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:
On April 26, 2004, IPAD received a letter dated April 23, 2004, from Dan Browning of the Star Tribune. In his letter, Mr. Browning asked the Commissioner to issue an advisory opinion regarding the fee the Minnesota Department of Transportation charged him for copies of data.
In response to Mr. Browning's request, IPAD, on behalf of the Commissioner, wrote to Carol Molnau, Commissioner. The purposes of this letter, dated April 28, 2004, were to inform her of Mr. Browning's request and to ask her to provide information or support for Mn/DOT's position. On May 14, 2004, IPAD received a response, dated May 11, 2004, from Barbara Forsland of the Mn/DOT Data Practices Office.
A summary of the facts as Mr. Browning provided them is as follows. In a July 23, 2003, email to Mn/DOT he asked :
...to inspect all contracts between MnDOT and Electronic Design Company (EDC), as well as any subcontracts that EDC has received on MnDOT projects in the past four years.
Specifically, I am interested in inspecting all contracts and subcontracts for a project know as "Tiger"- whether they pertain to EDS or not - as well as all bid letting documents, evaluation sheets, etc., which resulted in those contracts or subcontracts.
In his opinion request, Mr. Browning wrote that upon reviewing the documents, he asked for copies of only 198 pages of data. He stated, "We decided against copying hundreds of other documents that were unrelated to the TIGER contract."
Also in his opinion request, Mr. Browning wrote, "The bill, dated Oct. 29, 2003, states that copy charges are $81.91." Mr. Browning wrote that Mn/DOT broke down the charge as 198 pages at 3 cents each, 1.5 hours of labor at $47.31/hour, and $5 for postage and supplies. He noted that on February 10, 2004, Mn/DOT stated that the labor costs of $70.97 were incurred by Daryl Taavola, Mn/DOT's assistant state traffic engineer and Intelligent Transportation Systems manager. Mr. Browning wrote, "[Mn/DOT staff's] response indicates that [Mr. Taavola] spent 1.5 hours retrieving all of the materialswe requested. [Staff] does not address the fact that we copied perhaps a tenth of the total documents we inspected."
Mr. Browning also questioned the postage charge given that Star Tribune staff had picked up the copies from Mn/DOT.
In his request for an opinion, Mr. Browning asked the Commissioner to address the following issues:
Before proceeding, the Commissioner notes Ms. Forsland's comments that Mn/DOT recently has experienced a change in personnel responsible for data practices issues. She wrote:
...The Data practices position was vacated and remained vacant from approximately late October, 2003 to February 25, 2004, when the current Data Practices official (DPO) was added to the staff....The DPO is charged with shaping the role data practices compliance will play in Mn/DOT's planning and resource allocation; creating and providing training to Mn/DOT's Data Practices Designees; and completing other data practices tasks as assigned....
Mn/DOT has made progress in institutionalizing the data practices program and is committed to supporting the development of efficient searching and retrieval methods, promoting agency wide understanding of data practices requirements and providing more efficient and timely responses to requests for data.
The Commissioner in encouraged by Mn/DOT's progress.
Pursuant to Minnesota Statutes, Chapter 13, is Mn/DOT's $70.97 ($47.31/hour for 1.5 hours) labor charge allowable if it includes the cost to retrieve data that the Star Tribune inspected but did not ask to have copied?
When an individual requests copies of data of which s/he is not the subject, the government entity may charge the "actual costs of searching for and retrieving government data, including the cost of employee time, and for making...the copies...but may not charge for separating public from not public data." (See Minnesota Statutes, section 13.03, subdivision 3(c).)
In addition, Minnesota Rules, section 1205.0300, states, "...the responsible authority may charge a reasonable fee for providing copies of public data."
As part of the general discussion surrounding appropriate copy charges, the Commissioner reminds his readers of the requirement in section 13.03, subdivision 1, that government entities "shall keep all records containing government data in such an arrangement and condition as to make them easily accessible for convenient use."
In her response, Ms. Forsland stated:
...The invoice with the labor charge of $70.97 was found to contain errors. Mn/DOT issued a corrected invoice on Friday, May 7, through its regular invoice tracking process....The new invoice contains a labor charge of $34.85 for one hour of labor performed by a Transportation Program Specialist 4, where the original invoice reported 1.5 hours of labor performed by a manager.
However, Mn/DOT's reduction of the labor charge does not have an effect on the first issue Mr. Browning asked the Commissioner to address. The essence of his question is as follows: if an individual asks to inspect data in 100 documents and then wants copies of data in only ten, may the government entity charge the individual the cost of searching for and retrieving the 100 documents?
Ms. Forsland argues that answer is yes. She stated:
...[Chapter 13] is properly interpreted to mean that when a person requests copies of part of the data produced in response to a request, the responsible authority may require the requesting person to pay for the actual costs of searching for and retrieving the body of government data retrieved in response to that specific request.
