2006-48

At the September 21, 2006 public meeting, the Government Records Council (“Council”) considered the September 7, 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:

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.

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

Findings and Recommendations of the Executive Director

Complainant

A copy of the March 2003, March 2004 and June 30, 2005 Town of West New York check registry on a CD-ROM in Excel spread sheet format with the cost not to exceed $300.00.[3]

Complainant’s Open Public Records Act (“OPRA”) request. The Complainant requests a copy of the March 2003, March 2004 and June 30, 2005 Town of West New York check registry on a CD-ROM in Excel spread sheet format with the cost not to exceed $300.00

Memo from Chief Financial Officer (“CFO”) Darren Maloney to the Custodian. Mr. Maloney states that the cost to copy the records is $300.00.

Custodian’s response to the OPRA request. The Custodian had the Complainant sign a document, acknowledging the receipt of the requested documents in CD-ROM Excel format and informing him of the required $300.00 payment for the CD-ROM copy.

Invoice # 12067 from First Byte Corporation to the Town of West New York. First Byte Corporation indicates that the cost of converting the records (programming) is $300.00.

Denial of Access Complaint filed with the Government Records Council (“GRC”) with the following attachments:

The Complainant asserts that he made several attempts to purchase the requested check registry for a reasonable fee, but the CFO advised that the cost was $300.00 for a copy in Excel format on CD-ROM. He states that he previously purchased copies of CD-ROMs from the Custodian and was charged $5.00 for the copy. He contends that the cost for the copies of the requested registry is excessive. He states that in researching the public records, he learned that the Town of West New York’s vendor, who produced the CD-ROM of the check registry database for the Complainant, charges the Town $100.00 per hour for its services.

Custodian’s signed Agreement to Mediate. The Complainant did not agree to mediate this case.

E-mail from the Complainant. The Complainant wishes to withdraw this complaint because he was provided the invoice of the data company that billed the town for the records requested, which indicates that the company billed the town $300.00 for the production of his request.

E-mail from the GRC to the Complainant. The GRC confirms receipt of the Complainant’s withdrawal of this case.

E-mail from the Complainant. The Complainant states that he would like his complaint reinstated. The Complainant indicates that this request for reinstatement is based on the decision in the Libertarian Party of Central New Jersey, and John Paff v. Reina A. Murphy, as Custodian for the Township of Edison, Docket No. A-2890-04T2[4] Superior Court of New Jersey, Appellate Division in which the appeals court found that “the fee imposed by the Township of Edison creates an unreasonable burden on the plaintiffs’ right of access and is not rationally related to the actual cost of reproducing the records.”

Letter from the GRC to the Complainant. The GRC informs the Complainant that this complaint is being reinstated.

Custodian’s Statement of Information (“SOI”) with the following attachments:

The Custodian certifies that the Complainant asked that the request be provided on CD-ROM in Excel format. The Custodian states that she then contacted the CFO Darren Maloney to obtain the records, as they are not held in the Municipal Clerk’s Office. The Custodian states that Mr. Maloney in turn contacted First Byte Corporation, which provides technical support for the Town of West New York. On June 28, 2005, the Custodian asserts that she was informed of the $300.00 cost for First Byte Corporation to create the CD-ROM in response to this request, of which she verbally informed the Complainant. The Custodian states that the Complainant acknowledged receipt of the documents requested and paid the fee on June 28, 2005. The Custodian asserts that it is the position of the Town that the cost to produce the record in the medium requested was that imposed by a third party independent contractor and not a cost imposed by the Town.

Complainant’s response to the SOI. The Complainant states that after searching the contracts, agreements and check registries, it appears that the Town of West New York has a contract with First Byte Corporation and has paid for the services provided, including that which he paid $300.00 for, and does not believe that duplicative cost should be passed on to him. The Complainant states that he should have been charge the actual cost of copying information from a computer file to a CD-ROM or other less expensive formats could have been offered.

The Complainant adds that he has ask for and reviewed any and all documents relating to First Byte Corporation for a number of years however, the June 29, 2005 invoice was not provided. The Complainant states that this causes him to question the actions of the Finance Department in providing access to public records and contends that the charge incurred for this request is an attempt to make it cost prohibitive for the public to access these records. The Complainant feels that the timing of this complaint is irrelevant because the Custodian is still charging exorbitant fees for the production of records.

Custodian’s response to the Complainant’s May 9, 2006 submission. The Custodian certifies that she will rely on the attached memo sent to her by CFO Darren Maloney dated May 19, 2006. Mr. Maloney states that the software maintenance agreement with First Byte Corporation does not include requests for copying a check register onto a CD-ROM in Excel format. Mr. Maloney asserts that First Byte Corporation charged the Town of West New York $300.00, which the requestor agreed to and promptly paid.

