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2005-216
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Final Decision |
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Supplemental Findings and Recommendations of the Executive Director |
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Final Decision |
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Findings and Recommendations of the Executive Director |
Final Decision
At the August 10, 2006 public meeting, the Government Records Council (“Council”) considered the August 3, 2006 Supplemental Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations. The Council, therefore, finds that it upholds its Final Decision of April 11, 2006 because it is unreasonable to assume that every records custodian, especially those in small municipalities with limited photocopy equipment and other resources, are able to adequately or accurately determine the actual copying cost of government records when doing so requires an estimate of the number of government records which will be requested annually divided by an estimated annual actual cost of photocopy paper and ink.
Therefore, it is more likely, and consistent with the “golden rule of statutory interpretation” adopted by the Supreme Court of New Jersey in Dickinson v. Fund for Support of Free Public School, 95 N.J. 65, 469 A.2d 1 (December 1983) that the unreasonableness of a particular result arising from the selection of one among several possible alternative interpretations strongly militates in favor of the adoption of an interpretation that embraces a reasonable result. And, adopting the interpretation of the copying cost provision in OPRA which allows records custodians to charge the enumerated rates for copies of government records is the reasonable result.
This is the final administrative determination in this matter. Any further review should be pursued in the Appellate Division of the Superior Court of New Jersey within forty-five (45) days. Information about the appeals process can be obtained from the Appellate Division Clerk’s Office, Hughes Justice Complex, 25 W. Market St., PO Box 006, Trenton, NJ 08625-0006. Proper service of submissions pursuant to any appeal is to be made to the Council in care of the Executive Director at the State of New Jersey Government Records Council, 101 South Broad Street, PO Box 819, Trenton, NJ 08625-0819.
Interim Order Rendered by the Government Records Council On The 10th Day of August, 2006
Robin Berg Tabakin, Vice Chairman & Secretary
I attest the foregoing is a true and accurate record of the Government Records Council.
Michelle Richardson Government Records Council
Supplemental Findings and Recommendations of the Executive DirectorReconsideration
John Windish[1] GRC Complaint No. 2005-216 Complainant
v.
Mount Arlington Board of Education[2] Custodian of Records
Records Relevant to the Complaint:
2. The actual cost that the Mt. Arlington Board of Education incurs to make these copies which is what the maximum cost should be charged for each copy as governed by the OPRA Act - N.J.S.A. 47:1A-5.b. Otherwise the current assigned costs could be arbitrary and capricious.[4] Request Made: October 20, 2005 Response Made: October 21, 2005 Custodian: Ralph Radicsh GRC Complaint filed: November 15, 2005
Background
April 21, 2006 At its April 11, 2006 public meeting, the Government Records Council (“Council”) considered the April 4, 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, found that:
April 21, 2006 The Government Records Council (GRC) staff received an unpublished opinion from the New Jersey Superior Court – Trial Division that addresses the same or similar issues that were considered in this complaint by the GRC. In the Superior Court case, the Plaintiff challenged the City of Hoboken’s ordinance that establishes fees and charges for the reproduction of government records requested under OPRA. The court decided that the clear language of OPRA requires the public agency to charge the actual cost of duplicating the record.
April 24, 2006 Letter from the GRC Executive Director to the Complainant. The Executive Director states that she plans to recommend to the Council that it reconsider its’ final decision in this matter pursuant to the Council’s past practice and its’ proposed (but not yet promulgated) rules. Specifically, N.J.A.C. 5:105-2.12 provides that “[t]he Council, in its own discretion, may reconsider any decision it renders.”
May 10, 2006 Letter from Custodian’s counsel to the GRC Executive Director in response to the Executive Director’s April 24, 2006 correspondence to the Complainant. Custodian’s counsel states that in light of the fact that Mason v. City of Hoboken, Superior Court of New Jersey, Law Division – Hudson County, Docket No.:HUD-L-0692-05.358 is unpublished; it is not binding on the Council.
