Monday, September 14, 2009

Charging for faxed and e-mailed records

Whenever I make an OPRA request, I ask that the responsive records be sent to me by fax or e-mail instead of by regular mail.  I prefer to submit my OPRA requests and receive my records by fax or e-mail because it is much faster (i.e. the Postal Service is not involved in the process.)  Records custodians are required to accommodate a requestor's fax or e-mail preferences.  See Paff v. Sussex Borough, GRC Complaint No. 2008-38.

Most custodians don't even attempt to charge for faxed or e-mailed records. However, some custodians will attempt to charge me for the records in accordance with OPRA's statutory maximums (i.e. up to 75c per page for the first 10 pages, 50c per page for pages 11 through 20 and 25c per page for all pages in excess of 20) even though the pages are being faxed or e-mailed to me.

I know of no case that definitively rules whether or not custodians are allowed to charge the same rate for faxed or e-mailed records as they are for paper records.  But, Government Records Council Executive Director Catherine Starghill has publicly stated that absent unusual circumstances, charges for faxed and e-mailed records are not permitted.

Following is the text of a letter I sent to the Sayreville Borough (Middlesex County) custodian when she attempted to charge me for faxed or e-mailed records. I've also included her response.  I've recently sent similar letters to two other custodians and so far all three have destroyed my check and gave me the records for no cost.

Readers who are facing charges for e-mailed and faxed records might want to try the same or similar tactic.

John Paff
Somerset, New Jersey

Letter to Sayreville 

September 8, 2009

Theresa A. Farbaniec, Clerk
Borough of Sayreville
167 Main St
Sayreville, NJ  08872

Dear Ms. Farbaniec:

In follow up to an e-mail I received today from Jessica from your office, I enclose my $2.25 check for the three pages of records responsive to my OPRA request.   In her e-mail, Jessica stated that your office would honor my request to fax or e-mail the responsive records to me, but only after receipt of my check.

I question the legality of your office charging me for faxed or e-mailed records.  This issue is fresh in my mind because on August 26, 2009, I attended an OPRA seminar conducted by Government Records Council (GRC) Executive Director Catherine Starghill.  During her presentation, Ms. Starghill made it clear that record custodians generally may not charge a requestor for faxed or e-mailed transmissions.

I want the requested records promptly, so I am enclosing my $2.25 check so as to avoid a delay in getting them.  However, I would appreciate it if, prior to depositing my check, you would call the GRC’s information hotline at 866-850-0511 and inquire as to whether Sayreville should be charging for faxing or e-mailing records.  If the answer is in the negative, I ask that you please destroy my check and let me know that you have done so.

Thank you for your attention to this matter.

Sincerely,

John Paff
Sayreville's response

September 14, 2009

We received your letter, dated September 8, 2009, challenging the fee for responding to your OPRA request. We disagree with your position that no copy charges apply to faxed documents because almost all documents have to be photocopied, whether we fax or mail them. Regardless, due to the minimal charge for these documents, we will waive the $2.25 fee in this one instance. We will destroy your current check, but we are not establishing a policy of waiver or agreeing to waive any fees for future requests.

Very truly yours
Theresa A. Farbaniec, RMC
Sayreville Borough Municipal Clerk

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