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 person who requested this opinion and the response from the government entity with which the person disagrees are presented in summary form. Copies of the complete submissions are on file at the offices of IPA and, except for any data classified as not public, are available for public access.
On April 29, 1999, IPA received a letter from Mark Anfinson, an attorney, on behalf of his client, the St. Cloud State University Chronicle, the student newspaper at St. Cloud State University (SCSU). In his letter, Mr. Anfinson asked the Commissioner to issue an opinion regarding the propriety of SCSU's fees for public personnel data. Mr. Anfinson enclosed a copy of SCSU's data request form.
In response to Mr. Anfinson's request, IPA, on behalf of the Commissioner, wrote to Bruce Grube, President of SCSU. The purposes of this letter, dated May 11, 1999, were to inform him of Mr. Anfinson's request, and to ask him to provide information or support for SCSU's position. On May 21, 1999, IPA received a response from Annette R. Wilson, Special Assistant to the President/General Counsel. A summary of the detailed facts of this matter follows.
The Chronicle received an announcement from the SCSU Human Resources Office concerning its fees for copies of public personnel data. The Chronicle interpreted the new data request form, entitled "Request for Public Personnel Information from SCSU," to be a departure from SCSU's previous policy.
Mr. Anfinson characterized the contents of the request form as follows:
First, certain public personnel data (those listed in the top portion of the form) are available for viewing . . . at no charge.' The minimum charge for copies is $1.00 plus 10› per copy page.' I assume that this means that one may look at personnel data on the first list without charge, but that copies of the computer printout cost $1.00 plus 10›/page.
Second, all [o]ther personnel information' (as listed on the lower portion of the form) is available on request for a minimum charge of $5.00 paid at the time of request, and a 10› per copy page' fee. All of the information listed in the second section also appears to be public personnel data.
Finally, the form states, If your request requires a computer printout, the minimum charge will be $25.00.' While the scope of this requirement is somewhat ambiguous, our guess is that it covers only the public personnel data listed on the lower half of the form that is, presumably the $25.00 fee applies only to a computer printout containing those data. However, we are not clear how this fee differs from the $5.00 fee referred to earlier.
The Commissioner agrees with Mr. Anfinson's description of what the data request form appears to state about charges for viewing or receiving copies of public data.
In her response to the Commissioner, Ms. Wilson stated that the form was new but the policy was not. According to Ms. Wilson, the purpose of updating the form was to clarify which public personnel data are available for public inspection at two SCSU locations.
Ms. Wilson stated:
The cost we charge for copying has not changed for several years even though the actual costs have risen. At the time the cost was set, for copied information that did not require a computer printout, the cost was based on a calculation of a prorated portion of the salary of the lowest paid office employee who would be doing the copying for an estimated minimum amount of time plus the cost of copier use, paper, toner, etc. Computer printouts are generally necessary only for voluminous, extensive requests and the cost is based on the prorated portion of the salary of the lowest paid computer technician who must write the program to retrieve the information and run the computer, plus the cost of the computer use, paper, print, etc.
In his request for an opinion, Mr. Anfinson asked the Commissioner to address the following issue:
The data in question are classified as public personnel data, pursuant to Minnesota Statutes, section 13.43, subdivision 2. 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.
In relevant part, section 13.03, subdivision 3, states:
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, and electronically transmitting the copies of the data or the data, but may not charge for separating public from not public data. [Emphasis added.]
According to Minnesota Rules Part 1205.0300, subpart 4, in order to determine a reasonable copying fee, the responsible authority shall be guided by the following:
A. the cost of materials, including paper, used to provide the copies;
B. the cost of the labor required to prepare the copies;
C. any schedule of standard copying charges as established by the agency in its normal course of operations;
D. any special costs necessary to produce such copies from machine based record keeping systems, including but not limited to computers and microfilm systems; and
E. mailing costs.
In addition, section 13.03, subdivision 1, provides, in relevant part: "[t]he responsible authority in every state agency, political subdivision and statewide system shall keep records containing government data in such an arrangement and condition as to make them easily accessible for convenient use."
In her response to the Commissioner, Ms. Wilson did not explain why SCSU has different "minimum charges" of $1.00 or $5.00, depending upon which specific data elements are requested. She also did not explain how the $25.00 minimum charge for a computer printout relates to the $5.00 minimum charge, or how any of the minimum charges reflect SCSU's actual cost to produce copies of public personnel data.
It appears that SCSU has designed a data retrieval system that allows for easy and convenient access to some, but not all, of the public personnel data it maintains, contrary to section 13.03, subdivision 1. SCSU did not meet the burden of establishing that its copying fees comply with the requirements of section 13.03, subdivisions 1 and 3, and Minnesota Rules Part 1205.0300, subpart 4. (The Commissioner has addressed the issue of computing costs for copies of government data in numerous previous advisory opinions. See also Advisory Opinions 94-028, 94-040, 94-059, 95-044, 95-051, 96-014, 97-012 and 97-013.)
In addition, Ms. Wilson emphasized that SCSU charges only for copies of data. However, one can reasonably conclude from the data request form that free inspection is available only for those data listed in the top portion of the form. Pursuant to section 13.03, subdivision 3, government entities may not charge any fee for inspection of government data.
Based on the facts and information provided, my opinion on the issue raised by Mr. Anfinson is as follows:
David F. Fisher
Dated: June 21, 1999