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2004-134

- Final Decision
- Supplemental Findings and Recommendations of the Executive Director
- Interim Decision on Access
- Findings and Recommendations of Executive Director

Final Decision

Tina Renna
   Complainant
      v.
County of Union
   Custodian of Record

Complaint No. 2004-134

At its April 11, 2006 public meeting, the Government Records Council (“Council”) considered the April 4, 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 since the Complainant did advise the Executive Director that she did not want to purchase the requested records, this case is closed without further action.

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 11th Day of April, 2006

Vincent P. Maltese, Chairman
Government Records Council

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

Robin Berg Tabakin, Secretary
Government Records Council 

Decision Distribution Date:  April 21, 2006

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Supplemental Findings and Recommendations of the Executive Director

Tina Renna                                                      GRC Complaint No. 2004-134
Complainant
           v.
County Of Union
Custodian of Records

Records Relevant to Complaint: All Union County press releases and publicity photos for the years:  1999, 2000, 2001, and 2002.
Request Made: August 9, 2004
Response Made: August 16, 2004
Custodian: County of Union –Nicole Tedeschi
GRC Complaint filed: August 19, 2004

Background

January 13, 2005

Government Records Council’s (“Council”) Interim Order.  At its January 13, 2005 public meeting, the Council considered the January 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, found that:

  1. A special service charge of $1035.17 is warranted pursuant to N.J.S.A. 47:1A-5(c) on the basis of utilizing:
    1. Thirty-five (35) hours of Clerical time at an hourly rate of $21.63
    2. Five (5) hours of Photographer’s time at an hourly rate of $28.30, and
    3. Three (3) hours of Supervisory time at an hourly rate of $45.54.
  2. The Complainant is to advise the County of Union and Executive Director Dice within ten (10) business days of receipt of this decision whether she intends to pay the special service charge of $1035.17 as set forth in #1 above in order to receive the requested documents.

March 16, 2006

GRC staff sent the Complainant a letter asking if the Complainant wanted to pay for the requested records pursuant to the January 13, 2005 order of the Council.

March 16, 2006

The Complainant advised GRC staff that she does not want to purchase the records.  

Analysis

Whether the Complainant is willing to pay the special service charge for the requested records?

OPRA provides that:

“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… 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.

Pursuant to N.J.S.A. 47:1A-5.c., a special service charge can be assessed if deemed necessary by the public agency to fulfill the request. The Council did order a special service charge of $1035.17. The Council further ordered that the Complainant should advise the Custodian and Executive Director of whether she wanted to pay the special service charge for the requested records.

Via fax correspondence on March 16, 2006, the Complainant did advise the Executive Director that she did not want to purchase the requested records. Since the Complainant did advise the Executive Director that she did not want to purchase the requested records, the Council should dismiss this case without further action.

Conclusions and Recommendations

The Executive Director respectfully recommends the Council find that since the Complainant did advise the Executive Director that she did not want to purchase the requested records, the Council should closed this case without further action.

Prepared By: Kimberly Gardner, Case Manager

Approved By:
Catherine Starghill
Executive Director
Government Records Council

April 4, 2006

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Interim Decision on Access

Tina Renna,
     Complainant
      v.
County of Union,
     Custodian of Record

Complaint No. 2004-134

At its January 13, 2005 public meeting, the Government Records Council (“Council”) considered the January 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 with the amendment that the special service charge of $2,260.00 is modified to $1035.17 on the basis of utilizing thirty-five (35) hours of Clerical time, five (5) hours of Photographer’s time and three (3) hours of Supervisory time.  The Council, therefore, found that:
  1. A special service charge of $1035.17 is warranted pursuant to N.J.S.A. 47:1A-5(c) on the basis of utilizing:

    1. Thirty-five (35) hours of Clerical time at an hourly rate of $21.63
    2. Five (5) hours of Photographer’s time at an hourly rate of $28.30, and
    3. Three (3) hours of Supervisory time at an hourly rate of $45.54.

  2. The Complainant is to advise the County of Union and Executive Director Dice within ten (10) business days of receipt of this decision whether she intends to pay the special service charge of $1035.17 as set forth in #1 above in order to receive the requested documents.

