ASSEMBLY, No. 3270

STATE OF NEW JERSEY

214th LEGISLATURE

 

INTRODUCED SEPTEMBER 20, 2010

 


 

Sponsored by:

Assemblyman  JOHN F. MCKEON

District 27 (Essex)

Assemblyman  CHARLES MAINOR

District 31 (Hudson)

Assemblywoman  PAMELA R. LAMPITT

District 6 (Camden)

 

Co-Sponsored by:

Assemblyman Scalera

 

 

 

 

SYNOPSIS

     Permits custodian to require deposit for OPRA record requests exceeding $25.

 

CURRENT VERSION OF TEXT

     As introduced.

  


An Act concerning fees for open public records act requests and amending P.L.2001, c.404.

 

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

     1.    Section 6 of P.L.2001 (C.47:1A-5) is amended to read as follows:

     6.    a. The custodian of a government record shall permit the record to be inspected, examined, and copied by any person during regular business hours; or in the case of a municipality having a population of 5,000 or fewer according to the most recent federal decennial census, a board of education having a total district enrollment of 500 or fewer, or a public authority having less than $10 million in assets, during not less than six regular business hours over not less than three business days per week or the entity's regularly-scheduled business hours, whichever is less; unless a government record is exempt from public access by: P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented; any other statute; resolution of either or both houses of the Legislature; regulation promulgated under the authority of any statute or Executive Order of the Governor; Executive Order of the Governor; Rules of Court; any federal law; federal regulation; or federal order. Prior to allowing access to any government record, the custodian thereof shall redact from that record any information which discloses the social security number, credit card number, unlisted telephone number, or driver license number of any person; except for use by any government agency, including any court or law enforcement agency, in carrying out its functions, or any private person or entity acting on behalf thereof, or any private person or entity seeking to enforce payment of court-ordered child support; except with respect to the disclosure of driver information by the Division of Motor Vehicles as permitted by section 2 of P.L.1997, c.188 (C.39:2-3.4); and except that a social security number contained in a record required by law to be made, maintained or kept on file by a public agency shall be disclosed when access to the document or disclosure of that information is not otherwise prohibited by State or federal law, regulation or order or by State statute, resolution of either or both houses of the Legislature, Executive Order of the Governor, rule of court or regulation promulgated under the authority of any statute or executive order of the Governor.  Except where an agency can demonstrate an emergent need, a regulation that limits access to government records shall not be retroactive in effect or applied to deny a request for access to a government record that is pending before the agency, the council or a court at the time of the adoption of the regulation.

     b.    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.   Except as otherwise provided by law or regulation, the fee assessed for the duplication of a government record embodied in the form of printed matter shall 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. The actual cost of duplicating the record shall be 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 subsection c. of this section.  If a public agency can demonstrate that its actual costs for duplication of a government record exceed the foregoing rates, the public agency shall be permitted to charge the actual cost of duplicating the record.

     c.     Whenever the nature, format, manner of collation, or volume of a government record embodied in the form of printed matter to be inspected, examined, or copied pursuant to this section is such that the record cannot be reproduced by ordinary document copying equipment in ordinary business size or involves an extraordinary expenditure of time and effort to accommodate the request, the public agency may charge, in addition to the actual cost of duplicating the record, a special service charge that shall be reasonable and shall be based upon the actual direct cost of providing the copy or copies; provided, however, that in the case of a municipality, rates for the duplication of particular records when the actual cost of copying exceeds the foregoing rates shall be established in advance by ordinance.  The requestor shall have the opportunity to review and object to the charge prior to it being incurred.

     d.    A custodian shall permit access to a government record and provide a copy thereof in the medium requested if the public agency maintains the record in that medium.  If the public agency does not maintain the record in the medium requested, the custodian shall either convert the record to the medium requested or provide a copy in some other meaningful medium.  If a request is for a record: (1) in a medium not routinely used by the agency; (2) not routinely developed or maintained by an agency; or (3) requiring a substantial amount of manipulation or programming of information technology, the agency may charge, in addition to the actual cost of duplication, a special charge that shall be reasonable and shall be based on the cost for any extensive use of information technology, or for the labor cost of personnel providing the service, that is actually incurred by the agency or attributable to the agency for the programming, clerical, and supervisory assistance required, or both.

     e.     Immediate access ordinarily shall be granted to budgets, bills, vouchers, contracts, including collective negotiations agreements and individual employment contracts, and public employee salary and overtime information.

