2004-52

Final Decision

1. The Complainant is not to be assessed the special service charge on the basis that the Custodian provided an inadequate explanation and rationale that a special service charge is warranted.
2. The Custodian is to present the responsive records, subject to any Open Public Records Act (“OPRA”) provisions pertaining to redaction or nondisclosure, to the Complainant for inspection as OPRA permits requestors to inspect or receive copies of Government Records.
3. The Complainant’s April 12, 2004 OPRA request is satisfactory for the purposes of inspection. It is reasonable that the requestor should have the option of modifying the April 12, 2004 OPRA request to one for inspection rather than copies pursuant to N.J.S.A. 47:1A-1 et seq.
4. The Manalapan Englishtown Regional School District having adopted another request form following the Complainant’s filing of the April 12, 2004 request does not preclude the district from honoring the April 12, 2004 request as a request for inspection of records.

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 8 Day of July, 2004

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 the Executive Director

Relevant Records Requested:  For all buses for September 1, 2003 through April 12, 2004:

1. Driver’s daily check sheet (NJ 13:20-30 a, b, c)
2. Driver’s certification of repairs (NJ 13:20 – 30.7b)
3. Accident damage report and certification of inspection (NJ 13:20-30b)
4. Oil change and quarterly report
5. Mirror system adjustment record FMVSS #111

Request Made:  April 12, 2004
Response Made: April 16, 2004
Custodian:   Joseph Passiment, Business Administrator
GRC Complaint Filed:   April 26, 2004

Recommendations of the Executive Director

The Executive Director respectfully recommends that the Council find that:

1. The Complainant should not be assessed the special service charge on the basis that the Custodian provided no explanation or rationale that a special service charge is needed. 
2. The Custodian is to present the responsive records, subject to any Open Public Records Act (“OPRA”) provisions pertaining to redaction or nondisclosure, to the Complainant for inspection as OPRA permits requestors to inspect or receive copies of Government Records.
3. The Complainant’s April 12, 2004 OPRA request is satisfactory for the purposes of inspection. It is reasonable that the requestor should have the option of modifying the April 12, 2004 OPRA request to one for inspection rather than copies pursuant to N.J.S.A. 47:1A-1 et seq.
4. The Manalapan Englishtown Regional School District having adopted another request form following the Complainant’s filing of the April 12, 2004 request should not preclude the district from honoring the April 12, 2004 request as a request for inspection of records.

Background

Complainant

The Complainant alleges that an OPRA request dated April 12, 2004 was sent to the Manalapan Englishtown Regional School District seeking copies of driver’s daily check sheets, driver’s certification of repairs, accident damage report and certification of inspection, oil change and quarterly report and mirror system adjustment record FMVSS #111 for selected buses from September 1, 2003 through April 12, 2004. The Complainant asserts that the Custodian, in a letter dated April 16, 2004 responded to the request with a price quote of $1,944.00 for the copying charges.  The Complainant argues that the copying costs quoted are extraordinary and verbally told the Custodian that she wanted to “view” or inspect the records instead of receiving copies.  The Complainant alleges that the Custodian stated a new request would have to be made in order to only inspect the records and also the school district’s OPRA request form changed since the date of the request.  On June 9, 2004, the Complainant sent a letter to the Council reiterating her position, which she expressed in the Denial of Access Complaints for cases 2004-50 through 2004-53. 

Public Agency

The Custodian responded to the April 12, 2004 OPRA request on April 16, 2004.  The Custodian stated that two vehicles exist per each request. The Custodian labeled the requests in question “AR4 to AR39.”  The Custodian contends that the driver’s daily check sheet and driver’s certification of repairs are approximately thirty (30) pages in length for each vehicle and the oil change and quarterly reports are estimated to be one page in length.  Regarding the accident damage report and certification of inspection, the Custodian asserts that the request is denied because no bus has been involved in an accident that required this report.  The Custodian also affirms that the mirror system adjustment record is denied because the records will not be available until the next bus inspection. 

The Custodian quotes the copying costs to be approximately $1,944.00, which includes $38.00 per request plus $16.00 special service charge totaling $54.00 per request.  The Custodian asserts that the quote is only an estimate and actual copying costs may require additional charges.  In the Statement of Information, dated May 17, 2004, the Custodian indicated that counting the number of pages in the average bus binder and multiplying it by the number of buses in the fleet determined the cost involved with the photocopying. 

The Custodian also asserts that if the Complainant wants to inspect the records, an agreeable schedule would have to be reached as the records are housed in the transportation facility and it may be necessary for a substitute secretary to accompany the Complainant in viewing the records.  The Custodian contends that this needs to be determined before approving the OPRA request, which is the basis for having the Complainant complete another OPRA form or set of forms. 

Analysis

1. In this case, the Custodian did not adequately explain why a special service charge is warranted in this case.  Specifically, the Custodian has not proven why an extraordinary expenditure of time would occur in complying with the Complainant’s request.  Pursuant to N.J.S.A 47:1A-5 (c), the Custodian shall explain that “…an extraordinary expenditure of time and effort…” would be needed “…to accommodate the request…” and further, “…a special service charge shall be reasonable and shall be based upon the actual direct cost…” The Custodian has not provided satisfactory support for charging a $16.00 special service charge for each request. 
2. “The Custodian of a government record shall permit the record to be inspected, examined, and copied by any person during regular business hours.” N.J.S.A. 47:1A-5(a).  The responsive records included in the Complainant’s OPRA request did not change. Therefore, the request should be honored and the Complainant should be allowed to inspect the records without filing another OPRA request. 
3. Further, N.J.S.A. 47:1A-5 (c) provides that “the requestor shall have the opportunity to review and object to the charge prior to it being incurred.” Following the Custodian’s presentation of the expected copy charges, the Complainant requested to inspect the records. It is reasonable that the requestor should be able to request inspection instead of copies.  In addition, the Complainant, while inspecting records, may identify specific records to be copied. 
4. The Custodian “…shall adopt a form for the use of any person who requests access to a government record held or controlled by the public agency” [N.J.S.A. 47:1A-5 (f)].  According to the Manalapan Englishtown Regional School District, they adopted a new request form after receiving the Complainant’s April 12, 2004 request.  This, however, does not preclude the custodian from honoring any other OPRA requests not submitted on the new OPRA form. 

Documents Reviewed

The following documents were reviewed in preparing the Findings and Recommendations for this case:

1. April 12, 2004 – Complainant’s OPRA request
2. April 16, 2004 – Custodian’s response to OPRA request dated April 12, 2004
3. April 26, 2004 – Denial of Access Complaint form
4. April 28, 2004 – Offer of Mediation to Complainant and Custodian
5. May 10, 2004 – Request for Statement of Information
6. May 17, 2004 – Statement of Information
7. June 9, 2004 – Complainant’s letter to the Council reiterating her position from the Denial of Access Complaints. 

Conclusion

Pursuant to N.J.S.A 47:1A-1 et seq, the Council should find in this instance, the Custodian did not meet the burden of showing that a “special service charge” is warranted.  The Custodian did not provide a detailed explanation for the charges.  The Council should additionally find that the Complainant should reasonably be allowed to inspect the records without filing another OPRA request, as the responsive records for copying and inspecting are the same.  The Council should further find that the April 12, 2004 OPRA request met the criteria of being an OPRA request, even though the Manalapan Englishtown Regional School District adopted a new OPRA request form. 

________________________

Paul F. Dice
Executive Director
Government Records Council

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