Minnesota Department of Administration Advisory Opinion 95-044

This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.


Facts and Procedural History:

For purposes of simplification, the information presented by the citizen who requested this opinion and the response from the government entity with which the citizen disagrees are presented in summary form. Copies of the complete submissions are on file at the offices of PIPA and are available for public access.

On September 14, 1995, PIPA received a letter from Mary Britton Clouse. In her letter, Ms. Clouse requested that the Commissioner issue an advisory opinion regarding her dispute with the Scott County Sheriff's Department over copying charges for public government data.

In response to Ms. Clouse's request, PIPA, on behalf of the Commissioner, wrote to William J. Nevin, Scott County Sheriff. The purposes of this letter, dated September 19, 1995, were to inform Sheriff Nevin of Ms. Clouse's request, to ask him or the County's attorney to provide information or support for the County's position, and to inform him of the date by which the Commissioner was required to issue this opinion. (In subsequent correspondence, Ms. Clouse and Sheriff Nevin were informed that the Commissioner would be taking additional time, as allowed by statute, to issue this opinion.)

On September 29, 1995, PIPA received a response from Sheriff Nevin. A summary of the detailed facts of this matter follows.

Attached to Ms. Clouse's request were copies of three letters documenting her correspondence with Scott County officials, all relating to her attempts to gain access to copies of photographs that are inactive investigative data. (Ms. Clouse's attempt to gain access to some of the same data from Scott County was the subject of an earlier Commissioner's Advisory Opinion, 95-032.)

In response to her request for copies of certain photographs maintained by the County, Ms. Clouse received a letter, dated August 3, 1995, from Deputy David N. Einertson, of the County Sheriff's Office. In that letter, she was informed that the Sheriff's Office is the responsible authority for the data, and that the cost of copies was $10.00 per photograph.

Ms. Clouse wrote back to the Sheriff on August 27, 1995, and objected to the $10.00 charge per photograph. She quoted a local film developer's price of "$10.50 to print a roll of 24 exposures ($.44 each)." Ms. Clouse said that she was ". . .willing to pay an additional $10 to cover the administrative costs. . . . This seems reasonable since you have not provided an itemized account of how your department arrived at a [$10.00 per photograph] charge for reproducing these photos for me."

In response to that letter, Deputy Einertson wrote to Ms. Clouse that the County has charged $10.00 per photographic reprint for "quite a number of years" without complaint. He said "[t]he fee covers a number of costs, such as reprinting, enlarging, employee time preparing and conducting viewings of the photographs, employee time expended in retrieving the negatives chosen, labeling them and returning them to the file after reprinting, employee time and vehicle use to transport the negatives, etc." Deputy Einertson also compared Scott County's copy charges with those of other metropolitan sheriff's offices, and stated that the County's were not "out of line."

In his response to the Commissioner, Sheriff Nevin stated that his office had reviewed its charges about ten years ago, and "determined that $10.00 per reprint was a reasonable charge based on the time and expense involved in such requests." He provided some additional detail of the costs outlined by Deputy Einertson, as support for the County's copy fee for photographic reprints.



Issue:

In her request for an opinion, Ms. Clouse asked the Commissioner to address the following issue:
Does a copy charge of $10.00 per photograph represent the "actual" cost to Scott County, pursuant to Minnesota Statutes Section 13.03, for copying government data?



Discussion:

Minnesota Statutes Section 13.03, subdivision 3, and Minnesota Rules Part 1205.0300, subpart 4, provide that government entities may recover some of the costs associated with providing copies of public government data.

Section 13.03, subdivision 3, provides, in relevant part:

If a person requests access for the purpose of inspection, the responsible authority may not assess a charge or require the requesting person to pay a fee to inspect data. The responsible authority or designee shall provide copies of public data upon request. If a person requests copies or electronic transmittal of the data to the person, the responsible authority may require the requesting person to pay the actual costs of searching for and retrieving government data, including the cost of employee time, and for making, certifying, compiling, and electronically transmitting the copies of the data or the data, but may not charge for separating public from not public data. [Emphasis added.]

Minnesota Rules Part 1205.0300, subpart 4, provides that "[t]he responsible authority may charge a reasonable fee for providing copies of public data." This Part also provides guidance on the kinds of costs that may be included in the copy charge, including materials, labor required to prepare the copies, and mailing costs.

