DEAN SMITH v. HUDSON COUNTY REGISTER and WILLIE J. FLOOD
State: New Jersey
Docket No: none
Case Date: 02/10/2010
(NOTE: The status of this decision is Published.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1762-08T2
A-2507-08T3
A-2518-08T3
DEAN SMITH, on behalf of
himself and all others
similarly situated,
Plaintiff-Appellant,
APPROVED FOR PUBLICATION
v.
February 10, 2010
HUDSON COUNTY REGISTER and WILLIE APPELLATE DIVISION
J. FLOOD, in his capacity as the
HUDSON COUNTY REGISTER and
HUDSON COUNTY, through the HUDSON
COUNTY BOARD OF CHOSEN FREEHOLDERS,
Defendants-Respondents.
___________________________________
JAMES GENSCH, on behalf of
himself and all others
similarly situated,
Plaintiff-Appellant,
v.
HUNTERDON COUNTY CLERK'S OFFICE
and MARY H. MELFI, in her capacity
as the HUNTERDON COUNTY CLERK, and
HUNTERDON COUNTY, through the
HUNTERDON COUNTY BOARD OF CHOSEN
FREEHOLDERS,
Defendants-Respondents.
___________________________________
MARTIN O'SHEA, on behalf of
himself and all others
similarly situated,
Plaintiff-Appellant/
Cross-Respondent,
v.
SUSSEX COUNTY CLERK'S OFFICE and
ERMA GORMLEY, in her capacity as
the SUSSEX COUNTY CLERK, SUSSEX
COUNTY, and the SUSSEX COUNTY
BOARD OF CHOSEN FREEHOLDERS,
Defendants-Respondents/
Cross-Appellants.
___________________________________
Argued September 16, 2009 - Decided February 10, 2010
Before Judges Stern, Graves and Sabatino.
On appeal from the Superior Court of New
Jersey, Law Division, Hudson County, Docket
No. L-5261-07 (A-1762-08T2); Hunterdon
County, Docket No. L-307-07 (A-2507-08T3);
and Sussex County, Docket No. L-655-06 (A-
2518-08T3).
Sander D. Friedman and Wesley G. Hanna
argued the cause for appellant Dean Smith in
A-1762-08T2, appellant James Gensch in A-
2507-08T3 and appellant/cross-respondent
Martin O'Shea in A-2518-08T3 (Friedman
Doherty, LLC, attorneys; Mr. Hanna, on the
brief).
Steven L. Menaker argued the cause for
respondents Hudson County Register, Willie
J. Flood and Hudson County in A-1762-08T2
(Chasan Leyner & Lamparello, PC, attorneys;
Mr. Menaker, of counsel; Mr. Menaker and
Kirstin Bohn, on the brief).
2 A-1762-08T2
Michael A. De Sapio argued the cause for
respondents Hunterdon County Clerk's Office,
Mary H. Melfi, and Hunterdon County in A-
2507-08T3 (Mr. De Sapio and Gaetano M. De
Sapio, on the brief).
Robert B. Campbell argued the cause for
respondents/cross appellants Sussex County
Clerk's Office, Erma Gormley, Sussex County,
and the Sussex County Board of Chosen
Freeholders in A-2518-08T3 (McConnell,
Lenard & Campbell, LLP, attorneys; Dennis R.
McConnell, of counsel; Mr. Campbell, on the
brief).
Daniel O'Mullen, Morris County Counsel, and
Michael E. Hubner, Special County Counsel,
attorneys for amicus curiae Morris County
Clerk's Office (Mr. O'Mullen and Mr. Hubner,
of counsel; James T. Bryce, on the brief).
Eric M. Bernstein & Associates, L.L.C.,
attorneys for amici curiae Passaic County
Clerk, Karen Brown and Passaic County
Clerk's Office (Eric Martin Bernstein, of
counsel; Mr. Bernstein and Philip G. George,
on the brief).
Thomas F. Kelso, Middlesex County Counsel,
attorney for amici curiae Middlesex County
Clerk's Office, Middlesex County Clerk,
Elaine Flynn, and Middlesex County (Benjamin
D. Leibowitz, Deputy County Counsel, on the
brief).
Chasan Leyner & Lamparello, PC, attorneys
for amici curiae Hudson County, Hudson
County Register, Willie J. Flood, Mercer
County Clerk's Office, Mercer County Clerk,
Paula Sollami-Covello, and Mercer County
(Steven L. Menaker, of counsel; Mr. Menaker
and Kirstin Bohn, on the brief).
The opinion of the court was delivered by
SABATINO, J.A.D.
3 A-1762-08T2
In these three back-to-back appeals, which we hereby
consolidate for purposes of this opinion, plaintiffs each argue
that the trial court erred in dismissing their respective and
similar lawsuits against three defendant Counties (Hudson,
Hunterdon, and Sussex) and various officials and sub-units of
those Counties. Plaintiffs are all represented by the same law
firm. They contend that defendants have overcharged them, and
overcharged other members of the public, for the copying of
government records maintained at County offices, in violation of
both the Open Public Records Act ("OPRA"), N.J.S.A. 47:1A-1 to -
13, and the common law. Defendants, joined by four other
Counties (Morris, Middlesex, Mercer, and Passaic) appearing as
amici curiae, assert that their copying charges comport with
OPRA and the common law. Defendants also contend that
plaintiffs' lawsuits are procedurally flawed in numerous
respects.
For the reasons stated herein, we reverse the trial court's
orders denying relief in all three cases. We hold that unless
and until the Legislature amends OPRA to specify otherwise, or
some other statute or regulation applies, the Counties must
charge plaintiffs and other similar requestors of government
records no more than the reasonably approximated "actual costs"
The burden of proving or disproving
of copying such records.
