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2004-199
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Final Decision |
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Supplemental Findings and Recommendations |
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Interim Order |
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Findings and Recommendations of Executive Director |
Final DecisionSeptember 21, 2006 Government Records Council Meeting
At the September 21, 2006 public meeting, the Government Records Council (“Council”) considered the September 7, 2006 Supplemental Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations. The Council, therefore, finds that the parties have complied with the Council’s July 13, 2006 Interim Order. Specifically, the Complainant e-mailed a jointed certification signed by both parties that indicates:
This is the final administrative determination in this matter. Any further review should be pursued in the Appellate Division of the Superior Court of New Jersey within forty-five (45) days. Information about the appeals process can be obtained from the Appellate Division Clerk’s Office, Hughes Justice Complex, 25 W. Market St., PO Box 006, Trenton, NJ 08625-0006. Proper service of submissions pursuant to any appeal is to be made to the Council in care of the Executive Director at the State of New Jersey Government Records Council, 101 South Broad Street, PO Box 819, Trenton, NJ 08625-0819.
Final Decision Rendered by the Government Records Council On The 21st Day of September, 2006
Vincent P. Maltese, Chairman
I attest the foregoing is a true and accurate record of the Government Records Council.
Robin Berg Tabakin, Vice Chairman & Secretary
Supplemental Findings and RecommendationsSupplemental Findings and Recommendations of the Executive DirectorSeptember 21, 2006 Council Meeting
Records Relevant to Complaint: Electronic or microfilm copies of the County’s recorded real estate records from 1985 to present. Custodian: Benemina Sancivieri Request Made: October 21, 2004 Response Made: November 9, 2004 GRC Complaint Filed: November 29, 2004
Background
July 13, 2006 Government Records Council’s (“Council”) Interim Order. At its July 13, 2006 public meeting, the Council considered the July 6, 2006 Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations with one amendment. The Council, therefore, found that:
July 19, 2006 Council’s Interim Order distributed to the parties.
August 1, 2006 Complainant’s E-mail to the GRC. The Complainant e-mailed the Executive Director requesting a two (2) week extension for the parties to comply with the Council’s Interim Order. Specifically, the parties needed additional time to reach a resolution on the cost issue referenced in Finding No. 6 of the Interim Order. Such request was granted.
August 11, 2006 Complainant’s E-mail to the Custodian. The Complainant e-mailed the Custodian’s Counsel requesting agreement to a request of the GRC for an additional two (2) week extension to resolve the cost issue referenced in Finding No. 6 of the Council’s Interim Order.
August 15, 2006 Complainant’s E-mail to the GRC. The Complainant e-mailed the Executive Director requesting an additional two (2) week extension for the parties to comply with the Council’s Interim Order. Specifically, the parties needed additional time to reach a resolution on the cost issue referenced in Finding No. 6 of the Interim Order. Such request was granted.
September 1, 2006 Complainant’s E-mail to the GRC. The Complainant e-mailed a jointed certification signed by both parties that indicates:
Analysis
Whether the Custodian complied with the Council’s July 13, 2006 Interim Order?
Pursuant to the joint certification from the parties dated September 1, 2006, it may be determined that the parties have complied with the Council’s July 13, 2006 Interim Order.
Conclusions and Recommendations
The Executive Director respectfully recommends the Council find that the parties have complied with the Council’s July 13, 2006 Interim Order.
Prepared By: Catherine Starghill, Esq. Executive Director
September 7, 2006 [1] Represented by Yianni Pantis, Esq. in association with Mary Kay Roberts, Esq. of Riker, Danzig, Scherer, Hyland & Perretti LLP (Trenton, NJ). [2] Represented by Greyson Hannigan, Assistant Counsel, County of Passaic (Paterson, NJ). Interim Order
At the July 13, 2006 public meeting, the Government Records Council (“Council”) considered the July 6, 2006 Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations. The Council, therefore, finds that:
Interim Order Rendered by the Government Records Council On The 19th Day of July, 2006 Vincent P. Maltese, Chairman
I attest the foregoing is a true and accurate record of the Government Records Council. Robin Berg Tabakin, Secretary Findings and Recommendations of Executive Director
Records Relevant to Complaint: Condo liens 1/1/1985 to present Construction liens 1/1/1994 to present Construction liens discharges and releases 1/1/1994 to present Deeds 1/1/1985 to present Discharges of mortgages 1/1/1985 to present Disclaimers 1/1/1985 to present Easements 1/1/1985 to present Federal tax liens 1/1/1995 to present Federal tax lien releases 1/1/1995 to present Filed maps All Hospital liens 1/1/1985 to present Inheritance tax waivers 1/1/1985 to present Institutional liens & releases 1/1/1985 to present Judgments 1/1/1985 to present Lis Pendens 1/1/1985 to present Lis Pendens foreclosures 1/1/1985 to present Minor subdivisions 1/1/1985 to present Miscellaneous records 1/1/1985 to present Mortgages 1/1/1985 to present Mortgage assessments 1/1/1985 to present Mortgage cancellations 1/1/1985 to present Mortgage extensions 1/1/1985 to present Mortgage releases 1/1/1985 to present Notices of sale 1/1/1985 to present Notices of settlement Most recent 45 days from date of response Physician liens 1/1/1985 to present Recognizance bonds & releases 1/1/1999 to present Reimbursement agreements 1/1/1985 to present Repayment agreements 1/1/1985 to present Roads 1/1/1985 to present Sheriff bonds 1/1/1985 to present Street/vacations/dedications 1/1/1985 to present Stream encroachments 1/1/1985 to present Tax maps 1/1/1985 to present Tax sales/in rem & releases 1/1/1985 to present Tax warrants Most recent 60 days from date of response U.C.C.s (Financing Statements) 1/1/2000 to present Unfiled maps 1/1/1985 to present Wetlands 1/1/1985 to present
The Complainant requested the records in the following alternative formats:
Custodian: Benemina Sancivieri Request Made: October 21, 2004 Response Made: November 9, 2004 GRC Complaint filed: November 29, 2004 Background October 21, 2004 Complainant’s Open Public Records Act (“OPRA”) request. The Complainant is seeking electronic or microfilm copies of the County’s recorded real estate records as listed above. November 9, 2004 Custodian’s response to Complainant’s OPRA request. The Custodian states that she left a voicemail for the Complainant on November 4, 2004 but did not hear back from the Complainant. The Custodian also states that the County cannot fully comply with the request. The Custodian directs the Complainant to contact the County’s computer imaging vendor for access to records from 2001 to present. The Custodian states that the County has a contract with the vendor to distribute document images at $0.11 per image in a 16mm format. Further, the Custodian states that she cannot provide access to records from 1985-2000 because doing so would severely disrupt the office’s operations November 29, 2004 Complainant Counsel’s notification to the Government Records Council (“GRC”) of his representation of the Complainant pro hac vice pursuant to N.J.A.C. 1:1-5.2. Complainant’s out of state Counsel is working in association with Mary Kay Roberts, Esq. of Riker, Danzig, Scherer, Hyland & Perretti LLP of Trenton, New Jersey. November 29, 2004 Denial of Access Complaint filed with the GRC. The Complainant asserts that production of the requested records from 1985 to 2000 would not substantially disrupt agency operations as asserted by the Custodian. The Complainant states that the Custodian does not assert any factual support or analysis for this denial of access. The Complainant contends that she is not requesting access in an unreasonable time frame. Therefore “[a] reasonable time to perform the requested duplication implies that there would not be a substantial disruption…”[1] The Complainant further asserts that similar requests have been made, and are in process, with the County Clerks from Ocean, Somerset, Hunterdon, Middlesex, Mercer and Atlantic Counties, without substantial disruption of their agency operations. The Complainant also asserts that if the Custodian bids the project and hires a vendor, the Custodian would be required to do very little work.
