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2004-55
Final DecisionREVISED FINAL DECISION
August 10, 2006 Government Records Council Meeting
Procedural History The Government Records Council (“Council”) considered this complaint at the November 9, 2004 public meeting, in conjunction with all related documents submitted by the parties and the November 3, 2004 Findings and Recommendations of the Executive Director. The Council voted unanimously to adopt the entirety of said findings and recommendations, changing only a few words of the conclusion. The Council therefore issued an Interim Decision on Access finding, in pertinent part, that:
At its December 9, 2004 public meeting, the Council considered the December 7, 2004 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. Therefore, the Council issued a Final Decision on the special service charge of $1,877.93 and found that:
At the January 13, 2005 public meeting, the Council considered the January 6, 2005 Findings and Recommendations of the Executive Director and all related documents submitted by the parties, including the January 12, 2005 supplemental submission from the Custodian. The Council voted unanimously to adopt the entirety of said findings and recommendations with an amendment to grant a Stay of the Council’s decision on the basis that an appeal is filed to the Appellate Division of the Superior Court of New Jersey on or before January 28, 2005 and provide evidence of same to the Executive Director. Therefore, the Council issued an Interim Decision on Request for Stay and found that:
At the February 10, 2005 public meeting, the Council considered the February 3, 2005 Supplemental Findings and Recommendations of the Executive Director and all related documents submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations. Therefore, the Council issued an Interim Decision granting the Custodian’s request for stay and found that:
On May 8, 2006, the Council motioned the Court to remand this complaint back to the Council for further consideration. The Council asserts in its letter brief in support of the motion to remand that its rejection of the Custodian’s special service charge of $1,877.93 was made without the benefit of an in camera inspection of the relevant documents pursuant to the same court’s admonishment of the Council in Paff v. New Jersey Department of Labor, 379 N.J. Super. 346, 355 (App. Div. 2005) (“we hold … that the GRC has and should exercise its discretion to conduct an in camera review when necessary to resolution of the appeal.”) Such motion was granted by the Court on June 5, 2006.
At the August 10, 2006 public meeting, the Council conducted an in camera inspection of the requested records in closed session. Present during the in camera inspection were:
Council Members: Vincent Maltese, Chairman, Robin Berg Tabkin, Vice Chairman & Secretary, Kathryn Forsyth, and Michelle Richardson.
Council Staff: Catherine Starghill, Executive Director, Brigitte Hairston, and Barry Roy, Designated Outside Counsel.
After conducting an in camera inspection and seeking legal advice in closed session, the Council concluded that a special service charge to compile the requested records and review them for necessary redactions due to the exemption from disclosure for advisory, consultative or deliberative materials and the attorney-client privilege is warranted. Additionally, the Council determined that the human resource level necessary to review the attorneys’ records to identify those records responsive to the request and any information contained therein requiring redactions due to the exemption from disclosure for advisory, consultative or deliberative materials and attorney-client privilege is the Deputy Attorneys General by who such records were made, maintained, kept on file or received in the course of official governmental business. However, the special service charge originally assessed by the Custodian ($1,877.93) shall be reduced by the amount of fringe benefit (pursuant to The Courier Post v. Lenape Regional High School, 360 N.J. Super. 191 (Law Div. 2002)) included in the hourly rate of the least senior Deputy Attorney General, whose hourly rate the Custodian used to calculate such charge.
