2005-161

At its January 27, 2006 public meeting, the Government Records Council ("Council") considered the January 19, 2006 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 while a reasonable special service charge of $799.32 is warranted pursuant to OPRA and Lenape, the Custodian may only charge the $400.00 special service charge that the Complainant agreed to pay in August 2004 because the Custodian violated N.J.S.A. 47:1A-5.c. by not providing the Complainant the opportunity to review and object to the charge prior to it being incurred.

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 27^th Day of January, 2006

Diane Schonyers, Vice Chairperson
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

Findings and Recommendations of the Executive Director

Request Made: June 29, 2004
Response Made: July 23, 2004, July 27, 2004, July 28, 2004, July 29, 2004, and August 30, 2004
Custodian: Benemina Sancivieri
GRC Complaint filed: August 30, 2004

Complainant's written Open Public Records Act (OPRA) Request. The Complainant seeks a copy of Passaic County's Emergency Plan. The Complainant states that she is willing to pay duplication fees up to $100.00, but any price exceeding this amount should be cleared with her first.

Letter from Custodian to Complainant. The Custodian releases the County's Basic Emergency Plan in addition to the indexes to all annexes. The Custodian states the document is one hundred fifty-five (155) pages and the charge pursuant to N.J.S.A. 47:1A-5.b. is $48.75. Further, the Custodian requests that a check or money order be made out to the County of Passaic.

Letter from Custodian to Complainant. The Custodian states the following annexes are enclosed in letter: Alert, Warning & Communications; Evacuation; and Damage Assessment. The Custodian states that one hundred twenty-seven (127) pages are enclosed and pursuant to N.J.S.A. 47:1A-5.b., the charge is $39.25. Further, the Custodian requests that a check or money order be made out to the County of Passaic. Additionally, the Custodian claims that as other annexes become available, they will be provided to the Complainant.

Letter from Custodian to Complainant. The Custodian states that the following annexes are enclosed in letter: Shelter/Reception and Care; Radiological Protection; Fire & Rescue; and Hazardous Materials. The Custodian states that four hundred and seventeen (417) pages are enclosed and that pursuant to N.J.S.A. 47:1A-5.b., the charge is $111.75. The Custodian requests that a check or money order be made out to the County of Passaic. Additionally, the Custodian states that as other annexes become available, they will be provided to the Complainant.

Letter from Custodian to Complainant. The Custodian states that the following annexes are enclosed in letter: Resource Management; Public Works; Emergency Operations Center; Law Enforcement; Emergency Public Information Center; Social Services; Public Health Annex; and Emergency Medical Annex. The Custodian claims that three hundred and ninety-six (396) pages are enclosed and that pursuant to N.J.S.A. 47:1A-5.b., the charge is $106.50. The Custodian requests that a check or money order be made out to the County of Passaic. Additionally, the Custodian states that the Complainant's request is now complete and that a special service charge will be applied and she will notify the Complainant of the amount shortly.

E-mail from Complainant to her supervisor, Yoni Greenbaum. The Complainant states that the charge for printing of her request is approximately $400.00 and that as per a conversation with the Custodian, approximately $400 in labor may be charged due to redactions by Chief Forbes.

E-mail from Complainant to her supervisor, Yoni Greenbaum. The Complainant claims that she spoke to the Custodian on the phone and she is requesting payment of $353.25 for services rendered thus far. The Complainant states that of that amount, $330.00 is for the requested Emergency Plan, labor not included. The Complainant also states that the labor costs for the Emergency Plan will be billed later but are estimated around $400.00.

Letter from Custodian to Complainant. The Custodian claims that copying of the County's Emergency Plan "required an extraordinary amount of work and time to prepare."[1] Further, the Custodian claims that the County is authorized to impose a special service charge pursuant to N.J.S.A. 47:1A-5.c. The Custodian asserts the special service charge as follows: Chief Joseph Forbes – Emergency Management Coordinator performed sixteen (16) hours of reviewing, redacting, and copying records at $48.15/hour which totals to $770.40; and Benemina Sancivieri – Custodian of Records performed sixteen (16) hours of reviewing, redacting, and copying at $29.25/hour which totals to $468.00. The Custodian states that the final charge is $1,238.40. Additionally, the Custodian contends that the hourly wage is determined by computing the hourly rate based on an employee's salary plus 30% "to account for fringe benefits."[2]