That being said, Custodian’s counsel states that the decision is readily distinguishable from the instant case. Counsel states that in Mason, the Court reviewed the City of Hoboken’s copying charges set by ordinance to determine if the charges established by the ordinance violated OPRA. In doing so Custodian’s counsel alleges that the Court invalidated portions of the ordinance which directly conflicted with the Open Public Records Act. (OPRA)
Custodian’s counsel states that in the instant case, the Complainant argues that the Board’s copying charges are excessive and violate OPRA. Counsel goes on to state that, however, as noted by the Council, the Board’s copying charges are not in excess of the amounts prescribed by OPRA. Therefore, Custodian’s counsel states that the Mason decision provides no basis for the Council to amend its April 11, 2006 Final Decision.
May 15, 2006 Complainant’s response to Custodian counsel’s May 10, 2006 letter. The Complainant states that he is not questioning if .75 (seventy-five cents) per page is excessive but he is instead contesting that the actual cost of duplicating the record shall be the cost of materials and supplies used to make a copy of the record not the .75 (seventy-five cents) max allowed by OPRA.
The Complainant states that the broad brush statement by Custodian’s counsel that the max amount for copying costs is .75 (seventy-five cents) is not in question, but the components of making up that cost is. The Complainant questions how the Mount Arlington Board of Education comes up with .75 (seventy-five cents) per page given the parameters under N.J.S.A. 47:1A-5.b. and also questions where it is documented and approved by board action.
The Complainant states that if the Board cannot produce the equation to prove the copying costs of .75 (seventy-five cents) per page then those charges would be excessive. The Complainant also believes that the Custodian has knowingly and willfully violated the Act since “they have legal counsel guiding them.”
Analysis WHETHER the current costs charged by the Custodian are excessive and in violation of OPRA? OPRA sets forth the amount to be charged for a government record in printed form. Specifically, OPRA states: “[a] copy or copies of a government record may be purchased by any person upon payment of the fee prescribed by law or regulation, or if a fee is not prescribed by law or regulation, upon payment of the actual cost of duplicating the record. Except as otherwise provided by law or regulation, the fee assessed for the duplication of a government record embodied in the form of printed matter shall not exceed the following:
The actual cost of duplicating the record shall be the cost of materials and supplies used to make a copy of the record, but shall not include the cost of labor or other overhead expenses associated with making the copy except as provided for in subsection c. of this section. If a public agency can demonstrate that its actual costs for duplication of a government record exceed the foregoing rates, the public agency shall be permitted to charge the actual cost of duplicating the record.” (Emphasis added.) N.J.S.A. 47:1A-5.b. Since the Council’s decision in this matter, the GRC staff has received an unpublished opinion from the New Jersey Superior Court – Trial Division that addresses the same or similar issues that were considered in this complaint by the GRC.
In the Superior Court case, the Plaintiff challenged the City of Hoboken’s Ordinance establishing fees to be charged for routine requests for copies of government records made under OPRA. The charges for copies set forth in the Ordinance are as follows:
The court decided that the clear language of OPRA requires the public agency to charge the actual cost of duplicating the record. Therefore, the court states that unless specifically set forth in another law or regulation, the fee cannot exceed the stated amounts.
While the Trial Division determined that the actual cost of duplicating the record, which presumably might be less than the enumerated rates listed in OPRA, is the appropriate statutory interpretation of OPRA, the Council should look to other precedential case law to interpret the copying cost provision of OPRA. Specifically, the Supreme Court of New Jersey in Dickinson v. Fund for Support of Free Public School, 95 N.J. 65, 469 A.2d 1 (December 1983) held that it is a "golden rule" of interpretation, fully applicable to constitutional as well as statutory documents, that the unreasonableness of a particular result arising from the selection of one among several possible alternative interpretations strongly militates in favor of the adoption of an interpretation that embraces a reasonable result. 2A Sutherland, Statutory Construction § 45.12 at 37 (4 ed. Sands 1973); Clifton v. Passaic Cty. Bd. of Taxation, 28 N.J. 411, 421 (1958) ("A construction 'calling for unreasonable results will be avoided where reasonable results consistent with the indicated purpose of the act as a whole are equally possible,'" quoting Elizabeth Federal Savings & Loan Ass'n v. Howell, 24 N.J. 488, 508 (1957)); see Kervick v. Bontempo, supra, 29 N.J. 469.
