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 26, 2001, IPA received a letter from Song Lo Fawcett, an attorney, on behalf of her client. In this letter, Ms. Fawcett asked the Commissioner to issue an advisory opinion regarding her client's right to gain access to certain data maintained by the City of Lakeland.
In response to Ms. Fawcett's request, IPA, on behalf of the Commissioner, wrote to Wanda Bridges, City Clerk. The purposes of this letter, dated June 28, 2001, were to inform her of Ms. Fawcett's request and to ask her to provide information or support for the City's position. On July 23, 2001, IPA received a response from Mark J. Vierling, attorney for the City. A summary of the facts of this matter follows.
In a letter to the City dated March 9, 2001, Ms. Fawcett requested copies of "all data concerning Gary Mau/Beanie's Resort . . . ." (Ms. Fawcett's client is neither Gary Mau nor Beanie's Resort.) The charge for 781 black and white photocopies was $781.00. Ms. Fawcett then asked the City to provide further itemization of the charges, to which Mr. Vierling replied: "[t]he City of Lakeland has established a single charge of $1.00 per page for purposes of reproducing copies at public request which would incorporate all of the City's time in searching for those records that are being reproduced: the employee staff time, City Hall overhead, etc."
In his response to the Commissioner, Mr. Vierling stated: "[e]nclosed herewith and provided to you is a certified copy of the City of Lakeland Resolution 2000-11. The City of Lakeland has reviewed its policy with regard to charges for research, staff time, photocopying, etc. as it affects permissible charges under Minnesota Statute 13.03 and has, within the Resolution, identified its effective staff time and rates for charges based on actual staff time and photocopying costs." The Resolution was passed by the City Council on July 17, 2001. According to Mr. Vierling, the City would, in accordance with its newly adopted policy, revise the copy charges at issue here. Mr. Vierling did not specify how the City would adjust its charges.
Issue:In request for an opinion, asked the Commissioner to address the following issue:
Pursuant to Minnesota Statutes, Chapter 13, when an individual requests copies of public government data, the entity may recover some of its associated costs. Section 13.03 provides government entities with guidelines for establishing an appropriate charge. Minnesota Rules, part 1205.0300, subpart 4, provides that an entity, in determining a reasonable 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.
The City charged Ms. Fawcett $1.00 per page for 781 photocopies. When asked for data that document the basis of that charge, the City simply stated that it had established a single charge that included "all of the City's time in searching for those records that are being reproduced: the employee staff time, City Hall overhead, etc." The City produced no data that support its copy fee, and thus, did not meet the burden of establishing that its actual and reasonable cost to produce a page of public government data is $1.00. When it revises its fee in this case, the City must ensure that the fee represents its actual and reasonable cost to provide the copies to Ms. Fawcett.
The Commissioner has an additional comment about one aspect of the City's Resolution 2000-11. In its calculation of its per copy cost, the City included $1055 for its annual maintenance cost, and $950.00 annual depreciation. However, as the Commissioner opined in Advisory Opinion 94-059, it is not appropriate for government entities to include those costs when calculating copy charges:
As stated above, Section 13.03, subdivision 3, allows a responsible authority to recover the actual costs of providing copies of public government data. Pursuant to this subdivision and Minnesota Rules Section 1205.0300, subpart 4, it is permissible to include certain costs in the calculation of the fee charged for copies of public data. Mr. Burt states that included in the costs considered by the City in its determination of a $.50 per sheet copy charge were the costs of "copy machines and maintenance." Neither the statute nor the rule allows inclusion of costs for copy machines and maintenance in the calculation of "reasonable" copying fees, unless the machine and maintenance costs are directly attributable to the costs of providing the public with copies of public data.
Presumably Rosemount must operate and maintain copy machines for its internal operations. Rosemount did not submit information to the Commissioner which indicates that it must operate and maintain machines other than those necessary for its internal operations in order to provide members of the public with copies of public data. 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 Opinion 94-040.)
Based on the facts and information provided, my opinion on the issue raised by Ms. Fawcett is as follows:
David F. Fisher
Dated: August 16, 2001