Letter from Complainant's counsel to Custodian. Counsel states that the Complainant objects to the special service charge and "does not understand why it would take [thirty two] 32 hours to review the document."[3] Counsel asserts that pursuant to N.J.S.A. 47:1A-5.c. the special service charge must be reasonable. Further, the Counsel cites Courier Post v. Lenape Regional High School District, 360 N.J. Super. 191, 204 (Law Div. 2002) stating, "...[OPRA]...places the responsibility of identifying exempt material and redacting or excising it squarely on the custodian of the records sought to be inspected."[4] Counsel states that because it is solely the Custodian's responsibility to redact documents, the Complainant objects to charges accumulated by Chief Forbes' participation, and states that his hourly rate of $48.15 is unreasonable since other employees are capable of performing the same tasks at a more reasonable rate.

Counsel requests the Custodian's salary information and the number of weekly hours her salary is based upon. Counsel also objects to the added charge for fringe benefits, and requests a legal explanation for the special service charge as well as the added 30% for fringe benefits.

Further, counsel states that the county never provided the Complainant with the opportunity to review and object to the charge pursuant to N.J.S.A. 47:1A-5.c. Counsel claims that if the Complainant had been presented with the amount prior to it being incurred, she would have objected to the charge.

The Custodian states that in counsel's December 3, 2004 letter, she made no reference as to formally filing a complaint with the Government Records Council, so the Custodian assumes counsel wants to resolve this matter within the County. The Custodian asserts that the county's special service charge of $1,238.40 is reasonable pursuant to N.J.S.A. 47:1A-5.c. due to the extreme amount of effort needed to comply with the OPRA request.

The Custodian states that counsel claims redactions are to be completed solely by the records custodian. Pursuant to N.J.S.A. 47:1A-1.1, the Custodian states, "...Custodian of a government record or custodian means in the case of a municipality, the municipal clerk and in the case of any other public agency, the officer officially designated by formal action of that agency's director or governing body, as the case may be... (Emphasis added)"[5] On July 23, 2002, the Custodian claims the county adopted resolution R-357 which designates all department heads as Records Custodians for their departments. Further, the Custodian asserts that Chief Joseph Forbes is the head of the Office of Emergency Management (OEM) and therefore is permitted to redact documents under OPRA. Additionally, the Custodian claims that the document requested consists of more than 1,000 pages and needed to be reviewed carefully for redactions.

The Custodian claims that as the head of OEM, Chief Forbes "is an expert in identifying what information is sensitive to the County's security."[6] She also claims that Chief Forbes reviewed over 1,000 pages after hours because he was providing training to several municipalities during the day, which is why it took a total of thirty two (32) hours to review. The Custodian states that Chief Forbes identified what information needed redacting and that she performed the actual redacting and copying.

Pursuant to N.J.S.A. 47:1A-5.d., the Custodian states, "...the agency may charge, in addition to the actual cost of duplication, a special service charge that shall be reasonable and shall be based on the cost for any extensive use of information technology, or for labor cost of personnel providing the service, that is actually incurred by the agency or attributable to the agency for programming, clerical, and supervisory assistance, or both. (Emphasis added)"[7] The Custodian also states that the office consists of three (3) people: the Chief Coordinator, the Deputy Coordinator, and an assistant, who maintain a large workload with an added burden of records requests such as this one, therefore the special service charge stands as is.

Regarding the allegation that the County never permitted the Complainant to review and object to the charge being incurred, the Custodian states that she speaks to the Complainant several times a week regarding County matters and that she informed the Complainant that this would be a "very voluminous request."[8] To alleviate costs, the Custodian states that she provided the Complainant on July 23, 2004 with the Basic Emergency Plan in addition to the indexes to all annexes. She further states that the Complainant requested the entire Emergency Plan regardless of how big it was and that she informed the Complainant that a special service charge would be applied.

The Custodian acknowledges that these conversations are not in writing but states that in a letter dated July 29, 2004, she estimated the special service charge only including her time spent and not Chief Forbes'. She states that she was unaware of the charge for Chief Forbes' service because his work was completed after hours and could have been charged at an overtime rate, however it was not.