The Complainant asserts that OPRA permits the custodian to deny access after attempting to reach a reasonable solution with the requestor that accommodates the interests of the requestor and the agency pursuant to N.J.S.A. 47:1A-5.g. However in this matter, the Complainant asserts that the Custodian has not attempted to reach any reasonable solution, at least not one that accommodates the interests of the requestor.
The Complainant further asserts that fee sharing arrangements are not authorized or permitted under OPRA. The Complainant asserts that OPRA’s special service charge under N.J.S.A. 47:1A-5.c. is predicated on the public agency providing the duplication service. According to the Complainant, the Custodian’s vendor, IMR Limited (“IMR”) would provide the service, not the Custodian. The Complainant alleges that the Custodian would share in the proceeds paid to IMR because of the fee sharing nature of the contract. Therefore, the Complainant asserts that the Custodian would receive funds for doing absolutely nothing.
The Complainant contends that the Custodian’s per image copy cost is inconsistent with N.J.S.A. 47:1A-5.b. and N.J.S.A. 47:1A-5.c. According to the Complainant, the Custodian’s per image copy cost results in a “grossly exorbitant duplication fee.” According to the Complainant, the Custodian’s $0.11 per image copy charge would result in total copying fees of $57,420 (522,000 records x $0.11/each = $57,420.00)[2] rather than the approximated actual roll duplication cost of $7.00. The Complainant asserts that if one assumes a 50/50 split between the Custodian and the vendor (IMR), the Custodian would receive $28,710.
The Complainant asserts that if the Custodian’s vendor refuses to charge a reasonable duplication rate, the Custodian should be required to bid the duplication project and contract with a vendor that will charge a reasonable duplication fee. In the alternative, the Complainant asserts that the Custodian should undertake the project itself in accordance with N.J.S.A. 47:1A-5.b. and N.J.S.A. 47:1A-5.c.
The Complainant requests that the Council:
December 17, 2004 Offer of Mediation sent to the Complainant. December 18, 2004 Offer of Mediation sent to the Custodian. The parties did not agree to mediate this complaint. January 18, 2005 Request for Statement of Information (“SOI”) sent to the Custodian. February 8, 2005 GRC’s letter to both parties extending the SOI deadline. March 4, 2005 Custodian’s Statement of Information with the following attachments:
The Custodian asserts the following arguments:
I. Complainant’s Records Request is Against Public Policy Due To The Intended Commercial Use of the Records
The Custodian asserts that the Complainant is an employee of Data Trace, a national title search company. The Custodian alleges that Data Trace seeks to profit from access to the requested documents by offering said documents to the public for a fee. The Custodian further asserts that access to the subject documents is a service that the Custodian has provided for decades. The Custodian asserts that the Legislature did not intend for OPRA to be used by companies like Data Trace to gain access to government records for commercial purposes and financial gain. The Custodian analogizes its position that there should be a limitation on the use of the records requested under OPRA with the Legislature’s specific exemptions from disclosure of certain records and information under OPRA.
The Custodian also asserts that providing Data Trace the records gives Data Trace an unfair advantage over its competitors which is specifically prohibited under OPRA (N.J.S.A. 47:1A-1.1). The Custodian states that another company (First American Real Estate Solutions) that sought similar records in nature and volume from the Custodian entered into a duplication agreement with IMR. The Custodian states that the agreement precluded the requesting company from reselling or otherwise distributing, in either a reproduced form or in the form received from IMR, either the microfilm or hard copy from said microfilm to any person or entity.
The Custodian asserts that the requesting company agreed to purchase rolls of microfilm at $0.11 per image for the purpose of obtaining information needed for the production of real estate reports, analysis and products. The Custodian alleges that the situation with Data Trace is different from that with First American because Data Trace seeks to create a document recovery center. The Custodian further asserts that people are not entitled to search public records without payment of fees to the clerk. Board of Chosen Freeholders of Middlesex County v. Conger, 67 N.J.L. 444, 51 A. 488 (1902); See also Fleming v. Hudson County Clerk, 30 N.J.L. 280 (1863).
II. The Records Requested Are Also Exempt From Disclosure Under Common Law
The Custodian asserts that the records would not be disclosable to the Complainant under a common law balancing test because the Complainant’s commercial use interest in access does not outweigh the public agency’s right of nondisclosure pursuant to Bergen County Improvement Authority v. North Jersey Media Group, Inc., 370 N.J.Super. 504 (App. Div. 2004).
III. Complainant Must Pay A Special Service Charge In Addition to the Duplication Cost Imposed by the Custodian’s Contractual Relationship With IMR
The Custodian asserts that county clerk or county register fees are governed by N.J.S.A. 22A:4-12. The Custodian alleges that it is clear that the Legislature intended for OPRA to be superseded by the fee schedule established in N.J.S.A. 22A: 4-12 in matters regarding county document search and copy charges pursuant to N.J.S.A. 47:1A-9.