Background
Records Relevant to the Complaint:
Complainant’s Case Position The Complainant asserts he filed the subject OPRA request on March 10, 2004. The Custodian requested a two-week extension of time to respond on March 19, 2004. The Complainant granted same. On April 2, 2004, in response to the special service charge assessment, the Complainant asked the Custodian the number of pages responsive to the request. The Complainant restated that request on April 7, 2004. The Complainant asserts that he has been mislead by the Custodian and that the method the Custodian used to calculate the $1,877.93 special service charge remains unclear. Further, he asserts that pursuant to Courier Post v. Lenape Regional High School District, 360 N.J. Super. 191 (Law Div. 2002) “requestors may not be charged for attorney time in reviewing and redacting material.” The Complainant has not agreed to the special service charge. Rather, he filed a second OPRA request for documentation regarding the need for the special service charge. This second OPRA request was addressed in Janon Fisher v. Department of Law & Public Safety, Division of Law, GRC Complaint No. 2004-82 (February 2005). Public Agency’s Position On April 2, 2004, the Custodian advised the Complainant “because the Division of Law made an extraordinary expenditure of time and effort to accommodate this request, there will be a special service charge of $1,877.93. Several Division of Law attorneys had to search through thousands of e-mails as well as numerous files to locate documents responsive to your request. The total time spent by these attorneys was 52.5 hours and the hourly rate is based on the salaries of the Deputy Attorneys General involved.” By e-mail dated April 7, 2004, the Custodian stated that the special service charge is for the attorneys’ time to search e-mails. The Custodian then explained that his earlier communication stating that the total hours had already been expended was a mistake due to an internal miscommunication. He explained that once it was determined that a special service charge would be assessed, the Custodian advised the Complainant of same before applying the charge. The Custodian asserts that the Complainant has only been charged for the estimated time to identify documents responsive to his request. Further, the Custodian asserts that it acted in accordance with N.J.S.A. 47:1A-5.c. by advising the Complainant the amount of the special service charge prior to incurring same. The Custodian estimates that it will take 52.5 hours to process the request and that the total cost would be $1,877.93. The Custodian informed the Complainant that the total cost was based on an hourly attorney rate of $35.77. The Custodian confirms in a September 8, 2004 Statement of Information submitted in the matter of Janon Fisher v. Department of Law & Public Safety, Division of Law, GRC Complaint No. 2004-82 (February 2005) that the $1,877.93 special service charge represents incurred and projected time for the Division of Law’s (“DOL”) attorneys to identify documents responsive to the request. The Custodian further asserts that the special service charge determined so far does not include estimated costs for reviewing said documents for any pertinent exemptions and privileges. The Custodian responded to the Council’s November 16, 2004 Interim Decision on November 23, 2004. The Custodian submitted certifications from each attorney involved in responding to the Complainant’s request in response to the Council’s November 16, 2004 Interim Decision on Access which assert that combined, the attorneys must review approximately 15,540 documents received over as many as 21 months and expend between 52.5 and 88.5 personnel hours (attorney and secretarial time included) to satisfy this request. Analysis Whether the Custodian’s imposition of a $1,877.93 special service charge is warranted and reasonable pursuant to N.J.S.A. 47:1A-5.c.? OPRA permits public agencies to charge special service charges when a records request requires an extraordinary expenditure of time and effort to accommodate the request pursuant to N.J.S.A. 47:1A-5.c. Specifically, OPRA provides that: “[w]henever 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 [emphasis added], 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.” N.J.S.A. 47:1A-5.c. Special Service Charge Warranted OPRA does not define “extraordinary” in the context of special service charges. In making a determination whether this request warrants a special service charge, the Council depends on the following six (6) factors outlined in Courier Post v. Lenape Regional High School District, 360 N.J. Super. 191, 199 (Law Div. 2002) as a framework for analysis:
In addition to the factors above, the Council considers the following factors for use in making a determination whether this request is consistent with the Custodian’s assertion that satisfaction of this OPRA request will require an extraordinary expenditure of time and effort:
Lenape 360 N.J.Super. at 203. First, the Council considered the above ten (10) factors in making a determination of whether this OPRA request involves an “extraordinary” situation and whether the Custodian’s actions needed to satisfy this request should be classified as an “extraordinary effort.” The Council concluded that a special service charge was warranted. Though, as stated, OPRA does not define the word “extraordinary,” the volume of documents and the personnel hours needed to review same in the instant matter clearly places this records request in the “extraordinary” category. The certifications from the attorneys who made, maintained, kept on file or received the requested records in the course of official government business assert that combined, the attorneys must review approximately 15,540 documents received over as many as 21 months and expend between 52.5 and 88.5 personnel hours (attorney and secretarial time included) to satisfy this request. Second, the Council considered whether the Custodian is justified in utilizing attorneys to compile the records they made, maintained, kept on file or received in the course of official government business and which may contain attorney-client privileged information relating to the requested records and others maintained in their e-mail accounts at $35.77 per hour. In doing so, the Council adopted the standard that public agencies should use the appropriate level of skill commensurate with the records requested in the request. Further, public agencies should provide certifications to support their determinations of the human resource level required. However, the Council erroneously determined that the Custodian had not sufficiently justified its use of attorneys to review their own records to identify the records responsive to the request and further review the responsive records for any redactions necessary due to the advisory, consultative or deliberative materials exemption and the attorney-client privilege. In fact, only the attorneys who made, maintained, kept on file or received the requested records could review their records to identify those records responsive and further determine the necessary redactions due to the attorney-client privilege. Exemption from Disclosure for Advisory, Consultative or Deliberative Material OPRA excludes from the definition of a government record “inter-agency or intra-agency advisory, consultative or deliberative material.” N.J.S.A. 47:1A-1.1. It is evident that this phrase is intended to exclude, from the definition of a government record, the types of documents that are the subject of the “deliberative process privilege.” That privilege has long been recognized by federal courts. See Kaiser Alum. & Chem. Corp. v. United States, 157 F. Supp. 939 (1958); NLRB v. Sears, Roebuck, & Co., 421 U.S. 132, 150 (1975). It has also been codified in the federal Freedom of Information Act (“FOIA”). 5 U.S.C. §552(b)(5). Most recently, the New Jersey Supreme Court adopted the privilege. In re Liquidation of Integrity Ins. Co., 165 N.J. 75 (2000).
