Both the state Legislature and the courts had passed laws and made decisions that noted that government records should be readily accessible for inspection, copying or examination by citizens of the state, with certain exceptions, for the protection of the public interest. The Appellate Division had to decide what rights, if any a commercial entity had to the review of these documents when they contained Social Security numbers and other pieces of sensitive, personal information.

The Division agreed with Burnett that the records he sought were, in fact, government records statutorily required to be maintained on file by the county recording officer and that the Social Security numbers are a part of those records. But, the Division argued that competing interests exist as to whether the Social Security numbers must be included in those Public Records when the party trying to gain access to them is doing so for profit and for their re-sale to other interested parties.

The Division also recognized mandates established by the New Jersey Privacy Study Commission that examined the disclosure of home addresses and telephone numbers, the commercial use of public information held by public agencies and the impact of technology on privacy concerns. The commission did not comment on the disclosure of Social Security numbers because, the Division stated, it apparently believed they were already protected under OPRA.

The Appellate Division stated in its ruling that citizens’ concerns about the disclosure of their Social Security numbers to a commercial entity seemed to outweigh an entity’s right to that information because of the increased risk of identity theft in today’s market. The court also stated that other state and federal courts had expressed a similar concern on behalf of their citizens’ rights to privacy. Noting that the Ohio Supreme Court found in one case that the “disclosure of the Social Security numbers would violate the federal constitutional right to privacy” when requested by a newspaper, the Appellate Division concurred that different rules applied to business entities than those that apply to citizens who seek access to information contained in the public record because they do not seek the information for profit.

In addition to New Jersey and Ohio, courts in Kansas, Kentucky, Pennsylvania, New York and Massachusetts also considered the disclosure of Social Security numbers to be a violation of an individual’s privacy. Thus, the Appellate Division stated that these courts’ rulings recognized the significance of Social Security numbers and the potential for serious damage to an individual when their sensitive information is misused.

The Appellate Division also referred to a similar case reviewed by the Kansas Supreme Court that ruled that county records should have private information redacted from them prior to them being sold to Data Trace because the company was not seeking the information for public notice, but for commercial purposes. The Division wrote that “… when diverse pieces of information, such as name, Social Security numbers, address… are assembled into a package – as they are in the records sought by the plaintiff to be compiled in a database and sold for commercial purposes – a privacy interest is implicated.

The Appellate Division balanced that privacy interest against Burnett and Data Trace’s interest in the disclosure of Social Security numbers. The court found that when the two interests were weighed, the plaintiff failed to provide significant countervailing interest in the disclosure of Social Security numbers.

“We are convinced that the right of privacy under the New Jersey Constitution… in conjunction with the statutes and cases discussed at length herein, establishes protection for New Jersey citizens form wholesale disclosure of Social Security numbers through OPRA requests for masses of recorded realty documents,” wrote the three-judge panel.

John Carbone, who represented Bergen County, said in an interview with The Star-Ledger that the court's ruling could help curb identity theft.

"What it means to regular folks is where the legislature has failed to protect the citizens of New Jersey and their personal data, the courts have stepped forward and created a new right of privacy in the constitution," Carbone said. "In the World Wide Web, it could be somebody in some third world country who steals you identity."