4 A-1762-08T2
compliance with that "actual costs" mandate will vary, depending
upon whether the charges in question exceed certain fee levels
identified in the second sentence of N.J.S.A. 47:1A-5(b).
Because of the fiscal and administrative impacts upon the
Counties and other governmental agencies that are likely to
result from this holding, we give our decision only prospective
effect and delay its effective date until after the current
State fiscal year.
I.
The facts and procedural history of these three cases,
which turn on questions of law and statutory interpretation, are
mainly undisputed.
The Hudson County ("Smith") Litigation (A-1762-08).
Plaintiff in A-1762-08, Dean Smith, is a private
investigator. As part of his work as an investigator, Smith
searches government records kept at the offices of County
government agencies. At times, Smith needs to obtain copies of
those records. According to Smith's complaint, on three
separate dates (August 1, 2007; October 3, 2007; and August 22,
2008), he copied deeds on the self-serve photocopiers provided
at the Hudson County Register's Office. Depending on the age of
the deed, such copies are made by either using self-service
copiers or by printing a digitized image from a computer. In
5 A-1762-08T2
either instance, Hudson County charges $0.25 per page for such
copies. Smith suspected that the $0.25 charge exceeded the
County's actual expense in producing the copies. Nevertheless,
Smith paid the charges, apparently without making any
contemporaneous protest.
On October 23, 2007, Smith filed a class action complaint
in the Law Division against the Hudson County Clerk's Office,
contesting the fees charged to reproduce government records on
the County's self-service copiers and printers. Smith sought to
certify the class, which would include all persons who had made
copies or printouts at the Hudson County offices and had
likewise paid the County $0.25 per page. He also sought a
court-ordered mathematical determination of the County's actual
costs in making the copies. Because Smith had mistakenly named
improper defendants, he subsequently amended his complaint to
assert the same claims against the Hudson County Register,
Willie J. Flood, and Hudson County through its Board of
Freeholders (collectively "the Hudson defendants").
The trial court denied Smith's motion to certify the class,
finding that he procedurally had no claim because he had
voluntarily paid Hudson County the $0.25 copying fee. Given
that ruling, the court found it unnecessary to ascertain Hudson
County's actual costs of copying.
6 A-1762-08T2
Smith filed a motion for reconsideration. The trial court
denied it, and also dismissed his complaint. Smith then filed
his present appeal.
The Hunterdon County ("Gensch") Litigation (A-2507-08).
James Gensch, plaintiff in A-2507-08, is a homeowner who
resides in Hunterdon County. According to Gensch, he was
interested in finding out whether and to what extent his
property was encumbered by any easements. Consequently, on
April 27, 2007, Gensch went to the Hunterdon County Clerk's
Office to obtain a copy of his deed.
For records filed prior to October 2000, Hunterdon County
maintained bound volumes with the Registry of Deeds. The
contents of those volumes could be reproduced on self-serve
copiers located in the County offices. However, deeds recorded
in Hunterdon County after October 2000 were only available as
digitized images viewable from computers, and copies could be
made on attached printers. Hunterdon County charged $0.25 for
such copies, whether they were reproduced on the self-serve
copiers or on the digital printers.
On May 8, 2007, Gensch filed a complaint in the Law
Division against the Hunterdon County Clerk's Office, the County
Clerk, and Hunterdon County ("the Hunterdon defendants"),
asserting that the costs they had charged him for self-serve
7 A-1762-08T2
photocopying were excessive. After the Hunterdon defendants
answered, Gensch filed a motion for class certification. He
also sought to determine Hunterdon County's actual costs of
making copies. The trial court granted the motion to certify
the class. However, the court found it premature to determine
the County's actual costs of making copies because additional
data was needed.
The Hunterdon defendants then filed with the court a
summary of items they believed were necessary to determine
actual costs. Gensch, meanwhile, re-filed his motion to compel
a determination of actual costs.
On April 15, 2008, the trial court ruled that the
components of Hunterdon County's actual costs of copying
consisted of: (1) paper, (2) toner or ink, (3) cost of acquiring
the self-service equipment, (4) maintenance contract, (5)
repairs not covered by the contract, (6) electricity used in the
copying and printing process, and (7) time spent on computer
terminals. Neither party disputed this breakdown of the cost
components.
The parties in the Hunterdon action cross-moved for summary
judgment. As part of the summary judgment record, the Hunterdon
defendants certified that the total number of copies made on the
self-serve copiers and printers between May 2001 and August 2008
8 A-1762-08T2
was 1,598,563, and that the total amount the County collected
for such copying was $399,640.74. They indicated that the
County's actual per-page cost was $0.07, but when the costs of
the computer equipment and imaging system were factored into the
analysis, the County's per-page cost was $0.31. If Hunterdon
County had charged only $0.07 per copy, the total amount charged
would have been $111,899.41. Consequently, based on these
calculated figures, Gensch alleged that Hunterdon County had
overcharged persons by $287,741.33.
After considering the parties' contentions, the trial court
entered judgment for the Hunterdon defendants, finding that
$0.25 per page was permitted by OPRA and by extant case law.
Thereafter, Gensch filed a notice of appeal.
The Sussex County ("O'Shea") Litigation (A-2518-08).
The third case before us, A-2518-08, was filed in the Law
Division in Sussex County by Martin O'Shea, a retired newspaper
reporter. O'Shea frequently searches real estate records in the
Sussex County offices. To obtain duplicates of such records, he
could either photocopy them using self-serve copying machines at
the County offices or print digital records using computer
printers. On November 9, 2006, O'Shea made self-serve copies at
the Sussex County offices, and was charged $0.25 per page.