The Custodian also asserts that OPRA does not preclude the County from contracting with IMR to convert documents to microfilm and distribute same when requested by individuals. The Custodian contends that the Complainant would realize a $0.14 savings per record as a result of the IMR contract. The Complainant would have to pay $0.25 per record for copies made by the Custodian pursuant to N.J.S.A. 22A: 4-12 and would only have to pay $0.11 per image through IMR. The Custodian further asserts that of the $0.11 per image contract charge “the County gets $0.075 per image and IMR gets $0.035 per image. This rate is more than reasonable.”[3] Additionally, the Custodian argues that Data Trace would have a privilege that regular citizens would not have if it were allowed to pay a per roll rather than a per image charge.
The Custodian further asserts that OPRA permits special service charges when the agency has expended an extraordinary amount of time and effort to provide copies of documents pursuant to N.J.S.A. 47:1A-5.c. and New Jersey Attorney General Opinion 03-0018, (March 14, 2003), page 2. The Custodian states that an extraordinary amount of time and effort are required to fulfill this request because the documents for 1989 to 2000 are in book form alone and could take months to redact and copy. Accordingly, the Custodian asserts that it hopes to estimate the amount of a special service charge inclusive of the number of individuals and man-hours it would take to gather, redact, and copy the documents requested. The Custodian also asserts that if it is ordered to produce the documents, it will need time to prepare a detailed estimate of the cost of the project.
Alternatively, the Custodian asserts that if it were required to bid the project, such action would render its contract with IMR obsolete and could conceivably result in higher copy charges. The Custodian states the Complainant should have to pay the bidding contract costs as part of a special service charge.
March 17, 2005 Complainant’s rebuttal to Custodian’s March 4, 2005 Statement of Information. The Complainant asserts the following arguments:
I. Complainant’s OPRA Request Is Not Against Public Policy Due To The Intended Commercial Use of the Records
The Complainant asserts that fulfilling the subject OPRA request is required by law and is not against public policy. The Complainant states that the Custodian has not asserted any legal authority to support its claim that the Legislature did not intend for people to access records for their own financial gain, that such access is contrary to the public interest and that there should be a limitation on the purpose of the use of records. The Complainant asserts that the Florida Court of Appeals has ruled that requestors’ motives for seeking documentation are irrelevant. Microdecisions, Inc. v. Skinner, 889 So.2d 871 (Fla. App., December 2004)[4]. The Complainant contends that the Florida Appeals Court views are persuasive because OPRA is modeled after Florida’s public records law as stated in the New Jersey Attorney General Opinion 03-0018 (March 14, 2003).
The Complainant likens the Custodian’s interpretation of OPRA’s legislative intent to that of the Bergen Regional Medical Center (“Bergen Regional”) in Bergen County Improvement Authority v. North Jersey Media Group, Inc., 370 N.J. Super. 504, 851 A.2D 731 (App. Div. 2004). The Complainant states that in the Bergen case, Bergen Regional asserted that absent confidentiality, private for-profit companies would be discouraged from contracting with government agencies and that release of the information would put them at a competitive disadvantage. According to the Complainant, “Bergen Regional offers no proof of such prospects, however, calling them commons sense, self-evident propositions. The trial court found Bergen Regional’s arguments in this respect to be speculative and far from self-evident, so do we…”[5]
The Complainant further asserts that the Custodian’s arguments for equal access for commercial entities have “near universal application in public records laws of the other states of this nation.”[6] The Complainant offers the following cases from other jurisdictions in support of that assertion:
The Complainant further asserts that the “County’s notion that making a profit is bad is apparently a selective notion, which only seems to apply when others are making a profit, not when the County itself and its vendor are making a profit (and in the case of the County, for doing absolutely nothing).”[7] The Complainant contends that the contract between IMR and the Custodian yields a 70% share of the copying fees paid to IMR for services performed by IMR, not the Custodian.
The Complainant states that the Custodian’s arguments regarding limitation on the use of public records are similar to that of a copyright claim. And in that regard, the Complainant asserts that a Florida Appellate Court ruled that Florida’s public records precludes government agencies from claiming copyright unless the legislature has authorized an express public records exemption. Microdecisions, Inc. v. Skinner, supra.. Complainant also states that the 7th Circuit U.S. Court of Appeals held that raw public data is uncopyrightable. Assessment Technologies v. WIREdata, Inc., 350 F.3d 640 (7th Cir. 2003).
Regarding the Custodian’s assertion that Data Trace would have an unfair competitive advantage if it were to receive the requested documents, the Complainant states that it never argued that the subject request should be granted at the exclusion of other similar requests. Therefore, the Complainant asserts that there is no advantage to the Complainant when others have equal access.
II. Requested Records Are Disclosable Under Common Law
The Complainant asserts that the Custodian is wrong in its argument that the requested documents would not be accessible based on a common law balancing test. The Complainant asserts that the common law definition of a public record is broader than that in OPRA. Therefore, the Complainant further asserts that records exempt from disclosure under OPRA may be disclosable under common law. Further, the Complainant asserts that OPRA does not limit the common law right of access pursuant to N.J.S.A. 47:1A-8.
The Complainant claims that there is no question that the records requested by the Complainant are available under OPRA pursuant to the Council’s determination in Burnett v. County of Somerset, GRC Complaint No. 2003-129 (January 2004). The Complainant further claims that it is therefore illogical to conclude that common law could be invoked to contradict OPRA and defeat access. Specifically, the Complainant contends that the State has no interest in preventing the disclosure of records filed and recorded with the Office of the Passaic County Clerk. Rather, the Complainant asserts, the State has an interest in ensuring the disclosure of publicly filed and recorded documents and ensuring that county clerks fulfill their primary function of filing and recording such documents. According to the Complainant, public information companies such as Data Trace facilitate the State of New Jersey’s interest by creating a more usable, timely and efficient method for real estate industry participants to search real property records. Therefore, the Complainant concludes that Custodian’s assertion that the Complainant cannot obtain said documents via common law is incorrect.
