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 May 5, 2004, IPAD received a letter, dated same, from Dave Aeikens of the St. Cloud Times. In his letter, Mr. Aeikens asked the Commissioner to issue an advisory opinion regarding the appropriateness of a fee that the Stearns County Recorder's Office assessed for copies of data.
In response to Mr. Aeikens' request, IPAD, on behalf of the Commissioner, wrote to Diane Grundhoefer, the Recorder. The purposes of this letter, dated May 7, 2004, were to inform her of Mr. Aeikens' request and to ask her to provide information or support for the Office's position. On May 24, 2004, IPAD received a response, dated same, from Marcus Miller, Chief of the Civil Division of the Stearns County Attorney's Office.
A summary of the facts as Mr. Aeikens provided them is as follows. In his opinion request, Mr. Aeikens wrote:
I requested copies of a mortgage from the Stearns County recorder's office on March 26. I was charged $1 a page for an eight-page document....
I talked to County Recorder Diane Grundhoefer, who said the fees include overhead costs for lights, copier costs and safe storage. A cost analysis provided by the county specifically says that the copy charges include overhead, something governments are not allowed to include in copying costs....
The Recorder's office charged Mr. Aeikens eight dollars for a copy of a mortgage document totaling eight pages of data.
Mr. Aeikens attached to his request a copy of an email from County staff describing the County's fees. Staff wrote:
The main element we looked at for these fees for service is costs associated with the labor component. Thereby, if labor costs well exceed the charge/fee for the service, we usually stopped computing all the costs at that point. Now you have to remember, the fee for a fax or copy isn't just for the use of the machine. The charge usually includes the labor to search for a document and then to make a copy or fax of that document....All of our costs are based on an average time estimate to provide a specific requested service.
In his request for an opinion, Mr. Aeikens asked the Commissioner to address the following issue:
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."
In his comments to the Commissioner, Mr. Miller wrote:
...Mr. Aeikens visited the Recorder's Office...during which time he requested a copy of the current mortgage for an acquaintance...Mr. Aeikens provided the name of the property owner, as well as the property address, to assist Ms. Grundhoefer in retrieving the proper requested document. Mr. Aeikens did not provide the name of the bank. He did not provide a legal description for the property. He did not provide a document number for the particular mortgage sought. He did not provide the year in which the mortgage was granted. He did not provide the amount secured by the mortgage. He did not bring an abstract for the property. Moreover, he did not state whether the property was abstract or torrens property. Of course, Mr. Aeikens is not required to provide this information. Indeed, he probably did not have it. Nonetheless, the less information available at the start, the longer it will take to locate a requested document in the property records.
...Mr. Aeikens then left. Ms. Grundhoefer began immediately processing the request. However, she soon delegated the project to Ms. Denise Knoblach, so that she could attend to another matter. Ms. Knoblach is employed with the Recorder's Office as Technical Assistant IV. Ms. Grundhoefer later returned and assisted Ms. Knoblach in completing the task.
As in every Minnesota County, and indeed throughout the United States, property records in the Stearns County Recorder's Office are organized, as required by law, around a fundamental system of documenting every legal transaction that occurs with respect to everyparcel of property in Stearns County. There are presently [the number increases almost daily] 62,943 separate parcels within Stearns County. Although tremendous technological strides have been made in tracking individual property transactions and the attendant documents, the basic system organization has necessarily remained unchanged since the County's creation in 1866. It is an inherently complex system common to local governments throughout the state and nation.
Mr. Miller then described the 17 steps the Recorder's Office took to process Mr. Aeikens request and retrieve the proper mortgage. He added:
This process yielded two unsatisfied mortgages against the subject property. However, because only scant information was provided at the outset, it was impossible to know which unsatisfied mortgage Mr. Aeikens sought. Hence, both mortgages were printed for Mr. Aeikens' review. The first mortgage was 5 pages in length. The second mortgage was 8 pages in length. Mr. Aeikens ultimately retained one, eight-page document for which he incurred a charge of $8.00. However, a total of 13 pages were printed in the process. The process took approximately 20 minutes.
In analyzing the fee charged to Mr. Aeikens, Mr. Miller provided information indicating that Ms. Knoblach's labor costs are $23.59/hour. Mr. Miller did not provide wage information about Ms. Grundhoefer but the Commissioner assumes her salary is higher. Mr. Miller stated that the time (including that of both Ms. Knoblach and Ms. Grundhoefer) spent searching for and retrieving the requested mortgage was, at a minimum, 19 or 20 minutes. Twenty minutes of time charged at Ms. Knoblach's hourly rate is approximately $7.86. Mr. Miller also provided information indicating that employees who are paid at a lower rate are capable of searching for and retrieving mortgage documents.
Mr. Miller stated that the County also charged Mr. Aeikens three cents a page for material costs: "This cost includes such things as paper, toner, ink, staples, electricity used to briefly run the copy machine, additional wear and tear on the machine, etc." The Commissioner notes that while government entities may charge for paper, copier ink, and staples, it is not appropriate to charge for electricity and machine wear and tear (see Advisory Opinions 94-059 and 01-066).
Section 13.03, subdivision 3(c), provides that the Recorder's office may charge the actual costs of searching for and retrieving copies of the data in the mortgage document, and for making a copy of the mortgage. Regarding the labor portion of the charge to Mr. Aeikens, it is possible the County should be charging a lower hourly rate. However, the Commissioner does not have enough information to make that determination. In Advisory Opinion 04-038 the Commissioner wrote:
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.
Regarding the "material costs" portion of the copy charge, as the Commissioner stated above, it appears the Recorder's office has included some items which are not allowable. The Commissioner urges the Recorder's office to re-calculate its per page material costs.
Thus, because the Commissioner cannot determine, with certainty, whether the most significant portion of the eight dollar charge - the labor of searching for and retrieving the data - is appropriate, he cannot determine whether the County's charge was in compliance with Chapter 13.
A final comment is in order. In his comments, Mr. Miller wrote, "We do not advocate an arbitrary $1.00 per page charge for public information." However, in the email County staff sent to Mr. Aeikens, staff stated that, in the Recorder's office, the cost for copies is $1 per page. In Advisory Opinion 01-047, the Commissioner opined that the labor cost must reflect the entity's actual cost:
Mr. Cady stated that the District's average labor costs for secretarial and administrative staff are $20.00 per hour and $45.00 per hour respectively. However, the statute requires a government entity to charge its actual, not average, costs associated with producing copies of data. . . .
The Commissioner recognizes that pursuant to Minnesota Rules, part 1205.0300, subpart 4, a government entity may be guided by a fee schedule of standard copying charges. However, the fee schedule must reflect the entity's actual and reasonable copying costs. The Commissioner finds that the District's is neither.
The Commissioner is of the opinion that, in general, a flat fee structure works best for the portion of the copy fee that reflects the cost of paper, toner, etc. A flat fee for labor costs is more problematic because the cost to search for, retrieve and compile data, and to make the copies, can vary widely depending upon the specific request.
Finally, the Commissioner acknowledges that it may be difficult, administratively, for some government entities to set a unique fee for each request of copies. However, the statute authorizes entities to charge only their actual and reasonable costs, which implies copy charges must, at least in part, be calculated on a case-by-case basis. The Commissioner intends to bring these issues to the Legislature's attention, as guidance would be helpful.
Based on the facts and information provided, my opinion on the issue that Mr. Aeikens raised is as follows:
Brian J. Lamb
Dated: June 28, 2004