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APPELLATE DIVISION GOVERNMENT – Open Public Records Act – Special Service Charges Fisher v. Division of Law; Appellate Division; opinion by Skillman, P.J.A.D.; decided and approved for publication April 28, 2008. Before Judges Skillman, Winkelstein and LeWinn. On appeal from Government Records Council. DDS No. 52-2-0350 [19 pp.] Appellant Janon Fisher submitted a request to the Division of Law, Department of Law and Public Safety, for production under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to 13, of an expansive list of government records relating to the assignment of deputy attorneys general to the Government Records Council and the division’s representation of the council. The custodian of records for the division advised appellant that there would be a special service charge of $1,877.93, calculated by multiplying the total hours expended on the request (52.5 hours) by $35.77, which was the hourly rate of the lowest-salaried deputy attorney general working on the request. He asked if appellant would agree to pay the charge. Appellant then requested records regarding calculation of the charge. Eleven documents were produced, some with redactions. Appellant then filed complaints with the council challenging the charge and the redactions. To justify imposition of the special service charge, the division submitted certifications by the custodian and the five deputy and two assistant attorneys general who maintained the files dealing with the subject matter of the request. They indicated that they had to review more than 15,000 e-mails and computer files to locate the records responsive to the request. The custodian’s certification also indicated that only the attorneys who had prepared the e-mails and computer files could properly conduct the searches because the information was on their computers or in their files and because legal analysis of the files was necessary for any applicable privilege. Eventually, the council concluded that it was appropriate for the deputy attorneys general who created or possessed the relevant records to review them and that the special service charge was reasonable. It also concluded that the redacted material was exempt from disclosure under the deliberative process privilege. Held: The Division of Law reasonably determined that the assistant and deputy attorneys general who had prepared the e-mails and computer files 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. Therefore, the special service charge for production of the records was properly based on the time expended by those attorneys in retrieving and reviewing the records for possibly privileged material. The Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, authorizes a public agency to impose a special service charge if a response to a request for production of government records will involve an extraordinary expenditure of time and effort. This charge must be reasonable and be based on the actual direct cost of accommodating the request. Relying primarily on Courier Post v. Lenape Regional High School District, 360 N.J. Super. 191 (Law Div. 2002), appellant argues that the charge is excessive. He argues that the council erred in concluding that it was reasonable for the division to assign responsibility for searching the e-mails and computer files to the attorneys who prepared them. However, the panel concludes that Courier Post is not relevant since in that case the records had already been retrieved and the charge was solely for outside counsel determining whether the records contained privileged material that should be redacted. Here, the charge is for the cost of retrieval of the records responsive to the requests. The panel then concludes that the council’s determination that it was reasonable for the division to assign responsibility for retrieval of the responsive information to the attorneys who prepared the records was not arbitrary and capricious. It was reasonable to conclude that the authors of the e-mails would be able to identify items that relate to the OPRA request more expeditiously and reliably than clerical employees. Moreover, attorney e-mails may involve highly sensitive materials that should not be seen even by other employees of the public agency. The OPRA contemplates that identification of privileged material is an integral part of a public agency’s response to a request for records. Even though an agency’s custodian of records ordinarily should be able to identify privileged material, there may be circumstances where review of the records by the agency’s professional or supervisory personnel is required, particularly when an OPRA request is made to an agency like the division, which provides legal advice to other state government agencies and that is subject to the attorney-client privilege. Moreover, a deputy or assistant attorney general who has prepared a written communication to another state agency may be able to identify the privileged portions of that communication more expeditiously and economically than the custodian. In any event, the annual salary of the lowest salaried deputy attorney general involved in the search was substantially less than the annual salary of the custodian. The panel also finds that the council correctly found that the redacted portions of the documents submitted in response to the second request were exempt from disclosure under the deliberative process privilege and, further, that there was no need to remand for the division to produce a more detailed Vaughn index. - Digested by Judith Nallin For appellant – McCusker, Anselmi, Rosen & Carvelli and American Civil Liberties Union of New Jersey Foundation (Edward L. Barocas of counsel; Bruce S. Rosen on the brief). For respondent – Anne Milgram, Attorney General (Patrick DeAlmeida, Assistant Attorney General, of counsel; Mary Beth Wood, Deputy Attorney General, on the brief). For respondent Government Records Council – Trenk, DiPasquale, Webster, Della Fera & Sodono (Meaghan Tuohey-Kay on the statement in lieu of brief).

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