Charlie Kratovil

Dear Middlesex County,

Under OPRA and the common law right of access, please provide a complete copy of the settlement agreement in the David Yearby case (civil litigation recently settled), and all of Middlesex County's lawyer bills/invoices for this matter. Thank you kindly.

Yours faithfully,

Charlie Kratovil

Middlesex County OPRA Center,

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Good Afternoon: 

Please be advised that the County is processing your OPRA request. Due to
the volume of documents yielded in response to your request, additional
time beyond the seven (7) business days is needed to review responsive
records and apply redactions pursuant to N.J.S.A. 47:1A-1.1.

OPRA allows custodians to seek extensions of time pursuant to N.J.S.A.
47:1A-5(i).  Specifically, OPRA states that, “the requestor shall be
advised by the custodian when the record can be made available. If the
record is not made available by that time, access shall be deemed denied.”

Your request requires an extension of time until July 6, 2020.

Very truly yours,

Alessandra Baldini, Esq.

Deputy County Counsel

Office of Middlesex County Counsel                                 

Middlesex County OPRA Center,

Attachments:
[1]Settlement_Agreement_-_YEARBY__Estate_of.pdf

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Good Evening:

Please be advised that the County has processed your request for: “a
complete copy of the settlement agreement in the David Yearby case (civil
litigation recently settled), and all of Middlesex County's lawyer
bills/invoices for this matter.”

With regard to the settlement agreement, please see the attached
responsive record.

Please be advised that pursuant to N.J.S.A. 47:1A-5(c) and Fisher v. Div.
of Law, 400 N.J. Super. 61, 66 (App. Div. 2008), because the County made
an extraordinary expenditure of time and effort to accommodate the latter
portion of your request (“all of Middlesex County's lawyer bills/invoices
for this matter”), there will be a special service charge of
$1,183.95. The undersigned attorney had to extensively review and analyze
919 pages of responsive records. Redactions were made pursuant to N.J.S.A.
47:1A-1.1. The total time spent by this attorney was 27 hours at an hourly
rate of $43.85, which represents the lowest hourly rate of an employee
qualified to make such redactions.

Please advise if you agree to payment of this special service charge. Upon
receipt of payment, we will forward the records in response to your
request.

Very truly yours,

Alessandra A. Baldini, MPA, Esq.

Deputy County Counsel

Office of the County Counsel

References

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1. https://u8387795.ct.sendgrid.net/ls/clic...

Charlie Kratovil

Dear Middlesex County OPRA Center,

OPRA clearly states that you were required to tell me about the proposed service charge BEFORE doing the work, and to give me the opportunity to object and perhaps narrow my request to avoid it, but you did not follow those requirements. N.J.S.A. 47:1A-5(c) (“The requestor shall have the opportunity to review and object to the charge prior to it being incurred.”).

I am not able to pay in excess of $1,000 for these records and would have been willing to revise my request. However, given that this violated the law, and you have already done the work, I ask that you produce the records – otherwise, if I decline to pay, then you’d have done the work for nothing and someone else can simply request them for free, given that they’ve already been redacted and prepared for release.

Yours sincerely,

Charlie Kratovil

Middlesex County OPRA Center,

--- Please respond above this line ---

Good Afternoon:

The County is in receipt of your reply to the County’s assessment of a
special service charge. As you are aware, a special service charge may be
assessed when the nature, format, manner of collation or volume of a
government record makes it so that fulfilling a request requires an
extraordinary amount of time and effort. These charges must be reasonable
and based on the actual direct cost of fulfilling the request. Actual cost
means the hourly rate of the lowest level employee capable of fulfilling
the request. N.J.S.A. 47:1A-5(c).

Here, fulfilling your request required the expenditure of an extraordinary
amount of time and effort. While N.J.S.A. 47:1A-5(c) states that “[t]he
requestor shall have the opportunity to review and object to the charge
prior to it being incurred;” notably, in a published Appellate Division
decision, Fisher v. Div. of Law, 400 N.J. Super. 61 (App. Div. 2008), the
Division of Law performed the records search and applied redactions before
assessing a special service charge. There, the Court held that the special
service charge of $1,877.93 for production of those records was properly
based on the time expended by the assistant and deputy attorneys general
in retrieving and reviewing the documents. Moreover, in its response to
the requestor, the Division of Law stated:

Please be advised that because the Division of Law made an extraordinary
expenditure of time and effort to accommodate this request, there will be
a special service charge of $1877.93. Several Division of Law attorneys
had to search through thousands of e-mails as well as numerous files to
locate documents responsive to your request. The total time spent by these
attorneys was 52.5 hours and the hourly rate is based on the salaries of
the Deputy Attorneys General involved.

           Please advise if you agree to payment of this special service
charge. Upon receipt of such notification, we will forward the records in
response to your request.

Id. at 66.

Moreover, OPRA requires that redactions shall be made prior to allowing
access to any government record. N.J.S.A. 47:1A–5(a); see also Courier
Post v. Lenape Reg'l High Sch. Dist., 360 N.J. Super. 191, 197 (Law. Div.
2002).

That being said, the law is clear in that it is not inappropriate for the
County to assess a special service charge given the extraordinary time and
effort to accommodate the request, which could not have been incurred or
quantified in advance without first reviewing the documents and performing
the necessary redactions.   

Please advise if you agree to the payment of the special service charge
and upon receipt of payment, the County will forward the responsive
records.  

Very truly yours,

Alessandra A. Baldini, MPA, Esq.

Deputy County Counsel

Office of the County Counsel