FISCAL NOTE TO


SENATE, No. 332


STATE OF NEW JERSEY

 

DATED: JUNE 18, 1997

 

      Senate Bill No. 332 of 1996 would repeal the present Right to Know Law and would revise New Jersey's law concerning access to public documents. In general, the bill would expand the category of government records to which access would be guaranteed by statute and establishes more specifically the particular types of documents which, although defined as government records, may be withheld from disclosure.

      All records maintained by State, county and municipal government agencies, including independent authorities, would be available at all times for public inspection and copying and for the purchase of copies by the public. Exceptions to the right of access are established for certain criminal intelligence and criminal investigation information, certain personal data relating to specifically identifiable individuals and certain other limited situations.

      This bill would establish detailed procedures for requesting information from public entities and for responding to requests for access. Under this bill, every public agency would be required to designate a custodian for its records, establish a fee schedule for the purchase of copies of records and develop a standard form for requesting access to information held by that agency. Agencies are required to respond promptly to each request by providing either the information requested or a written explanation of why the information cannot be provided.

      The bill also provides for enforcement of the right of access by filing of actions in the Superior Court. Actions contesting the denial of access are to take precedence over all other matters and are to be handled as expeditiously as possible. The custodian would have the burden of demonstrating that the denial of access is justified. This bill would allow the court to award reasonable attorney fees and other reasonable litigation expenses to a member of the public who prevails in such an action.

      The bill would also allow custodians to obtain a court order protecting otherwise accessible records if the custodian can demonstrate that disclosure would cause substantial harm to the public interest.

      The Department of Education (DOE) has advised the Office of Legislative Services (OLS) that it is not possible to estimate the potential cost of this bill to the department or to school districts for several reasons. The department is unable to anticipate the potential number and complexity of requests that may be received under this bill. Since the bill would substantially broaden the definition of public record from that which currently exists under law, any information maintained in any form would be potentially subject to a request by a member of the public. The department notes that requests for access to information are likely to proliferate as a result of the expansion of the definition of public record and the message that the bill sends.

      The department also notes that the bill is ambiguous on several points that will affect the cost of the bill to the department and to school districts. For example, it is uncertain whether compliance with requests for electronic data is required for other than raw data and pre-programmed reports. The department imagines that requests may be made that effectively would require research on the part of the public agency to either identify the record requested or to manipulate electronic data components to meet the criteria specified. Also, the department maintains raw data which are only compiled into report form for only limited purposes. The department notes that the argument may be made that a data report that has not already been programmed does not exist as a public record, even if data make the report possible.

      The department also notes that the bill specifically precludes the inclusion of labor or overhead costs in the fee charged to requestors of data, but permits the charging of a “reasonable cost” by the agency for direct and indirect costs associated with the making of access available or of creating and transmitting a computer copy. However, a request for information may require some research on the part of the public agency, the cost of which cannot be recouped. The department notes that creating and executing a computer program can take from one hour to several days or longer, depending on the complexity of the program. The private market rate for programming is approximately $65 per hour, and the hourly salary and benefits cost of a department programmer is estimated at $25 to $35 per hour. The department notes that it is unclear whether interpretation of the proposed bill’s allowance for charging “reasonable cost” would encompass these rates.

      Also, the department notes that certain documents are published by it, and available in libraries, and through other public sources. Currently, the department refers requestors of such documents to a library or to the appropriate public source. The department states that under this bill, it is unclear whether this practice could continue, or if the department itself would be required to provide copies of published documents.

      The department also notes that the bill also makes no mention of whether postage costs can be charged to requestors of documents. The department notes that if a document is requested to be mailed, the mailing of significantly long documents or a significant number of them could incur substantial costs to the agency providing the information.

      Finally, the department notes that the bill unambiguously requires certain public agency resources, such as the cost of administering the law by the custodian of the records and the support of a clerical staff for the purpose of copying records or supervising requestors of records during their examination and copying of records, and the cost of legal consulting and litigation of appeals of denial of access to records. The department estimates that its staffing needs, for the purpose of compliance with the requirements of the bill, might include approximately 25 percent of one full-time administrative employee at an average cost of $15,000 per year, approximately 50 percent of one full-time clerical employee at an average cost of $18,000 per year, and, if research is required by the department and is not billable to the requestor, approximately one and one-half professional full-time employees might be estimated to be required at an annual cost of approximately $80,000.

      The OLS concurs with the DOE’s analysis and concerns. The OLS notes that, under the bill, each public agency is required to develop a fee schedule that reflects the costs of materials and supplies used in making copies of public records, but the fee schedule cannot include the cost of labor or other overhead expenses associated with making the copy. Therefore, each public agency must absorb the costs of maintaining a "custodian of government records." In some cases, the agency may be able to perform the responsibility with current staff. In other cases, where the volume of public records that are requested for access is large, the agency may be required to hire additional personnel or incur overtime costs. The OLS has no data to determine which State and local agencies might require additional labor to perform the function. It is therefore unable to estimate the labor costs associated with this bill. The OLS notes, however, that if a municipality, county or school district is unable to recoup its costs from the payment of fees by persons or entities requesting access to the records, the municipal, county or school district purposes portion of the property tax bill (as applicable) might be increased or other current services might be reduced or eliminated in order to cover these costs.

      The OLS notes that certain factors may affect the cost each government agency may face in providing the records required under this act. The cost of providing records may vary according to the size of the government entity from which the information is being sought. For example, a person seeking information as to the identity of each police officer employed by a municipality would likely receive a larger list from the custodian of records of a city of the first class than it would expect to receive from a municipality having a population of less than 1,000 residents.

      Another factor is the provision of the bill that permits a requestor of records to request the data in a form other than photocopies. Some government entities may find it more cost-effective to provide the data by non-electronic means, while some others may find electronic means to be the most cost-effective. The fact that the governmental entity cannot provide the information to the requestor in the most cost-effective manner may also result in increased taxation or diminished local services.

      The OLS also notes that the bill requires that persons who must sue to force the receipt of government records and are successful in court shall receive costs of the suit from the government agency sued for the records. This provision has the potential, in the case of municipalities, counties and school districts, to cause a potential local budget and tax increase, or diminished local services, or both.

      The OLS also notes that the bill contains a provision that permits the custodian of the records to apply to the Superior Court for an order authorizing denial of access to records when the custodian determines that disclosure of a governmental record ordinarily accessible under the bill would cause substantial harm to the public interest. The OLS notes that such an action would likely require the assistance of the governmental entity's legal staff, potentially resulting in a labor cost that cannot be passed on to the requestors in the form of fees. Also, the bill's requirement that the governmental agency may be assessed reasonable attorney's fees and other reasonable litigation expenses by the court when it does not prevail in a proceeding brought under the bill also creates the potential for a tax increase or decrease in services, or both for local taxpayers. Local taxpayers living under small units of government with small budgets could be seriously affected by these litigation expenses.

      The OLS cannot estimate the potential cost of the provisions of this bill on the State or any political subdivision thereof because it cannot determine the potential effect of the bill on the number and kind of records requested by the public. However, the OLS notes that several provisions of the bill have the potential to decrease current services performed by the State and its political subdivisions, or increase taxation, or some combination of both, so that the increased costs associated with the expanded record access guaranteed under this bill can be achieved.

 

This fiscal note has been prepared pursuant to P.L.1980, c.67.