III. Complainant Should Not Have To Pay The Duplication Costs Imposed By The Custodian’s Contractual Relationship With IMR In Addition To A Special Service Charge
The Complainant asserts that the Custodian’s contract with IMR, a copy of which was obtained by the Complainant through a separate OPRA request, results in an overcharge to the requestor and an improper imposition of restriction on use of the subject records. The Complainant asserts that it does not dispute the Custodian’s right to enter into an agreement with IMR, only that certain provisions of the contract are contrary to OPRA. Additionally, the Complainant states that the Custodian and IMR are not permitted to limit a requestor’s use of records pursuant to Microdecisions, Inc. v. Skinner, supra.
According to the Complainant, the Custodian’s contract with IMR states that the County will receive 70% of IMR’s per image copy charge for doing absolutely nothing. The Complainant asserts that duplication costs must be based on an actual time and materials basis pursuant to N.J.S.A. 47:1A-5.b. and N.J.S.A. 47:1A-5.c. The Complainant also states that the Michigan Court of Appeals ruled that under the Michigan Freedom of Information Act (“MFIA”), a public agency could only charge that which was permissible under MFIA, regardless of the public agency’s use of a third party vendor. MacKenzie v. Wales Township, 247 Mich. App. 124, 635 N.W. 22d 335 (2001).
The Complainant argues that the Custodian’s per image copy charge of $0.11 is not a reasonable charge that is based on the actual direct cost of providing the documents mandated in OPRA. According to the Complainant, “a duplication charge of 11 cents per image results in astronomical pricing without reference to actual costs.”[8]
The Complainant asserts that the Custodian’s argument that the Complainant being allowed to pay per roll, rather per image, charge would result in a benefit to the Complainant that is contrary to public policy because other citizens would have to pay the per image price is a flawed argument that lacks any legal support. The Complainant contends that anyone should be able to receive copies on a per roll basis. Therefore, the public policy would not be compromised, as Complainant would not receive anything that would not be available to any other citizen. The Complainant also asserts that OPRA explicitly includes microfilm in its definition of a government record. N.J.S.A. 47:1A-1.1. This, the Complainant argues is contrary to the Custodian’s position that “[i]t is erroneous to read OPRA as transforming 2500 to 3000 images on a roll of microfilm into one continuous record.”[9]
Contrary to the Custodian’s assertion that bidding the duplication project would render its contract with IMR obsolete, the Complainant contends that said contract is already obsolete whether it is bid or not. Complainant further asserts that the IMR contract is illegal in that it imposes duplication rates and use restrictions that are not in keeping with those provided in OPRA. The Complainant asserts that it will provide the Custodian with a list of several vendors used in other New Jersey counties for the same work.
The Complainant contends that the Custodian’s position that the records are in book form and would take months to redact and copy is nothing but a scare tactic for several reasons. First, no information should be redacted because there is no reasonable expectation of privacy with regard to documents in a county clerk’s office. Ohio Attorney General Opinion No. 96-034, available at http://www.ag.state.oh.us/sections/opinions/1996/96-034.HTM. Second, the Custodian could bid the work itself, Complainant could make the copies, or some other mutually beneficial arrangement could be made. Third, Data Trace has purchased copies of similar records from several New Jersey counties without those counties determining that providing copies of the requested records disrupted their operations.
Additionally, the Complainant asserts that the Custodian misinterpreted the application of copying fees for documents filed with the County pursuant to N.J.S.A. 22A:4-12. That statute, according to the Complainant, assumes that the County will perform the search and that the requestor is seeking each of the following: a search certificate, an abstract of the record and a paper copy. The Complainant asserts that none of those items are being requested in this OPRA request. The Complainant further asserts that absent the Custodian performing the search and without the requestor seeking a search certificate, N.J.S.A. 22A:4-12 is not applicable.
The Complainant asserts that only N.J.S.A. 22A:2-29 and N.J.S.A. 47:1A-5 apply to the records request subject of this complaint. The Complainant asserts that the GRC decided in Burnett v. County of Somerset, supra, that a county clerk can only collect $2.00 per page for paper copies under N.J.S.A. 22A:2-29. The Complainant further asserts that since the medium in which the records are requested is not “paper”, the duplication costs may only be determined pursuant to the provisions of N.J.S.A. 47:1A-5.b. and N.J.S.A. 47:1A-5.c. under OPRA. April 14, 2005 The Complainant asserts that a recent unpublished New Jersey Superior Court – Appellate Division decision is controlling on the issues presented to the GRC in this matter. In Joseph Dugan v. Camden and Burlington County Clerks’ Offices, 376 N.J. Super. 271 (March 22, 2005), the defendant requested and sought to copy (using the self-service copiers provided by the clerks to photocopy documents recorded in their offices and available for self-inspection by the public) certain deeds, mortgages and other lien information.
Specifically, the Complainant states that the court held that these documents are subject to inspection and copying under the common law right of access doctrine and that nothing in OPRA shall be construed as limiting the common law right of access pursuant to N.J.S.A. 47:1A-8.[10] The Complainant states that the court held that “[t]he documents in question plainly meet this definition, and subject to certain exceptions not here relevant, the custodian must make them available to be inspected, examined, and copied by any person during regular business hours. N.J.S.A. 47:1A-5.a.”[11]
The Complainant goes on to state that the court further held that “[h]ere the government has no interest in confidentiality. Indeed, the purpose of recording or filing the documents and providing public access to them is to place the world on notice of their contents. Under these circumstances, a minimal private interest on the part of the person seeking access is sufficient…Plaintiff’s interest in searching title information qualifies him for access under the common law doctrine.”[12] The Complainant asserts that this holding of the court discredits the Custodian’s contention that the State of New Jersey has an interest in keeping these records confidential.
Additionally, the Complainant asserts that the court held that the requestor’s commercial interest is irrelevant under the OPRA. The Complainant states that the court held that “[p]laintiff, Joseph Dugan, occasionally searches and copies such documents pertaining to deeds, mortgages and other lien information as part of his business.”[13]
Further the Complainant asserts that the court held that the Custodian cannot collect fees for services provided in N.J.S.A. 22A:2-29 for which the Custodian does not perform. Specifically, the Complainant states that the court held that “[t]he language itself suggests the performance of an active service by the clerk, not the passive act of providing a self-service copier for use by others.”[14]
The Complainant also asserts that N.J.S.A. 22A:4-12 does not apply to duplication fees in the instant matter. Only N.J.S.A. 22A:2-29 or N.J.S.A. 47:1A-5 can possibly apply. Further, if the Clerk is not requested to make the copies, only N.J.S.A. 47:1A-5 should apply. The Complainant asserts this position is clear throughout Dugan.