It is unreasonable to assume that every records custodian, especially those in small municipalities with limited photocopy equipment and other resources, are able to adequately or accurately determine the actual copying cost of government records when doing so requires an estimate of the number of government records which will be requested annually divided by an estimated annual actual cost of photocopy paper and ink. Therefore, it is more likely, and consistent with the “golden rule of statutory interpretation” adopted by the Supreme Court of New Jersey in Dickinson, supra., that the unreasonableness of a particular result arising from the selection of one among several possible alternative interpretations strongly militates in favor of the adoption of an interpretation that embraces a reasonable result. Adopting the interpretation of the copying cost provision in OPRA which allows records custodians to charge the enumerated rates for copies of government records is the reasonable result.
Conclusions and Recommendations
The Executive Director respectfully recommends that the Council uphold its Final Decision of April 11, 2006 because it is unreasonable to assume that every records custodian, especially those in small municipalities with limited photocopy equipment and other resources, are able to adequately or accurately determine the actual copying cost of government records when doing so requires an estimate of the number of government records which will be requested annually divided by an estimated annual actual cost of photocopy paper and ink. Therefore, it is more likely, and consistent with the “golden rule of statutory interpretation” adopted by the Supreme Court of New Jersey in Dickinson, supra., that the unreasonableness of a particular result arising from the selection of one among several possible alternative interpretations strongly militates in favor of the adoption of an interpretation that embraces a reasonable result. And, adopting the interpretation of the copying cost provision in OPRA which allows records custodians to charge the enumerated rates for copies of government records is the reasonable result.
Prepared By: Chris Malloy Case Manager
Approved By: Catherine Starghill, Esq. Executive Director [1] No legal representation listed. [2] Represented by Vito A. Gagliardi, Jr., Esq., of the firm Porzio, Bromberg & Newman P.C. (Morristown, NJ). [3] As stated by the Complainant on his Denial of Access Complaint [4] As stated by the Complainant on his Denial of Access Complaint Final Decision
At its April 11, 2006 public meeting, the Government Records Council (“Council”) considered the April 4, 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:
Final Decision Rendered by the Government Records Council On The 11th Day of April, 2006 Robin Berg Tabakin, Vice Chair Government Records Council I attest the foregoing is a true and accurate record of the Government Records Council. Catherine Starghill, Executive Director Government Records Council Decision Distribution Date: April 21, 2006 Findings and Recommendations of the Executive DirectorJohn Windish GRC Complaint No. 2005-216Complainant v. Mount Arlington Board of Education Custodian of Records Records Relevant to the Complaint:
Request Made: October 20, 2005 Background October 20, 2005 Complainant’s written Open Public Records Act (“OPRA”) request. The Complainant requests the records listed above. October 21, 2005 Custodian’s response to the Complainant’s OPRA request. The Custodian informs the Complainant that fees for copies of public records are listed on the request form. October 26, 2005 The Complainant’s response to the Custodian’s October 21, 2005 letter. The Complainant restates his request and says that he is looking for the actual cost that the Mt. Arlington Board of Education incurs to make these copies. November 15, 2005 Denial of Access Complaint filed with the Government Records Council (“GRC”) with the following attachments:
The Complainant states that on October 21, 2005 he received a response to his request for “a breakdown of actual copying costs for paper copies of government records as per N.J.S.A. 47:1A-5.b. on the request for records form dated October 20, 2005.” He asserts that the reply stated to look at the request form for the cost of copying records. The Complainant claims that this is not what he asked for and he consequently sent a letter to the Custodian of records on October 26, 2005 restating his request. He states that he has not received a reply and the time frame for that reply has long passed, which constitutes a denial of the records request. And, the Complainant believes that the current costs charged by the Custodian are excessive and in violation of the Act. November 16, 2005 Mediation offered to both parties.