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A state appeals court last Tuesday strengthened the public’s right of access to government documents, ruling that the new Right to Know Law trumps unwarranted confidentiality provisions in previous statutes. The ruling in Williamson v. Treasurer, State of New Jersey, A-2355-01T5, upholds the public’s right to know not just the names and last known addresses of people on the state’s list of owners of unclaimed assets, but also the amounts due. The Right to Know Law enacted last year takes precedence over a provision of the Unclaimed Property Act that prohibits release of the amounts, the court said. First, the Legislature did not include, in the Right to Know Law’s list of exceptions to disclosure, the privacy provisions of the Unclaimed Property Act passed six days earlier. Second, the nondisclosure rule changed longstanding practice and did not appear to be warranted. Finally, the Right to Know Law embodies a “clear and strong public policy” of openness, according to the opinion by Judges James Petrella, Dennis Braithwaite and Jack Lintner. The court also ruled that the power of the Right to Know Law could not be diminished by executive orders placing information off limits. The ruling could apply to a number of other statutes mandating nondisclosure by agencies besides the Treasury Department, the state’s lawyer in the case, Deputy Attorney General Patrick DeAlmeida, said last week. He said he did not have a detailed list of potentially affected departments, but he mentioned a couple whose records are particularly sensitive, the Division of Youth and Family Services and Division of Taxation. DeAlmeida said the state would ask the Appellate Division to reconsider the decision on grounds that it failed to address provisions of the 2002 Right to Know Law that do allow the operation of confidentiality in previous statutes. Under the statute, all government documents, unless specifically excluded by the law, are presumptively available. Last week’s opinion suggested such exclusions would be looked at closely. “We question whether merely because a record required to be kept is ‘deemed confidential’ ipso facto makes what is not normally or properly confidential something that should be kept from public scrutiny,” Petrella wrote for the panel. Plaintiff Thomas Williamson is a Middlebush solo practitioner who operates a business that, for a fee, locates the missing owners of unclaimed assets held by the state. That makes him a member of a profession known as heir hunters. It’s really more of a hobby and it does not pay well, Williamson says. “If you can find a way to make it a business, give me a call,” he says. Heir hunters are not popular around the country with state agencies that hold unclaimed assets, ostensibly because some heir hunters arrange unscrupulously large percentages of recovery deals with missing owners they find. The Unclaimed Property Act regulates heir hunters’ fees and contractual methods, but the tension between professional asset searchers and the state remains. Indeed, the state has an interest in not having heirs located because the funds — hovering around the $25 million mark in New Jersey — go to state coffers if no one claims them. The Office of the Administrator of Unclaimed Property lists the missing owners and their last known addresses on a Web site linked to a national Internet registry of unclaimed property, www.missingmoney.com. Among those listed are insurance policy or investment beneficiaries whom financial institutions cannot locate, and some of them have substantial sums coming to them. Those are the people heir hunters like Williamson want to find; they do not want to waste time helping people recover pittances so they want to know beforehand how much money is due to each potential beneficiary. The opinion says Williamson had been able to obtain from the OAUP the amounts of money due insurance beneficiaries and their heirs, but in July 2001 the agency refused a request, prompting Williamson to sue for the information. He won. Mercer County Superior Court Judge Linda Feinberg ruled that nothing in the existing Unclaimed Property Act barred the release of the information, which made the existing Right to Know Law’s presumption of openness operative. Feinberg’s Nov. 26, 2002, decision was based on versions of both statutes in effect at the time Williamson made the request, not versions of both laws that were revised in 2002. And she made the right decision in interpreting those two former statutes, the Appellate Division said in last Tuesday’s opinion. But the appeals judges took another step — farther than both the state and Williamson wanted them to go — and found that if Williamson had made his request after enactment of the new property and right to know laws, he would have won as well. Part of a July 1, 2002, revision of the Unclaimed Property Act, N.J.S.A. 46:30B-76, says only the name and last known address of the missing owner shall be available for public inspection, a provision apparently enacted with heir hunters in mind. That means the amounts due are off limits to the public. The state argues that the rule is in keeping with a host of laws that require the state to maintain privacy of information that is private when it is received from outside the government. Put simply, the transfer of sensitive financial information from a bank or insurance company should not transform that information into a public document when it gets into government hands, the state argues. The appeals court ruled, however, that the purpose of listing owners of unclaimed assets is to assist the owners and that providing the amount of the funds aids in that effort and the new law does not help. “This latest change in statutory language is an obvious effort by the state to impose confidentiality where none previously existed,” the court said. It also said, “the sole purpose of the amendment appears to be impeding recovery of the funds or property by rightful claimants, or heirs thereof.” In Twiss v. New Jersey Department of the Treasury, 124 N.J. 461, the Supreme Court upheld the state’s right to withhold amounts due the owners of unclaimed bank accounts. In this case, though, Williamson wants to know the amounts due life insurance policy beneficiaries. Because the holders of those policies are dead, there is no privacy interest, the judges said. Two lawyers who work on opposite sides of the Right to Know law say the decision seems to be a good one. Thomas Cafferty of Somerset’s McGimpsey & Cafferty, who is counsel to the New Jersey Press Association, says the opinion includes “beneficial language about how to implement the Right to Know Law in future cases.” Another lawyer who says the opinion makes sense is Vito Gagliardi Jr., a partner in Morristown’s Porzio, Bromberg & Newman who represents school districts. He is often in the middle of disputes over what information in school files is private. Gagliardi says that in this case, the Treasury Department appeared to be withholding the very material it needed to disclose in order to do its job — finding asset owners. Gagliardi, a member of the New Jersey Law Revision Commission, notes that in 1998 the commission issued a report comparing New Jersey’s Unclaimed Property Act to a uniform version prepared by the National Conference of Commissioners on Uniform State Laws. The uniform version has no provision putting beneficiaries’ amounts off limits. Last week, the winner of the appeal did not seem particularly happy. He says he wishes the judges had decided the matter without reference to the sweeping power of the Right to Know Law. That language guaranteed an appeal by the state, he says. “I’m not a big picture person,” Williamson says. “The court didn’t have to go as far as it did. I’m not sure of all the implications, but I do know it has more implications than it needed.” Williamson, who represented himself in the litigation, also says the statutory $500 legal fee that courts may grant to successful plaintiffs under the Right to Know Law does not begin to pay people who battle the state for information. He says successful plaintiffs should receive payment for each stage of the fight — $500 at the trial level and another $500 if the state appeals.

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