In his response to the Commissioner, Sheriff Nevin stated that the County includes in its calculation of its copying fee (1) employee time (including numerous elements, discussed below), (2) actual reprinting costs, (3) vehicle costs, and (4) storage costs.

1. Employee time

A. "Preparing and conducting review(s) of photographs by requester(s) to determine which photographs are to be reprinted."

As noted above, Section 13.03, subdivision 3, provides that government data may be inspected at no charge. If upon inspection, a person requires copies, then the actual cost of the copy may be recovered, including employee time required to prepare the copies. In his response, Sheriff Nevin has described a number of costs which are not related to copying data. As he has described it, this activity appears to be associated with inspectionof data, not copyingthe data, and as such, may not be included in the County's copying fee.

B. "Determination if some or all of the photographs may be released to the requester, which may involve consultation with supervisory personnel and/or the County Attorney's Office."

This criterion represents a determination whether the data are public or private. Section 13.03 clearly states that charges for separating public from not public data may not be recovered in the copying fee.

C. "Retrieval of the chosen negatives from the evidence room; sorting and labeling the chosen negatives."

This activity may be a part of the actual cost of providing copies of the photographs.

D. "Transporting the negatives to and from the reproducing facilities."

Clearly this is a part of the process to provide copies of photographs, as the Sheriff's office does not produce reprints in-house.

E. "Returning the originals and subsequently the negatives to the evidence room."

This activity is an indirect cost associated with access and inspection, not copying.

F. "Recording these activities in the evidence room records; and meetings, telephone and/or letter correspondence with requesters regarding photographs and reprints; etc."

These appear to be costs associated with the County's obligation to keep track of its data, and to account for and respond to data requests. These are not costs directly related to preparing and providing copies of government data.

2. Actual reprinting costs.

Clearly the charge for reprints is an element of the cost of providing copies. Ms. Clouse, in a letter to the Sheriff, quoted a local film developer's price to print a roll of exposures. Sheriff Nevin responded ". . . Ms. Clouse quotes the price to develop a roll of 24 prints. However, the charge for reprints is higher than simple development charges." (Emphasis his.) It is not clear from the information provided if Ms. Clouse was referring to printing or film developing costs. The Sheriff is correct, that the appropriate cost to include is that of reprinting negatives, not developing the film.

It appears that the County provides copies of photographs with some regularity. If so, it must have recent documentation of the actual cost of reprints. To avoid confusion, it would be helpful if the County were to provide that documentation to the data requester.

3. Vehicle costs.

The vehicle costs which may appropriately be included in the copying fee are those costs directly involved in the provision of copies, i.e., the mileage costs to transport the negatives to and from the printing facility. Presumably, the Sheriff's Office does not maintain a separate vehicle solely for purposes of such transportation. Again, it is not reasonable for government entities to recover a portion of their normal operating expenses by charging a copying fee which is higher than the actual cost to supply the copy. (See also Commissioner's Advisory Opinions 94-040 and 94-059.)

4. Storage costs.

The County must make provisions for storing government data it is required to maintain, whether or not anyone ever requests a copy of the data. The storage costs are not incidental to the cost of providing Ms. Clouse with copies of the photographs. The inclusion of such storage costs is not appropriate.

The County appears to be including all of its administrative costs associated with maintaining photographs in the copying fee, which is not allowed under statute and rule. The costs which are allowed to be recovered are the direct costs of providing copies, including reasonable costs to retrieve the negatives, to transport them to and from the printing facility, the actual reprint costs, and mailing costs.

One additional comment is in order. In his response, Sheriff Nevin stated "[c]harges for photocopies of birth and death certificates in Scott County, and other jurisdictions, are also similarly priced. A birth certificate is $11.00 and a death certificate is $8.00." The fees for certified copies of vital records are set by Rules of the Commissioner of Health. The fee for a certified copy of a birth certificate includes a surcharge, which is deposited into the Children's Trust Fund. (See Minnesota Statutes Section 144.226.) Those fees are not based solely on the actual cost to provide a copy of a vital record, as the County's fee for copies of other government data must be based.


Opinion:


Based on the correspondence in this matter, my opinion on the issue raised by Ms. Clouse is as follows:

The Scott County Sheriff's Office has not met the burden of establishing that a copy charge of $10.00 per photograph represents its actual cost, pursuant to Minnesota Statutes Section 13.03, for copying government data. It appears that the County is including costs in its copying fee that are not allowable, under statute or rule.

Signed:

Elaine S. Hansen
Commissioner

Dated: November 1, 1995