The Custodian cites the New Jersey Attorney General's Opinion 03-0018 dated March 14, 2003 in that OPRA allows public agencies to charge for unusual expenditures of time and effort and the State's taxpayers should not be responsible for paying for these requests.

In response to counsel's request, the Custodian states her salary is $41,257.00 based on a thirty five (35) hour week. Additionally, the Custodian states that her legal justification for the 30% charge for fringe benefits is the Attorney General's opinion mentioned above. She claims that the 30% is computed by taking the County's budget for salaries, which in 2004 was $125,073,500, and dividing it by $39,700,000 which includes insurance, prescription benefits, dental plan, disability insurance, worker's comp, social security, and pension.

Letter from Custodian to Complainant's counsel. The Custodian states that it has been three (3) months since she submitted her December 16, 2004 letter to counsel and to date she has not received a response. The Custodian requests that counsel address the special service charge no later than April 15, 2005.

Counsel asserts that the Complainant stands by her position and objects to the special service charge stating that it is unreasonable. Counsel also states that in August 2004, the Custodian advised the Complainant that the charge would be $400.00 and the Complainant agrees to pay that amount. Additionally, counsel states she is enclosing an e-mail from the Complainant to her supervisor regarding the $400.00 charge. She also asserts that pursuant to OPRA and the Attorney General's March 14, 2003 opinion on special service charges, the Custodian is required to advise of the amount of the charge prior to it being incurred, therefore the Complainant only agrees to pay $400.00, as advised by the Custodian.

E-mail from Custodian to Steve McCarthy, the Managing Editor of The Herald News. The Custodian states she would like to resolve this issue and requests a response regarding payment of $600.00.

E-mail from Mr. McCarthy to Custodian. Mr. McCarthy states he will discuss the issue with counsel before making a decision.

E-mail from Mr. McCarthy to Custodian. Mr. McCarthy states that a payment will be sent in a few days.

E-mail from Custodian to Mr. McCarthy. The Custodian states that it has been two weeks since the payment was supposed to be sent and she still has not received anything.

E-mail from Mr. McCarthy to Custodian. He states that the check was sent out yesterday, July 25, 2005.

Letter from Custodian to Mr. McCarthy. The Custodian acknowledges receipt of a check for $400.00. The Custodian states that since August 2004, she has been attempting to resolve the issue of the special service charge of $1,238.40, which was originally priced at $1,431.00 but reduced to be fair. Further, the Custodian states that on April 19, 2005, she spoke to Mr. McCarthy in an attempt to receive payment for the reduced charge of $600.00. The Custodian claims she finally received a check on July 27, 2005 for $200.00 less than what was discussed on April 19, 2005. The Custodian asserts that she is returning the $400.00 check and hopes to receive the payment of $600.00 by August 24, 2005. She also claims that if payment is not received by this date, she will pursue legal action and the full payment of $1,238.40.

Denial of Access filed with the Government Records Council (GRC) staff. Complaint included the following attachments:

The Complainant claims that after submitting her June 29, 2004 request, she had several conversations with the Custodian in which she was advised of copying charges and that a special service charge would be incurred. On July 29, 2004, the Complainant states that she received portions of the requested document from the Custodian in addition to an invoice for copying and notice that the amount for the special service charge would be provided shortly. Further, the Complainant asserts that on August 17, 2004 the Custodian notified her via telephone that the special service charge would be approximately $400.00. The Complainant states that on August 17, 2004, she sent an e-mail to her supervisor advising him of the conversation. Again on August 20, 2004, the Complainant claims that she spoke to the Custodian via telephone and that the Custodian advised her the charge would be close to $400.00.

On August 30, 2004, the Complainant states that she received an invoice from the Custodian indicating that the special service charge was $1,238.40. In a letter dated December 3, 2004, the Complainant states that she and her counsel informed the Custodian that they object to the amount of the special service charge for the following reasons: the excessive amount of time reviewing/redacting/copying, the unreasonableness of the charge pursuant to OPRA, that the redacting should have been completed solely by the Custodian, and that the County failed to provide the Complainant with an opportunity to review and object to the charge prior to it being incurred. The Complainant states that in the December 3, 2004 letter, her counsel requested information as to how the charge was calculated, including the Custodian's hourly rate and the percentage for fringe benefits.

