Kenneth Vercammen is a Middlesex County trial attorney who has published 130 articles in national and New Jersey publications on Criminal Law and litigation topics. He was awarded the NJ State State Bar Municipal Court Practitioner of the Year. He lectures and handles criminal cases, Municipal Court, DWI, traffic and other litigation matters. He is Co Chair of the ABA Criminal Law Committee, GP and was a speaker at the ABA Annual Meeting. To schedule a confidential consultation, call us or New clients email us evenings and weekends go to www.njlaws.com/ContactKenV.htm

Kenneth Vercammen & Associates, P.C,

2053 Woodbridge Avenue,

Edison, NJ 08817,

(732) 572-0500,

www.njlaws.com

Friday, July 31, 2015

Legislation that changed OPRA’s copy fee provision at N.J.S.A. 47:1A-5.b

Legislation that changed OPRA’s copy fee provision at N.J.S.A. 47:1A-5.b. Said provision of OPRA has since been amended to provide that:

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“[a] copy or copies of a government record may be purchased by any person upon payment of the fee prescribed by law or regulation. 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 be $0.05 per letter size page or smaller, and $0.07 per legal size page or larger. 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. The actual cost of duplicating the record, upon which all copy fees are based, 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. Access to electronic records and non-printed materials shall be provided free of charge, but the public agency may charge for the actual costs of any needed supplies such as computer discs.” (Emphasis added). N.J.S.A. 47:1A- 5.b.
To fully understand the impact of this amendment to OPRA’s copy fee schedule, the Government Records Council interprets each sentence of the amended fee provision below:
1. “[a] copy or copies of a government record may be purchased by any person upon payment of the fee prescribed by law or regulation.”
This sentence means that custodians are to charge OPRA requestors any copy fees that are established by other New Jersey laws or regulations, if said fees exist. For example, N.J.S.A. 22A:4-1a sets forth specific fees for certain records filed with the New Jersey Department of Treasury (and requested from the Department of Treasury). Specifically, said statute provides that “[i]f a roll of microfilm images is requested, the State Treasurer shall collect a fee of $1.00 for each image on the microfilm roll.” Thus, if a requestor seeks access to a microfilm roll from the Department of Treasury, the Department’s custodian must charge the fees established in N.J.S.A. 22A:4-1a. The same applies for any other records that have specific fees established in other New Jersey laws or regulations.
2. “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 be $0.05 per letter size page or smaller, and $0.07 per legal size page or larger.”
For records that do not have a specific fee established by statute (like the Treasury example above), custodians must charge a flat rate of $0.05 per letter size (8 1⁄2” x 11”) page or smaller, and $0.07 per legal size (8 1⁄2” x 14”) page or larger, if providing a requestor with paper copies. For example, a custodian providing access to 3 pages of printed meeting minutes on letter size pages would charge a requestor $0.15 ($0.05 per page for 3 pages = $0.15).
3. “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. The actual cost of duplicating the record, upon which all copy fees are based, shall be the cost of materials and supplies used to make a
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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.” (Emphasis added).
It is possible that the actual cost to produce paper copies will exceed $0.05 per letter size page or smaller and $0.07 per legal size page or larger for some public agencies. In these instances, the OPRA amendment allows custodians to charge the actual cost of duplication, which is limited to the cost of materials and supplies used to make the copy.
How to Calculate Actual Costs (only if paper copies exceed the $0.05 and $0.07 rates)
  •   Custodians should contact their supplier to determine the cost of paper and toner. A supplier is wherever the agency obtains those materials – paper and toner (i.e. central purchasing unit, Staples, Office Depot, etc).
  •   Calculate or contact copying company to determine the agency’s annual copying volume (calendar or fiscal year, however the agency operates). This does NOT only include copies pertaining to OPRA requests – this is ALL copying on all copy machines in the agency for all purposes.
  •   Contact copying company to determine the average paper life of one toner/ink cartridge (i.e. how many pieces of paper the ink or toner should be able to copy).
  •   Custodians must maintain documentation of all information provided by copying company or office supplier (i.e. contracts or correspondence from purchasing agent or copying company) regarding this calculation.
  •   Actual calculation is the total cost of paper purchased for 1 year (calendar or fiscal) + the total cost of toner purchased (calendar or fiscal) ÷ the annual copying volume.
    This calculation can be averaged for all copy machines in an agency that produce letter and legal copies. Special copiers, such as for color printing or blueprints copied in house, should be calculated separately.