Analysis
Whether the Custodian unlawfully denied access to the County’s recorded real estate records requested by the Complainant?
OPRA places the onus on the Custodian to prove that a denial of access is lawful. Specifically, OPRA states:
“… [t]he public agency shall have the burden of proving that the denial of access is authorized by law…” N.J.S.A. 47:1A-6.
I. Complainant’s Records Request is Not Against Public Policy Due To The Intended Commercial Use of the Records
OPRA provides that:
“… government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions …” (Emphasis added.) N.J.S.A. 47:1A-1.
OPRA defines a government record as:
“ … any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file … or that has been received in the course of … official business” (Emphasis added.) N.J.S.A. 47:1A-1.1.
OPRA excludes from the definition of a government record:
“… information which, if disclosed, would give an advantage to competitors or bidders; …” N.J.S.A. 47:1A-1.1.
OPRA provides that government records made, maintained, kept on file, or received by a public agency in the course of its official business are subject to public access unless otherwise exempt. Additionally, OPRA places the burden on a custodian to prove that a denial of access to records is lawful pursuant to N.J.S.A. 47:1A-6.
The Custodian asserts that the Complainant is an employee of Data Trace, a national title search company. The Custodian alleges that Data Trace seeks to profit from access to the requested documents by offering said documents to the public for a fee. The Custodian asserts that the Legislature did not intend for OPRA to be used by companies like Data Trace to gain access to government records for commercial purposes and financial gain.
The Complainant asserts that fulfilling the subject OPRA request is required by law and is not against public policy. The Complainant states that the Custodian has not asserted any legal authority to support its claim that the Legislature did not intend for people to access records for their own financial gain, that such access is contrary to the public interest and that there should be a limitation on the purpose of the use of records. Regarding the Custodian’s assertion that Data Trace would have an unfair competitive advantage if it were to receive the requested documents, the Complainant states that it never argued that the subject request should be granted at the exclusion of other similar requests. Therefore, the Complainant asserts that there is no advantage to the Complainant when others have equal access.
The Complainant further asserts that similar requests have been made, and are in process, with the County Clerks from Ocean, Somerset, Hunterdon, Middlesex, Mercer and Atlantic Counties.
There is no restriction or prohibition against the commercial use of government records requested under OPRA contained within the provisions of OPRA. Additionally, the Custodian did not provide any legal support for the conclusion that the Legislature did not intend for people to access government records under OPRA for their own financial gain.
Further, in Belth v. Department of Banking & Insurance, GRC Case No. 2003-29 (September 2005), the Council determined that the information requested was proprietary information that would provide an advantage to competitors. The Council relied upon the Custodian’s certification that the information was “extremely sensitive and proprietary.” The Council determined that the information was “deliberative” in nature and that disclosure of the information to competitors who had not disclosed similar information would give those competitors an advantage.
Unlike in the Belth case, the Custodian in this case has not provided such certification. Further, the records requested are not “extremely sensitive and proprietary” since they are recorded with the County Clerk for the sole purpose of providing public notice of the records’ contents. For this very same reason, the records requested cannot be considered “deliberative” in nature. Therefore, disclosure of the records requested will not give the Complainant an unfair advantage over his competitors as provided in OPRA and defined by the GRC in Belth.
Thus, there is no restriction against commercial use under OPRA and it is not the province of the GRC to rule on this public policy aspect.
II. Based on Court Precedent, the Records Requested Are Government Records And Are Not Exempt From Disclosure Under Common Law
OPRA provides that:
“[n]othing contained in [OPRA] shall be construed as limiting the common law right of access to government records, including criminal investigatory records of a law enforcement agency.” N.J.S.A. 47:1A-8.
The Custodian asserts that the records would not be disclosable to the Complainant under a common law balancing test because the Complainant’s commercial use interest in access does not outweigh the public agency’s right of nondisclosure pursuant to Bergen County Improvement Authority v. North Jersey Media Group, Inc., 370 N.J.Super. 504 (App. Div. 2004).
The Complainant asserts that the Custodian is wrong in its argument that the requested documents would not be accessible based on a common law balancing test. The Complainant asserts that the common law definition of a public record is broader than that in OPRA. Therefore, the Complainant further asserts that records exempt from disclosure under OPRA may be disclosable under common law. Further, the Complainant asserts that OPRA does not limit the common law right of access pursuant to N.J.S.A. 47:1A-8.
The Complainant claims that there is no question that the records requested by the Complainant are available under OPRA pursuant to the Council’s determination in Burnett v. County of Somerset, GRC Complaint No. 2003-129 (January 2004). The Complainant further claims that it is therefore illogical to conclude that common law could be invoked to contradict OPRA and defeat access. Specifically, the Complainant contends that the State has no interest in preventing the disclosure of records filed and recorded with the Office of the Passaic County Clerk. Rather, the Complainant asserts, the State has an interest in ensuring the disclosure of publicly filed and recorded documents. According to the Complainant, public information companies such as Data Trace facilitate the State of New Jersey’s interest by creating a more usable, timely and efficient method for real estate industry participants to search real property records. Therefore, the Complainant concludes that Custodian’s assertion that the Complainant cannot obtain said documents via common law is incorrect.
The Complainant correctly cites to Dugan v. Camden and Burlington County Clerks’ Offices, 376 N.J. Super. 271 (Appellate Division 2005) in support of his OPRA records request. The plaintiff in Dugan “occasionally searches and copies such documents pertaining to deeds, mortgages and other lien information as part of his business.” Id. at 273. The records requested in Dugan (like those in the instant complaint now before the GRC) were “instruments entitled to record … which the clerk is required to compile in appropriate record books, … make required marginal or other notations, … and assign book and page numbers and establish indices.” Id.
