By Bobby Conner
The New Jersey State Senate will soon consider a bill that could bring both greater government transparency and real change for people who seek copies of public records - the kind that goes in taxpayers' pockets.
Assembly Bill 1095, which has already passed in the Assembly State Government Committee, and Senate Bill 1646 aim to reduce the fees government agencies charge people requesting copies of public records through the Open Public Records Act (OPRA). The bill would limit the cost for copying public records to 10 cents a page for letter-sized documents, and 15 cents per page for legal-sized documents. This legislation would enable the public to more readily hold officials to a higher standard of accountability, secure a sense of transparency in our laws and practices consistent with the principles of open government, and set a tone throughout the state to restore the public's trust in their government.
For our democracy to thrive, people need to hold their government up to scrutiny, and they can only form a sound opinion when they have sufficient information. Access to government records gives people the tools they need to weigh in on government initiatives, identify corruption and waste, and make informed decisions as citizens. Government transparency has saved money and lives, uncovering financial corruption, environmental threats, illegal government practices and dangerous fault lines in our state infrastructure.
The free flow of information is a founding value of American democracy. Federal and state laws have set a standard that recognizes the public's entitlement to government records and that the government should charge citizens for only the actual costs of copies — not labor or overhead, and not to make a profit from the public's right to know.
Yet, as the only public interest attorney in the state working full-time on open governance matters, I routinely meet people deterred from accessing necessary records by the government's inflated costs to copy public documents. Exorbitant copying fees have become an obstacle to meaningful citizen participation in government, especially for members of low-income communities and people on fixed incomes. We have battled in individual towns to lower the prices for copies, which have been as high as $10 for the first three pages.
When government agencies issue fees several times higher than prices at neighborhood copy shops, it sends a message. At best, the public sees the high fees as a way for government to benefit from a public necessity. At worst, it looks like an attempt to hide information and discourage citizens from participating in government.
The public has already paid for these government records many times over. Taxpayer dollars pay for employees' time drafting documents, equipment used to create them, paper and machines that produce them, and, ultimately, the costs for reproduction. Government agencies still have the ability to recover the expenses of unusually large, unwieldy or atypically formatted records by imposing a special service fee, which would remain unchanged if legislation passes to lower government copying fees.
New Jersey's copying practices contradict not only the principles of open government, but also OPRA itself. On one hand, OPRA established that government agencies should not charge citizens more than the actual costs of copies. Yet at the same time, it allowed government agencies to charge 75 cents a page for the first 10 pages, 50 cents for the next 10, and 25 cents thereafter — charges well beyond commercial copy shops. Moreover, OPRA allows local and county agencies to pass ordinances setting their own fees, which often means charges even higher than the state's.
New Jersey's courts have also recognized that the copying fees for public documents should be limited to the actual duplication costs. In 2005, the New Jersey Appellate Division found that Camden and Burlington counties had overcharged members of the public who made copies of records themselves in the county offices. Camden and Burlington counties dropped their fees from one dollar per page and fifty cents per page, respectively, to five cents per page.
Both a 2006 decision in Hudson County and a decision this summer in Mercer County determined that copying fees there can include only the actual cost of duplication. While these decisions ended in victory, they did not set a statewide precedent. The only way to break the wall of fees separating the public of New Jersey from its rightful information is to change the law.
The ACLU and other advocates could spend years fighting just to lower costs of copies. Instead, the time has come for our legislature to lower costs across New Jersey, from the smallest municipality to the Governor's Office.
Assemblyman Joseph Cryan and Senator Loretta Weinberg have taken the lead in New Jersey by introducing A1095/S1646, which have many co-sponsors and supporters. But every elected official, especially those who value democracy and transparency, should welcome the opportunity to vote for Assembly Bill 1095 and Senate Bill 1646 during the Lame Duck session. After all, a government of the people, by the people and for the people cannot exist without an informed public.
Bobby Conner is the Open Governance Staff Attorney for the American Civil Liberties Union of New Jersey.