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 19, 2004, IPAD received a letter from Dave Aeikens of the St. Cloud Times. In his letter, Mr. Aeikens asked the Commissioner to issue an advisory opinion regarding Todd County's charge for copies of government data.
In response to Mr. Aeikens' request, IPAD, on behalf of the Commissioner, wrote to Tony Haasser, Todd County Coordinator. The purposes of this letter, dated July 21, 2004, were to inform him of Mr. Aeikens' request and to ask him to provide information or support for County's position. On August 3, 2004, IPAD received a response, dated August 3, 2004, from Mr. Haasser.
A summary of the facts as Mr. Aeikens provided them is as follows. In his opinion request, Mr. Aeikens wrote:
On April 6, I requested copies of minutes from the last three Todd county board meetings. The minutes were 14 pages total. I was charged $7 for seven pages of paper that was copied on the front and back.
This amounts to 50 cents a page for black-and-white copies. This could even be construed as a dollar a page because the county provided me with seven pages of paper, not 14.
The clerk got a book with the minutes and made copies of minutes from meetings Jan. 6, 12 and 20.
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."
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:
...Therefore the case that Mr. Aeikens is inquiring about would follow the policy of Todd County. The inquiry came into the County April 6th to the Chief Deputy Auditor/Treasurer, Peggy Anderson, who handled this one with a fairly standard procedure. The documents are retrieved from the Board Minutes Book, copied and the originals are returned to the Book. The receipt was then prepared and paid and Mr. Aeikens was given his copies. The County policy would be a simple $7.00, $1.00 per page, which Ms. Anderson copied to both sides rather than just one side.
If the County has to justify the cost of this service, paper and toner would be minimal, past reference is .04 to .05 cents per copy. The rest would be Ms. Anderson's time. The minimal time spent to retrieve, copy, replace, collect payment and produce a two signature receipt would have been approximately 20 minutes [sic] considering the scale that Ms. Anderson is at the County did incur costs equal to or more than the $7.00 charge for this service.
In the way of more information, several years ago the county reviewed how each department was handling copy/fax requests and discovered some inconsistencies. The departments worked together to establish a fee schedule to make it fair and consistent throughout the County. The County Recorders office was already following MN Statute 357.18 rate of $1.00 per page with a $5.00 minimum for certified copies. The district court who is also housed in the same building charges a minimum of $5.00 per document requests being less than 5 pages. The figures the County chose to use were what the various departments felt would cover the cost of providing a service and not as a money making endeavor.
As provided in section 13.03, subdivision 3(c), when government entities determine a fee for making copies of data, they can charge only the actual costs of searching for and retrieving the data, and for making the copies. In the present case, Mr. Haasser explained that Deputy Chief Auditor/Treasurer Peggy Anderson was the County employee who located the meeting minutes and made the copies, and that she spent approximately 20 minutes in doing so. Mr. Haasser implied that if the County had charged Ms. Anderson's actual salary, which he did not provide, the charge would have been higher. However, regardless of which employee completes the task, the County apparently will charge $1 per page. The problem is that Mr. Haasser did not explain how the $1 fee represents the actual cost of providing the copies. In Advisory Opinion 01-047, the Commissioner opined that the labor cost must reflect an 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 addressed a similar situation involving Todd County in Advisory Opinion 04-055. He wrote:
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 possibly 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.
In the present case, the County has not explained why the skills of the Deputy Auditor/Treasurer were required to make the photocopies. Therefore, the Commissioner is of the opinion that the County's labor charge is not allowable.
Finally, Mr. Haasser noted that in the $1 per page fee, the County includes a four to five cent charge for paper and toner. It is appropriate for government entities to include such costs as long as they are reasonable. Mr. Haasser did not provide any information indicating how four to five cents represents the amount the County spends for paper and toner when it makes copies of data. Thus, the Commissioner cannot determine whether this portion of the $1 per page fee is allowable.
A final note is in order. In this case, the fact that the County provided data on two sides of each of the seven pages seems to be irrelevant. In the Commissioner's thinking, the time required to make photocopies of one-sided pages or two-sided pages, or to make two-sided copies of one-sided pages likely is not different enough to affect the time required of a staff person to use the copy machine to make copies.
Based on the facts and information provided, my opinion on the issue that Mr. Aeikens raised is as follows:
Brian J. Lamb
Dated: August 26, 2004