The Dugan court further held that “[t]he documents here are subject to inspection and copying under the common law right of access doctrine. The record books, with their marginal notes, book and page numbers, and the like entered by the clerk, constitute documents prepared by a public officer in the authorized discharge of the officer's duty, and are "public records" within the doctrine's meaning. Bergen County Improvement Auth. v. North Jersey Media Group, Inc., 370 N.J.Super. 504, 517-18, 851 A.2d 731, 739-40 (App.Div.2004), certif. denied, 182 N.J. 143, 831 A.2d 847 (citing Nero v. Hyland, 76 N.J. 213, 221-22, 386 A.2d 846, 850-51 (1978)); see also Higg-A-Rella, Inc. v. County of Essex, 141 N.J. 35, 46, 660 A.2d 1163, 1168 (1995) (Public records "include almost every document recorded, generated, or produced by public officials whether or not 'required by law to be made, maintained or kept on file,' as [previously] required under the Right-to-Know Law.") (quoting Shuttleworth v. City of Camden, 258 N.J.Super. 573, 582, 610 A.2d 903, 908 (App.Div.) (quoting N.J.S.A. 47:1A-2 (since repealed and replaced by the OPRA definition of "government record" in N.J.S.A. 47:1A-1.1)), certif. denied, 133 N.J. 429, 627 A.2d 1135 (1992)). Nothing in OPRA shall be construed as limiting the common law right of access. Id. at 278 -279. Additionally, the Dugan court held that “[a]ccess to public records under the common law doctrine requires a showing of a legitimate interest by the person seeking access balanced against any governmental interest in keeping the records confidential. Daily Journal v. Police Dept. of City of Vineland, 351 N.J. Super. 110, 112-123, 797 A.2d 186, 192-93 (App. Div. 2002). Id. at 279. Here the government has no interest in confidentiality. Indeed, the purpose of recording or filing the documents and providing public access to them is to place the world on notice of their contents. Under these circumstances, a minimal private interest on the part of the person seeking access is sufficient. Higg-A-Rella, supra, 141 N.J. at 48-49, 660 A.2d at 1169-70. Plaintiff’s interest in searching title information qualifies him for access under the common law doctrine.” Id.
Thus, based on court precedent, the requested records are government records and are not exempt from disclosure under common law.
III. Copying Costs Under OPRA
OPRA provides that: “[a] copy or copies of a government record may be purchased by any person upon payment of the fee prescribed by law or regulation, or if a fee is not prescribed by law or regulation, upon payment of the actual cost of duplicating the record. Except as otherwise provided by law or regulation, the fee assessed for the duplication of a government record embodied in the form of printed matter shall not exceed the following: first page to tenth page, $0.75 per page; eleventh page to twentieth page, $0.50 per page; all pages over twenty, $0.25 per page. Actual cost of duplicating the record shall be the cost of materials and supplies used to make a copy of the record, but shall not include the cost of labor or other overhead expenses associated with making the copy except as provided for in subsection c. [concerning special service charges]. If a public agency can demonstrate that its actual costs for duplication of a government record exceed the foregoing rates, the public agency shall be permitted to charge the actual cost of duplicating the record.” (Emphasis added.) N.J.S.A. 47:1A-5.b. Additionally, OPRA provides that: “[a] custodian shall permit access to a government record and provide a copy thereof in the medium requested if the public agency maintains the record in that medium …” N.J.S.A. 47:1A-5.d. and “[w]henever the nature, format, manner of collation, or volume of a government record …to be inspected, examined, or copied … is such that the record cannot be reproduced by ordinary document copying equipment in ordinary business size or involves an extraordinary expenditure of time and effort to accommodate the request, the public agency may charge, in addition to the actual cost of duplicating the record, a special service charge that shall be reasonable and shall be based upon the actual direct cost of providing the copy or copies … The requestor shall have the opportunity to review and object to the charge prior to it being incurred. (Emphasis added.) N.J.S.A. 47:1A-5.c. Further, OPRA provides that: “… [i]f a request for access to a government record would substantially disrupt agency operations, the custodian may deny access to the record after attempting to reach a reasonable solution with the requestor that accommodates the interests of the requestor and the agency. (Emphasis added.) N.J.S.A. 47:1A-5.g. The statutes mandating the copying fees for records recorded and filed with the offices of the county clerks provides that:
“ [u]pon the filing, indexing, entering or recording of the following documents or papers in the office of the county clerk …, such parties, filing or having the same recorded or indexed in the county clerk’s office … , shall pay the following fees in lieu of the fees heretofore provided for the filing, recording or entering of such documents or papers: … [c]omparing and making copies, per sheet $2.00 … [and] [c]opies of all papers, typing and comparing of Photostat, per page $2.00 … N.J.S.A. 22A:2-29.
and
“… [c]ounty clerks and registers of deeds and mortgages shall receive for a search of all records except those enumerated hereunder, for each name, each year, each book, four cents ($0.04) …” N.J.S.A. 22A:4-12.
A. Denial of Records Requested After 2001 – Actual Costs
In the Custodian’s November 9, 2004 written response to the Complainant, the Custodian directed the Complainant to contact the County’s computer imaging vendor to obtain access to the records from 2001 to present. The Custodian has a contractual relationship with this vendor (IMR) to charge requestors $0.11/per image in a 16mm format (microfilm). Additionally, the Custodian asserts that county clerk or county register fees are governed by N.J.S.A. 22A:4-12. The Custodian alleges that it is clear that the Legislature intended for OPRA to be superseded by the fee schedule established in N.J.S.A. 22A: 4-12 in matters regarding county document search and copy charges pursuant to N.J.S.A. 47:1A-9.
The Complainant asserts that the Custodian’s contract with IMR results in an overcharge to the requestor and an improper imposition of restriction on use of the subject records. According to the Complainant, the Custodian’s contract with IMR states that the County will receive 70% of IMR’s per image copy charge for doing absolutely nothing. The Complainant further asserts that duplication costs must be based on an actual time and materials basis pursuant to N.J.S.A. 47:1A-5.b. and N.J.S.A. 47:1A-5.c.
The Complainant asserts that only N.J.S.A. 22A:2-29 and N.J.S.A. 47:1A-5 applies to the records request subject of this complaint. The Complainant asserts that the GRC decided in Burnett v. County of Somerset, supra, that a county clerk can only collect $2.00 per page for paper copies under N.J.S.A. 22A:2-29. The Complainant further asserts that since the medium in which the records are requested is not “paper”, the duplication costs may only be determined pursuant to the provisions of N.J.S.A. 47:1A-5.b. and N.J.S.A. 47:1A-5.c. under OPRA.