The Commissioner disagrees. In the current situation, Mr. Browning has engaged in what, technically, is a two-step process. First he asked to inspect certain data. Pursuant to section 13.03, subdivision 3(a), inspection is free of charge. Second, upon examining the documents, he determined that he wanted copies of only 198 pages of data. Given the "actual cost" language in section 13.03, subdivision 3(c), it does not seem appropriate for Mn/DOT to charge Mr. Browning the cost it incurred searching for and retrieving data in all the documents he initially asked to inspect; the $34.85 charge represents more than the actual cost incurred for searching for and retrieving data in the 198 pages. Further, if another individual were to make a future request for copies of the same 198 pages, the search and retrieval portion of the charge would be limited to the time spent searching for and retrieving those 198 pages. Therefore, the Commissioner recommends that Mn/DOT prorate the search and retrieval portion of the copying charge. In other words, if it took Mn/DOT one hour at $34.85/hour to retrieve the data in all the pages Mr. Browning asked to inspect, Mn/DOT may charge the percentage of the $34.85 that the 198 pages represent.
Pursuant to Minnesota Statutes, Chapter 13, is Mn/DOT's $70.97 ($47.31/hour for 1.5 hours) labor charge allowable if the employee who retrieved the data is Mn/DOT's Assistant State Traffic Engineer and Intelligent Transportation Systems Manager?
As stated above in Issue 1, Mn/DOT has reduced the labor charge so that it now represents one hour of time spent by a Transportation Program Specialist 4, whose hourly rate is $34.85.
In her comments to the Commissioner, Ms. Forsland wrote:
In this instance, there were two and variously three employees in the unit that contained the requested data. The Manager of the unit carries the title of Assistant State Traffic Engineer and Intelligent Transportation Systems Manager. The other full time employee is the Transportation Program Specialist 4. At periodic times a Summer Worker was available, although not during the time of this request. In order to retrieve the necessary data, one of the two full time employees had to perform the work. Had the Summer Worker been available, it is questionable if that employee would have been able to complete the task, since the retrieval necessitated the evaluation of the prime contractor/subcontractor relationship. Retrieval of data is not always as simple as reaching for a file and turning it over. Mn/DOT is a dynamic, fast moving work environment. It is necessary to know the flow of documentation to determine if documents are "in the pipeline" and are due to be received, are late or missing, on someone's desk or in another department for work, or scheduled to be routed to another site. Requests similar to "all documentation", or "all communication" are particularly difficult because Mn/DOT must ensure that all possible sources of documentation have been tapped. In order to fulfill its obligation to provide the data requested, Mn/DOT's Transportation Program Specialist 4 performed the work. There simply was no other choice.
The question Mr. Browning asked is whether it was appropriate for Mn/DOT to charge the Star Tribune a labor rate of $47.31/hour for 1.5 hours to retrieve data. When Mn/DOT reviewed its fee, it determined that the other employee in the division, the Transportation Program Specialist 4 (TPS4), performed the work. The charge for this employee's labor is $34.85/hour, which is approximately $73,000/year. As Ms. Forsland notes, "...the [TPS4] is nevertheless a highly paid State employee."
In the Commissioner's opinion, Ms. Forsland has not adequately demonstrated why someone with the skill level of a TPS4 was required to search for and retrieve the data Mr. Browning requested. She notes it was questionable whether the Summer Worker would have been able to perform the task and also states that the retrieval "necessitated the evaluation of the prime contractor/subcontractor relationship." But, she did not provide information about why evaluating that relationship requires advanced skills. Therefore, the Commissioner is unable to determine whether it was appropriate for Mn/DOT to charge a labor fee of $34.85 to retrieve data.
The Commissioner reminds his readers that government entities are not required to charge a fee for copies of government data. Section 13.03, subdivision 3, states that entities "may" require the requesting person to pay the actual costs to search for, retrieve, and make copies of data. In addition, Minnesota Rules, section 1205.0300, states that entities "may charge a reasonable fee for providing copies of public data." [Emphasis added.] Thus, if a government entity, in trying to determine how to arrive at a reasonable fee, recognizes that a lower-paid employee would be able to complete the task, it would be appropriate for the entity to charge a fee based on a rate that is lower than the rate of the employee who actually retrieves the data. Here, Ms. Forsland states that the lower-paid of the two employees in the unit i.e., the TPS4, retrieved the data. If Mn/DOT had determined that the skills required to retrieve the data matched someone who is paid less the TPS4, Mn/DOT could have made the decision to charge the rate of that lower paid employee.
Finally, the Commissioner intends to bring these issues to the Legislature's attention, as further legislative guidance would be helpful.
Based on the facts and information provided, my opinion on the issues that Ms. Forsland raised is as follows:
Brian J. Lamb
Dated: June 4, 2004