Court Rules Copying Costs
May Not Exceed Actual Costs

Last week, the Appellate Court determined in Smith v. Hudson County that a government agency may not charge members of the public more than the approximate “actual costs” of making photocopies of printed material. In this class action suit involving the counties of Hudson, Hunterdon and Sussex, citizens argued that the county offices overcharged them and other members of the public for reproducing government records on county office self-service copiers and printers.

The ruling involved an interpretation of the Open Public Records Act’s (OPRA) fee provisions. The portion of OPRA involving fees for copying allows a person to purchase records “upon payment of the actual cost of duplicating the record.” The law also sets forth a sliding-scale fee schedule.

The citizens argued that the law required the government to charge a citizen the “actual costs” of duplicating a government record, unless a separate statute or state regulation prescribes a different rate. The counties argued that a government agency may charge the price established in the sliding-scale as a “default rate” for photocopying, without reference to the “actual costs” of such copying.

The court considered at length the parties’ competing interpretations of the law in light of the legislative history of the statute and the state’s strong policy favoring reasonable citizen access to government records. Ultimately, the court ruled that a public agency must charge only the “actual costs.” The court suggested the agency recalibrate its costs at least annually, and would allow a margin of error of a penny or two.

The ruling is effective prospectively as of July 1, the start of the next fiscal year.

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