[3] November 28, 2005 GRC staff request for the Statement of Information (SOI). November 28, 2005 Custodian’s SOI. The Custodian states that via letter on October 21, 2005 he informed the Complainant that the Board’s copying fees were set forth on the OPRA request form he (the Complainant) completed. The Custodian asserts that the Board has not violated any aspects of OPRA. He states that the Board abides by the statutorily mandated fees as prescribed under N.J.S.A. 47:1A-5.b. and therefore there is no factual basis for the Complainant’s contention that these charges are excessive. The Custodian states that contrary to the Complainant’s assertions, there is no basis for the Board to provide the Complainant with actual copying costs under these facts. The Custodian claims that the Board’s copying fees are not in excess of the amounts under N.J.S.A. 47:1A-5.b. March 16, 2006 GRC staff’s letter to the Custodian asking for a certification as to whether the Complainant was given a copy of the Board’s OPRA request form showing the breakdown of costs/fees for the copying of public records, as well as whether the Board maintains any other records that would be responsive to the Complainant’s October 20, 2005 OPRA request. March 21, 2005 Custodian’s certification in response to the GRC staff’s March 16, 2006 request for same. The Custodian states that on October 20, 2005 the Complainant filled out a Mount Arlington OPRA request form. The Custodian goes on to state that on October 21, 2005 in response to the Complainant’s request, he informed the Complainant in writing that copying charges were printed on the OPRA request form he (the Complainant) had filled out. The Custodian certifies, “I did not then, and at no time have given him an additional copy of the form that he already has.” The Custodian also certifies that the Mount Arlington Board of Education has no government records responsive to the Complainant’s request for a breakdown regarding the actual cost of copying. He states that the Board pays a flat fee of $157.20 per month for the lease of the copy machine, which includes up to twelve thousand (12,000) copies, and an excess fee for monthly copies in excess of twelve thousand (12,000). He states that the Board keeps no records as to the actual cost per copy in terms of materials and supplies. Analysis Whether the Custodian unlawfully denied access to anyof the records requested? OPRA provides that “… government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions …” (Emphasis added.) N.J.S.A. 47:1A-1 OPRA defines a government record as follows: “ … any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file … or that has been received …” (Emphasis added.) N.J.S.A. 47:1A-1.1. Also, OPRA states that: “...[i]f the custodian is unable to comply with a request for access, the custodian shall indicate the specific basis therefore on the request form and promptly return it to the requestor. The custodian shall sign and date the form and provide the requestor with a copy thereof …” N.J.S.A. 47:1A-5.g. OPRA provides that: “unless a shorter time period is otherwise provided by statute, regulation, or executive order, a custodian of a government record shall grant access … or deny a request for access … as soon as possible, but not later than seven business days after receiving the request … In the event a custodian fails to respond within seven business days after receiving a request, the failure to respond shall be deemed a denial of the request …” (Emphasis added.) N.J.S.A. 47:1A-5.i. Also, OPRA provides that the Custodian has to prove that a denial of access is authorized by law. Specifically, OPRA states: “…[t]he 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 Custodian certifies that he received the original request on October 20, 2005 and responded on October 21, 2005. He informed the Complainant that the Board’s copying fees were set forth on the OPRA request form he (the Complainant) completed on October 20, 2005. The Custodian states that on October 26, 2005 he received a letter from the Complainant claiming that the Board “misunderstood” his request because he was “looking for the actual costs that the [Board] incurs to make these copies.” The Custodian also states that there is no basis for the Board to provide the Complainant with actual copying costs in this case. In a subsequent submission to the GRC staff, the Custodian certifies that the Mount Arlington Board of Education has no government records responsive to the Complainant’s request for a breakdown regarding the actual cost of copying. Although the Custodian attempted to assist the Complainant by informing him where he could see the Board’s copying fees (pursuant to the Complainant’s October 20, 2005 OPRA request), the Custodian should have given the Complainant a copy of the form if that is the document that would have been responsive to the request. In reference to the Complainant’s October 26, 2005 letter clarifying the request, the Custodian certifies that the Mount Arlington Board of Education has no government records responsive to the Complainant’s request for a breakdown regarding the actual cost of copying. Pursuant to the fact that the Complainant made an official OPRA request on October 20, 2005 asking for “a breakdown of actual copying costs for paper copies of government records as per N.J.S.A. 47:1A-5.b.,” the Custodian should have given the Complainant a copy of the Board of Education’s OPRA request form instead of just informing him where he could find that information. Based on the above, the Custodian is in violation of N.J.S.A. 47:1A-1. However, based upon the fact that the Complainant’s October 26, 2005 