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State of NJ - Government Records Council Email Grc

2003-86

- Final Decision
- Supplemental Findings and Recommendations of the Executive Director
- Final Decision on Access
- Executive Director's Findings and Recommendations
- Interim Order on Cost of Duplication

Final Decision

Robert Blau
   Complainant
      v.
Somerset County
   Custodian of Record
Complaint No. 2003-86

At its March 10, 2005 public meeting, the Government Records Council (“Council”) considered the March 3, 2005 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  The Council, therefore, dismisses the case on the basis that the Complainant has withdrawn his complaint.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 10th Day of March, 2005

Vincent P. Maltese, Chairman
Government Records Council

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

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Supplemental Findings and Recommendations of the Executive Director

Robert D. Blau                                     GRC Complaint No. 2003-86
Complainant
            v.
Somerset County Clerk
Custodian of Records

Records Requested:
Deeds and Mortgages in digital format and future such records on "regular monthly basis."

Request Made: June 17, 2003
Response Made:  June 27, 2003
Custodian:   Brett Radi
GRC Complaint filed: June 30, 2003

Background
December 17, 2003
This case was heard at the December 17, 2003 where the Council voted unanimously to refer the case to the Office of Administrative Law regarding the appropriate cost pursuant to N.J.S.A. 47:1A-5 for providing requestor access to deeds and mortgages in a digital format.

February 18, 2005
On February 18, 2005 the case was returned to the Government Records Council from the Office of Administrative Law citing that the case has been withdrawn pursuant to the February 9, 2005 letter of the Complainant.

Analysis
No further analysis is needed at this time.

Conclusions and Recommendations
The Executive Director respectfully recommends that the Council dismiss this case on the basis that the Complainant has withdrawn his complaint.

Prepared By: 

Approved By:
Paul F. Dice
Executive Director
Government Records Council
March 3, 2005

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Final Decision on Access

Robert Blau,
Complainant
v.
Somerset County Clerk,
Custodian of Record
Complaint No. 2003-86
Decision Issued: November 13, 2003
Decision Effective: November 13, 2003

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 to copy "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. The requester's letter of June 17, 2003 was a valid written request pursuant to OPRA.
  6. The custodian's response was one business day late but the delay did not rise to the level of a knowing and willful violation of OPRA.

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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Executive Director's Findings and Recommendations

Robert D. Blau
Complainant
vs.
Somerset County Clerk Related case: 2003-75
Custodian of Record
GRC Case # 2003-86

Relevant Records Requested: Deeds and Mortgages in digital format and future such records on "regular monthly basis"
Request Made: June 17, 2003; second request on county form (under protest), June 24
Custodian: Brett Radi
Request Denied: Custodian attorney demands that requestor use county OPRA form by letter dated June 24, 5 business days after request; custodian attorney offers access at $2 per page by letter dated June 27, 2003, 8 business days after original request.
GRC Complaint Filed: June 30, 2003

Executive Director's Recommendation

This case involves a request for "all deeds and mortgages" on record with the Somerset 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 records are available 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 sets forth the filing and copy fees for records filed with the county clerk's office.

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 regulations exist 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 requestor's letter of June 17, 2003 was a valid written request pursuant to OPRA.
  5. Find that the custodian's response of June 27, 2003 was one business day late but that this delay does not rise to the level of a knowing and willful violation of OPRA.
  6. Find that the request for copies "on a regular monthly 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.

Statement of Facts

June 17, 2003 - Records Request
The requester submits a letter to the Somerset County Clerk citing OPRA and asking "to purchase copies of all deeds and mortgages on a regular monthly basis" in digital format.

June 23, 2003 - Requester alleges Custodian's counsel demands submission of request on County's own OPRA form.

June 24, 2003 - Requestor submits second request on County OPRA form under protest and advises custodian's attorney by letter that OPRA does not require use of form and that time to respond runs from date of original request.

June 27, 2003 - Custodian Counsel agrees to provide records "TIFF format on a CD-Rom" at a cost of $2.00 per page pursuant to N.J.S.A. 22A:2-29.

June 30, 2003 - OPRA Complaint Filed
The requester alleges the total cost of the records as calculated by the clerk is "prohibitive and not authorized by statute 22A:2-29." He also states that N.J.S.A. 22A:2-29 does not address the fee for duplicating images in digital format. Citing the right-to-know law and common law, the requestor states that the "fee for copying public records must be reasonable, and cannot be used as a tool to discourage access."

August 28, 2003 - Requester declines mediation

September 25, 2003 - Custodian Statement of Information Received
The custodian alleges the GRC lacks jurisdiction over the case and that there is no factual basis for the claim because N.J.S.A. 22A:2-29 sets forth the applicable copy rates for the records sought.

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.

Conclusion

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.

Paul F. Dice,
Acting Executive Director
Government Records Council

Dated: November 6, 2003

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Interim Order on Cost of Duplication

Robert Blau,
Complainant
v.
Somerset County Clerk,
Custodian of Record
Complaint No. 2003-86

Decision Issued: December 17, 2003
Decision Effective: November 17, 2003

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:

  1. Requestor’s December 5, 2003 letter,
  2. Custodian counsel’s November 26, 2003 letter.

Upon review and consideration of the above documentation, the Council voted unanimously to refer the case to the Office of Administrative Law regarding the appropriate cost pursuant to N.J.S.A. 47:1A-5 for providing requestor access to deeds and mortgages in a digital format. The Council finds that there are material questions of fact appearing in the parties’ positions.

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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