9 A-1762-08T2
From March 1985 through December 2006, a private entity,
the Sussex County Abstractors Partnership ("SCAP"), maintained
the self-service copiers at the Sussex County offices, pursuant
to an agreement with the Sussex defendants. Although from
November 2000 through December 2006, SCAP charged customers
$0.25 per page for copies made on its equipment, it only paid
Sussex County $0.08 per page, which essentially represented
space rental and electricity. After paying for supplies, SCAP
divided the excess profit among its members.
In January 2007, SCAP transferred ownership of the copying
machines to Sussex County. Thereafter, in April 2007, Sussex
County lowered the price per copy to $0.10 per page. Customers
generally made more than 20,000 copies per month on the self-
service copiers.
In 2007, Sussex County purchased the computer printers for
a total of $11,683.28. Approximately 250,668 computer printouts
are produced on these printers every year. After all of the
components for printing were accounted for, O'Shea calculated
that the actual costs to the Sussex defendants for computer-
generated copies were $0.03 per page and $0.02 per page for
self-serve copies.1
1
Thereafter, Sussex County again revised its mode of reproducing
government records for citizen requestors. As of November 2007,
(continued)
10 A-1762-08T2
On November 15, 2006, O'Shea filed a class action complaint
in the Law Division against the Sussex County Clerk's office,
Sussex County, and the Sussex County Clerk (the "Sussex
defendants"). O'Shea filed a motion for class certification and
also sought a determination of the County's actual copying
costs. On May 25, 2007, the trial court granted O'Shea's
motions. The court determined that the expenses that make up
actual costs consisted of: (1) paper, (2) toner/ink, (3) the
cost of the self-service equipment, and (4) electricity used in
the copying and printing process.
Based on the trial court's initial determinations, O'Shea
calculated what he believed to be the actual costs of the
copies. He moved for summary judgment, contending that he and
the other class members had been overcharged. The Sussex
defendants, in turn, cross-moved for summary judgment,
contending that their copying charges were consistent with OPRA
and the applicable case law.
On December 10, 2008, the trial court granted the Sussex
defendants summary judgment, dismissing O'Shea's complaint.
O'Shea appealed. The Sussex defendants cross-appealed, seeking
(continued)
all public records contained in Sussex County offices were
searchable on-line and could be printed at no charge on a home
or office computer.
11 A-1762-08T2
to preserve certain defenses and arguments that had not been
decided by the trial court.
The Participation of Other Counties as Amici.
While these three appeals were all pending, we granted
motions by the Morris County Clerk's Office ("Morris"), the
Passaic County Clerk's Office ("Passaic"), the Mercer County
Clerk's Office ("Mercer"), and the Middlesex County Clerk's
Office ("Middlesex"), to appear as amici curiae, all of whom had
cases pending with similar facts and issues.2 In addition, we
granted a motion by the Hudson defendants to appear as amicus
curiae in the two related cases from Hunterdon and Sussex, in
which they were not named defendants.
II.
Before we examine the merits of these appeals, we address a
procedural argument raised by defendants solely in Smith and
namely, whether those two particular plaintiffs are
Gensch:
estopped from challenging the Counties' respective copying
charges because they allegedly "volunteered" payment of those
2
Passaic filed three identical amicus briefs as well as a letter
brief. Mercer joined with Hudson and filed two identical amicus
briefs in A-2507-08 and A-2518-08. Middlesex filed two
identical amicus briefs in A-2507-08 and A-2518-08. Morris
filed one amicus brief for all three cases.
12 A-1762-08T2
charges.3 We reject that argument, essentially because it
misconceives the adhesive setting in which Smith, Gensch, and
other citizens obtain photocopied records from the County
offices.
The "volunteer rule" is an equitable doctrine that has been
developed to limit the circumstances in which a party can be
forced to repay funds that it has already received. The rule
generally provides that when a person has voluntarily overpaid
another party, particularly a government agency, that person may
not obtain a refund of the excessive amount, absent a showing of
fraud, duress, extortion, mistake of fact, or some other special
justification. See, e.g., Ross Systems v. Linden Dari-Delite,
Inc.,
35 N.J. 329, 334 (1961); Squires Gate, Inc. v. County of
Monmouth,
247 N.J. Super. 1, 10 (App. Div. 1991).
For example, in N.J. Builders Ass'n v. Borough of Mendham,
263 N.J. Super. 88 (App. Div. 1993), a case relied upon by both
the Hudson and Hunterdon defendants, five builders wanted to
connect their new construction to Mendham's water supply system.
Id. at 91. Mendham overcharged the builders in order to raise
funds to improve the municipal system. Ibid. The builders paid
3
The volunteer rule is not asserted in O'Shea by the Sussex
defendants. We are also mindful that the trial court in Gensch
did not reach the merits of the Hunterdon defendants' voluntary
payment argument.
13 A-1762-08T2
those inflated fees, even though they had other options. Id. at
92-93. After the inflated fees had been declared invalid, the
builders sought to recover the sums they had paid, which the
trial court granted. Id. at 93. We reversed and remanded the
matter, allowing the borough to present evidence to support its
reliance on the volunteer payment rule. Id. at 96. We reasoned
that if the builders had voluntarily paid the connection fee
knowing they had other options for connecting to a water supply,
Id. at
they would be barred from recovering the overpayment.
95. We also noted that the builders had not paid the sums under
duress, and had not contemporaneously protested. Ibid.
