Flemington Fine-Tunes Wealthy Persons’ Access to Public Records, Society

We can all participate in democracy, right?

Well, we should, but we don’t, often because we can’t, and that hurdle often begins and ends on the local level. Case in point, Flemington, which recently increased the fees charged to residents who submit OPRA requests that are deemed “complex” by the clerk’s office.

According to TAPInto Flemington/Raritan the new rule will allow the borough to provide an estimate of the cost to fulfill records requests that are perceived to take more than two hours to complete. “The estimate will be based on the regular hourly fees of those required to fulfill the request,” TAPInto reports, citing attorneys working on behalf of Flemington.  According to the New Jersey Government Records Council, a service charge—or the actual direct cost means hourly rate of the lowest level employee capable of fulfilling the request—can be applied for OPRA requests for the following reasons:

  • The record cannot be reproduced using ordinary equipment, in ordinary business size (e.g. a map or plan);
  • Complying with the request involves an extraordinary expenditure of time and effort.

I wonder if Flemington considered that these decisions are regressive in nature, providing access to “complex” requests to only those who can afford it. Did they consider a hardship waiver for those who do not have the means? The NJ Government Records Council acknowledges that there should be no blanket rule when it comes to levying fees for OPRA requests:

What warrants an imposition of a special service charge is extremely subjective and the determination is made on a case-by-case basis. No special service charges can be established in advance by ordinance.

For us fair-minded folks, it’s important to give these types of scenarios a fair reading. But the problem is that these types of policy changes are usually done in response to an activist element in the community, or because the municipality has not lived up to the ideal of government transparency.

For example, any costs incurred by a municipality would be greatly reduced if the town had searchable digital records, easily accessible on the municipal website. The portion of the state’s OPRA law is heavily informed by the assumption of using paper as the primary means of information distribution:

“Whenever the nature, format, manner of collation, or volume of a government record embodied in the form of printed matter to be inspected, examined, or copied pursuant to this section is such that the record cannot be reproduced by ordinary document copying equipment in ordinary business size or involves an extraordinary expenditure of time and effort to accommodate the request, the public agency may charge, in addition to the actual cost of duplicating the record, a special service charge that shall be reasonable and shall be based upon the actual direct cost of providing the copy or copies ; provided, however, that in the case of a municipality, rates for the duplication of particular records when the actual cost of copying exceeds the foregoing rates shall be established in advance by ordinance. The requestor shall have the opportunity to review and object to the charge prior to it being incurred.”

There is no question that OPRA requests can be a time-consuming prospect for employees in the clerk’s office. And there is no question that sometimes information requests made under the Open Public Records Act can be used as a means to disrupt, rather than as a means to compile information. But hey, that’s democracy, and we should all be able to participate.

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