The Complainant argues that the Custodian’s per image copy charge of $0.11 is not a reasonable charge that is based on the actual direct cost of providing the documents mandated in OPRA. According to the Complainant, a duplication charge of $0.11 per image results in astronomical pricing without reference to actual costs.
OPRA provides that copies of a government record may be purchased by anyone upon payment of the fee prescribed by law or regulation or, if a fee is not so prescribed, upon payment of the actual cost of duplicating the record not to exceed the prescribed OPRA copying rates ($0.75/$0.50/$0.25). N.J.S.A. 47:1A-5.b.
N.J.S.A. 22A:4-12 In the instant complaint now before the GRC, the Custodian asserts that county clerk or county register fees are governed by N.J.S.A. 22A:4-12. The Complainant counters that only N.J.S.A. 22A:2-29 and N.J.S.A. 47:1A-5 applies to the records request subject of this complaint pursuant to the GRC’s decision in Burnett.
The fees prescribed under N.J.S.A. 22A:4-12 are provided for “a search of all records …” Since the substance of this complaint refers to an OPRA records request and not a “search” of County recorded records, N.J.S.A. 22A:4-12 does not apply.
N.J.S.A. 22A:2-29 The Appellate Division of Superior Court held in Dugan, supra, that the clear object and policy of N.J.S.A. 22A:2-29 is to establish a uniform schedule of fees to be charged by all county clerks for the rendering of services in the performance of their official duties. In light of this general purpose, the $2 per page copying provisions require the clerk to render a service. The $2 fee can only be charged if the clerk physically makes the copy. Id. 376 N.J. Super. at 277. Further, the court held that it found unpersuasive defendants’ and the trial judge’s reliance on Laufgas v. Drake, 250 N.J. Super. 423, 594 A.2d 1358 (Law Div. 1991). There, upon the filing of a complaint, the plaintiff requested that the county clerk make him a copy of it. The court held that N.J.S.A. 22A:2-29 governed and the clerk properly charged the then-applicable $1.50 per page fee. Thus, when the clerk makes the copy (especially when made “upon the filing” of the document for “such parties” that filed it) the fee in N.J.S.A. 22A:2-29 applies.
The GRC’s decision in Burnette, supra, is in agreement with the court’s holding in Dugan. Thus, when the county clerk makes a copy, the fee in N.J.S.A. 22A:2-29 applies. However, in the instant complaint now before the GRC, the records have been requested in electronic or microfilm format instead of paper format and as such N.J.S.A. 22A:2-29 does not apply. For the same reason, N.J.S.A. 47:1A-5.b. (enumerating the OPRA rates for paper copies) does not apply.
Actual and Reasonable Cost OPRA provides that a custodian must permit access to a government record and provide a copy thereof in the medium requested if the public agency maintains the record in that medium. N.J.S.A. 47:1A-5.d. The Custodian has not denied that the requested records are maintained in the medium requested (microfilm). In fact, the Custodian directed the Complainant to an outside vendor to obtain such requested records in microfilm format. (The parties have not presented information regarding the requested records in electronic format – which was a format option included in the original records request – therefore that medium is not discussed in this analysis.) However, the Complainant objects to the per image cost charged by the outside vendor.
While OPRA provides that paper copies of government records may be obtained upon payment of the actual cost of duplication not to exceed the enumerated rates of $0.75/0.50/0.25 per page (N.J.S.A. 47:1A-5.b.), the Act does not provide explicit copy rates for any other medium. However, OPRA does provide that whenever the nature, format, manner of collation, or volume of a government record embodied in the form of printed matter cannot be reproduced by ordinary document copying equipment in ordinary business size, the public agency may charge in addition to the actual cost of duplicating the record, a special service charge that shall be reasonable and shall be based upon the actual direct cost of providing the copies. N.J.S.A. 47:1A-5.c. Additionally, OPRA provides that when a request for a record in a medium not routinely used by an agency, not routinely developed or maintained by an agency, or requiring a substantial amount of manipulation or programming of information technology, the agency may charge, in addition to the actual cost of duplication, a special charge that shall be reasonable and shall be based on the cost for any extensive use of information technology, or for the labor cost of personnel providing the service, that is actually incurred by the agency or attributable to the agency for the programming, clerical, and supervisory assistance required, or both. N.J.S.A. 47:1A-5.d.
Thus, it appears that the Legislature included the central theme throughout OPRA that duplication cost should equal actual cost and when actual cost cannot be applied, the duplication cost should be reasonable. Further, OPRA provides that a custodian may deny access to a requested record when access would substantially disrupt agency operations only after the custodian attempts to reach a reasonable solution with the requestor that accommodates the interest of the requestor and the agency. N.J.S.A. 47:1A-5.g.
The facts in this complaint suggest that the contract rate for microfilm copies of the records requested (publicly recorded real estate records) is reasonable since the $0.11 per image (or per individual microfilm record) is less than the OPRA enumerated copy rates for paper copies ($0.75/0.50/0.25). Additionally, it is persuasive that all other individual requestors are required to pay the contract rate for copies of requested records after the year 2001. There is no lawful reason under OPRA which justifies the Complainant being charged an amount more or less than that which any other requestor is charged. The parties should meet and agree on cost or if they are unable to so agree, they should each submit a brief to the GRC on the cost issue only and the GRC will refer such matter to the Office of Administrative Law.
B. Denial of Records Requested Dating Before 2001 – Special Service Charge
In the Custodian’s November 9, 2004 written response to the Complainant, the Custodian stated that she could not fully comply with the request. Specifically, the Custodian stated that she could not provide access to the records requested from 1985-2000 because doing so would severely disrupt the office’s operations.
The Custodian further asserts that OPRA permits special service charges when the agency has expended an extraordinary amount of time and effort to provide copies of documents pursuant to N.J.S.A. 47:1A-5.c. and New Jersey Attorney General Opinion 03-0018, (March 14, 2003), page 2. The Custodian states that an extraordinary amount of time and effort is required to fulfill this request because the documents for 1989 to 2000 are in book form alone and could take months to redact and copy. Accordingly, the Custodian asserts that it hopes to estimate the amount of a special service charge inclusive of the number of individuals and man-hours it would take to gather, redact, and copy the documents requested. The Custodian also asserts that if it is ordered to produce the documents, it will need time to prepare a detailed estimate of the cost of the project.