letter should be viewed as a clarification of the original request, and not an entirely new request, the Custodian should not be held to the time required standards prescribed under N.J.S.A. 47:1A-5.i., and therefore, is not in violation of same. WHETHER the delay in access to the requested information rises to the level of a knowing and willful violation of OPRA and unreasonable denial of access under the totality of the circumstances? OPRA states that: “…[a] public official, officer, employee or custodian who knowingly or willfully violates [OPRA], and is found to have unreasonably denied access under the totality of the circumstances, shall be subject to a civil penalty…” N.J.S.A. 47:1A-11.a. OPRA allows the Council to determine a knowing and willful violation of the law under the totality of the circumstances. Specifically, OPRA states: “…If the council determines, by a majority vote of its members, that a custodian has knowingly and willfully violated [OPRA], and is found to have unreasonably denied access under the totality of the circumstances, the council may impose the penalties provided for in [OPRA]…” N.J.S.A. 47:1A-7.e. The Complainant states that on October 21, 2005 he received a response to his request for a breakdown of actual copying costs for paper copies of government records as per N.J.S.A. 47:1A-5.b. on the request for records form dated October 20, 2005. He asserts that the reply directed him to look at the agency’s request form for the cost of copying records. The Complainant claims that this is not what he asked for and he consequently sent a letter to the Custodian of records on October 26, 2005 restating his request. He states that he has not received a reply and the statutorily required time frame for that reply has long passed, which constitutes a denial of the records request. Certain legal standards must be considered when making the determination of whether the Custodian’s actions rise to the level of a “knowing and willful” violation of OPRA. The following statements must be true for a determination that the Custodian “knowingly and willfully” violated OPRA: the Custodian’s actions must have been much more than negligent conduct (Alston v. City of Camden, 168 N.J. 170 at 185 (2001); the Custodian must have had some knowledge that his actions were wrongful (Fielder v. Stonack, 141 N.J. 101, 124 (1995)); the Custodian’s actions must have had a positive element of conscious wrongdoing (Berg v. Reaction Motors Div., 37 N.J. 396, 414 (1962)); the Custodian’s actions must have been forbidden with actual, not imputed, knowledge that the actions were forbidden (Berg); the Custodian’s actions must have been intentional and deliberate, with knowledge of their wrongfulness, and not merely negligent, heedless or unintentional (ECES v. Salmon, 295 N.J.Super. 86 (App. Div. 1996) at 107). Although the Custodian should have responded to the Complainant’s original request with a copy of the Board’s OPRA request form (a specific government record responsive to the request), the fact that the Custodian did respond within one (1) business day and tried to direct the Complainant to the information the Custodian thought he was seeking, as well as the fact that the Complainant’s October 26, 2005 letter should be viewed as a clarification of the original request, and not an entirely new request, the Custodian’s actions do not rise to the level of a knowing and willful violation of OPRA under the totality of the circumstances. WHETHER the current costs charged by the Custodian of records are excessive, and in violation of OPRA? OPRA sets forth the amount to be charged for a government record in printed form. Specifically, OPRA states: “…except as otherwise provided by law or regulation, the fee assessed for the duplication of a government record embodied in the form of printed matter shall not exceed the following:
The actual cost of duplicating the record shall be the cost of materials and supplies used to make a copy of the record, but shall not include the cost of labor or other overhead expenses associated with making the copy except as provided for in subsection c. of this section. If a public agency can demonstrate that its actual costs for duplication of a government record exceed the foregoing rates, the public agency shall be permitted to charge the actual cost of duplicating the record.” N.J.S.A. 47:1A-5.b. In his Denial of Access Complaint, the Complainant states that he believes the current costs charged by the Custodian are excessive and in violation of the Act. In the Custodian’s SOI he certifies that the Board (as noted on the Board’s Request for Public Records form) abides by the fees statutorily mandated by OPRA. He also certifies that in the case at hand the fees are not in excess of those prescribed under OPRA. Based on the fact that the Custodian has certified that in the case at hand the fees are not in excess of those prescribed under OPRA the costs charged are not excessive and are not in violation of OPRA. Conclusions and Recommendations The Executive Director respectfully recommends that the Council find that:
Prepared By: Chris Malloy, Case Manager Approved By: April 4, 2006 |
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