     f.     The custodian of a public agency shall adopt a form for the use of any person who requests access to a government record held or controlled by the public agency.  The form shall provide space for the name, address, and phone number of the requestor and a brief description of the government record sought.  The form shall include space for the custodian to indicate which record will be made available, when the record will be available, and the fees to be charged.  The form shall also include the following: (1) specific directions and procedures for requesting a record; (2) a statement as to whether prepayment of fees or a deposit is required; (3) the time period within which the public agency is required by P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented, to make the record available; (4) a statement of the requestor's right to challenge a decision by the public agency to deny access and the procedure for filing an appeal; (5) space for the custodian to list reasons if a request is denied in whole or in part; (6) space for the requestor to sign and date the form; (7) space for the custodian to sign and date the form if the request is fulfilled or denied.  The custodian may require a 50 percent or other deposit against costs for reproducing documents when a request for reproducing records exceeds $25.  The custodian is not required to release these records until payment is received pursuant to subsection b of this section (C.47:1A-5.b).  The custodian may require a deposit against costs for reproducing documents sought through an anonymous request whenever the custodian anticipates that the information thus requested will cost in excess of $5 to reproduce.

     g.     A request for access to a government record shall be in writing and hand-delivered, mailed, transmitted electronically, or otherwise conveyed to the appropriate custodian.  A custodian shall promptly comply with a request to inspect, examine, copy, or provide a copy of a government record.  If the custodian is unable to comply with a request for access, the custodian shall indicate the specific basis therefor on the request form and promptly return it to the requestor.  The custodian shall sign and date the form and provide the requestor with a copy thereof.  If the custodian of a government record asserts that part of a particular record is exempt from public access pursuant to P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented, the custodian shall delete or excise from a copy of the record that portion which the custodian asserts is exempt from access and shall promptly permit access to the remainder of the record.  If the government record requested is temporarily unavailable because it is in use or in storage, the custodian shall so advise the requestor and shall make arrangements to promptly make available a copy of the record.  If a request for access to a government record would substantially disrupt agency operations, the custodian may deny access to the record after attempting to reach a reasonable solution with the requestor that accommodates the interests of the requestor and the agency.

     h.     Any officer or employee of a public agency who receives a request for access to a government record shall forward the request to the custodian of the record or direct the requestor to the custodian of the record.

     i.      Unless a shorter time period is otherwise provided by statute, regulation, or executive order, a custodian of a government record shall grant access to a government record or deny a request for access to a government record as soon as possible, but not later than seven business days after receiving the request, provided that the record is currently available and not in storage or archived.  In the event a custodian fails to respond within seven business days after receiving a request, the failure to respond shall be deemed a denial of the request, unless the requestor has elected not to provide a name, address or telephone number, or other means of contacting the requestor.  If the requestor has elected not to provide a name, address, or telephone number, or other means of contacting the requestor, the custodian shall not be required to respond until the requestor reappears before the custodian seeking a response to the original request.  If the government record is in storage or archived, the requestor shall be so advised within seven business days after the custodian receives the request.  The requestor shall be advised by the custodian when the record can be made available.  If the record is not made available by that time, access shall be deemed denied.

     j.     A custodian shall post prominently in public view in the part or parts of the office or offices of the custodian that are open to or frequented by the public a statement that sets forth in clear, concise and specific terms the right to appeal a denial of, or failure to provide, access to a government record by any person for inspection, examination, or copying or for purchase of copies thereof and the procedure by which an appeal may be filed.

     k.    The files maintained by the Office of the Public Defender that relate to the handling of any case shall be considered confidential and shall not be open to inspection by any person unless authorized by law, court order, or the State Public Defender.

(cf:  P.L.2001, c.404, s.6)

 

     2. This act shall take effect immediately.

 

STATEMENT

 

     This bill amends the Open Public Records Act (OPRA) to allow a custodian of public records to require a 50 percent or other deposit when a request for reproducing such records exceeds $25.  By doing so, the bill mirrors paragraph 5 of the model Open Public Records Act Request Form approved by the New Jersey Attorney General.

     The bill also codifies the final decision of the Government Records Council (GRC) in Paff v. City of Plainfield, GRC Complaint No.2006-54, which held that a custodian is not required to release records until payment is received.  The GRC reported that since 2002 it had received numerous complaints from custodians concerning the failure of requesters to retrieve the public records that were requested.

     Current law provides that a custodian may require a deposit against costs for reproducing documents sought through an anonymous request whenever a custodian anticipates that the information requested will cost in excess of $5 to reproduce.  The bill will not affect this provision.