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 July 9, 2004, IPAD received a letter from Mike Knaak, of the St. Cloud Times. In his letter, Mr. Knaak asked the Commissioner to issue an advisory opinion regarding Todd County's charge for copies of government data.
In response to Mr. Knaak's request, IPAD, on behalf of the Commissioner, wrote to Tony Haasser, Todd County Coordinator. The purposes of this letter, dated July 16, 2004, were to inform him of Mr. Knaak's request and to ask him to provide information or support for the County's position. On August 3, 2004, IPAD received a response, dated August 2, 2004, from Mr. Haasser.
A summary of the facts as Mr. Knaak provided them is as follows. In his opinion request, Mr. Knaak wrote:
On April 22, I requested that copies of minutes of the last three Todd County Board meetings be faxed to me. I was charged $16 for an 11-page fax from Long Prairie to St. Cloud. That amounted to a $5 fax charge plus $1 a page. This is in accordance with what I understand to be the county's copy and fax fee policy.
I'm questioning whether the actual cost of the fax, which is what I understand Chapter 13 of Minnesota law requires governments to charge, can be $16 for an 11-page fax. I understand that charges are uniform throughout the county and were adopted according to a countywide policy that attempted to make the charges uniform.
Mr. Knaak attached to his opinion request a copy of an email from Mr. Haasser to a Times reporter. As part of that email, Mr. Haasser indicates that the County charges $5 "per" faxing and $1 per page for copying.
In his request for an opinion, Mr. Knaak 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."
Further, section 13.03, subdivision 1, states that government entities must "keep records containing government data in such an arrangement and condition as to make them easily accessible for convenient use."
In his comments to the Commissioner, Mr. Haasser wrote:
The case that we are addressing came in the Auditor/Treasurers' [sic] office April 22, 2004 and was handled by Sandi Sneed, Deputy Auditor/Treasurer. The procedure is fairly standard; a request is received, the documents are retrieved from the County Board Minutes Book, copied and the originals are returned to the book. A cover letter/invoice is prepared and the copies are faxed.
This is a time consuming process as the minutes are kept in binders that must be taken apart, locate the eleven pages (for this request) and make copies of them. The deputy must also observe the faxing of the document. This project, at a minimum required 20-25 minutes with no complications. At times these requests take even longer if there are problems with the copy machines, busy fax lines, etc.
In [a previous Commissioner of Administration advisory opinion] it appeared that the billing and cover letter costs cannot be considered. I would differ in that the State Auditor's requirements need [sic] for paper trails of each of these transactions. Staff time for billing, receipting and re-billing in some cases and in some cases not receiving reimbursement at all cost the county and must be covered somehow by the public entities.
The Commissioner has issued many advisory opinions regarding copy charges. He consistently has discussed that it is not appropriate for a government entity to charge the labor rate of a highly paid employee unless it is necessary for that particular employee to search for and retrieve the data or to make copies of the data.
In Advisory Opinion 04-042, the Commissioner wrote:
Also, the County charged Ms. Scott the Sheriff's salary and benefit rate of $37.50 per hour for the ten minutes he said he spent searching for the data and typing the invoice. The Commissioner previously has opined that, in situations like this one, it is not appropriate to charge his rate of pay. (See, for example, Advisory Opinions 00-027, 01-033, 01-047 and 04-038.)
In the present case, Mr. Haasser did not adequately explain why the skills of the Deputy Auditor/Treasurer, whose hourly wage appears to be approximately $30, were required to locate the minutes for three county board meetings, make copies of those minutes, load the eleven pages into the fax machine, enter the local telephone number, and press the "start" key. The Commissioner suggests this task could have been completed by someone with a lower skill level who receives a lower rate of pay.
If, however, no employees at a lower salary level were available to complete the task, the Commissioner does not believe it was appropriate for the County to charge the Deputy Auditor/Treasurer's hourly rate, even though she made the copies. In Advisory Opinion 04-038, the Commissioner wrote:
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.
In other words, as government entities determine the actual costs of searching for and retrieving, and making copies of data, they should take into consideration that any charges must be reasonable. Thus, if an entity chooses to use a flat rate for labor costs, it should be no greater than that of the lowest paid staff who could complete the task.
In the case of this opinion, based on the language in section 13.03, it appears the labor charge assessed by the County is not allowable.
Further, the Commissioner previously has addressed the appropriateness of government entities including billing costs in their fees for copies of data:
...The statute allows a government entity to recover some, but not all, of the cost it incurs to produce copies of government data. The invoice and fax cover sheet were not part of the requested copies of data for which the County may charge. (See also Advisory Opinion 97-013.)
Therefore, it is not appropriate for the County to include, as part of its copy charge, any costs related to the creation of cover letters and invoices.
Finally, the Commissioner acknowledges that it may be difficult, administratively, for some government entities to set a unique fee for each request for copies. However, the statute authorizes entities to charge only their actual and reasonable costs, which implies that 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. Knaak raised is as follows:
Brian J. Lamb
Dated: August 25, 2004