In Flammia v. Maller,
66 N.J. Super. 440, 444 (App. Div.
1961), another key case that defendants cite on this issue, the
defendant married a woman who previously had been married to the
plaintiff. The woman had divorced the plaintiff in Mexico
without his knowledge. After the woman died, the court
permitted the plaintiff to inherit from her estate as her lawful
The
husband, finding the Mexican divorce a nullity. Ibid.
defendant argued that the plaintiff should also be liable for
the decedent's support during the years following the invalid
Mexican divorce, when she had cohabited with the defendant. Id.
at 458. We rejected that argument. We held that the defendant
could not recover from the plaintiff because the defendant had
14 A-1762-08T2
supported her in full knowledge of the facts, even though he had
made a mistake of law in not appreciating the invalidity of the
Id. at 459. The defendant had supported the
Mexican divorce.
decedent out of affection for her, and his support was therefore
considered a voluntary gift. Ibid. Consequently, recovery of
the support payments from the plaintiff was barred by the
voluntary payment rule. Ibid.
The present circumstances are not comparable. To be
voluntary, a payment must be made with knowledge that there is
no compulsion to pay. Jenkins v. Kaplan,
53 N.J. Super. 582,
588 (App. Div. 1959). Here, Smith, Gensch and other citizens
requesting copies of government records from defendants had no
realistic choice but to pay the respective County's stated fee
in order to obtain such copies. The fee was non-negotiable.
Moreover, the record is barren of proof that either Smith
or Gensch knew the pertinent County's actual costs of
reproduction when they obtained their copies. Although they
clearly had a strong suspicion that the fee charged by the
County exceeded the actual costs involved, they did not know
that for certain. Plaintiffs may well be "test-case" litigants,
but they are not volunteers estopped from obtaining a remedy for
a proven government overcharge.
15 A-1762-08T2
Nor were plaintiffs obligated to lodge a formal protest
with the defendant Counties before filing suit. Nothing in New
Jersey Builders, supra, requires such a protest, at least where
the failure to protest arises not from economic factors but
instead from "actions of the government agency." Id. at 95. We
suspect that such a formal protest here would have been futile,
in light of the Counties' strong and persistent defense, both at
the trial level and on the present appeals, of the legality of
their copying fees.
For these reasons,4 we reverse the trial court's application
of the voluntary payment rule in Smith, and further reject the
Hunterdon defendants' invocation of that rule in Gensch.
III.
We now turn to the substance of these appeals. The
critical statutory provision implicated here is N.J.S.A. 47:1A-
5(b), which has been part of the OPRA statute and remained
unaltered since its adoption in 2002. The four sentences of
Section 1A-5(b) read as follows:
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
4
We need not reach the additional rationales offered by
plaintiffs for not applying the volunteer rule.
16 A-1762-08T2
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.5 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.
[N.J.S.A. 47:1A-5(b).]
A.
Section 1A-5(b) of OPRA has its roots in the Right to Know
Law ("RKL"), which was part of the Public Records Act of 1963.
In January 1963, various sponsors introduced Assembly Bill 344,
a bill designed, among other things, to codify certain aspects
of Moore v. Bd. of Chosen Freeholders of Mercer County,
39 N.J.
26, 30-31 (1962). The plaintiffs in Moore were taxpayers,
political candidates, and other citizens who had sought to
5
Referring to N.J.S.A. 47:1A-5(c), which authorizes the
imposition of a "special service charge" when reproducing a
requested record involves "an extraordinary expenditure of time
and effort." Ibid.
17 A-1762-08T2
inspect and photocopy certain government records on file in
Mercer County. The Supreme Court ruled that the plaintiffs were
not entitled under the common law to make duplicates of those
official records with their own photocopying machines, given the
risks of the originals being damaged or destroyed during such
copying. Id. at 30. However, the Court did find that the
government was obligated to copy the records for the plaintiffs
"at a reasonable cost," a sum which ordinarily should not
Id. at 30-31.
include labor costs.
Attempting to codify these principles after Moore, Assembly
Bill 344 stated, in its original version, that:
Every citizen of this State shall also have
the right during such regular business hours
and under the supervision of a
representative of the custodian, to copy
such records by hand or, if approved by the
custodian, by a photographic process
specified by the custodian. The custodian
of any such records may, to prevent the risk
of damage or mutilation thereof, refuse to
permit a citizen to photograph records,
provided such custodian agrees to make and
supply photographic copies thereof to the
citizen upon payment of a reasonable fee
therefor which shall approximate actual cost
and which, except as otherwise specified by
law, shall not exceed 50 cents per page or
part thereof.
[Assem. B. 344, 190th Leg. Sess. (1963)
(emphasis added).]
18 A-1762-08T2
On February 4, 1963, the Assembly amended the bill by
adding the following underlined language, and omitting the
language contained in brackets:
. . . upon payment of a reasonable fee
therefor, to be fixed by regulation of the
board, body, agency, department, commission,
authority or officer having such records
which [shall approximate actual cost and
which] except as otherwise specified by law,
shall not exceed 50 cents per page or part
thereof for single copies; lower fees not to
exceed 40 cents per page or part page may be
fixed for 10 or more copies.
[Id. (First Official Copy Reprint).]
On February 11, 1963, the Assembly subsequently omitted the term
"reasonable" from the section.
These various changes removed the bill's requirements that
the copying fee must approximate an agency's actual cost and
that the fee be reasonable. Instead, the revised bill permitted
the fee to be set by the governmental custodian, so long as it
did not exceed the price guidelines expressed in the statute.
On March 11, 1963, the Assembly again amended the bill
omitting the following language:
to be fixed by regulation, of the board,
body, agency, department, commission,
authority or officer having such records
which, except as otherwise specified by law,
shall not exceed 50 cents per page or part
thereof for single copies lower fees not to
exceed 40 cents per page or part page may be
fixed for 10 or more copies.
