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 October 13, 2000, IPA received a letter dated October 10, 2000, from Randy Lebedoff, on behalf of the Star Tribune, Society of Professional Journalists (Minnesota Chapter), the St. Paul Pioneer Press, KSTP-TV, WCCO-TV, and the Duluth News Tribune. In her letter, Ms. Lebedoff asked the Commissioner to issue an opinion regarding fees that the Minnesota Department of Public Safety (DPS) charges for certain information.
IPA, on behalf of the Commissioner, wrote to Charles Weaver, Commissioner of DPS, in response to Ms. Lebedoff's request. The purposes of this letter, dated October 20, 2000, were to inform him of Ms. Lebedoff's request and to ask him to provide information or support for the Department's position. On November 6, 2000, IPA received a response, dated same, from Commissioner Weaver. Mr. Weaver included several attachments with his letter.
A summary of the facts is as follows. In her opinion request, Ms. Lebedoff wrote:
Last year the fee charged for the [criminal history] database was $80.00 and the fee charged for background checks was $7.00. This year the database fee has been raised to $250.00, and the background check fee has been raised to $15.00....
Star Tribune reporter James Walsh requested a written explanation of the fee increase. He received a written response which is attached to this letter. In it, the Department argues that Minn. Stat. 299C.10, subd. 4 (1998) requires it to charge a fee for background checks which will fund maintaining and enhancing its computerized system. The letter does not respond to the request for a written explanation for the increase in fees charged for the database.
Ms. Lebedoff asserted, "...it is our belief that the Department's current pricing practices are still governed by [Chapter 13] and do not comply with it."
In her request for an opinion, Ms. Lebedoff asked the Commissioner to address the following issue:
The Commissioner first will address the issue of the BCA charging members of the public $15 for a criminal background check.
Minnesota law authorizes the Minnesota Department of Public Safety, specifically the Bureau of Criminal Apprehension (BCA), to conduct criminal background checks. Law enforcement agencies request checks and so do other entities that are required to check information about potential employees, volunteers, applicants for various licenses, etc.
In her opinion request, Ms. Lebedoff noted that the BCA recently had raised the fee for a background check from $7 to $15. She argued that any charge the BCA levies should be consistent with the data copying fees outlined in Minnesota Statutes, section 13.03.
In his comments, Commissioner Weaver wrote, "Minnesota Statutes, section 299C.10, subd. 4 (1998) governs background checks and not the provisions of [Chapter 13]."
The Commissioner (of Administration) agrees. Minnesota Statutes, section 299C.10, subdivision 4, states:
The superintendent shall collect a fee in an amount to cover the expense for each background check provided for a purpose not directly related to the criminal justice system or required by section 624.7131, 624.7132, or 624.714. The proceeds of the fee must be deposited in a special account. Money in the account is appropriated to the commissioner to maintain and improve the quality of the criminal record system in Minnesota.
By enacting this language, the Legislature specifically granted the Department of Public Safety authority to charge a fee to cover the expense of "each background check." Therefore, it is section 299C.10 that regulates the fee that the Department can charge, not Chapter 13. The language in section 13.03 applies when a member of the public requests copies of public government data, not when an member of the public requests a background check.
The Commissioner also would like to point out that there is a significant difference between obtaining a background check and obtaining copies of data. In conducting a background check, the BCA is providing a service that involves reviewing records and editing data based on the specific type of check that has been requested. In a memo, the Assistant Superintendent described the process: "They search for court depositions on open' arrests, verify the validity of the request, review records from other states and the FBI and make determinations based on those records whether the subject is qualified for the particular position being sought." In contrast, when an individual requests copies of data, the entity photocopies or electronically copies data as they exist in the entity.
Next, the Commissioner will address the issue of the BCA charging $250 fee for a copy of the computerized criminal history (CCH) database.
In 1993, the Legislature amended section 13.87, the provision that classifies criminal history data as private. The 1993 amendment requires the BCA to make certain criminal conviction data available to the public. The public can obtain this information only by visiting the BCA's central office. Subdivision 1(b) of section 13.87 states, "The bureau of criminal apprehension shall provide to the public at the central office of the bureau the ability to inspect in person, at no charge, through a computer monitor the criminal conviction data classified as public under this subdivision." After the BCA set up the public terminal, individuals began seeking access to the entire database of public criminal conviction data.
It is the Commissioner's understanding that the BCA maintains a public CCH database. When an individual goes to the BCA and requests conviction data about a particular person, it is from this database that the information is obtained. When a person, such as the Star Tribune, requests a copy of the entire database, the BCA copies the database.
