2003-15

At its February 10, 2004 public meeting, the Government Records Council ("Council") considered the February 4, 2004 Findings and Recommendations of Executive Director and all related documentation submitted by the parties. The Council voted to adopt the entirety of said Findings and Recommendations. The Council dismissed the complaint finding that:

I attest the foregoing is a true and accurate record of the Government Records Council.

Findings and Recommendations of Executive Director

Mike Diamond
Complainant
v.
Township of Old Bridge
Custodian of Records

Relevant Records Requested: Information Concerning the Sale or Trade-In of Weapons within Police Department since 1985
Request made: January 22, 2003
Response made: January 29, 2003
Custodian: Stella Ward, Deputy Clerk
GRC Complaint Filed: February 3, 2003

Denial of access is still an issue in this case even though the requestor no longer wants copies of the requested documents because the requestor maintains there is a timeliness issue for adjudication. The denial of access issue presented is whether the Township's accommodation of the request would involve an extraordinary expenditure of time and effort that would warrant a special service charge of approximately $247.20, pursuant to N.J.S.A. 47:1A-5c. If the service charge was not warranted, then the custodian denied access. In order to secure the requested documents, the Township explained that a police officer would be needed for approximately four hours to research and prepare the requested information. The requestor asserted that the charge was excessive and questioned the need for using a police officer instead of a clerk to secure the requested information.

The Acting Executive Director respectfully recommends the Council dismiss the case for the following reasons:

The requestor made a records request with the Old Bridge Clerk's Office requesting information concerning the sale or trade-in of weapons within the police department. Specifically, Mr. Diamond was looking for the serial number, caliber, manufacturer and model number of each weapon traded-in or sold. In his request, he mentioned that more than 40 law enforcement agencies had submitted this information, including the state police, who were advised by the attorney general that this information was a public record.

The memo indicates that it would take the Police Sergeant Lynch approximately four hours of overtime to research and prepare the information for the requestor and the total cost of labor would be $247.20.

The custodian stated in written response to the requestor that the police department charges a $247.20 fee for the research involved in the request. She also requested that the fee be paid in advance of any work. If the research should take more than four hours, the requestor would be notified of any additional costs and if it should take less time, the custodian will reimburse the requestor.

This letter notified the Police Chief of a correspondence received from the requestor regarding the Township's response. The requestor inquired whether a clerk, who doesn't make as much per hour, could perform the research instead of the police officer.

The memo had a written response from the Chief stating that the response stays the same.

The requestor filed a complaint to the GRC. In this complaint, they argued that the there was no need to put a highly paid officer on overtime to find these records. No other departments had levied this type of fee on the requestor.

This information highlighted the cost involved for performing the request. The requestor criticized the Township of Old Bridge for providing no explanation as to why it would take four hours of overtime to acquire the information. "As in the Krisberg v. Paterson police case,"Mr. Diamond claimed that this information should not involve a substantial amount of effort pursuant to NJSA.

The Clerk explained that the information would have been provided to Mr. Diamond however, the Township needed to receive a deposit for this work beforehand. She also wrote that the requestor asked for a clerk to be assigned, to perform the research, who doesn’t make as much per hour.

The custodian wrote a letter to the requestor indicating that records for years 1995, 1997 and 1998 was located and would be forwarded to the requestor after they received $2.25; the rest of the information would be researched in the Township’s archives and would take them time to attain.

The requestor responded by saying that the information was submitted in such an untimely manner that the information was no longer needed.

October 22, 2003 - Custodian’s Letter to the Department of Law and Public Safety

The custodian wrote a letter to the Department of Law and Public Safety stating that she had received a letter from the requestor indicating his decision to discontinue the request. The custodian asked if she was to understand that the complaint was no longer in effect and that we are required to do nothing more.

Requestor informed the Acting Executive Director by phone that he wanted the case to be continued for the Council to address the timeliness issue.

The custodian explained that the request was dated 11/15/02 and received by fax on January 23, 2003. The custodian indicated that the request was forwarded to their police department and a response was given to the requestor on January 29, 2003. The custodian indicated that a number of attempts were made to contact the requestor concerning the request and associated fees. The custodian explained that in October 2003, the police chief "arranged to have a part of Mr. Diamond's request available for him" and informed the requestor of the documents that were available. The custodian indicated that the documentation covered a period of 18 years and contended that the requestor was advised the request would require "a lot of time to compile."

January 23, 2004 - GRC request for detailed explanation of extraordinary service fees

The GRC requested from the custodian a detailed explanation of the $247.20 fees charged for services in providing the requested documents for the Council to properly assess your claim of "an extraordinary expenditure of time and effort..." pursuant to N.J.S.A. 47:1A-5c that included the number of hours, number of days, the number of documents pertaining to the request, a detailed explanation concerning any research or special services required and associated costs.

