New Jersey Libertarian Party

The Party of Principle

Cape May challenged on charging OPRA requestors to copy records to be scanned and e-mailed

On April 4, 2016, Clinton attorney Walter M. Luers filed a Denial of Access complaint with the Government Records Council (GRC) on behalf of a local on-line newspaper reporter who was told that she needed to pay "$1.80 for copying fees" before Cape May City Clerk Louise Cummiskey would scan twenty-six pages of public records into an electronic file and e-mail it to her.

The reporter, Lisa Tilton of Galloway Township News, had filed a February 24, 2016 Open Public Records Act (OPRA) request in which she sought a "[c]opy of Legal Bills, including Purchase Order, Invoice and detail billing in Scheeler vs. City of Cape May. Timeframe August 1, 2015 to current."  In her response, Cummiskey imposed a $1.80 copying charge and told Tilton that "[t]here are 26 documents @ $.05." (Note: Even if the copying fee is justified, it would come to $1.30, not $1.80.)  In justification of the fee, Cummiskey stated:

As I previously stated, we are ready to send you the requested records upon receipt of payment. As the records you requested are not maintained electronically, we have to pull those individual records from storage, copy, and then scan them to send them to you electronically. Therefore, we are permitted to charge you a $0.05 copying fee per page. I direct your attention to N.J.S.A. 47:1A-5. The fact that you have requested these copies electronically does not negate the copying fee.

Again, we are ready to send you these documents upon receipt of payment. I am NOT refusing your request. I am asking that you send me the required payment before I electronically send you the documents.

Luers said that he and Tilton "simply do not understand" why Cummiskey "is insisting that she needs to make copies of the invoices before scanning them"  and that the invoices "should be scanned as they are, not copied first."  He noted that OPRA allows records custodians to charge requestors only their actual, necessary costs of producing records and that the burden is on the custodian to justify those costs.  In addition to the records, Luers is also seeking an order requiring the City of Cape May to pay his attorney fees for bringing the action.

The GRC will render a decision in about a year to eighteen months.

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