Borough Clerk’s Office Overcharging For Certain OPRA Requests

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Published: February 18, 2016 @ 6:00 AM EDT

If ever a member of the public wanted an audio copy or even a computer video copy of any taped public meeting, a request could be sent to the Borough Clerk’s office for that. It would be supplied in a compact disc and cost $6. Under NJSA 47:1A-1 et seq., a law that is commonly known as the Open Public Records Act or OPRA, the Borough Clerk is violating fees being charged to the public for access to records. Specifically, the Borough Clerk is violating NJSA 47:1A-5.b, the section that spells out that a public agency shall charge the cost of materials, such as computer discs. Below are the relevant section of the law:

b. A copy or copies of a government record may be purchased by any person upon payment of the fee prescribed by law or regulation. 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 be $0.05 per letter size page or smaller, and $0.07 per legal size page or larger. 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. The actual cost of duplicating the record, upon which all copy fees are based, 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. Access to electronic records and non-printed materials shall be provided free of charge, but the public agency may charge for the actual costs of any needed supplies such as computer discs.

To provide context of what is covered in subsection c, which applies to printed matter, the wording is provided below for reference.

c. 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, 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.

According to both the State (link) and Borough Code 2-68.1, the legal custodian of government records for the municipality is the Borough Clerk, in this case Doreen Cali. Although fees may be charged or handled by others in her office, the actual decision and ultimate authority on what to charge comes from the Borough Clerk.

In an OPRA request submitted for the invoice paid for the compact disc media used by the Borough Clerk, the cost of each CD (with a slim case included) was found to be $1.89, not $6. That amount is itself more than double what an equivalent compact disc would cost at a retail store like Staples. A pack of ten (10) compact discs with slim cases cost $7.99, or $0.79 each. But even keeping with the $1.89 charged per compact disc by GRAMCO, the New Jersey based company that provides recording solutions for municipalities, the Borough Clerk’s office charges more than $4 over the statutory limit, 217% over the actual cost.

A review of borough code makes no mention of fees for a compact disc other than Section 2-68.2(a)(3) as is relates to the Roselle Park Police Department (RPPD). In that section, the amount stated for a cassette/VHS/DVD/CD is $5. The Borough Clerk’s office is separate from the RPPD as that section is 2-68.1 (Office of the Municipal Clerk). In order to comply with NJSA 47:1A-5.c which requires that a special service charge be established in advance, Borough Code 2-68.1(f) charges a fee of $50.00 per hour based upon the amount of time required to produce a document.

Even then, there is a way for the Borough Clerk to remove the cost altogether to the public while providing such government records in a time-efficient manner. Online services such as WeTransfer (link) allow up 2 Gb of data to be sent to any e-mail for free. It would be as simple as having the Borough Clerk type in a website, attach files, enter a sender and recipient e-mail address, then click send.

While the amount overpaid to the municipality might be considered minimal – a little over $400 for every hundred CD requests complied with – the real issue is that access to municipal records should be as least restrictive as possible in order to remove any obstructive measures that may dissuade the public from requesting records that rightfully belong to them.

Until then, in order to prevent any potential litigation for OPRA violations, overpriced fees should be addressed and corrected either by ordinance or public notice to have charges be in accordance with New Jersey law.