Letter from the GRC to the Custodian. The GRC requests that the Custodian certify to the following:

E-mail from the Complainant to the GRC. The Complainant states that while the Comaplainant’s request did specify Excel format, the Complainant should have asked if there was another electronic format available on CD-ROM that the town uses.

Custodian’s certification. The Custodian states that the Town of West New York asked First Byte Corporation to convert the information into the medium requested because the Town of West New York does not maintain the requested check registry in Excel format, nor do they have the ability to convert same to CD-ROM.

Analysis

Whether the Complainant was over charged for the production of the requested check registries on a CD-ROM in Excel spread sheet format?

“…government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions…” N.J.S.A. 47:1A-1.

“… 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.)

“[a] custodian shall permit access to a government record and provide a copy thereof in the medium requested if the public agency maintains the record in that medium. If the public agency does not maintain the record in the medium requested, the custodian shall either convert the record to the medium requested or provide a copy in some other meaningful medium. If a request is for a record: (1) in a medium not routinely used by the agency; (2) not routinely developed or maintained by an agency; or (3) requiring a substantial amount of manipulation or programming of information technology, the agency may charge, in addition to the actual cost of duplication, a special charge that shall be reasonable and shall be based on the cost for any extensive use of information technology… that is actually incurred by the agency or attributable to the agency for the programming, clerical, and supervisory assistance required, or both. N.J.S.A. 47:1A-5.d.

OPRA places the onus on the Custodian to prove that a denial of access is lawful. 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 Complainant asserts that he made several attempts to purchase the requested March 2003, March 2004 and June 30, 2005 check registry for a reasonable fee, but the CFO advised that the cost was $300.00 for a copy in Excel format on CD-ROM. He contends that the cost for the copies of the requested registry is excessive. The Custodian certifies that the Complainant asked that the request be provided on CD-ROM in Excel format. The Custodian states that the Town of West New York asked First Byte Corporation to convert the information into the medium requested because the Town of West New York does not maintain the requested check registry in Excel format, nor do they have the ability to convert same to CD-ROM.

OPRA allows for Custodians to charge the cost that is actually incurred for the conversion of documents to the medium requested if the agency does not maintain documents in the medium requested. In the complaint at hand, the Custodian has certified that the Town does not maintain the requested records in Excel format and so they are unable to produce the check registry in Excel format on the CD-ROM requested. This being the case, the Custodian contacted First Byte Corporation, a vendor of the Town to convert the requested check registries to Excel and copy them to a CD-ROM. The Custodian was informed by that contractor that the cost for the conversion of the check registries is $300.00.

In Burns v. Borough of Collingswood, GRC Case No. 2004-217 (April 2005) the GRC found that the Custodian should “disclose the records responsive to the request in the format requested in accordance with N.J.S.A. 47:1-5.d. subject to fees, if any, that may be directly associated [with] converting the documents to the medium requested. The Custodian shall inform the Complainant of the costs involved in converting the documents to the requested medium prior to fulfilling the request.” In the complaint at hand, the Custodian has provided the invoice from First Byte Corporation indicating $300.00 as the actual cost for production of the records responsive to this request in the medium requested. The Complainant acknowledged receipt of the documents requested and was informed of and paid the $300.00 fee. Thus, the actual cost of producing that record was passed on to the Complainant pursuant to N.J.S.A. 47:1A-5.d.

Additionally, the Custodian states that pursuant to the GRC proposed rules, N.J.A.C. 5:105-2.2, the Complainant may only file a complaint within six (6) months of the OPRA request. Therefore, the Custodian feels that the complaint was untimely and should be dismissed. The Custodian’s argument regarding the timeliness of this complaint is compelling however, the GRC proposed rules, N.J.A.C. 5:105-2.2 have not yet been adopted.

Hence, the Custodian has passed on the actual cost for production of the requested check registries on a CD-ROM in Excel spread sheet format to the Complainant pursuant to N.J.S.A. 47:1A-5.d., and in accordance with the GRC decision in Burns v. Borough of Collingswood, GRC Case No. 2004-217 (April 2005). Therefore, the Custodian has properly charged the Complainant for the requested check registries on a CD-ROM in Excel spread sheet format. Also, while the Custodian’s argument regarding the timeliness of this complaint is compelling, the GRC proposed rules, N.J.A.C. 5:105-2.2 have not yet been adopted and there is no statute of limitations on the filing of a denial of access complaint.

[1] No legal representation listed.

[2] Represented by Assistant Town Attorney George Campen, Esq., located in Union City, NJ.

[3] Stated on the Complainant’s record request received by the Custodian June 15, 2005. The Denial of Access Complaint does not indicate the date of the request.

[4] Libertarian Party of Central New Jersey, and John Paff v. Reina A. Murphy, as Custodian for the Township of Edison, 384 N.J. Super. 136.

2006-48

Final Decision

Findings and Recommendations of the Executive Director

Complainant

Analysis