NEW JERSEY–The common law–but not the state open records act– requires Essex County to provide copies of computer tapes containing municipal tax-assessment data to Higg-A-Rella, a private corporation that sells such information, according to a unanimous mid-July decision by the Supreme Court of New Jersey in Trenton.
The court held that the tapes fall within the common law right of access, which applies to all “records made by public officers in the exercise of public functions.”
The tapes did not fall under the open records act because that statute applies only to materials “required by law to be made, maintained or kept on file,” the court ruled. No law requires the county to keep the materials in computer format.
The court also noted that with respect to computerized data, the legislative intent behind the open records law limits the public right of access to printouts.
The court said the county may charge only a “reasonable” fee for the materials and cannot use exorbitant charges to discourage access. The court returned the case to the trial court, however, to determine whether a reasonable fee may include the cost of maintaining the computer system or must be limited to the actual cost of retrieving and copying data.
Government entities must disclose materials under the common law, the court said, if the requester’s interest in disclosure outweighs the government’s interest in restricting access. The county demonstrated no countervailing concern that outweighed Higg-A-Rella’s legitimate commercial interest, the court concluded.
Higg-A-Rella had asked the county in early 1991 for a computer tape of the tax-assessment records from all its municipalities. Essex County makes hard copies of the information available for the public to inspect and photocopy. The county conceded that copying its tapes for Higg-A-Rella would take little time or money, but refused to provide the information on tape.
In November 1991, Higg-A-Rella sued in Superior Court in Newark, arguing that it had a right of access to the data under the common law and the state open records act. The trial court granted summary judgement in March 1993 for the county. The court held that the tapes were not subject to the open records act because no law required the county to keep them. The Appellate Division reversed in late September 1994, and Higg-A-Rella appealed to the state’s highest court. (Higg-A-Rella Inc. v. County of Essex; Media Counsel: Robert Blau, Springfield)
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