The judiciary set forth the legal standard for applying the deliberative process privilege as follows: The initial burden falls on the government agency to establish that matters are both pre-decisional and deliberative.
Thus, to the extent that the requested records qualify as advisory, consultative or deliberative material as is outlined above, such records or information contained therein must be redacted pursuant to OPRA. After conducting an in camera inspection, the Council concluded that the information contained in the requested records are exemption from disclosure as advisory, consultative or deliberative material pursuant to N.J.S.A. 47:1A-1.1. Attorney-Client Privileged Information OPRA provides that “… a government record shall not include the following information which is deemed to be confidential … any record within the attorney-client privilege…” N.J.S.A. 47:1A-1.1. The attorney-client privilege is one of the oldest of the privileges for confidential communications.[1] It is intended to encourage a client’s free and full disclosure of information to the client’s attorney to facilitate the attorney’s best advice in return.[2] Knowing that communications will remain confidential even after death encourages the client to communicate fully and frankly with counsel.[3] In general, the attorney client privilege renders confidential communications between a lawyer and a client made in the course of that professional relationship.[4] Discussion of litigation strategy, evaluation of liability, potential monetary exposure and settlement recommendations (and documents in which such matters are discussed) are generally considered privileged.[5] Mental impressions, legal conclusions, opinions or theories of attorneys and communications between clients and their attorneys are also confidential.[6] Because it results in the exclusion of evidence from court proceedings, the privilege “runs counter to the fundamental theory of our judicial system that the fullest disclosure of the facts will best lead to the truth and ultimately to the triumph of justice.”[7] Application of the privilege is therefore, to be strictly construed to achieve its underlying purpose, in light of the reason for its assertion and the attorney’s ethical obligations under the unique circumstances of each case.[8] That said, however, “[w]here the privilege is applicable it must be given as broad a scope as rationale requires.”[9]
The Legislature, when enacting the Open Public Meetings Act, dealt directly with the attorney-client privilege in N.J.S,A. 10:4-12(b), by providing that:
A public body may exclude the public only from that portion of a meeting at which the public body discusses: (7).. .Any matters falling within the attorney-client privilege, to the extent that confidentiality is required in order for the attorney to exercise his ethical duties as a 1awyer.
Thus, the Legislature recognized that matters falling within the privilege should be free from public review notwithstanding that a governmental entity is a client and despite the strong public policy favoring maximum access to governmental deliberations.[10] Any discussion by the public body with respect to pending or anticipated litigation in which the public body is or may become a party is exempt from disclosure.[11]
Only the portion of a document containing privileged communications is protected. Generally, litigants are required to provide access to the non-privileged portions of documents. Thus, to the extent that the requested records qualify as attorney-client privileged information as is outlined above, such records or information contained therein must be redacted pursuant to OPRA and may only be redacted by the attorney who made, maintained, kept on file or received such records without waiver of the privilege. The Council concluded after conducting an in camera inspection that the requested records are exempt from disclosure due to the attorney-client privilege. Reasonable Special Service Charge Further, the Custodian obtained certifications from the attorneys involved in satisfying the request which stated that the secretarial time required to make copies of the properly identified and redacted records responsive to the request would be less than one (1) hour for most, if not all of the seven (7) attorneys involved. Finally, the Council considered the amount of the special service charge assessed by the Custodian. OPRA states that a special service charge “shall be reasonable and shall be based upon the actual direct cost of providing the copy or copies.” N.J.S.A. 47:1A-5.c. The Custodian asserts that the hourly rate being charged against all personnel hours represents that of the “lowest salaried attorney working on the project ” – $35.77/hour. The Custodian further asserts that the court in Courier Post v. Lenape Regional High School District, 360 N.J. Super. 191, 202 (Law Div. 2002) [Lenape] “suggested 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 request, and to multiply those figures by the total hours spent by the employee.” The Custodian’s special service charge was assessed at the hourly rate of the least senior, and presumably lowest paid, Deputy Attorney General involved, despite the actual involvement of one Assistant Attorney General and one very senior Deputy Attorney General who serves as the Section Leader for all Deputy Attorneys General in the unit. Therefore, the special service charge is consistent with the Court’s suggested calculation for the same except for the inclusion of the fringe benefit component of the hourly rate used. Documents Reviewed
Conclusion and Order
Based on the foregoing, the Council concluded that a special service charge to compile the requested records and review them for necessary redactions due to the exemption from disclosure for advisory, consultative or deliberative materials and the attorney-client privilege is warranted.
