Wednesday, May 27, 2009

Actual cost v. OPRA's 75 cent/50 cent/25 cent fee schedule

In an unpublished trial court decision released on May 21st, Mercer County Assignment Judge Linda Feinberg rejected the Mercer County Clerk's argument that the "actual cost" of making a copy is relevant only when the governmental entity elects to charge more than the fixed OPRA rates.

Rather, Feinberg held that language in OPRA Section 5(b) is clear and unambiguous and susceptible to only one interpretation"--which is:

"[T]he clear intent of the Legislature [was] to limit copying charges to the actual cost of duplication under OPRA. Indeed, the fees prescribed by [OPRA's 75c/50c/25c] fee schedule do not permit an entity to charge the maximum fees without calculating the actual cost. An entity remains responsible for calculating the actual cost at all times. The sole function of the fee schedule is to provide the maximum permissible amounts with respect to actual cost, unless an agency can demonstrate that the actual cost exceeds such rates."


Feinberg's decision is contrary to that of two other Superior Court Judges: a) Stephen B. Rubin, J.S.C. in Gench v. Hunterdon County Clerk’s Office, No. HNT-L-307-07 (N.J. Super. Ct. Law Div. 2008), and b) Edward v. Gannon, J.S.C. in O’Shea v. Sussex County Clerk’s Office, No. L-655-06 (N.J. Super. Ct. Law Div. 2008)

Feinberg's opinion is here.

John Paff
Somerset, New Jersey

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