19 A-1762-08T2
[Id. (Third Official Copy Reprint)
(emphasis and bracketed material omitted).]
and, instead, adding this text in its place:
which except as otherwise provided by law,
is fixed at 50 cents per page or part page;
a fee of 40 cents per page or part page for
10 or more copies of the same page or part
page may be fixed by regulation of the
officer or department head or by resolution
of the board, body, agency, commission, or
authority, having such records.
[Ibid.]
The bill was passed by the Assembly on March 18, 1963, and
by the Senate on April 22, 1963.
On May 6, 1963, Governor Richard J. Hughes vetoed the RKL.
He returned the legislation to the Assembly, with the following
comments objecting to the bill's allowance of copying by a
citizen's own equipment:
There is, however, an aspect of this bill
that requires clarification. Assembly Bill
No. 344 provides that any person can
photocopy, with his own equipment, any or
all of the public records of government
unless the custodian shall find that there
is a risk of damage or mutilation of such
records in which case copies must be made
and supplied to such person at the rate of
$0.50 per page with a lower rate for
quantity purchases. This places on the
custodian the unreasonable burden of
accommodating as many persons and their
equipment as may wish to reproduce public
records unless he can sustain a finding that
such equipment constitutes a risk to such
documents. In addition, it would encourage
commercial enterprises to reproduce
20 A-1762-08T2
governmental material and information in
wholesale quantities because of the low cost
involved. Much of this data undoubtedly
would have been obtained at great cost to
the governmental agency involved. It is not
necessary to the stated public purposes of
this bill to so disregard the rights and
responsibilities of governmental officials.
[Veto Message of Governor Richard J. Hughes
with Regard to Assembly Bill No. 344 (May 6,
1963) (Emphasis added).]
Governor Hughes suggested that the following alternative
language be incorporated into the bill:
Copies of records shall be made available
upon the payment of such price as shall be
established by law. If a price has not been
established by law for copies of any
records, the custodian of such records shall
make and supply copies of such records upon
the payment of the following fees which
shall be based upon the total number of
pages or parts thereof to be purchased
without regard to the number of records
being copied:
First page to tenth page . . $0.50 per page,
Eleventh page to twentieth page . [$]0.25
per page, All pages over twenty . [$]0.10
per page.
If the custodian of any such records shall
find that there is no risk of damage or
mutilation of such records and that it would
not be incompatible with the economic and
efficient operation of the office and the
transaction of public business therein, he
may permit any citizen who is seeking to
copy more than 100 pages of records to use
his own photographic process, approved by
the custodian, upon the payment of a
reasonable fee, considering the equipment
and the time involved, to be fixed by the
21 A-1762-08T2
custodian of not less than $5.00 or more
than $25.00 per day.
[Id. at 2.]
On the same day, the Assembly amended the bill to reflect
the above-quoted language suggested by Governor Hughes. This
amended version was reenacted by the Assembly on May 6, 1963,
reenacted by the Senate on May 13, 1963 and signed by Governor
Hughes on June 7, 1963. Under this revised version of the
statute, the highest price that could be charged for a copy of a
government record was $0.50 per page.
There was no requirement in the RKL, as enacted, that a fee
be related to a government agency's actual duplication costs.
There was also no avenue in the RKL for a public agency to
recoup amounts expended in duplicating a record if the
duplication cost it more than $0.50 per page.
The RKL was subsequently displaced more than three decades
later by OPRA.6 OPRA's enactment began in January 2000, when
Assemblymen Geist and Collins introduced Assembly Bill No. 1309
("A-1309"). The bill generally sought to expand the rights of
citizens to gain access to government records. Senators Martin
and Baer introduced parallel legislation, Senate Bill No. 2003
("S-2003"). The new proposed legislation created a "Government
6
Pertinent documents in the legislative history of OPRA are
compiled at http://www.njstatelib.org/NJLH/lh2001/ch404.htm.
22 A-1762-08T2
Records Council." It also defined more clearly which documents
were considered government records subject to public access.
As initially proposed, the pertinent part of the bill read
as follows:
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 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. If a public agency can show 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.
[Assem. B. 1309, 209th Leg. Sess. (2000).]
Section 2 of the new bill broadly defined a "government record"
as:
any paper, written or printed book,
document, drawing, map, plan, photograph,
microfilm, data processed or image processed
document, information stored or maintained
electronically or by sound recording or in a
similar device or any copy thereof . . . [.]
[Ibid.]
23 A-1762-08T2
With respect to the issue of copying charges, the Sponsors
Statement for S-2003 recited:
The per page fee for the purchase of a copy
of a government record is set forth in the
bill. Different fees for the purchase of a
copy of a record may be established by
another statute or by regulation. An agency
may charge the actual cost of duplicating a
record when the actual cost exceeds the
rates set forth in the bill. Additional
charges may apply when copying involves an
extraordinary expenditure of time and
effort.
[S.B. 2003, 209th Leg. Sess. (2000).]
In a precursor to S-2003, Senator Baer co-sponsored a bill
with Senators Kenny and Kyrillos, known as Senate Bill No. 351
("S-351"). S-351 contained the following pertinent language:
With respect to requests for copies of
records kept on computer media, film, or in
any other form which cannot be photocopied,
the price charged for copies of such records
shall not exceed the reasonable cost which
has been incurred by the public agency in
making the copy. For the purposes of this
section, "reasonable cost" shall mean a fee
established by the public agency following
guidelines established by the State Records
Committee pursuant to section 5 of (this
bill) to reimburse it for its actual cost in
making such records available, including the
cost of the time and personnel required to
compile and produce the copy or copies.
If the record is maintained for the public
agency by an entity other than the public
agency, the contract between the public
agency and the custodial entity shall
specify that the custodial entity may only
charge the reasonable cost incurred by that
24 A-1762-08T2
entity to make the copy. If requested by
the purchaser, the public agency or
custodial entity shall set forth in writing
the basis on which the reasonable cost has
been determined.
