Brett Jordan via Unsplash

By LOUIS C. HOCHMAN
hochman@montclairlocal.news

Have you ever given Montclair Township your email address? Maybe you were looking to keep up on notices from the township health department in the pandemic, or you wanted a heads up if garbage collection was going to be late.

If so, an anti-hate nonprofit wants to make its way into your inbox, to share what it says is a report that shows Black people in Montclair were more likely to wind up the subjects of police force in Montclair than white people from 2012 through 2016. The report, outlining those statistics and others the group says are of concern, has not yet been published or seen by Montclair Local.

Rise Against Hate is suing Montclair after being denied access to the township’s newsletter mailing list in a public records request. It’s one of several such lawsuits the group has filed in the last several months against New Jersey municipalities that refused to release their own mailing lists.

Many of those cases could be decided in the next few weeks, with judges considering whether to issue summary judgments — decisions without full trials. Montclair has asked for a hearing that was originally set for this Thursday, Jan. 6., to be rescheduled so the parties can discuss possible settlement terms.

In the few cases decided already, judges have ruled in favor of Rise Against Hate, ordering Cherry Hill, West Deptford and Bridgewater to release their mailing lists. Cherry Hill is appealing that ruling, and a judge allowed a stay on the Bridgewater ruling until Cherry Hill’s appeal is decided. 

“We really believe that raising awareness is one of the key ways to fight the cancer of discrimination,” Ben Shore, co-founder and director of the group, told Montclair Local. “This is one way that we felt we wanted to raise awareness.”

Rise Against Hate’s findings are relevant to Montclair, so Montclair residents should be informed of them, he argued. 

“When we discover a lack of accountability or disproportionate use of force against people of color, we start investigating. And the reason we file these [Open Public Records Act requests] is we believe the public has a right to know,” he said.

Shore declined to provide the names of municipalities that had approved or denied requests for their mailing lists — but he said about 80% had given them over. Hearings are coming up in January in cases against Lodi, Oakland, Medford, Bloomfield, Verona, Allendale and Margate. The group is also suing Cherry Hill for access to traffic reports, with a hearing scheduled in February.

It’s not the first time Montclair has denied an outside group access to its mailing list — and not the first time the matter has made its way to court. 

In 2020, the Montclair Property Owners Association successfully sued the township when it declined to turn over its list of emails and phone numbers, which the group wanted to solicit signatures for a petition seeking a referendum on rent control (with the larger issue still unresolved more than a year later). The township, after being ordered to hand over the email list to the association, sent out its own message blast saying its “intense efforts to protect ​you from a blatant invasion of your privacy” had been rejected and that “you can be sure that we are all outraged by the court’s decision.”

Mayor Sean Spiller told Montclair Local that while the township respects groups working to advance justice, it also respects residents’ expectation of privacy. Residents provide their email addresses specifically to get the municipal newsletter, and don’t consent to communication from other groups, he said. 

“My position is that regulation needs to better reflect the need for privacy and data security in our increasingly digital world,” Spiller said in an email message. 

In the Montclair Property Owners Association case, he said, the group was allowed the list only for a limited time and purpose, and then required to delete it. “In this case, we did feel that it was appropriate to note our objection as a part of our commitment to protecting residents’ digital privacy to the extent allowed by law,” Spiller said.

But, he said, if the court rules the township has to turn over the list, it will.

In its filings against municipalities, Rise Against Hate argues that email addresses given to a municipality are public records, that there isn’t an expectation of privacy, and that even if there is, its purpose as a nonprofit serving a public good outweighs that privacy concern. In the Montclair case, it also notes it only asked for the email addresses — not other personally identifiable information, such as names or home addresses.

“I believe that Assignment Judge [Deborah] Silverman-Katz got it right in her June 11, 2021 opinion in Rise Against Hate v. Cherry Hill when she wrote that ‘there is no objectively reasonable expectation of privacy in the disclosure of the e-mail addresses,’” John Paff, a government transparency activist who maintains a series of blogs collected at TransparencyNJ.org, told Montclair Local.

In the Bridgewater decision, Judge Thomas Miller wrote in December there was indeed a “colorable” claim to privacy, and that it was “undeniable that citizens who signed up for a township mailing list almost certainly did not expect the township to release their personal information.”

But he also noted reasoning from the Cherry Hill case that while email addresses might be “less discernible” than physical addresses to someone in the public, they’re also easier to change. And people give out their email addresses to organizations and businesses frequently without regard for what may happen to that information, he wrote.  

“In 2021, there is no automatic expectation of privacy that an email address will be kept confidential,” Miller wrote.

And in weighing the so-called “Doe test” — a set of factors that weigh the harm a disclosure might cause against the need for public access — he said the email addresses should be provided.

“Plaintiff may very well cause a minor annoyance to Bridgewater residents through its emails,” Miller wrote. “However, the potential inconvenience is not enough to outweigh [the Open Public Records Act’s] demands of government transparency.”

In the Montclair case, Rise Against Hate also cites several other cases where courts were asked to consider a privacy concern when a government entity tried to hold back a record, but then ordered the record released. 

“Our goal is not to file a lawsuit,” Shore said. “Our goal is to get the towns to work with us. At the end of the day, people have a right to know.”

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