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When you ask the state Attorney General’s Office for public records, be prepared to pay attorneys’ fees – or rather, “special service charges” for time and effort of staff lawyers assigned to review and manage the request. That’s the import of Monday’s appeals court ruling, affirming a $1,877.93 charge for an Open Public Records Act request, based on 52.5 hours spent by no fewer than seven attorneys. OPRA allows agencies to impose such charges as long as they’re reasonable. The plaintiff in Fisher v. Division of Law, A-2288-06, claimed they weren’t, and moreover that his request to the Division of Law could have been handled without attorney involvement. The appeals court disagreed. “We conclude that the Division reasonably determined that those attorneys could identify the records responsive to the OPRA request and any privileged parts of those records more expeditiously and reliably than clerical staff or the Division’s Custodian of Records,” Judge Stephen Skillman wrote. “Therefore, the special service charge for production of those records was properly based on the time expended by the assistant and deputy attorneys general in retrieving and reviewing the requested government records,” added Skillman, joined by Judges Michael Winkelstein and Laura LeWinn. In March 2004, Janon Fisher, a freelance journalist, demanded an expansive list of documents detailing how the Division of Law assigned deputy attorneys general to represent the Government Records Council – the administrative body that resolves disputes over OPRA requests. In April 2004, the division’s records custodian, Robert Sanguinetti, informed Fisher by letter that the division “made an extraordinary expenditure of time and effort to accommodate this request.” The work had been split among five deputy attorneys general and two assistant attorney generals. Sanguinetti assessed the special service charge of $1,877.93 based on 52.5 hours of attorney time at $35.77 per hour: the rate of the lowest paid DAG working on the request. A second OPRA request filed by Fisher resulted in the production of 11 documents, some of it heavily redacted to protect what the division labeled as confidential attorney work product. On Fisher’s appeal, the GRC ruled that while a special service charge was warranted, the use of attorneys to conduct the search was not. The division appealed and, after an in camera review of the documents, the GRC reversed itself and sided with the division on both issues. Fisher, backed by the American Civil Liberties Union of New Jersey, sought review by the Appellate Division. The three-judge panel, which also reviewed the redacted documents, noted that the attorneys had to delve through more than 15,000 e-mails and computer files compiled over a two-year period to locate the records Fisher wanted. During oral arguments in March, Fisher conceded that a special service charge might be warranted but disputed the amount and the need to have attorneys do the work. The panel disagreed on both counts. The documents, the judges said, may contain “highly sensitive material” that should not be seen even by other division employees, Plus, they said, it was more economical to assign the task to attorneys who were familiar with the material. “In any event, the $65,000 annual salary of the lowest salaried deputy attorney general involved in the search for the documents appellant requested, which the Division used to determine the special service charge, was substantially less than the $103,297 annual salary of the Divisions Custodian of Records,” Skillman wrote. Lee Moore, a spokesman for Attorney General Anne Milgram, said of the ruling, “We’re pleased the court recognized that we responded to the OPRA request appropriately.” Fisher’s attorney, ACLU-NJ legal director Edward Barocas, said, “We are disappointed in the court’s decision and are considering our options. We still have many hurdles to overcome to achieve transparent government in New Jersey. However, in New Jersey, government is still required to provide reasons for denying or redacting documents from open records requests and this decision leaves that unchallenged.”

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