The issue of denial of access is before the Council even though the requestor no longer wants copies of the requested documents, because the requestor maintains that there is a timeliness issue for Council adjudication. The denial of access issue before the Council is whether, pursuant to N.J.S.A. 47:1A-5c[1], the Township’s accommodation of the request would involve an extraordinary expenditure of time and effort that would warrant a special service charge of approximately $247.20. If the Council finds that the special service charge was warranted, then the Complaint should be dismissed as there was no denial of access, as the Township had a right to require payment before producing the documents. See N.J.S.A. 47:1A-5b. If the Council determines that the special service charge was not warranted, then the Township denied access, because it did not provide access to the requested documents within seven business days at a charge pursuant to the rates set forth in N.J.S.A. 47:1A-5b. In that event, the Council can then determine whether the matter warrants a hearing on the imposition of a possible penalty pursuant to N.J.S.A. 47:1A-11.

The Division of Law issued advice to the Government Records Council on March 14, 2003, which, in part, discussed the meaning of the word "extraordinary" as used in N.J.S.A. 47:1A-5(c). The relevant portions of that advice are restated here as it applies to the Council’s determination of whether the Township's accommodation of the request would involve an extraordinary expenditure of time and effort that would warrant a special service charge:

OPRA does not contain a definition of what is 'extraordinary' for purposes of N.J.S.A. 47:1A-5c. In the absence of a specific legislative definition or clear legislative intent to the contrary, statutory words are to be given their 'generally accepted meaning.' N.J.S.A. 1:1-1. See Stryker Corp. v. Director, Div. of Taxation, 168 N.J. 138, 156 (2001). Thus, the word ‘extraordinary’ in N.J.S.A. 47:1A-5c is to be given its usual meaning of 'beyond what is common or usual.' Webster's II New Riverside University Dictionary. The meaning of 'extraordinary' under OPRA is fact-specific and is not amenable to a general definition which is applicable to all cases. Instead of establishing a bright line definition, the question of what constitutes an extraordinary amount of time must be assessed on a case-by-case basis. See Atty. Gen. Op. 11-2000 (Florida), supra (appropriateness of special service charge must be decided on a case-by-case basis). See also The Courier Post v. Lenape Regional High School District, supra (‘extraordinary’ requirement of N.J.S.A. 47:1A-5c fulfilled where staff expended 100 hours over 10 to 15 days, to retrieve and assemble thousands of documents). Cf. Krisburg v. Paterson, No. 2002-55 (Government Records Council 2002) (in absence of contrary factual information, one hour is not 'substantial' and 'extensive' for purposes of N.J.S.A. 47:1A-5d).

With regard to the calculation of the amount of the special service charge, the statute simply states that the charge shall be 'reasonable' and based on 'the actual direct cost' incurred. N.J.S.A. 47:1A-5c. In The Courier Post, supra, Judge Sweeney did not make a determination as to the amount the school district could charge. He suggested, in dicta, that it would be appropriate to calculate the hourly wage rates of the clerical and professional employees involved in all tasks related to accommodating the document inspection request, and to multiply those figures by the total hours spent by these employees. Id. at 13.

This formula is consistent with the underlying intent of the statute, which, as discussed above, is to permit recoupment of actual costs where an extraordinary effort is necessary. In view of this purpose, it is reasonable to include costs attributable to both clerical and supervisory work, where participation by supervisory employees was required. See N.J.S.A. 47:1A-5d (where record is converted into another medium, charge may include cost of both clerical and supervisory personnel). Significantly, the Florida statute upon which N.J.S.A. 47:1A-5c is based permits supervisory costs to be captured in the special service charge. Section 119.07(1)(b). A Florida court has construed this statute as permitting a charge for the ‘supervisory personnel necessary to properly review the materials for possible application of exemptions.’ Herskovitz v. Leon County, No. 98-22 (Fla. 2d Cir. 1998) (unreported, cited in Florida’s Government in the Sunshine Manual (2003)). Thus, where a special service charge is permitted, whether for copies of documents or for inspection, it may be appropriate, depending on the circumstances, to include within the charge the time spent by higher-level employees in reviewing which documents could be disclosed.

Therefore, the Council should apply the above law and advice to the facts of this case to determine whether the Township's accommodation of the request would involve an extraordinary expenditure of time and effort that would warrant a special service charge.

The Acting Executive Director respectfully recommends that the Council dismiss the case because:

[1] N.J.S.A. 47:1A-5c provides: "Whenever the nature, format, manner of collation, or volume of a government record embodied in the form of printed matter to be inspected, examined, or copied pursuant to this section 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; provided, however, that in the case of a municipality, rates for the duplication of particular records when the actual cost of copying exceeds the foregoing rates shall be established in advance by ordinance. The requestor shall have the opportunity to review and object to the charge prior to it being incurred."

2003-15

Final Decision

Findings and Recommendations of Executive Director