Interim Decision Rendered by the
Government Records Council
On The 13th 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 

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Findings and Recommendations of Executive Director

Tina Renna,                                                      GRC Complaint No. 2004-134
Complainant
v.
County Of Union
Custodian of Records

Records Requested: All Union County press releases and publicity photos for the years:  1999, 2000, 2001, and 2002  
Custodian: County of Union   - Sharda Badri
Request Made:   August 9, 2004
Responses Made: August 16, 2004
GRC Complaint filed: August 19, 2004

Background

Complainant’s Case Position

In an August 18, 2004 e-mail response from the Complainant regarding the August 16, 2004 Custodians letter addressing the records request, the Complainant stated:

“In response to the fax I received from your office on August 17, 2004. I find your threat of billing me $2,260.00 for 80 hours of man time to process my simple OPRA requests nothing more than another deliberate stonewalling attempt by your office to keep information from the public. I will be filing the following denial of access complaint with the Government Records Council and alerting all Union County media to your actions.”…

In the Denial of Access complaint she further states that, “The county of Union is charging an excessive fee for documents that used to be available on their website.

The County claims that the electronic files were destroyed.  The files are available in hard copy form but they are in disarray, therefore it would result in 80 hrs of man time and a $2,260.00 charge.

Why are the County of Union’s disorganized files my problem?”

Public Agency’s Case Position

In a letter addressed to the Complainant on August 16, 2004, the public agency stated:

“On March 14, 2003, the Attorney General issued an opinion as to the necessity of the public agency to impose a service charge when the agency must make an extraordinary expenditure of time and effort to accommodate a request to provide government records…

…We have been informed that an estimated 80 hours of man time will be necessary in terms of the compilation of and photocopying of the material. You will be billed at the hourly cost of the employees compiling this information, totaling an estimated $2,260. Pursuant to Courier Post v. Lenape Regional High School District Docket No. L-2754-02 (Law Div. 2002):

It would be appropriate to calculate the hourly wage rates of the clerical and professional employees involved in all tasks related to accommodating the documents inspection request, and to multiply these figures by the total hours spent by these employees.

The OPRA Law does provide you with the opportunity to review and object to the afore stated charge prior to its being incurred. Therefore upon review of this letter, kindly call the undersigned so that we may determine, if you desire that we proceed with the compilation and copying of the material.”

Upon receipt of an e-mail from the Complainant with regard to the above listed response, the Custodian again replied regarding the special service charge stating, “Your comment of a “threat of billing” is not accurate. Under OPRA I am required to notify you when a specific request mandates excessive manpower to compile and copy…The compilation of the hours is the good faith estimate of the county employee being able to identify and process your request.”

On August 25, 2004, the county had a meeting with the Complainant regarding her request. At which time they explained obstacles such as storage, document existence, and computer issues as contributing factors to the special service charge.

The county has submitted two certifications that explain the need for the special service charge based upon the Government Records Council criteria established in the Fisher v. Division of Law and Public Safety, Case No., 2004-55 (Fisher Case). Among their response, they have outlined the specific basis of the personnel needed to complete the request and why that specific person is needed, the amount of time it would take for each person to complete their assigned portion of the request, and the amount per hour the employee earns. Furthermore, they have certified that there is an estimated 10,000 documents to be reviewed for the request.

Analysis

Pursuant to N.J.S.A. 47:1A-5(c), “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 of copies;…”

The Government Records Councilhas established criteria for analysis of rendering a special service charge in the Fisher case. The same questions that were asked in the Fisher case provided the basis for analysis in this case.  Counsel of the County of Union provided a response in certification format. Please review below:

Question Asked by GRC Staff

Certification Provided by County Of Union

 

The volume, nature, size, number, of government records involved

 

 

…an estimated ten thousand (10,000) documents, including thousands of pages of press releases and thousands of photographs

 

 

The period of time over which records were received

…spans four years, from 1999 through 2002

 

Whether some or all of the records sought are archived

 

I estimate twenty-five percent (25%) of the documents are archived on-site

 

 

 

The Amount of time required for a government employee to locate, retrieve and assemble the documents for copying

 

The records are maintained in various locations including department binders, staff member files, and in a storage area.  Therefore, I estimate that it will take approximately seventy (70) hours to assemble and copy these records. The billing is based on the average salary of the clerical employee and the photographer at twenty –five dollars ($25.00) an hour for 70 hours to retrieve, copy, and return the files (approximately $1,750.00).  In addition, approximately ten (10) hours of my time at forty –five dollars ($45.00) and hour will be required to supervise the compilation and search my files electronically (approximately $450)

 

Question Asked by GRC Staff

Certification Provided by County of Union

 

 

 

 

 

The amount of time, level, rate and number, if any, required to be expended by government employees to monitor the inspection and examination

 

 

The operating expenses of the Office of Communication and Public Information (PI) are a part of the budget of the Office of the Clerk of the Board.  As a result, there are no specific line items in the operating budget that correlate to PI expenditures.  In order to satisfy the requester, I proposed to work with the Department of Finance to develop an estimate of the Departments expenditures for the requested years (1999-2004).  This process would, essentially, entail forensic accounting to determine the approximate PI expenditures.  This would require an additional ten (10) hours of Finance clerical time at the rate of thirty dollars ($30.00) per hour to compile (approximately $300.00)

 

 

The amount of time required to return documents to their original storage place

 

Three to five (3-5) hours will be required to return the documents to their original storage place.

