Minnesota Department of Administration Advisory Opinion 99-024

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 June 13, 1999, IPA received a letter dated same from Leon Boyd. In his letter, Mr. Boyd requested that the Commissioner issue an advisory opinion regarding the appropriateness of copying charges assessed by the Minnesota Department of Transportation (MnDOT).

IPA, on behalf of the Commissioner, wrote to Elwyn Tinklenberg, Commissioner of MnDOT, in response to Mr. Boyd's request. The purposes of this letter, dated June 17, 1999, were to inform him of Mr. Boyd's request and to ask him to provide information or support for the Department's position. On July 13, 1999, IPA received a response, dated July 9, 1999, from Joseph Lally, Assistant Minnesota Attorney General.

A summary of the facts is as follows. On February 27, 1999, Mr. Boyd, in relevant part, requested a "Copy of the Engineering Study that justifies the restricted weight limit for the bridge that accesses the City of Excelsior from Highway 7 west bound." He added, "If there is a charge for this information, please advise charges BEFORE providing the information."

Mr Boyd renewed his request in a letter dated May 4, 1999.

In a letter dated May 14, 1999, Mr. Boyd asked for an analysis of the assessed charges.

In a letter dated May 20, 1999, MnDOT responded by breaking down the fee into three categories: copies (8 black and white at $.06/page, 17 color at $1.29/page), plus sales tax; postage ($1.43); and labor (Bridge Inspection Engineer, 1 hr at $28.59/hour, times "1.512 Overhead" and Preliminary Design Engineer, « hr at $31.95/half hour, times "1.512 Overhead)."


Issue:

In his request for an opinion, Mr. Boyd asked the Commissioner to address the following issue:

Is the Minnesota Department of Transportation's charge of $92.68 for copies of public government data allowable under Minnesota Statutes, Chapter 13?


Discussion:

Pursuant to Minnesota Statutes, Section 13.03, subdivision 3, government entities may charge for copies of public government data. Specifically, the statute states that an entity may charge 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." In addition, Minnesota Rules Part 1205.0300, subpart 4, provides that an entity, in determining a fee, shall be guided by the following: cost of materials; cost of labor; any schedule of standard copying charges; any special costs; and mailing costs.

A related provision requires government entities to keep records containing government data in such an arrangement as to make them easily accessible for convenient use. (See section 13.03, subdivision 1.)

Mr. Lally wrote that in response to Mr. Boyd's request, a bridge inspection engineer and a preliminary design engineer reviewed multiple files and identified three documents - a July 1991 report, a September 1991 memo, and a 1994 report. He wrote, "This review was necessary in order to accurately and fully respond to Mr. Boyd's request for documents which justify the bridge's restricted weight limit." Mr. Lally further stated:

Mr. Boyd requested documents which justify the policy decision to place a weight restriction on the bridge. As no single, easily identifiable, readily available document could properly respond to this request, MnDOT personnel with the ability to identify the appropriate documents searched, retrieved, identified, and copied documents. This process involved two different engineers. . .

Mr. Lally also reviewed the assessed charges. He wrote, "MnDOT identified a total of 25 copies, 8 black and white copies at six cents each, and 17 color copies at $1.29 each. As a result, the copying charge was $22.41. Postage for these copies was $1.43." Mr. Lally continued: "Labor associated with file search, retrieval, review, identification, compilation, reproduction and mailing for the responsive documents involved one hour by a bridge inspection engineer (at $28.59 per hour) and one half-hour by a preliminary design engineer (at $31.95 per hour)."

In February, Mr. Boyd asked for a "Copy of the Engineering Study that justifies the restricted weight limit for the bridge that accesses the City of Excelsior from Highway 7 west bound." Mr. Boyd also asked to be notified regarding any charges before MnDOT provided the information. In May, because he had not received a response from the Department, he asked for "information on the bridge into Excelsior from Highway 7 Westbound." He also referred to the data as "the information that justifies the reduced weight (study or other documentation)." The Department's response on May 20, 1999, stated:

The information we have available is as follows:

1. A bridge inspection report for bridge #5323 dated July 18, 1991 recommending posting.

2. A memorandum dated September 17, 1991 to the Metro District from the Bridge Office recommending posting.

3. The Report of the 1994 In-Depth Fracture Critical Inspection for Bridge #5323.

The primary problem with the Department's analysis is that, except for postage, which is self explanatory, it does not adequately account for the charges and how they relate to the language in section 13.03.

For instance, the Department does not explain the "copies" charge, i.e., does it include the cost of labor and/or materials and why is a color copy more expensive than one that is black and white? In addition, it appears that the "labor" charge includes the engineers' time involved in searching and retrieving the documents, and also for copying the documents. If this is the case, it does not appear to be reasonable for engineers, at $28.59/hour and $31.95/half-hour, to perform the copying service. Finally, what constitutes "Overhead?" It should also be noted that Chapter 13 does not provide for government entities to include a sales tax as part of copying charges. (See Advisory Opinion 95-053.)

Pursuant to Section 13.03, the Department may charge Mr. Boyd 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." The Department asserted that it needed two engineers to identify the information Mr. Boyd requested. Chapter 13 does permit an entity to charge employee time for searching and retrieving; however, if MnDOT were meeting its obligation to keep data easily assessible for convenient use, it is not clear why it took two engineers to locate the documents, particularly in light of how clearly Mr. Boyd identified the information he was seeking. In addition, the Department did not provide any explanation as to why it charged Mr. Boyd for overhead or sales tax.

It should be noted that according to Mr. Lally, the Department did lower the $92.68 fee to $68.40 by removing the sales tax and overhead charges. (This apparently occurred sometime after Mr. Boyd requested this opinion.) Mr. Lally wrote, "Mr. Boyd still objects to the adjusted amount." On the basis of the above analysis, the Commissioner finds his objection reasonable.


Opinion:

Based on the facts and information provided, my opinion on the issue raised by Mr. Boyd is as follows:

The Minnesota Department of Transportation did not meet the burden of establishing that a copy charge of $92.68 represents the actual cost, pursuant to Minnesota Statutes, section 13.03 for copying government data. The Department, initially, included some costs (overhead and sales tax) that are not allowable, under statute or rule.

Signed:

David F. Fisher
Commissioner

Dated: August 4, 1999