On appeal from the Government Records Council, Complaint No. 2008-277.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Harris.
The Township of Sparta (Township) appeals from a final determination of the Government Records Council (GRC), which found that Jesse Wolosky (Wolosky) was the prevailing party in a proceeding brought pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and awarded him attorney's fees in the amount of $6097. Wolosky cross-appeals from the GRC's decision. For the reasons that follow, we affirm in part and reverse in part on the appeal, and affirm on the cross-appeal.
On April 3, 2008, Wolosky submitted a request to the Township for copies in the Windows WAV format of the audio recording of the March 25, 2008 meeting of the Township's Council. The Township's Custodian of Records (Custodian) responded to the request in a letter dated April 7, 2008. The Custodian wrote that the Township uses the FTR Gold System to record the Council meetings, and it does not maintain the recordings in any other format.
The Custodian stated that she would provide a complete copy of the FTR Gold System recording of the Council's March 25, 2008 meeting at a cost of $1 per compact disk (CD). The Custodian also stated that the Township's Director of Technology had informed her that it would take three and one-half hours to convert the recording to the Windows WAV format. The Custodian said that a special service charge (SSC) of $67 per hour would be imposed for the conversion. The Custodian offered, however, to provide Wolosky with a free download of the software necessary to play the recording in the FTR Gold System format.
On April 7, 2008 and April 9, 2008, Wolosky submitted additional OPRA requests to the Township. He sought copies of all of the Township Attorney's legal bills for the period from December 2007 to March 2008, and a copy of the Township's bill list by vendor identification for the year 2007. Wolosky also sought CDs of the audio recordings of the Council's December 27, 2007, March 25, 2008 and April 8, 2008 meetings in the Windows WAV format.
On April 11, 2008, the Custodian responded to Wolosky's April 7 and April 9 requests. The Custodian stated that she would provide an electronic copy of the vendor bill list, at a cost of $162.75, and an electronic copy of a summary of the legal bills, at a cost of $13.50. In addition, the Custodian said that audio recordings of each of the Council's meetings could be provided in Windows WAV format; however, a SSC would be imposed in the amount of $67 per hour for labor, plus $1 per CD, for each recording.
By letter dated May 9, 2008, Wolosky objected to the amount of the SSC for the conversion of the audio recordings. The Custodian responded in a letter dated May 14, 2008. She stated that the Township would not change its position regarding the SSC.
On December 12, 2008, Wolosky filed a denial-of-access complaint with the GRC, challenging the SSCs that the Custodian intended to assess for the record conversions. The GRC issued an order in the matter, which was distributed on November 20, 2009.
The GRC determined that an SSC could be imposed to convert the legal bills and vendors list, but said that the labor portion of the charge should be based on the hourly rate of the lowest paid employee qualified to perform the conversion. The GRC additionally determined that an SSC could be imposed to convert the audio recordings of the Council's meetings to the Windows WAV format, and the charge could be based upon a $67 per hour labor cost for the conversion.
On December 3, 2009, Wolosky asked the GRC to reconsider its November 20, 2009, interim order. Among other things, Wolosky stated that it was not necessary to convert the recordings of the Council's meeting from one format to another, because the Township had the technical capability to convert the FTC Gold System recording to the Windows WAV format. Wolosky also stated that, on several previous occasions, the Township had provided him with audio recordings in that format.
On December 4, 2009, the GRC contacted ForTheRecord, the manufacturer of the FTR Gold System, and was advised that since 2002, the FTR Gold System has been capable of creating audio recordings in the Windows WAV format, provided that the system includes a CD "burner." The Township informed the GRC, in response to the ...