2003-75

Final Administrative Action

At its January 13, 2005 public meeting, the Government Records Council ("Council") considered the January 3, 2005 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, dismissed the case on the basis of the Complainant's November 12, 2004 letter withdrawing his complaint.

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.

Final Decision Rendered by the
Government Records Council
On The 13^th Day of January, 2005

Vincent P. Maltese, Chairman
Government Records Council

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

Virginia Hook, Secretary
Government Records Council 

Decision Distribution Date:  January 24, 2005

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Supplemental Findings and Recommendations of the Executive Director

Records Requested: Copies of deeds and mortgages in a digital format and future such records "on an ongoing basis".
Request made: May 30, 2003
Custodian: Joanne Rajoppi
Request denial: Oral denial on June 13, 2003, 10 business days after request; deputy custodian written inquiry to requestor about specific medium for records made June 20, 15 business days after request; custodian's written offer of access at $2 per scanned image made June 24, 17 business days after request.
GRC Complaint filed: June 16, 2003

Background

At its December 11, 2003 public meeting, the Government Records Council considered the responses provided by the parties pursuant to the Council's November 13, 2003 Final Decision on Access; Interim Order on Cost of Duplication and Custodian Penalty. Documentation responsive to same include:

Custodian Counsel’s November 26, 2003 response letter,

1. December 1, 2003 certification of Joanne Rajoppi, Union County Clerk,
2. December 1, 2003 statement from the County of Union regarding cost of digital copies,
3. Requestor's December 5, 2003 response letter.

After considering the above documentation, the Council voted unanimously in three different votes to:

Deny the custodian counsel's November 26, 2003 request for reconsideration. The requestor has the right to request copies in a particular medium.

1. Refer the case to the Office of Administrative Law regarding the actual cost pursuant to N.J.S.A. 47:1A-5 to provide requestor access to the records sought in a digital format, or in the absence of digital recording, on microfilm.
2. Refer the case to the Office of Administrative Law regarding the issue of whether the custodian knowingly and willfully violated the Open Public Records Act by responding to the requestor in a timely manner.

On November 12, 2004, the Complainant sent a letter to the Office of Administrative Law withdrawing the case.

Documents Reviewed

The following record was reviewed in preparation for this Findings and Recommendations of the Executive Director:

- November 12, 2004 - Letter from the Complainant to the Office of Administrative Law withdrawing the case

Conclusions and Recommendations of the Executive Director

The Executive Director respectfully recommends the Council find that the case should be dismissed based on the November 12, 2004 letter.

Prepared by:
Approved by: 
Paul F. Dice
Executive Director
Government Records Council

January 3, 2005

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Final Decision on Access

At its November 13, 2003 public meeting, the Government Records Council considered the November 6, 2003 Findings and Recommendations of the Executive Director and all related documentation submitted by the parties concerning the costs associated to reproducing "all deeds and mortgages" in Union County in a digital format.

The Council voted unanimously to the following:

1. The per page charge for paper copies of records on file with the county clerk is $2.00 per page pursuant to N.J.S.A. 22A: 2-29.
   
2. The fees for digital copies of records on file with the county clerk is dictated by N.J.S.A. 47:1A-5.
   
3. The custodian is to advise the Acting Executive Director and the requester by December 1, 2003 the cost of providing the requestor digital copies, along with a detailed explanation of the basis for the cost.
   
4. The request for copies "on a continuing basis" is not valid under OPRA and that the requestor must submit a new OPRA request to the custodian for each new batch of documents sought.
   
5. Submit a certification to the Council detailing why the denial of access response was not provided in a timely manner and why the delay should not be considered by the Council as a knowing and willful violation of the Open Public Records Act in the totality of the circumstances. Said certification shall be submitted to the Government Record Council's Acting Executive Director Dice no later than December 1, 2003.

The Council hereby orders the custodian to comply with the above recommendations.

Vincent P. Maltese,
Chairman Government Records Council

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

Virginia Hook,
Secretary Government Records Council

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Findings and Recommendation of Executive Director

Records Requested: Copies of deeds and mortgages in a digital format and future such records "on an ongoing basis".
Request made: May 30, 2003
Custodian: Joanne Rajoppi
Request denial: Oral denial on June 13, 2003, 10 business days after request; deputy custodian written inquiry to requestor about specific medium for records made June 20, 15 business days after request; custodian's written offer of access at $2 per scanned image made June 24, 17 business days after request.
GRC Complaint filed: June 16, 2003

Executive Director's Recommendation

This case involves a request for "all deeds and mortgages" on record with the Union County Clerk. The requester seeks same in a digital format and "on a regular basis."

