” but were instead the records of the third-party that conducted the sale. The trial court rejected this argument, reviewing the text and purpose of OPRA before concluding that “the Legislature intended [“government records”] to encompass items made by or on behalf of the state” (emphasis added). In support of this holding, the trial court relied on an earlier Appellate Division decision holding that, to conclude otherwise would allow a governmental agency to shield its records from OPRA simply be delegating their creation or retention to third parties. This would, the Appellate Division noted, “thwart[] the policy of transparency that underlies OPRA.”

Having found that the documents plaintiff requested qualified as “government records,” the trial court turned to whether the prosecutor’s office was justified in refusing to produce them. OPRA puts the burden on the public agency to prove that the denial of access is authorized by law. To do this, the public agency must point to a specific statutory exclusion that allows it to deny the public access to requested documents. In Brennan, the prosecutor’s office generally cited the winning bidders’ privacy concerns and OPRA’s  privacy clause. According to the trial court, this was not sufficient. Moreover, the prosecutor’s office indicated that it would only produce the documents for winning bidders who consented to the release of their personal information. (Only two eventually consented after being contacted by the prosecutor’s office.) The trial court held that this was the opposite of what it should have done.

Notwithstanding these findings, however, the trial court gave the prosecutor’s office a second chance to get it right. Specifically, the trial court gave the prosecutor’s office an additional 10 days to contact the winning bidders and advise them that they must either (1) affirmatively object to the release of their persona information and state the reasons for their objections or (2) move to intervene in the case. The takeaway from this decision is that there is no automatic right to remain anonymous if you are the winning bidder at a public auction and the onus is on you to try to remain anonymous in such situations. 


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