Additionally, the Council determined that the human resource level necessary to review the attorneys’ records to identify those records responsive to the request and any information contained therein requiring redactions due to the exemption from disclosure for advisory, consultative or deliberative materials and attorney-client privilege is the Deputy Attorneys General by who such records were made, maintained, kept on file or received in the course of official governmental business.
However, the special service charge originally assessed by the Custodian ($1,877.93) shall be reduced by the amount of fringe benefit included in the hourly rate of the least senior Deputy Attorney General, whose hourly rate the Custodian used to calculate such charge pursuant to The Courier Post v. Lenape Regional High School, 360 N.J. Super. 191 (Law Div. 2002).
[Please note that any additional special service charge assessed by the Custodian to fulfill this records request must be submitted to the Council for approval and must comply with this Revised Final Decision.]
Revised Final Decision Rendered by the Government Records Council On The 10th Day of August, 2006
Vincent P. Maltese, Chairman
I attest the foregoing is a true and accurate record of the Government Records Council.
Robin Berg Tabakin, Vice Chairman & Secretary
Decision Distribution Date: November 17, 2006
[1] In re Advisory Opinion No. 544, 103 N.J. 399, 405 (1986) (quoting 8 J. Wigmore, Evidence §2290, at 542) (McNaughton rev. 1961); Fellerman v. Bradley, 99 N.J. 493, 498 (1985). [2] In re Advisory Opinion No. 544, 103 N.J. 399, 405 (1986); In re Selser, 15 N.J. 393, 405 (1954); Hannan v. St. Joseph’s Hosp. and Med. Ctr., 318 N.J. Super. 22, 27 (App.Div. 1999); United Jersey Bank v. Wolosoff, 196 N.J. Super. 553, 561 (App.Div. 1984). [3] Swidler & Berlin v. United States, 524 U.S. 399, 407, 118 S.Ct. 2081, 141 L.Ed.2d 379 (1998). [4] N.J.S.A. 2A:84A-20; Fellerman, supra, 99 N.J. at 499; Wolosoff, supra, 196 N.J. Super. at 562 (noting that “the privilege accords the shield of secrecy only with respect to confidential communications made within the context of the strict relation of attorney and client.”). [5] Press of Atlantic City v. Ocean County Joint Ins. Fund, 337 N.J. Super. 480, 487 (Law Div. 2000) [Serpentelli, J.]. [6] In Re Environmental Ins. Actions, 259 N.J. Super. 308, 317 (App.Div. 1992). [7] Seler, supra, 15 N.J. at 405. See also Wolosoff, supra, 196 N.J. Super. at 561-62. [8] In re Nackson, 221 N.J. Super. 187, 197 (App.Div. 1987), aff’d, 114 N.J. 527 (1989); Fellerman, supra, 99 N.J. at 497, 502. [9] Wolosoff, supra, 196 N.J. Super. at 561; Dontzin v. Myer, 301 N.J. Super. 501, 506 (App.Div. 1997). [10] Pillsbury v. Bd. of Chosen Freeholders of Monmouth County, 133 N.J. Super. 526, 535 (Law Div. 1975), aff’d 140 N.J. Super. 410 (App.Div. 1976). [11] Englewood Cliffs v. Englewood, 257 N.J. Super. 413, 457 n.5 (App.Div. 1992), aff’d 132 N.J. 327 (1993). Interim Decision
At the February 10, 2005 public meeting, the Government Records Council (“Council”) considered the February 3, 2005 Executive Director’s Supplemental Findings and Recommendations and all related documents submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations. Therefore, the Council hereby finds that:
Interim Decision Rendered by the Supplemental Findings and Recommendations of the Executive DirectorJanon Fisher, GRC Complaint No. 2004-55Complainant v. Department of Law and Public Safety, Division of Law, Custodian of Records Records Requested: “Under the New Jersey Open Public Records Act I request: All emails, correspondence, memoranda and other records concerning the assignment of Deputy State Attorney Generals as GRC staff, temporary or permanent, and their involvement in OPRA cases where the Department of Law and Public Safety or any of its entities is a party. Additionally, I request, all emails, correspondence, memoranda and other records addressing GRC complaint response times and backlogs. And I request all outgoing and incoming emails, correspondence, memoranda and other communication between GRC staff members and the Department of Law and Public Safety concerning GRC backlogs and staffing matters. I also request all internal meeting minutes of non-public meetings of GRC staff and the staff of the Department of Law and Public Safety. I also request any and all correspondence between the Department of Law and Public Safety and the governor’s office regarding staffing of the GRC, the processing of OPRA requests and any OPRA exemptions. Please note I want the records in the possession of the Division of Law, not those in the possession of the GRC. If any material responsive to these requests is exempt from release, I ask that the division make every effort to redact that portion and release the rest of the document.” Custodian: Robert
