Public Agencies May Be Required to Charge "Actual Costs" for Copies of Records

Public Agencies May Be Required to Charge "Actual Costs" for Copies of Records

By Thomas A. Segreto

Public agencies should be aware that a recent court decision has required an agency to charge actual costs for OPRA requests rather than the standard rates set forth in N.J.S.A. 47:1A-1. Although this case is not binding on any public agencies (except the agency involved in the case), it may influence future decisions which would affect public agencies.

Many public agencies charge the rates set forth in the Open Public Records Act, N.J.S.A. 47:1A-1 et seq. (OPRA) (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) for copies of records. On May 21, 2009, Mercer County Assignment Judge Linda Feinberg issued an unpublished opinion in the class action entitled; Getts v. Mercer County Clerk’s Office, regarding allowable fees for duplication of records. In Getts, the court addressed the costs which public agencies, inclusive of municipalities, may charge for satisfying “self service” OPRA requests.

While presented with a fact scenario which was limited to “self service” copying charges, in dicta, the court interpreted the statutory language pertaining to permissible costs in more general terms and applied its analysis to “all copy fees.” Judge Feinberg concluded, with regard to the schedule of fees set forth in OPRA, that it establishes “a maximum permissible cost,” but that the public entity must nonetheless charge the “actual cost” for duplicating the record requested. In other words, the fee schedule in OPRA is not a default schedule of fees which can be applied.

Pursuant to New Jersey Court Rules, R.1:36-3, unpublished opinions are not precedential or binding on any court. Also, one may argue that Judge Feinberg’s analysis beyond “self service” copying is mere dicta. Notwithstanding this fact, recently, some municipalities have been reducing their OPRA fees to reflect an approximation of actual costs in the range of $.05-$.10 per page. In a class action setting, public agencies may be exposed to liability for OPRA charges in excess of actual costs along with attorneys fees and costs of suit.

This Scarinci Hollenbeck Legal Update has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel.

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