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New Jersey’s newly minted Open Public Records Act does not permit attorney fees to be charged for redaction of privileged information from requested documents, a superior court judge in Burlington County, N.J., ruled Oct. 28. Assignment Judge John Sweeney found that the Lenape Regional High School District frustrated the goals of the act by charging the Courier-Post of Cherry Hill, N.J., $6,500 for time spent by district lawyers gathering the records and deleting confidential information. “Redaction of privileged or confidential data cannot cause the release of otherwise public information to be placed in a straight jacket,” he wrote. Sweeney said the statute, N.J.S.A. 47: 1A-1 et seq., enacted last July, gives each town’s or school district’s designated records custodian, not legal counsel, the job of making redactions. The judge also ordered Lenape to provide justification for billing the Courier-Post $47 an hour for an administrator to supervise newspaper staff members while they inspect documents, and to explain why the district wanted to bill the newspaper for 106 hours of administrative and clerical time. Ironically, the records sought were themselves attorney bills, submitted from 1996 to 2002 in connection with a proposed $68 million high school to be sited in Tabernacle, within the environmentally sensitive Pine Barrens. The school district did prevail in its effort to pass along the open-records act’s “special service charge” for clerical work related to the document request, which Sweeney found met the threshold of an “extraordinary burden” on school staff. Sweeney declined to set a uniform standard for what constitutes an extraordinary request, saying it would depend on factors such as the number and type of documents sought and the agency’s staffing, photocopying capabilities and level of computerization. Though the Courier-Post maintained that its request for the itemized bills did not meet the level of an extraordinary burden and therefore was not subject to a clerical charge, its attorney, Thomas Cafferty, a partner in McGimpsey & Cafferty of Somerset, N.J., says it will pay the clerical bill if an agreement is reached on calculation. The school district’s lawyer, John Peirano, a partner at Newark’s Carpenter, Bennett and Morrissey, says his client is not sure it will appeal the ruling, Courier-Post v. Lenape Regional High School District, L-2754-02.

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