OPRA Copying Fees Cannot Exceed Actual Costs – Smith v. Hudson County

[02-14-10 – 11:03 am] The February 10th publication of the Appellate Division decision in Smith v. Hudson County will likely have an enormous impact on county and local governments around the State, so much so that the Court ordered that its ruling be viewed prospectively, commencing on July 1 st of this year. In Smith, the Court ruled that that unless and until the Legislature amends The Open Public Records Act (OPRA) to specify otherwise, or some other statute or regulation applies, the Counties and local governmental agencies must charge plaintiffs and other similar requestors of government records no more than the reasonably approximated “actual costs” of copying such records.

The facts in Smith involve challenges by several plaintiffs against the practice of three counties in charging 25 cents per copy as opposed to the actual cost of copying which proved to be substantially less. The Appellate Division decision attempts to construe the contradictory elements of OPRA as it relates to copying fees for public records (NJSA 47:1A-5). The Court found that the fee schedule in the statute is meant to apply to state and federal government agencies. Counties, municipalities and other local agencies may only assess their actual copying costs when fulfilling OPRA requests.

The Appellate Division also ruled that following the July 1st effective date, the defendant Counties and other government agencies may not charge requestors more than the “actual costs” of photocopying government records.

Click to download a copy of Smith v. Hudson County.

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