Sanquinetti Background At its January 13, 2005 public meeting, the Government Records Council (Council) considered the January 5, 2005 Supplemental Findings and Recommendations of the Executive Director Regarding the Division of Law’s (DOL) Request for Reconsideration and all related documentation submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations and, therefore, found that:
The Council confirmed its decision in a January 21, 2005 Interim Decision on Request for Stay that was circulated to all parties. On January 27, 2005, Custodian’s counsel provided the Council with a copy of the DOL’s Notice of Appeal filed in this case with the Superior Court of New Jersey – Appellate Division. Therefore, the DOL has complied with the Council’s January 21, 2005 Interim Decision. Analysis WHETHER the Council now has any jurisdiction over this Complaint The Open Public Records Act (OPRA) states that the Council does not have jurisdiction over the Judicial branch of State Government or any of its agencies, officers or employees. N.J.S.A. 47:1A-7(g). The DOL’s Notice of Appeal to the Superior Court of New Jersey – Appellate Division (Court), clearly establishes that the court now has jurisdiction of this Open Public Records Act (OPRA) complaint. The Council now does not have any jurisdiction of this complaint and should forego any further action pending the outcome of the appeal. Document Reviewed 27, 2005 Notice of Appeal to the Court Conclusions and Recommendations of the Executive Director For the reasons stated in the Analysis above, the Executive Director respectfully recommends that the Council find that:
Paul F. Dice February 3, 2005 Interim Decision on Request for Stay
At the January 13, 2005 public meeting, the Government Records Council (“Council”) considered the January 6, 2005 Executive Director’s Findings and Recommendations and all related documents submitted by the parties, including the January 12, 2005 supplemental submission from the Division of Law. The Council voted unanimously to adopt the entirety of said findings and recommendations with an amendment to grant a Stay of the Council’s decision on the basis that an appeal is filed to the Appellate Division of the Superior Court of New Jersey on or before January 28, 2005 and provide evidence of same to the Executive Director. Therefore, the Council hereby finds that:
Interim Decision Rendered by the Supplemental Findings and Recommendations of the Executive DirectorJanon Fisher, GRC Complaint No. 2004-55
Complainant Records Requested: Background At its December 9, 2004 public meeting, the Government Records Council (“Council”) considered the December 7, 2004 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 and, therefore, found that:
The Custodian was given ten (10) business days from receipt of this Final Decision to comply with same and to provide Executive Director Paul Dice with written confirmation of compliance. The Custodian did not comply as directed. On December 22, 2004, the Custodian’s counsel filed a request for reconsideration of the Council’s decision finding that the Division did not meet the burden of justifying the use of attorneys for document compilation and limiting the special service charge for the production of documents responsive to the Fisher request to the amount of the routine copy charges outlined in N.J.S.A. 47:1A-5(b). Analysis The Division of Law (Division) cites to the seven (7) certifications it submitted to support the special service charge claimed in the amount of 1,877.93. However, on November 9, 2004, the Executive Director of the Council recommended that the Council demand a more detailed outline of the charges within five (5) days. Specifically, it was recommended that the Division provide a certification outlining the following:
The Division contends in its motion that the Council is abrogating the Division’s right to collect a special service charge for an “extraordinary” OPRA request. In fact, this is not the case at all. Rather, the Council has determined that any agency seeking a special service charge must supply additional information as outlined above. As applied to the Division, despite the fact that the OPRA request was deemed by the Council to be “extraordinary”, the special service charge cannot issue due to the Division’s failure to provide a more specific certification in support of the claimed amount. The Division did not provide sufficient documentation or certifications explaining the specific reasons why the agency employed the particular level of skill to accommodate the request, or a categorization of the hours needed to identify, copy or prepare for inspection, production and return of the requested documents. The Division merely stated who would provide the documents and the hourly rate, without further justification. Therefore, the Division’s Motion for Reconsideration should be denied. Document Reviewed
Conclusions and Recommendations of the Executive Director For the reasons stated in the Analysis above, the Executive Director respectfully recommends that the Council deny the Division of Law’s request for reconsideration. Paul F. Dice January 6, 2005 Final Decision on Special Service Charge of $1877.93
