When answering an OPRA request requires agency employees to expend a substantial amount of time and effort, the agency may impose a special service charge. Properly calculating the amount of the charge is critical, both to withstand challenge by the requestor and to ensure that the public body recoups its costs, which may run into many thousands of dollars for extensive requests.

This recent decision by the GRC (Palkowitz v. Hasbrouck Heights) is a good example of the issues faced by a public body in calculating a special service charge. Although the case involves a relatively low special service charge of $210.92, it shows problems that may come up when calculating much larger charges as well.

In this case, the requestor sought a variety of information about a number of different Borough expenses over an 8-month period.The special service charge was based on 4.5 hours, consisting of 2.5 spent by a clerical employee and the assistant to the records custodian in generating the requested reports (billed at hourly pay rates of approximately $21 and $29, respectively), and 2 spent by the Borough administrator in reviewing the records for redaction (billed at $72 per hour).

The Borough stated that six employees had to spend a total of 14.5 hours to accommodate this request. However, it calculated the special service charge based upon only the 4.5 hours spent by the above three employees, which it said was the amount of time beyond that needed for the ordinary retrieval and copying of records.

The GRC agreed that a special service charge was warranted. However, it ruled that the charge was too high, because a lower-paid worker, rather than the Borough’s administrator, could have performed the task of redacting personal information, such as telephone and social security numbers. For this reason, the GRC reduced the fee to $138.74.

This case illustrates two issues with regard to calculating a special service charge. First, custodians should keep in mind that the charge should be based on the hourly rate of the lowest-paid employee who is qualified to perform the work needed to fulfill the request. In some situations, as shown by what occurred in Palkowitz, it may not be clear who is the lowest-paid “qualified” employee.

The answer to this question will depend on the facts of each situation and the type of records involved. The records custodian or a clerical worker may not necessarily be the proper lowest-paid employee for calculation purposes. For example, in a case involving a request for attorneys’ communications, the Appellate Division determined that it was appropriate for supervisory or legal staff to review the records for privileged material, thus warranting the use of the hourly rate of an attorney in calculating the special service charge.

The second issue raised by the GRC decision is that the Borough did not base the special service charge on the total number of hours spent by all employees in fulfilling the request. The statute indicates that the total amount of time expended by the public body is to be used in calculating the charge, and this is confirmed by both case law and the FAQ section of the GRC’s website.

In this matter, although its employees spent a total of 14.5 hours on the request,  the Borough based the charge on 4.5 hours. The reason given by the Borough for using only 4.5 hours–that this was the amount of time spent beyond what was ordinarily needed to retrieve and copy all the records–is not what the law requires in calculating a special service charge.

I’m not suggesting that the Borough was obligated to charge the requestor for all the hours expended by employees on the request. Public bodies have the discretion to set the special service charge at less than the maximum allowed. The point is that the law does permit the special service charge to be based on the total amount of hours spent on a request, so that all of the costs incurred as a result of a massive OPRA request may be recovered.