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Windish v. Mount Arlington Board of Education Custodian of Records


December 13, 2007


On appeal from a final decision of the Government Records Council, GRC No. 2005-216.

Per curiam.


Argued November 26, 2007

Before Judges C.S. Fisher and C.L. Miniman.

Appellant John Windish seeks our review of a final decision of the Government Records Council (GRC), which upheld defendant Mount Arlington Board of Education's contention that it possessed no records responsive to appellant's request pursuant to the Open Public Records Act, N.J.S.A. 47:1A-1 to -13 (OPRA). That conclusion is amply supported by the record. And, although appellant lacks standing to complain about the duplication rates charged by the board -- because no fee was charged -- we conclude in dictum that the GRC's interpretation of N.J.S.A. 47:1A-5(b), as applied to small public agencies, is deserving of our deference.

The facts are uncomplicated. Appellant filed a request with the board for records that would reveal a "breakdown of costs/fees for copying of public records." The board's custodian of records responded that the list of fees for copying public records was on the very form that appellant had submitted and that the board possessed no documents that met his request. Appellant then filed a complaint with the GRC, asserting that the board's refusal to provide records and its denial of an explanation of the cost breakdown for duplication was unreasonable. The board responded as it had before and further revealed that it pays a flat fee of $157.20 per month for the lease of its copy machine, which includes the making of up to 12,000 copies per month. The board reiterated that it "keeps no records as to the actual cost per copy in terms of materials and supplies." Although it reached the dispute about the reasonableness of the board's duplication charges, to which we will momentarily turn, the GRC sustained the board's position that it had no documents to turn over. Because there is evidence in the record to support that determination, we defer to this part of the GRC's final agency decision; it is neither unreasonable, arbitrary nor capricious, and it is fully supported by the factual record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).

Appellant's argument extends to whether the duplication fees charged by the board comply with N.J.S.A. 47:1A-5(b). However, because the board possessed no documents responsive to appellant's demand and, therefore, had nothing to duplicate and no fee to charge, we conclude that appellant has no standing to complain about the board's fee schedule. Although our courts have historically taken a liberal approach to the question of standing, Crescent Park Tenants Assoc. v. Realty Eq. Corp. of N.Y., 58 N.J. 98, 101 (1971), we are satisfied that appellant does not have "a sufficient stake and real adverseness with respect to the subject matter of the litigation" and has not shown that there is "a substantial likelihood that some harm will fall upon [him] in the event of an unfavorable decision," In re N.J. Bd. of Pub. Utils., 200 N.J. Super. 544, 556 (App. Div. 1985) (citations omitted), for the simple fact that he was not charged a fee based upon what he contends are the board's excessive duplication rates.

Notwithstanding his lack of standing on this point, appellant argues that the board should be charging duplication fees based upon its actual costs and not a flat rate based upon what purports to be the maximum allowable by OPRA. Although it is not necessary to our disposition of this appeal, we have considered the matter and find no merit in appellant's argument.

In support of his contention regarding the board's duplication fee schedule, appellant refers to N.J.S.A. 47:1A-5(b), a statute that contains a number of separate parts spread out over four sentences. Its first sentence, states that "[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." Ibid. The plain language of this sentence suggests that the analysis starts with a determination of whether any other law or regulation sets a duplication rate for the particular request. Since no one has argued there is some other governing law or regulation, our analysis next turns to what the Legislature meant by the "actual cost" of duplication.

The third sentence of N.J.S.A. 47:1A-5(b) defines "actual cost" as "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 [N.J.S.A. 47:1A-5(c)*fn1 ]." Once the "actual cost" of duplication is determined and a rate derived from that information, resort must be had to the second sentence of the statute, which declares that the fee must "not exceed the following: first page to tenth page, $0.75 per page; eleventh page to twentieth page, $0.50 per page; all pages over twenty, $0.25 per page."

Read together, the second and third sentences of the statute indicate that a public agency must charge a rate based upon its "actual cost" so long as it does not exceed the specific monetary amounts contained in the statute. However, the fourth (and last) sentence of the statute permits a public agency to charge a fee based upon actual cost that exceeds the specific monetary rates in the second sentence if it "can demonstrate that its actual costs for duplication of a government record exceed[s]" those rates.

Here, the board adopted the specific duplication rate referred to in the second sentence of the statute, i.e., $0.75 per page for the first ten pages, $0.50 per page for the next ten pages, and $0.25 per page for any additional pages. In adopting that rate, the board made no attempt to determine its actual cost of duplication. After considering the parties' contentions about the application of N.J.S.A. 47:1A-5(b) to this board, the GRC held that "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." Appellant contends that this interpretation of the various moving parts of N.J.S.A. 47:1A-5(b) -- as applied to this board -- is inconsistent with the statute's plain language. We disagree.

Appellant argues that N.J.S.A. 47:1A-5(b) compels an agency's adoption of a duplication rate based upon actual cost. Although this contention finds support in the statute's literal terms, as Judge Learned Hand observed in a similar setting:

There is no surer way to misread any document than to read it literally; in every interpretation we must pass between Scylla and Charybdis; and I certainly do not wish to add to the barrels of ink that have been spent in logging the route. As nearly as we can, we must put ourselves in the place of those who uttered the words, and try to divine how they would have dealt with the unforeseen situations; and, although their words are by far the most decisive evidence of what they would have done, they are by no means final. [Guiseppi v. Walling, 144 F.2d 608, 624 (2d Cir. 1944) (concurring opinion), aff'd sub nom. Gemsco, Inc. v. Walling, 324 U.S. 244, 65 S.Ct. 605, 89 L.Ed. 921 (1945).]

In conforming to this approach, see also McNeil v. Legis. Appor't Com'n, 177 N.J. 364, 374 (2003); Republic Bus. Credit Corp. v. Camhe-Marcille, 381 N.J. Super. 563, 568 (App. Div. 2005), we conclude that the GRC properly applied common sense to the problem of applying an actual cost approach to a small public agency.

We agree with appellant that the Legislature intended, as a general matter, that the actual cost of duplication should govern. The statute also purports to set a ceiling of what may be charged -- which is what this board charges -- but, at the same time, allows for the application of a rate in excess of that ceiling when it can be demonstrated that the actual costs exceed the ceiling. This demonstrates to us that the Legislature did not intend to strictly define the duplication rates that may be charged but merely intended to create a template against which each public agency's rate may be examined. Indeed, by adopting an actual cost approach, which must inevitably vary from agency to agency and from duplication request to duplication request, the Legislature undoubtedly understood that no single rate would be appropriate in all cases. Accordingly, we agree with the GRC that it would be inappropriate and overly-rigid to apply the statute in the same precise way to each and every public agency.

In short, N.J.S.A. 47:1A-5(b) must be allowed, in Justice Holmes's words, some "play in its joints." Bain Peanut Co. v. Pinson, 282 U.S. 499, 501, 51 S.Ct. 228, 229, 75 L.Ed. 482, 491 (1931). The GRC recognized this sensible approach when it interpreted the statute in a way that lifted the burden from small public bodies, which have limited equipment and resources. In some cases, as the GRC appropriately determined, the most efficient approach is to allow small public agencies the right to charge the specific monetary amounts contained in the second sentence of the statute without undertaking onerous determinations of their actual costs. This interpretation is "not plainly unreasonable" and, therefore, is entitled to our "substantial deference." Smith v. State, Dep't of Treasury, 390 N.J. Super. 209, 216-17 (App. Div. 2007); McKenzie v. Bd. of Trs., P.E.R.S., 389 N.J. Super. 456, 461 (App. Div. 2006).


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