 

The size of the agency

 

At the time of this request, this agency consisted of five (5) employees

 

 

 

The number of employees available to accommodate document requests

There are three (3) individuals with the requisite knowledge of the documents to accommodate this request, including Sebastian D’Elia, a clerical employee, and a photographer.

The availability of information technology and copying capabilities

 

My department has two (2) copy machines that we share with other divisions on our floor.

 

 

 

The level(s) of skill necessary to accommodate the request

 

The employees necessary for this task must have mid-level clerical skills and knowledge of the files and operation of the Public Information Department. Therefore, I intend to utilize two (2) of my employees, one is a clerical employee and the other is the County photographer, along with myself in a supervisory capacity to compile these documents.

Question Asked by GRC Staff

Certification Provided by County of Union

 

 

·        The reason(s) that the agency employed, or intends to employ, the particular level(s) of skill above.

·        Who in the agency will perform the work associated with each request

Wayne Avery will operate in a clerical capacity to compile the press releases while the photographer, Jim Lowney, will compile the photographs. I will supervise this process and compile all electronic files. Both Mr. Avery and Mr. Lowney will share in copying responsibilities.

After review of the above submitted certification, the GRC staff found it necessary to request another certification regarding the below listed information. This certification was submitted on December 6, 2004.

Question Asked by GRC Staff

Certification Provided by County Of Union

 

 

Explain what the individual hourly rates are and who they apply to

The applicable hourly rates for the employees working on the request at issue are as follows:

Sebastian D’Elia - $45.54

Jim Lowney (photographer) - $28.30

Wayne Avery (Clerical) - $21.63

Of the 70 hours of work required to complete this request – how much time is required by the clerk and how much time is required of the photographer?

 

It is estimated that Mr. Lowney (Photographer) will be utilized for thirty-five (35) hours and that Mr. Avery (Clerical) will be utilized for thirty-five (35) hours.

Please certify that the rates being charged are actual hourly rates being earned by the following employees – the custodian, clerk and supervisor.

 

All three employees are full-time salaried employees who are paid at a yearly rate; however, the hourly rates listed above…are based upon an annual salary, assuming a forty (40) hour work week.

Question asked by GRC Staff

Certification Provided by County of Union

 

 

 

What categories of expenses are being referenced? How do they relate to the request?

 

The categories of expenses referenced in my prior Certification were all expenditures made by the Office of Communication and Public Information (hereafter “PI”) for the years requested. However, as previously explained, for the purposes of budgeting and accounting, all expenses of PI are part of the budget of the Clerk of the Board. As such, there are no budgetary line items relating to PI.  This was an attempt to satisfy the requestor’s inquiry regarding the budget and expenditures of this office, which would have to be re-constructed.

The County of Union has borne their burden of proving that the amount of time, and the number of employees needed to complete the request would require an “extraordinary expenditure of time and effort” [N.J.S.A. 47:1A-5(c)]. After review of both certifications and the Statement of Information, the GRC staff agrees that due to the nature and volume of what has been requested, the $2,260.00 special service charge is warranted in this case.

Documents Reviewed

The following records were reviewed in preparation for this Findings and Recommendations of the Executive Director:      

  1. August 19, 2004 – Denial of Access Complaint
  2. October 7, 2004 – Statement of Information Request
  3. October 15, 2004 – Statement of Information
  4. November 15, 2004 – Letter to County of Union from the GRC staff requesting certification to answer questions regarding special service charge
  5. November 24, 2004 – Certification to GRC staff regarding special service charge
  6. December 2, 2004 – Letter to County of Union requesting second certification regarding special service charge
  7. December 6, 2004 – Certification to the GRC staff about the special service charge

Conclusions and Recommendations of the Executive Director

The Executive Director respectfully recommends that the Council find that:

  1. The Complainant should advise the County of Union and Executive Director Dice of whether she would like to pay the special service charge to receive the documents requested within ten (10) business days of receipt of this decision.

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

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