At its December 9, 2004 public meeting, the Government Records Council (“Council”) considered the December 7, 2004 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 and, therefore, found that:
The Custodian has ten (10) business days from receipt of this Final Decision to comply with same and to provide Executive Director Paul Dice with written confirmation of compliance. 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 Vincent P. Maltese, Chairman I attest the foregoing is a true and accurate record of
the Government Records Council. Supplemental Findings and Recommendations of the Executive DirectorJanon Fisher, GRC Complaint No. 2004-55Complainant v. Department of Law and Public Safety, Division of Law, Custodian of Records Records Requested: “Under the New Jersey Open Public Records Act I request:
All emails, correspondence, memoranda and other records concerning the
assignment of Deputy State Attorney Generals as GRC staff, temporary or
permanent, and their involvement in OPRA cases where the Department of Law and
Public Safety or any of its entities is a party. Additionally, I request, all
emails, correspondence, memoranda and other records addressing GRC complaint
response times and backlogs. And I request all outgoing and incoming emails,
correspondence, memoranda and other communication between GRC staff members and
the Department of Law and Public Safety concerning GRC backlogs and staffing
matters. I also request all internal meeting minutes of non-public meetings of
GRC staff and the staff of the Department of Law and Public Safety. I also
request any and all correspondence between the Department of Law and Public
Safety and the governor’s office regarding staffing of the GRC, the processing
of OPRA requests and any OPRA exemptions. Please note I want the records in the
possession of the Division of Law, not those in the possession of the GRC. If
any material responsive to these requests is exempt from release, I ask that the
division make every effort to redact that portion and release the rest of the
document.” Background At the November 9, 2004 public meeting, the Government Records Council (“Council”) considered the November 3, 2004 Executive Director’s Findings and Recommendations and all related documents submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations with amendments and find that:
The Council memorialized the above in an Interim Decision distributed to all parties on November 16, 2004. Analysis The DOL responded to the Council’s November 16, 2004 Interim Decision on November 23, 2004. Counsel for the DOL submitted certifications from the DOL personnel involved in responding to Complainant’s request that, in part, state the following: NOTE: Each of the following seven exhibits represents the certification of one representative of the DOL. Exhibit A – Records responsive to the request would have been received from approximately July 2002 through March 10, 2004. The individual expended 10.5 hours reviewing 4,690 documents and e-mails located in her computers to determine what was responsive to the request. Exhibit B – Records responsive to the request would have been received from approximately July 2003 through March 10, 2004. The individual expended nine hours reviewing at least 5,000 e-mails located in her computer and estimates that it would take an additional eight to ten hours to complete the project. In addition, she expects that it would take less than one hour for her secretary to copy the documents. Exhibit C – Records were received from approximately December 2003 through March 10, 2004. The individual expended two hours and reviewed 350 e-mails located in her computer. Exhibit D – Records were received from approximately July 2003 through March 10, 2004. The individual reviewed at least 3,500 e-mails located in his computer. He expended three hours and estimates that it would take an addition two to three hours to review and prepare the documents. In addition, he expects that it would take less than one hour for his secretary to copy the documents. Exhibit E – Records were received from approximately April 2003 through March 10, 2004. The individual expended 10 hours reviewing between 1,600 and 1,800 e-mails located in her computer. She estimates that it would take another eight hours to retrieve documentation and an additional five to 10 hours to prepare the documents. In addition, she expects that it would take less than one hour for her secretary to copy the documents. Exhibit F – Records responsive to the request may have been generated from June 2002 through March 10, 2004. The individual compiled 100 pages of e-mails and estimates that the time spent and the time to be incurred to complete the project would total four hours. In addition, he expects that it would take less than one hour for his secretary to copy the documents. Exhibit G – Records responsive to the request may have been generated from June 2002 through March 10, 2004. The