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Fisher v. Division of Law

April 28, 2008

JANON FISHER, COMPLAINANT-APPELLANT,
v.
DIVISION OF LAW, RESPONDENT-RESPONDENT.



On appeal from Government Records Council.

The opinion of the court was delivered by: Skillman, P.J.A.D.

FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted March 4, 2008

Before Judges Skillman, Winkelstein and LeWinn.

The Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, authorizes a public agency to impose a "special service charge" if a response to a request for production of government records will involve an "extraordinary expenditure of time and effort." N.J.S.A. 47:1A-5(c). However, this charge must be "reasonable." Ibid. The primary issue presented by this appeal is whether it was reasonable for the Division of Law to assign responsibility for retrieval and review of e-mails and computer files responsive to an OPRA request to the assistant and deputy attorneys general who had prepared those records. We conclude that the Division reasonably determined that those attorneys could identify the records responsive to the OPRA request and any privileged parts of those records more expeditiously and reliably than clerical staff or the Division's Custodian of Records. Therefore, the special service charge for production of those records was properly based on the time expended by the assistant and deputy attorneys general in retrieving and reviewing the requested government records.

On March 14, 2004, appellant, who is a freelance journalist, submitted a request to the Division of Law, Department of Law and Public Safety, for production under the OPRA of an expansive list of government records relating to the assignment of deputy attorneys general to the Government Records Council (Council) and the Division's representation of that state agency. Appellant requested:

All emails, correspondence, memoranda and other records concerning the assignment of Deputy State Attorney Generals as GRC staff, temporary or permanent, and their involvement in OPRA cases where the state Department of Law and Public Safety or any of its entities is a party. Additionally I request, all emails, correspondence, memoranda and other records addressing GRC complaint response times and backlogs.

And I request all outgoing and incoming emails, correspondence, memoranda and other communications between GRC staff members and members of the Department of Law & Public Safety concerning GRC backlogs and staffing matters.

I also request any and all correspondence between the Department of Law and Public Safety and the governor's office regarding staffing of the GRC, the processing of OPRA requests and any OPRA exemptions.

On April 2, 2004, Robert Sanguinetti, the Custodian of Records for the Division of Law, sent the following response to this request:

Please be advised that because the Division of Law made an extraordinary expenditure of time and effort to accommodate this request, there will be a special service charge of $1877.93. Several Division of Law attorneys had to search through thousands of e-mails as well as numerous files to locate documents responsive to your request. The total time spent by these attorneys was 52.5 hours and the hourly rate is based on the salaries of the Deputy Attorneys General involved.

Please advise if you agree to payment of this special service charge. Upon receipt of such notification, we will forward the records in response to your request.

Appellant responded that he would need a few days to decide whether to pay the required charge for production of the documents. Appellant also asked how many pages of documents would be produced in response to his request. Sanguinetti advised appellant that the Division of Law could not answer this ...


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