N.J. court upholds $1,900 fee for public records

NEWARK, N.J. - A state appellate court yesterday upheld a charge of nearly $1,900 for government records sought by a free-lance journalist because several lawyers were needed to compile the documents.

The journalist, Janon Fisher, challenged the fee, but the panel said it was reasonable. The court said the state Attorney General's Office had good reasons to assign five lawyers to retrieve and review e-mails and computer files sought under the state's Open Public Records Act.

The office "reasonably determined that those attorneys could identify the records responsive to the OPRA request and any privileged parts of those records more expeditiously and reliably than clerical staff," the panel said in a 3-0 decision.

Fisher's lawyer, Ed Barocas, legal director of the state chapter of the American Civil Liberties Union, said they were disappointed and were considering their options.

"We still have many hurdles to overcome to achieve transparent government in New Jersey," Barocas said in a statement.

The Attorney General's Office said it was pleased the court determined the matter was handled appropriately.

Lawyers spent 52.5 hours to search thousands of e-mails and numerous files to locate the documents, according to the attorney general's office. The total cost, $1,877.93, was determined by multiplying the hours by the hourly rate of the lowest-salaried deputy attorney general, or $35.77 an hour.

Their actions were in response to a 2004 request from Fisher for records relating to the assignment of deputy attorneys general to the Government Records Council, a state agency that handles disputes over access to government records.

Fisher also sought records addressing complaint response times and backlogs, and correspondence between the attorney general's office and the governor's office "regarding staffing of the GRC, the processing of OPRA requests and any OPRA exemptions."

The appellate panel found that in addition to copying costs, OPRA allows public agency to impose a "special services charge" if production of the records involves "an extraordinary expenditure of time and effort."

Such a charge must be reasonable and "based upon the actual direct cost" of accommodating the request, the court found.

Fisher's request took the state attorneys nearly two years, including the review of more than 15,000 e-mails and computer files, the attorneys said.

The appellate court said it was appropriate for two assistant attorneys general and three deputy attorneys general to perform the work, noting "attorney e-mails may involve highly sensitive materials that should not be seen even by other employees of the public agency."