individual compiled 100 e-mails from his computer and estimates that the time spent and the time to be incurred to complete the project would total four hours. In addition, he expects that it would take less than one hour for his secretary to copy the documents. Considering all of the certifications combined, the DOL’s personnel must review approximately 15,540 documents received over as much as 21 months, expend between 52.5 and 88.5 personnel hours (attorney and secretarial time included) to satisfy this request. The Open Public Records Act (OPRA) permits public agencies to charge Special Service Charges in OPRA requests if an extraordinary expenditure of time and effort would be needed to accommodate the request. N.J.S.A. 47:1A-5(c). Though OPRA does not define the word “extraordinary,” the volume of documents and the personnel hours needed to review same in the instant matter clearly places this OPRA request in the “extraordinary” category. As such, the Council should find that the DOL is entitled to charge a special service charge. Having established that a Special Service Charge is warranted, the Council must consider the amount of said charge. OPRA states that it “shall be reasonable and shall be based upon the actual direct cost of providing the copy or copies.” N.J.S.A. 47:1A-5(c). The DOL asserts that the hourly rate being charged against all personnel hours represents that of the “lowest salaried attorney working on the project ” – $35.77/hour. The DOL further asserts that the judge in Courier Post v. Lenape Regional High School District, 360 N.J. Super. 191, 202 (Law Div. 2002) [Lenape] “suggested 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 request, and to multiply those figures by the total hours spent by the employee.” This argument is only relevant if the DOL can prove that attorney expertise was needed to satisfy this OPRA request. The DOL’s argument that attorneys were and still are needed to compile the records to satisfy this OPRA request is not persuasive for two reasons.
OPRA states “The public agency shall have the burden of proving that the denial of access is authorized by law.” N.J.S.A. 47:1A-6. The DOL denied Complainant Fisher access to the requested records based on his refusal to pay the DOL’s $1,877.93 Special Service Charge. Had the DOL borne its burden of proving that the charge was lawfully imposed, i.e., reasonable, the denial of access would be justified. However, and for the reasons stated above, the DOL has not proven that the charge is justified. The Council should order the DOL to disclose the documents at OPRA’s routine copy charge outlined in N.J.S.A. 47:1A-5(b). Document Reviewed The November 23, 2004 response from Custodian’s counsel to the Council’s November 16, 2004 Interim Decision. Conclusions and Recommendations of the Executive Director The Executive Director respectfully recommends that the Council find:
Paul F. Dice Interim Decision on Access
At the November 9, 2004 public meeting, the Government Records Council (“Council”) considered the November 3, 2004 Executive Director’s Findings and Recommendations and all related documents submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations with the following amendments to the “Conclusions and Recommendations of the Executive Director:” in number “1” items “a” and “j” are combined, add “level, rate and number” to item “e” and change number “2” to read, “Provide the Government Records Council with a certification outlining the following.” Therefore, the Council hereby finds that:
Interim Decision Rendered by the Findings and Recommendations of the Executive DirectorJanon Fisher, GRC Complaint No. 2004-55Complainant v. Department of Law and Public Safety, Division of Law, Custodian of Records Records Requested: “Under the New Jersey Open Public Records Act I request:
All emails, correspondence, memoranda and other records concerning the
assignment of Deputy State Attorney Generals as GRC staff, temporary or
permanent, and their involvement in OPRA cases where the Department of Law and
Public Safety or any of its entities is a party. Additionally, I request, all
emails, correspondence, memoranda and other records addressing GRC complaint
response times and backlogs. And I request all outgoing and incoming emails,
correspondence, memoranda and other communication between GRC staff members and
the Department of Law and Public Safety concerning GRC backlogs and staffing
matters. I also request all internal meeting minutes of non-public meetings of
GRC staff and the staff of the Department of Law and Public Safety. I also
request any and all correspondence between the Department of Law and Public
Safety and the governor’s office regarding staffing of the GRC, the processing
of OPRA requests and any OPRA exemptions. Please note I want the records in the
possession of the Division of Law, not those in the possession of the GRC. If
any material responsive to these requests is exempt from release, I ask that the