The Complainant claims that as per a letter dated April 15, 2005, she and her counsel continued to object to the charge since she had been advised the charge would be close to $400.00. The Complainant states in this letter she would agree to pay the County $400.00. Additionally, the Complainant claims that during the week of April 18, 2005 the Custodian spoke to Mr. McCarthy, the Managing Editor of The Herald News in an attempt to settle the dispute for $600.00. The Complainant states that on July 25, 2005, Mr. McCarthy sent a check to the Custodian without indicating the amount (which was $400.00.) She further states that the Custodian called The Herald News on July 27, 2005 indicating that she received the $400.00 check, however she was expecting a check for $600.00. On August 15, 2005, the Complainant alleges that the Custodian returned the $400.00 check and requested payment of $600.00 by August 24, 2005 or she would pursue legal action to collect the full charge of $1,238.40.

Letter from Complainant's counsel to GRC staff. Counsel states that she represents the Complainant and submits this letter to support the Denial of Access Complaint. Counsel asserts that the Complainant submitted an OPRA request for Passaic County's Emergency Plan on June 29, 2004. Counsel claims that the Custodian informed the Complainant that the Plan was very large and provided her the Basic Plan along with its annexes. After reviewing these annexes, counsel states that the Complainant requested the complete Plan, and that the Custodian informed the Complainant a special service charge would be incurred for the redacting of material. Counsel claims that sections of the Plan were provided to the Complainant during July and August 2004 and that during this time the Custodian advised that the charge would be approximately $400.00.

Counsel further states that upon receiving the complete Plan, which she claims was heavily redacted, the Custodian provided an invoice of the special service charge totaling $1,238.40 for service provided by herself as well as Chief Joseph Forbes. Counsel claims that the County had already paid $325.00 for copying and objected to the special service charge.

Counsel states that following receipt of the invoice, The Herald News and the Custodian attempted to resolve the matter in that the Custodian requested payment of $600.00, however The Herald News would only pay the advised $400.00. Counsel asserts that the basis for the objection to the special service charge is that the County was not provided with an opportunity to object to the charge prior to it being incurred, the charge is not reasonable, and "the County's calculation of the charge is not consistent with OPRA or case law interpreting OPRA."[9]

In the event that the Council determines that the County may charge more than $400.00, counsel states that The Herald News objects to the reasonableness of the charge and the County's calculation of it. Counsel notes that the Custodian claims that both she and Chief Forbes spent 16 hours each reviewing, redacting, and copying the plan. Counsel cites Courier Post v. Lenape Regional High School District, 360 N.J. Super. 191, 206 (Law Div. 2002) in that "...[a]n individual with sufficient education and experience to hold the position of custodian of records, should be able to quickly ascertain the presence of, and delete, confidential and privileged information..."[10] Further, counsel claims that it is unreasonable that Chief Forbes needed 16 hours to review and redact the document and that the Custodian did so as well.

Counsel asserts that The Herald News objects to the County's charge for fringe benefits stating that there is no legal justification for this charge. Further, counsel requests that the special service charge be limited to $400.00.

Government Records Council (GRC) staff sends request for Statement of Information to Custodian.

Letter from GRC staff to Custodian. Staff requests that the Custodian provide a response to the following:

The Custodian's counsel states that the County's Basic Emergency Plan was released to the Complainant on July 23, 2004. Counsel also states that annexes to the Basic Plan were provided to the Complainant on July 27, 2004, July 28, 2004, and July 29, 2004. Counsel further states that the Plan contained much information not available to the public and claims redactions were needed and completed by the Emergency Management Coordinator over several days.

Letter from Custodian's counsel to GRC staff. Counsel states that he is representing the Custodian and is providing a response to the GRC's letter dated October 12, 2005 regarding the special service charge. Counsel certifies that the document requested is the County of Passaic Emergency Plan (155 pages) plus annexes (940 pages) and that the Plan and additional annexes were assembled over several years and significantly revised post September 11, 2001. Counsel certifies that this document is currently not archived.

Counsel also certifies that minimal time was spend locating the Plan, however he certifies that significant time was needed to review, redact, and copy the document; specifically, the Custodian spent sixteen (16) hours reviewing, redacting, and copying. Counsel also certifies that the County employs 3,200 employees including one Custodian of Records for the County, and each department head as Departmental Custodians as per the Board of Chosen Freeholders.

