Public Agencies Required to Charge “Actual Costs” for Copies of Records

June 16, 2010
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By Sheri K. Siegelbaum | Public entities subject to the Open Public Records Act (“OPRA”) must, as of July 1, 2010, charge “actual cost” for making copies that are from OPRA requests. The Appellate Division decision, in Dean Smith v. Hudson County Register, et al., A-1762-08T2 (February 10, 2010), is effective July 1, 2010. Until this decision, many public entities charged the default schedule of fees set forth in N.J.S.A. 47:1A-5(b). That schedule provides for costs of $.75 per page for pages 1-10, $.50 per page for pages 11-20, and $.25 per page for all pages over 20. The Court in Dean Smith held that this fee schedule is only a “not to exceed” schedule for the cost copies and that actual cost must be used. In light of the Court’s decision, all public entities should establish an “actual cost” for making copies. If the entity is a municipality, it should consider adopting an ordinance prior to July 1, 2010 to establish these fees. Although the Court did not specifically say what costs of making copies should be included in a determination of “actual cost,” it did indicate that labor and overhead costs are not to be included. Generally, items to be considered in “cost” include:
    1. Paper
  1. Toner or ink
  2. Cost of acquiring the copier (lease or purchase amortized)
  3. Maintenance contract (amortized)
  4. Repairs not covered by the maintenance contract (amortized) and
  5. Electricity used by the copying process (as long as it can be calculated and amortized).
Since all different copiers used by a public entity may have a “different” cost of making a copy, the Court did suggest that an average cost of all of the different copier costs can be used. Also, this cost should be recalculated and updated yearly so that the “actual cost” remains current. 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.