division make every effort to redact that portion and release the rest of the
document.” Background The Complainant asserts he filed the subject Open Public Records Act request on March 10, 2004. The Custodian requested a two-week extension of time to respond on March 19, 2004. The Complainant granted same. On April 2, 2004, the Custodian advised the Complainant “because the Division of Law made an extraordinary expenditure of time and effort to accommodate this request, there will be a special service charge of $1,877.93. Several Division of Law attorneys had to search through thousands of e-mails as well as numerous files to locate documents responsive to your request. The total time spent by these attorneys was 52.5 hours and the hourly rate is based on the salaries of the Deputy Attorneys General involved.” In response to the special service charge assessment, the Complainant asked the Custodian on April 2, 2004 how many pages were involved. The Complainant restated that request on April 7, 2004. By e-mail dated April 7, 2004, the Custodian stated, “the special service charge is for our attorneys time to search e-mails.” The Custodian then explained that his earlier communication stating that the total hours had already been expended was a mistake “due to an internal miscommunication.” He explained that once it was determined that a special service charge would be assessed, the Division of Law (DOL) advised the Complainant of same before applying the charge. Complainant asserts that he has been mislead by the DOL and the method used to calculate the $1,877.93 special service charge remains unclear. Further, he asserts that per Courier Post v. Lenape Regional High School District, “requestors may not be charged for attorney time in reviewing and redacting material.” Custodian’s counsel asserts that the Complainant has only been charged “for the estimated time to identify documents responsive to his request.” Further the Custodian acted in accordance with N.J.S.A. 47:1A-5(c) by advising the Complainant what the special service charge would be prior to incurring same. The Complainant has not agreed to the special service charge. Rather, he filed a second OPRA request for documentation regarding the need for the special service charge. This second OPRA request will be addressed in Fisher v. Office of Attorney General, Division of Law, GRC Complaint No. 2004-82. Analysis The issue at hand is whether the DOL’s imposition of a $1,877.93 special service charge is warranted pursuant to N.J.S.A. 47:1A-5(c), which reads as follows: 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 [emphasis added], 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. The Custodian stated to the Complainant that the DOL estimates that it will take 52.5 hours to process the request and that the total cost would be $1,877.93. The rate, $35.77, represents an attorney’s hourly wage. Custodian’s counsel confirms in a September 8, 2004 Statement of Information submitted in the Fisher v. Office of Attorney General, Division of Law, GRC Complaint No. 2004-82 case that the $1,877.93 represents incurred and projected time for the DOL’s attorneys to identify documents responsive to his request. It does not include estimated costs for reviewing said documents for any pertinent exemptions and privileges. OPRA does not define “extraordinary” in the context of special service charges. In making a determination whether this case involves an “extraordinary” situation, the Council should adopt the following six (6) factors outlined in Courier Post v. Lenape Regional High School District, 360 N.J. Super. 191, 199 (Law Div. 2002) as a framework for analysis:
In addition to the factors above, the Council should also adopt the following factors for use in making a determination whether this case supports the DOL’s assertion that satisfaction of this OPRA request will require an “extraordinary effort:”
Lenape 360 N.J.Super. at 203. The Council should advise the DOL that it intends to employ the above ten (10) factors in making a determination of whether this case involves an “extraordinary” situation and whether the DOL’s actions needed to satisfy this OPRA request should be classified as an “extraordinary effort.” If the Council concludes that a Special Service Charge is warranted, it also needs to address the issue of whether the DOL is justified in utilizing attorneys to compile the information at $35.77 per hour. Here, the Council should adopt the standard that public agencies should use the appropriate level of skill commensurate with the request. Further, public agencies should provide certifications to support their positions. The DOL’s submissions lack sufficient information to address this matter. Therefore, the Council should order the DOL to provide a certification outlining the following:
Documents Reviewed
Conclusions and Recommendations of the Executive Director The Executive Director respectfully recommends that the Council:
Paul F. Dice |
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