Counsel certifies that because the requested document contained privileged material, the Emergency Management Coordinator was the only employee qualified to review the Plan, however, the Custodian performed the actual redactions.

Letter from GRC staff to Custodian. Staff requests that the Custodian submit a legal certification providing the following: an itemized list of tasks completed by Chief Forbes and the Custodian including the amount of time spent on each task; an itemized list and amounts associated with fringe benefits charges including a legal explanation for same; Chief Forbes' and the Custodian's hourly rate minus fringe benefits including the calculation used to determine each rate; the level of human resource needed to complete tasks responsive to the request; and an itemized breakdown of copy charges applied to the request.

Letter from Custodian's counsel to GRC staff. Counsel states that he is enclosing a memo from Chief Forbes which outlines his time spent reviewing the requested Emergency Plan. Counsel also states that he is enclosing a copy of the August 30, 2004 invoice which outlines the Custodian's time spent on tasks.

Regarding a legal justification for fringe benefit charges, counsel states this information can be found on page four (4) of the December 16, 2004 letter to the Complainant's counsel, which is enclosed in this letter. Counsel states that Chief Forbes' and the Custodian's hourly rate minus fringe benefits is set forth in Resolution R-357 dated July 23, 2002 which is also enclosed.

Counsel claims that Chief Forbes' human resource level was necessary to review the requested document since he is the Emergency Management Coordinator of the County and was the only person qualified to review and redact the "sensitive information"[13] contained in the Plan.

Lastly, Counsel states that the Custodian provided the Complainant with nine hundred forty (940) pages. Counsel asserts that the total charge for providing these pages is $227.50 and the computation used is as follows: page one (1) to page ten (10) - $0.75 per page; page eleven (11) to page twenty (20) - $0.50 per page; all pages over twenty (20) - $0.25 per page.

Letter from GRC staff to Custodian. Staff requests that the Custodian submit a legal certification providing the following: an itemized list of tasks completed by the Custodian including the amount of time spent on each task; and the numerical calculation of the hourly rate minus fringe benefits charged for the Custodian and Chief Forbes.

E-mail from Complainant's counsel to GRC staff. Counsel states that she has not received a copy of the November 3, 2005 letter from the Custodian's counsel. Counsel requests copies of recent submissions made by the Custodian's counsel.

E-mail from GRC staff to Complainant's counsel. Staff encloses the November 3, 2005 letter from the Custodian's counsel.

Letter from Custodian's counsel to GRC staff. Counsel states the he has enclosed the requested worksheet of hours for the Custodian. Counsel also states that he will send information as to the calculation of fringe benefits shortly.

In the Custodian's worksheet of hours spent on the request, she claims the following: she spend four (4) hours on Wednesday, July 22, 2004 reviewing materials from Chief Forbes, and actually redacting and copying materials; she spent four (4) hours on Thursday July 23, 2004 for same, four (4) hours on Friday, July 24, 2004 for same, and four (4) hours on Monday, July 27, 2004 for same, which totals to sixteen (16) hours.

E-mail from GRC staff to Custodian. Staff requests a certification identifying the hourly rate wage for the Custodian and Chief Forbes minus the 30% fringe benefit charge.

E-mail from County Counsel's Office to GRC staff. Counsel states that he is enclosing the requested information from the Custodian. The Custodian claims that she received the hourly rate without fringe from payroll and the 30% fringe amount from Tony DeNova.

Letter from GRC Staff to Custodian's counsel. Staff acknowledges receipt of the November 30, 2005 e-mail from County Counsel's Office. Staff requests a certification indicating the amount of the hourly rate charged for the Custodian and Chief Forbes minus the 30% for fringe benefits.

E-mail from Custodian's counsel to GRC Staff. Counsel acknowledges that his response regarding fringe benefits was due today, but states that the weather has impacted staffing and requests an extension until December 12, 2005.

E-mail from GRC staff to Custodian's counsel. Staff states that December 12, 2005 is fine and notes that the GRC is still requesting the hourly pay rate for Chief Forbes and the Custodian minus the 30% for fringe benefits.

Letter from Custodian's counsel to GRC staff. Counsel states that he is enclosing a letter from John Stefanko regarding the fringe benefit charges. He also asserts that the hourly rate for Chief Forbes is $48.15 minus $14.45 for fringe which equals $33.70, and the rate for the Custodian is $29.25 minus $8.78 for fringe which equals $20.47.