In his comments, Commissioner Weaver first argued that Minnesota Statutes, section 299C.10, subdivision 4, not Chapter 13, controls the cost the BCA can charge for a copy of the database. The Commissioner respectfully disagrees with the Department's position. As discussed above, section 299C.10, subdivision 4, provides that the BCA shall collect a fee "to cover the expense for each background check." When an individual obtains a copy of criminal history data, s/he is obtaining copies of data, not the service of a background check. Therefore, it is the Commissioner's opinion that the costs of gaining access to the criminal history database are governed by Chapter 13, not section 299C.10, subdivision 4.
Accordingly, pursuant to section 13.03, subdivision 3, the BCA 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 3, 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. Commissioner Weaver stated that the actual cost for copying the CCH Database is $190.80. Commissioner Weaver added that because the CCH Database has commercial value for the recipients of the database, the BCA should be able to charge a commercial value add on fee of approximately $60, in addition to the actual costs of copying the data. (See section 13.03, subdivision 3(d).)
The Commissioner respectfully disagrees with Commissioner Weaver. In this case, it is not appropriate for the BCA to charge a commercial value add on fee.
Section 13.03, subdivision 3(d) provides:
When a request under this subdivision involves any person's receipt of copies of public government data that has commercial value and is a substantial and discrete portion of or an entire formula, pattern, compilation, program, device, method, technique, process, database, or system developed with a significant expenditure of public funds by the agency, the responsible authority may charge a reasonable fee for the information in addition to the costs of making, certifying, and compiling the copies. Any fee charged must be clearly demonstrated by the agency to relate to the actual development costs of the information.
This provision was the result of a compromise that originated from a proposal brought forth by Hennepin County. The County sought legislative approval to 1) copyright County databases, and 2) allow user fees to fund databases that the County would build and maintain to carry out required County functions. In adopting the compromise language, the Legislature acknowledged that there are situations when a government entity should be allowed to charge more than the actual cost of making the copies. Thus, the language in section 13.03, subdivision 3(d), allows government entities to recover development costs the entity has incurred in the course of normal business operations when data such as those contained in a database were developed with a significant expenditure of public funds and the requestor could benefit commercially from obtaining the data.
The issues in this case are whether the fee quoted by the BCA is derived from its normal function, and whether the fee as a whole has been substantiated on the basis of cost. The Commissioner's opinion is that DPS has not sufficiently demonstrated the appropriateness of the additional charge. In a November 2, 2000, intra departmental memo, the BCA's Assistant Superintendent wrote, "As we explained in the letter to Mr. Walsh we have made numerous improvements in our technology to enable us to deliver the data on a more useable medium." In a memo to Mr. Walsh, Commissioner Weaver wrote:
The new fee is based on actual costs incurred in acquiring and enhancing our technology for providing the data, including enhancements driven by the needs of our clients who often had difficulty processing the data from 9-track tapes and tape cartridges, as well as the actual costs associated with providing the data. [Emphasis added.]
Commissioner Weaver's main argument is that the BCA has purchased and used new technology so that the database is easier for its clients to use. However, he does not discuss how DPS developed that system to carry out the functions of the Department and how commercial interests can, in essence, unjustly profit from the Department's work. Commissioner Weaver did not establish that creation and maintenance of the database is a cost the BCA derives from its normal function and would have incurred regardless of whether individuals were asking for copies of the database. The enhancements to the database are not something that the Legislature required the BCA to create or something that the BCA, itself, uses. In fact, the Assistant Superintendent wrote, "The BCA does not utilize the Public CCH." Therefore, it is the Commissioner's opinion that the Department has not established it can charge a commercial value add on fee.
Commissioner Weaver provided a general breakdown of the $190.80 fee the BCA is charging for the "actual costs" portion of the $250 charge. He stated that the cost of materials is $278 but did not explain what the materials are and what they cost. He cited the labor as costing $400 but did not explain which employees were doing work and what kind of work they were doing. Commissioner Weaver also listed two "special cost" items but did not explain, in detail, what they represent. As the Commissioner of Administration has stated in many previous advisory opinions, when an entity charges a fee for copies of data, it must be able to provide a detailed account of how it calculates the fee. In this case, Commissioner Weaver did not provide such information. Therefore, it is the Commissioner's opinion that the Department has not met the burden of establishing that a charge of $190.80 for the actual costs portion of the database is allowable under Chapter 13.
Based on the facts and information provided, my opinion on the issue that Ms. Lebedoff raised is as follows:
David F. Fisher
Dated: February 28, 2001