[S.B. 351, 209th Leg. Sess. (2000) (emphasis
added).]
Although S-351 was not enacted as part of OPRA, its references
to "actual cost" and "reasonable cost" shed light upon the
copying charge provisions in the bills that ultimately were
adopted.
During the public hearings on OPRA, there was some recorded
commentary about the proposed statute's copying provisions. In
particular, at a Senate hearing on March 9, 2000, Ron Miskoff,
the president of the New Jersey Society of Professional
Journalists, questioned the copying charges in the bills.
Miskoff characterized the charges as being inflated, and out of
step with the times and with copying charges established in
other states. See Public Hearing on S.B. 161, 351, 573, and 866
Before the S. Judiciary Comm., 209th Leg. Sess. 85 (2000).
A-1309 was passed by the Assembly on June 29, 2000. It was
then amended by the Senate on May 3, 2001 to reconcile it with
S-2003. The reconciled bill, known as OPRA, was passed by both
25 A-1762-08T2
houses in January 2002 and signed into law by Governor Donald T.
DiFrancesco on January 8, 2002.7
B.
Having traced this legislative history, we now turn to the
parties' competing interpretations of the meaning of Section 1A-
5(b).
Plaintiffs argue that the provision should be read to
mandate that the government always charge a citizen the "actual
costs" of duplicating a government record, unless another
statute or State regulation prescribes a different rate. In
making this argument, plaintiffs place great emphasis on the
first sentence of N.J.S.A. 47:1A-5(b), which calls for payment
of "the actual cost of duplicating the record" where a different
rate is not otherwise prescribed; and the fourth and final
sentence of N.J.S.A. 47:1A-5(b), which authorizes the public
agency to charge "the actual cost of duplicating [a] record"
where it exceeds the levels identified in the second sentence of
the provision. Plaintiffs further argue that even if N.J.S.A.
47:1A-5(b) were read to allow copying fees to be charged above
actual costs, the common law of public access, as construed in
7 In 2008, numerous bills were introduced in the Assembly and
Senate, which sought to clarify or revise the copying fees set
forth in N.J.S.A. 47:1A-5(b). None of those measures was
enacted into law during the now-expired 213th Legislative
Session.
26 A-1762-08T2
Moore, supra, and subsequent case law, requires the imposition
of an actual-costs price ceiling, because OPRA specifically
See N.J.S.A. 47:1A-8.
preserves common law rights of access.
Defendants, by contrast, emphasize different portions of
N.J.S.A. 47:1A-5(b). Although their specific contentions vary
somewhat, defendants' central argument is that the price
schedule in the second sentence of N.J.S.A. 47:1A-5(b)
represents a "default rate" for photocopying, which a government
agency in New Jersey can lawfully charge without reference to
the "actual costs" of such copying. Defendants maintain that
if, as plaintiffs argue, "actual costs" always control, then
there would have been no reason for the Legislature to have
included a fee schedule in the second sentence of Section 1A-
5(b). Defendants urge that we not read the fee schedule in the
second sentence out of the statute.
Defendants also disagree with plaintiffs that the common
law requires copying charges to be fixed or capped at actual
costs. They further emphasize the substantial burdens of a
County calculating actual copying costs on a continuous basis,
as well as the needs for uniformity and administrative
predictability. Lastly, they urge that any relief awarded to
plaintiffs be prospective and not retroactive, given the adverse
fiscal consequences that otherwise would be borne by taxpayers.
27 A-1762-08T2
C.
In evaluating these competing arguments over how to
construe Section 1A-5(b), we must bear in mind the public
policies underlying the OPRA statute as a whole. The purpose of
OPRA is "'to maximize public knowledge about public affairs in
order to ensure an informed citizenry and to minimize the evils
Mason v. City of Hoboken, 196
inherent in a secluded process.'"
N.J. 51, 64 (2008) (quoting Asbury Park Press v. Ocean County
Prosecutor's Office,
374 N.J Super. 312, 329 (Law Div. 2004)).
Toward that end, the Legislature declared in OPRA, as "the
public policy of this State," that "government records shall be
readily accessible for inspection, copying, or examination by
the citizens of this State, with certain exceptions, for the
protection of the public interest . . . [.]" N.J.S.A. 47:1A-1
(emphasis added). "[A]ny limitations on the right of access
accorded by [the former RKL][,] as amended and supplemented,
shall be construed in favor of the public's right of access."
These broad legislative findings in favor of "readily
Ibid.
accessible" government records have been repeatedly recognized
and applied in case law under OPRA. See, e.g., Burnett v.
County of Bergen,
198 N.J. 408, 421-22 (2009); Mason, supra,
196 N.J. at 64-65; Times of Trenton Publ'g Corp. v. Lafayette Yard
Cmty. Dev. Corp.,
183 N.J. 519, 535 (2005); MAG Entm't LLC v.
28 A-1762-08T2
Div. of Alcoholic Beverage Control,
375 N.J. Super. 534, 544
(App. Div. 2005).
These public policies in OPRA favoring reasonable citizen
access to government records have long been part of our State's
For example, in Moore, supra, 39 N.J. at
history and tradition.
30, the Supreme Court acknowledged the "vital importance" of a
citizen's right to inspect certain records maintained by the
government. Thereafter, in Higg-A-Rella, Inc. v. County of
Essex,
141 N.J. 35, 41 (1995), another pre-OPRA case, the
plaintiffs sought copies of computer tapes, as opposed to hard
copies, of municipal tax assessment records. The Court held
that under both the then-applicable RKL and the common law,
copying fees should not be used to discourage public access to
records. Id. at 53.