Alternatively, the Custodian asserts that if it were required to bid the project, such action would render its contract with IMR obsolete and could conceivably result in higher copy charges. The Custodian states the Complainant should have to pay the bidding contract costs as part of a special service charge.
The Complainant asserts that similar requests have been made, and are in process, with the County Clerks from Ocean, Somerset, Hunterdon, Middlesex, Mercer and Atlantic Counties, without substantial disruption of their agency operations.
The Complainant also contends that the Custodian’s position that the records are in book form and would take months to redact and copy is nothing but a scare tactic because no information should be redacted because there is no reasonable expectation of privacy with regard to documents publicly recorded in a county clerk’s office. Additionally, the Complainant asserts that Data Trace has purchased copies of similar records from several New Jersey counties without those counties determining that providing copies of the requested records disrupted their operations.
In this complaint, the facts are persuasive that the County Clerks from Ocean, Somerset, Hunterdon, Middlesex, Mercer and Atlantic Counties compiled with similar OPRA records requests from the Complainant without substantial disruption of their agency operations. Additionally, it is unlikely that there is a reasonable expectation of privacy with regard to records publicly recorded in a county clerk’s office. As was stated by the court in Dugan, the government has no interest in confidentiality. Indeed, the purpose of recording or filing the documents and providing public access to them is to place the world on notice of their contents. 376 N.J. Super. at 279 (March 22, 2005). Therefore, the Custodian has not borne her burden of proving that redactions of the publicly recorded real estate records are necessary. Since redactions are not warranted, it is not likely the special service charge to which the Custodian attributed in large part to making redaction is warranted. Since the Custodian will not have to expend an extraordinary amount of time and effort to accommodate the request (making redactions), the special service charge is not likely warranted. N.J.S.A. 47:1A-5.c.
Further, the Complainant specifically requested in her records request to meet with the Custodian to discuss potential options on how to handle the duplication and/or conversion in the event that the records requested were only available in paper format. The facts in this complaint does not reflect that the Custodian has made any attempt to meet with the Complainant in this regard. The Complainant also specifically indicated in her records request that in the event she and the Custodian could not come to an agreement regarding duplication and/or conversion of the records requested that she [the Complainant] will copy those paper records using the public photocopy machine. Therefore, the Custodian should arrange to make the filing books available to the Complainant to make such copies using the public photocopy machine.
Whether the Complainant is entitled to prevailing party attorney’s fees under OPRA?
OPRA provides that:
“… [i]f it is determined that access has been improperly denied, the court or agency [GRC] head shall order that access be allowed. A requestor who prevails in any proceeding shall be entitled to a reasonable attorney’s fee.” N.J.S.A. 47:1A-6.
New Jersey adheres to the strong policy that each litigant bears his own counsel fees, except in those situations specifically designated by statute or court rule. In re Niles, 176 N.J. 282, 293-94 (2003); North Bergen Rex Transport v. TLC, 158 N.J. 561, 569 (1999). OPRA contains such an exception to the general rule; it provides that a "requestor who prevails in any proceeding shall be entitled to a reasonable attorney’s fee." N.J.S.A. 47:1A-6 and 47:1A-7f.
OPRA permits a requestor to challenge a custodian's denial of access by filing a complaint with either the Superior Court or the GRC. N.J.S.A. 47:1A-6. This section of the statute further states“[i]f it is determined that access has been improperly denied, the court or agency head shall order that access be allowed. A requestor who prevails in any proceeding shall be entitled to reasonable attorneys fees.” Id.
The following section of OPRA sets forth the authority of the GRC. After expressly empowering the GRC to render final decisions regarding access to a record, N.J.S.A. 47:1A-7e, the statute reiterates that a requestor who prevails in a GRC proceeding is entitled to a reasonable attorney’s fee. N.J.S.A. 47:1A-7f.
It is significant that the statutory authorization for attorney’s fee awards immediately follows the sentence which provides that a court or the GRC shall issue an order requiring access if it determines that access has been improperly denied. N.J.S.A. 47:1A-6. This indicates an intent to link the two concepts. Nothing else in the statute suggests a contrary intent. Fee-shifting statutory provisions are strictly construed “in light of the general policy disfavoring the award of attorney’s fee.” North Bergen Rex Transport, supra, 158 N.J. at 570. Accordingly, we construe OPRA as permitting an attorney’s fees award only in cases where the GRC has issued an order determining that access was improperly denied.
In the instant complaint, the Complainant’s Counsel is required to submit to the GRC a written application for attorney’s fees supported by an attorney affidavit of service pursuant to New Jersey Court Rule 4:42-9(b). The application should include, but not be limited to, a detailed description of the services rendered with the corresponding time expended for each service. Additionally, the GRC requests copies of weekly time sheets for each attorney or other staff in 0.1 time increments (6 minutes) and evidence that the rates charged are in accordance with prevailing market rates in the relevant legal community. The GRC will then review that application to determine whether the fees requested are reasonable pursuant to OPRA. The GRC reserves the right to make the determination on the issue of prevailing party attorney’s fees.
Conclusions and Recommendations
The Executive Director respectfully recommends the Council find that:
Catherine Starghill, Esq. Executive Director [1] November 29, 2004 Denial of Access Complaint, pages 5-6. [2] The Complainant bases its 522,000 images per roll estimate on recording device product information located in an article titled “It’s Not Your Father’s (or Mother’s) COM.” http://www.home.earthlink.net/~fyiglover/articles/com.html. [3] March 4, 2005 Statement of Information, page 9. [4] Complainant cited this case as “2004.FL.0004752 (VersusLaw)”. [5] Complainant’s March 17, 2005 rebuttal to Custodian’s March 4, 2005 SOI, page 4. [6] Id at page 5. [7] Complainant’s March 17, 2005 rebuttal to Custodian’s March 4, 2005 SOI, page 5. [8] Complainant’s March 17, 2005 rebuttal to Custodian’s March 4, 2005 SOI, page 17, Fn 41. [9] March 4, 2005 Statement of Information, Item 10, page 9. [10] Dugan v. Camden County Clerk’s Office and Burlington County Clerk’s Office, Superior Court of New Jersey – Appellate Division, Docket No. A-3567-03T3 (Decided March 22, 2005) at page 11. [11] Id at pages 3 and 4. [12] Id. at page 11. [13] Id. at page 2. [14] Id. at pages 7 and 8. |
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