At issue is the cost of the records. The custodian states that the county's stock of currently scanned records will be provided on a CD-Rom or DVD at a cost of $2.00 per scanned image pursuant to N.J.S.A. 22A:2-29, which establishes county clerk filing and recording fees and copy rates

The requester asserts that N.J.S.A. 22A:2-29 applies only to paper copies of records on file with the county clerk's office, not the digital or "computer scanned" copies sought in his request. He contends that N.J.S.A. 47:1A-5 provides that the cost for documents in digital format should be based on the actual cost of duplicating the records unless rates are established elsewhere by law or regulation. He states that no such other laws or regulation exists concerning the cost of digital images.

The Acting Executive Director respectfully recommends that the Council:

1. Find that the per page charge for paper copies of records on file with the county clerk is $2.00 per page pursuant to N.J.S.A. 22A:2-29. N.J.S.A. 47:1A-9(b) indicates that OPRA will not abrogate other statutes.
   
2. Find that the fee for digital copies of records on file with the county clerk is dictated by N.J.S.A. 47:1A-5.
   
3. Order the custodian to advise the Acting Executive Director and the requester by a date certain the cost of providing requestor digital copies, along with a detailed explanation of the basis for the cost. If the requestor agrees to the charge in writing, the Acting Executive shall provide the custodian 10 business days within which to provide requestor the records. If the requester advises in writing that he is challenging the lawfulness of the charge under OPRA, the Acting Executive Director will afford the custodian the opportunity to reply and shall prepare the issue for adjudication by the Council.
   
4. Find that the request for copies "on a continuing basis" is not valid under OPRA and that the requestor must submit a new OPRA request to the custodian for each new batch of documents sought.
   
5. Find that the custodian did not provide a timely response to the request for digital copies of the clerk's records. A verbal denial of access was provided 10 business days after the request. The deputy custodian made written inquiry to requestor as to format 15 business days later; the custodian made an offer to provide copies at $2 per page, 17 business days after the request. The custodian's initial response should have been in writing as soon as possible but no later than seven business days following the request. N.J.S.A. 47:1A-5i.
   
6. Find that the custodian's actions, however, do not constitute a knowing and willful violation of OPRA.

Statement of Facts

May 30, 2003 - Records request
The requester makes a written OPRA request for, "all deeds and mortgages on a regular monthly basis."

June 13, 2003 - Requester alleges clerk orally denies request, stating that deeds and mortgages are available only by Internet access.

June 16, 2003 (Incorrectly dated as September 16, 2003) - Requester advises GRC of custodian's oral denial

June 16, 2003 - OPRA complaint filed

June 20, 2003 - Deputy County Clerk telephones and writes requestor, asking requestor to specify medium sought (DVD, CD Rom, etc.)

June 24, 2003 - Custodian written offer of access to requestor at $2 per scanned image

June 30, 2003 - Requester advises GRC the $2 copy fee is a denial of his request. The requester cites the-right-to-know law and common law for the principle that copying fees must be, "reasonable, and cannot be used as a tool to discourage access."

July 16, 2003 - Custodian explains basis for the $2 per page fee
The custodian alleges the two-dollar fee is a mandated by statute. She states that the charge is published on the county clerk's Internet site, and that no one has ever been denied access to the records. She asserts that the requester has not complied with the county in that he has not submitted a request "…in writing to us as prescribed by OPRA."

August 1, 2003 - Requester offers to copy the data using his equipment and media. No reply to this offer.

August 26, 2003 - The requester declines mediation
The requester is willing, however, to discuss a reasonable fee for the records.

September 17, 2003 - Custodian Statement of Information received.

Analysis

The requestor seeks an electronic copy of all mortgages and deeds in the Clerk's computer. The charges for making such a copy are established in OPRA. N.J.S.A. 47:1A-5b authorizes an agency to charge the actual cost of duplication, where it can demonstrate that its actual costs exceed the statutory rates for copying printed material. The charge shall not include labor and other overhead expenses. However, if the agency does not maintain the record in the medium requested, the agency may charge, in addition to the actual cost of duplication, a reasonable special charge based on the costs (including labor) of the programming involved. N.J.S.A. 47:1A-5d.