WHETHER the Custodian's special service charge of $1,238.40 is reasonable pursuant to N.J.S.A. 47:1A-5.c.?

N.J.S.A. 47:1A-5.c. provides that: "[w]henever the...volume of a government record embodied in the form of printed matter to be...copied pursuant to [OPRA] is such that the record...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 or copies...The requestor shall have the opportunity to review and object to the charge prior to it being incurred." (Emphasis added.)

The Complainant asserts that on June 29, 2004, she submitted her OPRA request for Passaic County's Emergency Plan. On July 23, 2004, the Custodian states she provided the Complainant with the Basic Plan in addition to the indexes to all annexes. She claims that upon speaking with the Complainant, the Complainant requested the entire Plan and she informed the Complainant that this would be an extremely large request and a special service charge would be applied. The Custodian states that the requested annexes were provided to the Complainant on July 27, 2004, July 28, 2004, and July 29, 2004. In a letter dated July 29, 2004, the Custodian advised the Complainant that her request was complete and she will be notified of the special service charge applied to the request.

In e-mails dated August 17, 2004 and August 20, 2004, the Complainant notified her supervisor that she spoke to the Custodian and claimed the estimated special service charge was $400.00. On August 30, 2004, the Custodian sent the Complainant an invoice for the special service charge claiming thirty two (32) hours of time spent reviewing, redacting, and copying, sixteen (16) hours each for the Custodian at $29.25/hour and Chief Forbes at $48.15/hour totaling $1,238.40. The Custodian stated that 30% was added for fringe benefit charges.

In a letter to the Custodian dated December 3, 2004, the Complainant's counsel objected to the charge on the basis that it is unreasonable and cites Courier Post v. Lenape Regional High School District, 360 N.J. Super. 191, 204 (Law Div. 2002) in that redacting should be completed solely by the Custodian. She also argues that the Complainant was never given the opportunity to object to the charge prior to it being incurred. The Custodian's counsel states that as per Resolution R-357 dated July 23, 2002, all department heads are Custodians for their own departments. Counsel also states that Chief Forbes, as the Emergency Management Coordinator, was the only person qualified to conduct the review necessary for redaction of the Plan. Additionally, in a letter dated December 12, 2005, the Custodian's counsel indicated that the hourly rate minus fringe benefits for Chief Forbes is $33.70 and for the Custodian is $20.47.

The Custodian has violated N.J.S.A. 47:1A-5.c. in not providing the Complainant the opportunity to review and object to the special service charge prior to it being incurred and applying the added cost of fringe benefit to the special service charge at the rate of 30% of the hourly rates of Chief Forbes and the Custodian. However, the continued verbal communication between the Custodian and the Complainant throughout the fulfillment of the records request and the alleged (and later confirmed) agreement for the Complainant to pay $400.00 as the special service charge suggests that there was some level of acceptance of the special service charge by the Complainant. Additionally, it would be unfair for the taxpayers of Passaic County to completely absorb the "extraordinary expenditure of time and effort to accommodate the request" if the Complainant did not have to pay some amount as a special service charge. Therefore, the Council analyzed the special service charge to determine "reasonableness" as is required by OPRA and New Jersey case law.

The Government Records Council (GRC) has established criteria for analysis of assessing a special service charge in Fisher v. Division of Law and Public Safety, Case No. 2004-55 (December, 2004). The same questions asked in the Fisher case provided the basis for the analysis in this case. The questions and responses are as follows:

Questions asked by GRC Staff	Certification provided by County of Passaic
The volume, nature, size, number of government records involved	The County of Passaic Emergency Plan (155 pages) plus the 15 annexes (940 pages). Much of the information requested was exempt under OPRA.
The period of time over which the records were received	The Plan and annexes were assembled over several years and substantially revised after September 11, 2001.
Whether some or all of the records sought are archived	The Plan and annexes are not presently archived.
The amount of time required for a government employee to locate, retrieve, and assemble the documents for copying	The time involved in locating and retrieving the Plan were minimal; large number of hours were spent reviewing and redacting during the assembling of the documents.
The amount of time, level, rate and number, if any required to be expended by government employees to monitor the inspection or examination	The Custodian spent 16 hours in reviewing, redacting and copying the required documents.
The amount of time required to return documents to their original storage place	Minimal
The size of the agency	3,200 employees
The number of employees available to accommodate document requests	One Custodian of Records for the County and one Departmental Custodian designated by the Board of Chosen Freeholders.
The availability of information technology and copying abilities	All County Departments are computer equipped and have copying capabilities.
What was requested	The County of Passaic Emergency Plan and all attachments.
The level(s) of skill necessary to accommodate the request	Only the Emergency Management Coordinator was qualified to do the minute review necessary.
The reason(s) that the agency employed, or intends to employ, the particular level(s) of skill above	Only the Emergency Management Coordinator could determine information in the Plan that were sensitive and needed to be exempted.
A detailed estimate categorizing the hours needed to identify, copy or prepare for inspection, produce and return the requested documents	See copy of August 30, 2004 letter presented to the Complainant.
Who in the agency will perform the work associated with each request	Under the OPRA letter the appropriate personnel to review, redact and do the actual copying is to be the Custodian of Records herself.

After review of above, GRC staff requested that the Custodian submit another certification addressing the following:

After review of above, GRC staff requested that the Custodian submit a certification addressing the following:

In Courier Post v. Lenape Regional High School District, 360 N.J. Super. 191, 204 (Law Div. 2002), the Appellate Division held that it would be appropriate to calculate the hourly wage rates of the clerical and professional staff involved in satisfying a request and multiplying those figures by the total hours spent, if the Custodian can prove that the professional level of human resource was needed to fulfill the request. The Custodian's counsel certifies that the only person qualified to identify the information to be redacted was the Emergency Management Coordinator. He also certifies that the Custodian herself did the actual redacting and copying. Additionally, in the Custodian December 12, 2005 letter to GRC staff, he indicates that minus the 30% for fringe benefits, the hourly rate for Chief Forbes is $33.70 and the Custodian's is $20.47. Based on Lenape, these are the rates that should be applied to the special service charge, as they are the regular hourly rates without added benefits.

Further, in Chief Forbes' breakdown of hours, he claims to have spent one hour on August 24, 2004 and one hour on September 1, 2004 working on the request when according to the Custodian's July 29, 2004 letter to the Complainant, the request had already been completed and provided to the Complainant. Therefore, the hours charged on August 24, 2004 and September 1, 2004 should not be included in the special service charge.

In the Custodian's breakdown of time spent fulfilling the request, she argues that she spent four (4) hours on four (4) separate days reviewing materials from Chief Forbes, redacting, and copying. For each day, the Custodian lists a five (5) hour time period, but only charges for four (4) presumably leaving the extra hour for a break, which is reasonable under normal circumstances.

Therefore, pursuant to N.J.S.A. 47:1A-5.c. and Lenape, supra, the Custodian has born her burden of proving that a special service charge is warranted in this case. However, the special service charge should only reflect the hours spent providing the actual copies and the hourly rate (minus the fringe benefits) of appropriate personnel applied. And so the charge for Chief Forbes' services should be at $33.70 an hour for fourteen (14) hours and the charge for the Custodian's services should be $20.47 an hour for sixteen (16) hours which amounts to a total reasonable special service charge of $799.32.

The Executive Director respectfully recommends that the Council find that while a reasonable special service charge of $799.32 is warranted pursuant to OPRA and Lenape, the Custodian may only charge the $400.00 special service charge that the Complainant agreed to pay in August 2004 because the Custodian violated N.J.S.A. 47:1A-5.c. by not providing the Complainant the opportunity to review and object to the charge prior to it being incurred.

[1] As stated on August 30, 2004 letter.
[2] As stated on August 30, 2004 letter.
[3] As stated on December 3, 2004 letter.
[4] As stated on December 3, 2004 letter.
[5] As stated on December 16, 2004 letter.
[6] As stated on December 16, 2004 letter.
[7] As stated in December 16, 2004 letter.
[8] As stated on December 16, 2004 letter.
[9] As stated in August 25, 2005 letter.
[10] As stated in August 25, 2005 letter.
[11] Complainant also did not agree to mediate this case.
[12] As stated on October 12, 2005 letter.
[13] As stated on November 3, 2005 letter.