We therefore parse the four sentences of N.J.S.A. 47:1A-
5(b) cognizant of these strong legislative policies and
traditions.
D.
The first sentence of Section 1A-5(b) instructs that "[a]
copy . . . of a government record may be purchased by any person
upon payment of the fee prescribed by law or regulation . . .
N.J.S.A. 47:1A-5(b) (emphasis added). The first sentence
[.]"
further instructs that "if a fee is not prescribed by law or
29 A-1762-08T2
regulation, [then the copy may be purchased] upon payment of the
actual cost of duplicating the record." Ibid. (emphasis
added).
Skipping ahead for a moment, the third sentence of Section
1A-5(b) defines the "actual cost" of duplicating a record, which
"shall be the cost of materials and supplies used to make a copy
Actual cost "shall not include
of the record . . . [.]" Ibid.
the cost of labor or other overhead expenses associated with
making the copy except as provided for in [N.J.S.A. 47:1A-
5(c)]," a separate provision which authorizes a "special service
charge" when the duplication of a record involves "an
Ibid.8
extraordinary expenditure of time and effort."
Meanwhile, the second sentence of Section 1A-5(b) advises
that "[e]xcept as otherwise provided by law or regulation, the
fee assessed for the duplication of a government record embodied
in the form of a printed matter shall not exceed [certain
Those specified rates are $0.75 per
specified rates]." Ibid.
page for "the first page to tenth page"; $0.50 per page for the
"eleventh page to twentieth page," and $0.25 per page for "all
pages over twenty[.]" Ibid. We note that these rates in OPRA
8
None of the records requested by the instant three plaintiffs
are claimed to be unusually large or odd-shaped documents that
required extraordinary efforts to duplicate. Therefore, the
"special service charges" of Section 1A-5(c) are not applicable
here.
30 A-1762-08T2
track the charges previously authorized under the former RKL,
only increased by between $0.15 and $0.25. The second sentence
of Section 1A-5(b) makes no reference to the "actual cost"
verbiage in the first sentence. Also, the term "printed matter"
is not defined in the second sentence.
This statutory arrangement is further complicated by the
fourth sentence of Section 1A-5(b), which specifies that "[i]f 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." Ibid. (emphasis added). The
fourth sentence does not explain how its language addressing
such higher "actual cost" scenarios correlates with the "actual
cost" language in the first sentence.
To be sure, Section 1A-5(b) is not a model of clarity in
draftsmanship. The four sentences of the provision,
particularly if read out of the context of its legislative
origins and State traditions, are seemingly circular and
contradictory.9 The first and fourth sentences appear to mandate
an "actual cost" method for copying charges, at least where no
different charge is prescribed by other statute or regulation.
9
Divining the meaning of the provision is akin to making sense
of the paradoxical statement, "This sentence is false."
31 A-1762-08T2
But the second sentence injects a detailed fee schedule that
arguably is either superfluous to, or in conflict with, the
statute's actual cost mandate. Despite these difficulties of
expression, we endeavor to "effectuate the legislative intent in
light of the language used and the objects sought to be
achieved." State v. Maguire,
84 N.J. 508, 514 (1980).
E.
As a starting point for our analysis, we dispel any notion
that the copying charges imposed by the three Counties
by,"10 or
constitute fees that are otherwise "prescribed
"provided by,"11 a particular "law or regulation." Although the
government records obtained and copied by plaintiffs were deeds
or other real estate documents, records that must be maintained
by the county clerk, the copying charges set forth in N.J.S.A.
22A:2-29 for duplicating such records do not apply to self-serve
See Dugan v. Camden County Clerk's Office, 376 N.J.
copies.
Super. 271, 277-78 (App. Div.), certif. denied,
184 N.J. 209
(2005) (holding that the charges for such self-serve copies are
governed by Section 1A-5(b) of OPRA and not by the fee schedule
enumerated in N.J.S.A. 22A:2-29).
10
See N.J.S.A. 47:1A-5(b) (first sentence).
11
See N.J.S.A. 47:1A-5(b) (second sentence).
32 A-1762-08T2
We do not consider the second sentence of Section 1A-5(b)
as comprising, in and of itself, a "law or regulation" that
"otherwise" controls the applicable copying rate. When the
Legislature used the word "otherwise" in the second sentence of
Section 1A-5(b), it manifestly intended to refer to codified
enactments outside of that very same portion of OPRA. This
conclusion is corroborated by the Sponsors Statement to S-2003,
which notes that, apart from the per-page fee schedule
identified in the bill, "[d]ifferent fees for the purchase of a
copy of a record may be established by another statute or by
regulation." S.B. 2003, supra, (Sponsors Statement) (emphasis
added). If the Legislature had intended the rates in the second
sentence of Section 1A-5(b) to be treated as such, it could have
said so much more clearly and directly. Moreover, such a
construction would nullify the first sentence of the statutory
provision, which instructs that "actual costs" control in the
absence of a supervening "law or regulation."
In addition, we do not consider copying fee schedules that
may be formally adopted by municipal or county governments to
qualify as the other "law or regulation" referred to in the
first and second sentences of Section 1A-5(b). Instead, we
construe Section 1A-5(b)'s "law or regulation" reference to
connote a statute, regulation, constitutional provision, or
33 A-1762-08T2
other legal mandate emanating from the federal or state
government, not from a county or local agency or a records
custodian.
Our interpretation on this point is bolstered by the fact
that an earlier version of the bill that ultimately became the
RKL in 1963 authorized "a reasonable fee . . . to be fixed by
regulation of the board, body, agency, department, commission,
authority or officer having such records," implying that the
enactment could be made by a records or a sub-State governmental
unit. Assem. B. 344, supra. That language did not survive the
final codification of the RKL in 1963, and it did not reappear
within the terms of OPRA when the latter was enacted in 2000.