The Clerk contends that it is not bound by these provisions here, based on the argument that its copying fees are governed by N.J.S.A. 22A:2-29. Where a fee for purchasing a copy of a government record is set by another statute, that statute applies instead of OPRA's fee provisions. N.J.S.A. 47A:1A-5b; Laufgas v. N.J. Turnpike Auth., 156 N.J. 436 (1998). However, N.J.S.A. 22A:2-29 is not applicable here. That statute permits the Clerk to charge various fees for services, including $2.00 for "comparing and making copies, per sheet," and "copies of all papers, typing and comparing of photostat, per page." By the plain language of the statute, N.J.S.A. 22A:2-29 applies only to paper copies. It clearly does not cover electronic or computer records; the references to "per sheet," "per page," and "papers" are inconsistent with any intent to deal with electronic records. As a result, OPRA's provisions relating to charges for computer records apply to the request here.

This conclusion is confirmed by the fact that N.J.S.A. 2A:2-29 was amended by the Legislature on January 8, 2002, the same day that OPRA was enacted. The Legislature is presumed to be familiar with its enactments. If the Legislature had intended N.J.S.A. 22A:2-29 to cover electronic records, it would have so provided. Its failure to do so, at the same time it enacted OPRA's provisions governing charges for electronic records, is clear evidence that the Legislature did not intend that N.J.S.A. 2A:2-29 would apply to electronic records. The custodian should advise the requestor and the GRC of the actual cost of providing requestor a digital copy of the deeds and mortgages in its files, along with a detailed explanation of the charge, including any programming time. In the event the requestor alleges the charge does not comply with OPRA, the Council shall adjudicate the lawfulness of the custodian's fee in a separate proceeding.

Conclusion

The Acting Executive Director respectfully recommends that the Council:

1. Find that the per page charge for paper copies of records on file with the county clerk is $2.00 per page pursuant to N.J.S.A. 22A:2-29. N.J.S.A. 47:1A-9(b) indicates that OPRA will not abrogate other statutes.
   
2. Find that the fee for digital copies of records on file with the county clerk is dictated by N.J.S.A. 47:1A-5.
   
3. Order the custodian to advise the Acting Executive Director and the requester by a date certain the cost of providing requestor digital copies, along with an detailed explanation of the basis for the cost. If the requester agrees to the charge in writing, the Acting Executive Director shall provide the custodian written notice of a deadline by which the custodian shall provide the records. If the requester advises in writing that he is challenging the lawfulness of the charge under OPRA, the Acting Executive Director will afford the custodian the opportunity to reply and shall prepare the issue for adjudication by the Council.
   
4. Find that the request for copies "on a continuing basis" is not valid under OPRA and that the requestor must submit a new OPRA request to the custodian for each new batch of documents sought.
   
5. Find that the custodian did not provide a timely response to the request for digital copies of the clerk's records. A verbal denial of access was provided 10 business days after the request. The deputy custodian made written inquiry to requestor as to format 15 business days later; the custodian made an offer to provide copies at $2 per page, 17 business days after the request. The custodian's initial response should have been in writing as soon as possible but no later than seven business days following the request. N.J.S.A. 47:1A-5i.
   
6. Find that the custodian's actions, however, do not constitute a knowing and willful violation of OPRA.
   

Paul F. Dice, Acting Executive Director
Government Records Council

Dated: November 6, 2003

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Interim Decision on Cost of Duplication and Custodian Penalty

At its December 11, 2003 public meeting, the Government Records Council considered the responses provided by the parties pursuant to the Council's November 13, 2003 Final Decision on Access; Interim Order on Cost of Duplication and Custodian Penalty. Documentation responsive to same include:

Custodian Counsel’s November 26, 2003 response letter,

1. December 1, 2003 certification of Joanne Rajoppi, Union County Clerk,
2. December 1, 2003 statement from the County of Union regarding cost of digital copies,
3. Requestor's December 5, 2003 response letter.

After considering the above documentation, the Council voted unanimously in three different votes to:

Deny the custodian counsel's November 26, 2003 request for reconsideration. The requestor has the right to request copies in a particular medium.

1. Refer the case to the Office of Administrative Law regarding the actual cost pursuant to N.J.S.A. 47:1A-5 to provide requestor access to the records sought in a digital format, or in the absence of digital recording, on microfilm.
2. Refer the case to the Office of Administrative Law regarding the issue of whether the custodian knowingly and willfully violated the Open Public Records Act by responding to the requestor in a timely manner.

Vincent P. Maltese, Chairman
Government Records Council

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

Virginia Hook, Secretary
Government Records Council

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