There also is no case law or other authority supporting the
notion that the Legislature freely delegated to the county and
local governments the power to trump the copying-charge
requirements of Section 1A-5(b).
We are aware of no federal or state "law or regulation," at
form,12 that overrides the copying charge
least in codified
provisions applicable here under Section 1A-5(b). We are left,
therefore, with a need to resolve the tension between the
"actual cost" language of the first, third and fourth sentences
12
We discuss plaintiffs' common-law claims, infra.
34 A-1762-08T2
of Section 1A-5(a) and the sliding-scale fee schedule contained
within the provision's second sentence.
Defendants argue that this tension within the statute was
already resolved in Dugan, because we described the $0.25 per-
copy charge within the second sentence of N.J.S.A. 47:1A-5(b) as
"the default rate under OPRA" for copies over twenty pages.
Dugan, supra,
376 N.J. Super. at 278. However, the "default
rate" reference in Dugan is only dicta. Because the defendants
in Dugan had charged the plaintiff copying fees exceeding the
$0.25 per-page rate, we did not have the occasion to consider
whether or not the fees needed to be calibrated to the county's
actual costs. More importantly, we did not need to decide in
Dugan how Section 1A-5(b) would apply if the county's "actual
costs" were less than $0.25 per page. Our focus in Dugan was on
the interplay between N.J.S.A. 22A:2-29 and OPRA, not upon how
to construe the language within OPRA and how to parse the four
sentences within N.J.S.A. 47:1A-5(b). That OPRA-specific task
of statutory construction was left, in effect, to be resolved in
future litigation such as the present appeals. In sum, we are
not bound by the passing reference to "default rate" within
Dugan, and defendants have given that reference undue
significance.
35 A-1762-08T2
If, as defendants argue, the fee schedule in the second
sentence of Section 1A-5(b) was meant to operate as a pre-
emptive "default," then the provision's reference to "actual
cost" in the first sentence would become essentially
meaningless. That is so because the default rate would always
control in the absence of a fee prescribed by a separate statute
or regulation.
Our task is to attempt to give meaning to all of the words
of a statute, even if the Legislature could have expressed its
aim more clearly. Statutory interpretations leading to "absurd
or unreasonable results are to be avoided." Davis v. Heil,
132 N.J. Super. 283, 293 (App. Div.), aff'd,
68 N.J. 423 (1975).
Moreover, when a statute is ambiguous, the court "must construe
the statute in a way that will best effectuate the Legislature's
intent." State v. Szemple,
135 N.J. 406, 422 (1994).
We have also considered whether the second sentence of
Section 1A-5(b) can be reconciled with the other three sentences
of that paragraph because the second sentence singularly refers
to the copying of a government record "embodied in the form of
printed matter." Ibid. The other sentences do not refer to
"printed matter." This difference, however, does not prove to
be meaningful in resolving the issues before us.
36 A-1762-08T2
Some government records, such as maps and photographs, are
not in printed form. See N.J.S.A. 47:1A-1.1 (broadly defining a
"government record" under OPRA to include drawings, maps,
photographs and other non-printed materials). The fee schedule
in the second sentence appropriately recognizes that such non-
printed materials may be harder or more time-consuming to copy.
But the government records requested by plaintiffs in the
instant cases are, in fact, printed materials. That being so,
we cannot avoid the troublesome need to harmonize the treatment
of photocopied printed materials within Section 1A-5(b).
F.
Defendants contend that an agency's actual costs cannot
universally dictate the applicable copying charges because, if
that were true, the fee schedule in N.J.S.A. 47:1A-5(b) would
never apply. We appreciate this argument, and the need to imbue
meaning to all of the words of the statutory provision. Green
v. Auerbach Chevrolet Corp.,
127 N.J. 591, 598 (1992) ("a court
'should try to give effect to every word of the statute, and
should not assume that the Legislature used meaningless
language.'" (quoting Med. Soc'y of N.J. v. N.J. Dep't of Law &
Pub. Safety,
120 N.J. 18, 26-27 (1990))).
In response to this concern, plaintiffs suggest that, as a
means of harmonizing all four sentences within Section 1A-5(b),
37 A-1762-08T2
the provision as a whole should be construed as a burden-
shifting mechanism. More particularly, they suggest that the
word "demonstrate" appearing in Section 1A-5(b)'s fourth
sentence signals that a county or other government agency may
choose to charge document requestors copying fees that are above
the rates stated in the second sentence, but only if the agency
bears its burden of "demonstrating" that its actual reproduction
costs are higher than those stated rates. Reciprocally,
plaintiffs suggest that if the agency's actual costs are at or
below the rates set forth in the second sentence, then the
agency will be obligated to reduce its charges to that lower
level, but only if a challenger "demonstrates" that those actual
costs fall below the rate baselines. Such a burden-shifting
interpretation would allow government agencies to enjoy some,
albeit limited, freedom to adopt the fee schedule in the second
sentence of N.J.S.A. 47:1A-5(b) as an expedient, leaving it up
to a challenger to prove that the agency's actual costs are
indeed lower.
Plaintiffs' burden-shifting concept is not directly
explicated in the text of OPRA. However, the Legislature's
choice of the word "demonstrate" in the fourth sentence of
Section 1A-5(b) provides some support for reading the statute in
this fashion. In this regard, we find it noteworthy that the
38 A-1762-08T2
Senate floor amendments to what would become OPRA, which were
adopted on May 3, 2001, substituted the term "demonstrate" for
"show" in the provision's fourth sentence.13 This nomenclature
changefrom a mere "showing" to a
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