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 September 15, 2004, IPAD received a letter dated September 14, 2004, from Janet Roberts of the Saint Paul Pioneer Press. In her letter, Ms. Roberts asked the Commissioner to issue an advisory opinion regarding whether the Minnesota Department of Corrections had charged an appropriate rate for a copy of certain public government data.
In response to Ms. Roberts' request, IPAD, on behalf of the Commissioner, wrote to Joan Fabian, Commissioner of the Department. The purposes of this letter, dated September 21, 2004, were to inform her of Ms. Roberts' request and to ask her to provide information or support for Department's position. On October 6, 2004, IPAD received a response, dated October 5, 2004, from Commissioner Fabian.
A summary of the facts as Ms. Roberts provided them is as follows. In a letter dated July 30, 2004, Ms. Roberts wrote to the Department:
I...request a copy of statewide jail bookings from the Department of Corrections Statewide Supervision System. I would like all bookings from Nov. 1, 2003, through July 31, 2004.
I would like the data in the same fixed-width, plain-text format you provided last year and I am enclosing a copy of the file layout so you can see exactly what we received. I can take the data on CD-ROM or by FTP, whichever is easiest for [Department] staff.
In response to the data request we submitted last year, [your technology staff] set up a BCP bulk-export routine to copy the data from your SQL Server database to plain text files. His plan was to save that routine to re-run each time we request the data. As a result, we anticipate your actual cost for creating the extract will be minimal.
Department staff responded in an August 6, 2004, email:
...While our developers have created the BCP bulk-export routine you referenced, the cost for this process was reflected in a letter to you dated November 17, 2003 [from Department staff].
In that letter, the cost was itemized for providing booking data as
Total cost $200
As we discussed at that time, this cost reflects the ongoing costs for providing you with the public jail booking data....
Ms. Roberts wrote back in an email dated August 6, 2004:
[In November 2003] the Pioneer Press agreed to pay the $200 because it was the first time we had requested a copy of records from your new Statewide Supervision System and, as such, your IT staff had to write a BCP bulk-export routine to copy the data from the SQL Server. Since that work was done last year and, as you acknowledge, the export routine already exists - we do not believe it is part of the actual cost of copying the data for my new request. In effect, you appear to be doubling billing for that work.
Department staff responded in an email dated August 19, 2004. Attached to that email was an email of the same date from Randy Hartnett, the Department's Data Practices Compliance Official. Mr. Hartnett wrote:
...Ms. Roberts stated her belief that the $200.00 charged the Pioneer Press for the data release last year included the cost of developing the bulk export routine from SQL. This is not the case.
While our IT department did indeed need to develop the routine to perform this transfer, according to their records, this project required in excess of 140 hours of staff time....on the basis that this project had the effect, in part, of separating the private from the public information in the database, my advice was that the charge made to the Pioneer Press last year should include only the cost of producing a copy of the data from the [Statewide Supervision System] database using that routine.
The breakdown of those costs, according to IT people is as follows:
Ms. Roberts and Department staff exchanged additional emails related to the $200 fee. The Department agreed to reduce the labor part of the fee estimate by $22.78, for a new total of $177.22. (The Commissioner assumes the Department removed the first and second charges, relating to reviewing, routing, and administering the request.)
In her opinion request, Ms. Roberts raised the following specific objections to the Department's fee: the labor costs are inconsistent; there are charges related to ensuring "integrity" of the data; Chapter 13 requires that entities make data easily accessible; and the charge includes time spent for a computer specialist to watch a CD burn.
In Ms. Roberts' request for an opinion, she 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 her comments to the Commissioner of Administration, Commissioner Fabian discussed Ms. Roberts' concerns, but provided little explanation as to how the Department's charge represents the actual cost of making a copy of the jail booking data. It should be noted, however, that Commissioner Fabian agreed to further reduce the copy fee by $11.73, in response to Ms. Roberts' question about inconsistent labor charges.
The Commissioner of Administration makes the following comments regarding the Department's fee. First, it would not have been appropriate for the Department to include in its copy charge a fee for staff time to review, route, and administer the data request. See Advisory Opinions 97-013 and 04-003. (It appears these parts of the charge were removed prior to Ms. Roberts making her opinion request.)
Second, it is not appropriate for the Department to charge for time spent verifying the accuracy of the data. As the Commissioner stated in Advisory Opinion 04-042:
In addition, the fax fee included in the cost for the Sheriff's assistant to contact a state agency to verify the accuracy of its data. That charge is not allowable. Implicit in the requirements of Chapter 13, and section 15.17 [the Official Records Act] is that government entities must maintain accurate data.
Third, the Commissioner questions the appropriateness of the $16 per hour (for two to three hours) charged for the server to process the "DTS package." Commissioner Fabian argues that these are "special costs" as allowed by language in Minnesota Rules, section 1205.0300, subpart 4. The language in subpart 4 provides a list of costs intended to guide government entities in arriving at a reasonable fee for providing copies. Commissioner Fabian refers to clause (D), which states, "[The entity shall be guided by] any special costs necessary to produce such copies from machine based record keeping systems, including but not limited to computers and microfilm systems." Commissioner Fabian wrote:
In the case of the SSS system, there are clear machine-based special costs. Because the system contains such a large volume of data comprised in part of the booking and detention records of the booking entities, in many cases over several decades, the system requires substantial server resources. The special costs associated with running the request by the Pioneer Press is simply the cost associated with the inability to do other work while it is being run....With a server such as the one used for the SSS system, however, when it is being used to retrieve and compile the data to comply with the request, it cannot be used for the other purposes demanded of it.
In Advisory Opinion 97-013, the Commissioner briefly discussed this same provision:
...However, the rationale behind the "special costs" language is that it is reasonable for government agencies to recover, as part of their copy charges, any "special costs" associated with making copies of data from a machine-based, i.e., computer, record keeping system. "Special costs" might include writing or modifying a computer program to format data.
In this case, Secretary Growe has not provided information sufficient enough to clearly show that special costs are involved in the copying of the voter registration tapes. The fact that the copying entity is a computer rather than a copying machine is not, in itself, sufficient.
Thus, it is the Commissioner's opinion that it is not appropriate for the Department to charge server time to the Pioneer Press. First, it does not appear to be a type of "special" cost which the Department can charge to a data requestor. Second, the Department's argument appears similar to one with which the Commissioner consistently has not agreed, i.e., government entities charging for electricity used to run a copy machine, and for wear and tear on a machine. In Advisory Opinion 94-059, the Commissioner wrote:
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.)
Similarly, it is the Commissioner's opinion that because the server housing the Statewide Supervision System serves a function that is part of the Department's everyday operations, it is not appropriate to include in the copy fee a charge for portions of its time.
Fourth, the Commissioner questions the Department's charge of 45 minutes for an ITS 3 to "burn" (copy the data to) the CD. In her comments, Commissioner Fabian wrote:
...According to the IT personnel who do this task, creating the CD delivered to the Pioneer Press is not like the simple copying of a data CD in which a staff member sets the CD in the drive and comes back to it when the process is complete. The ITS 3 needs to monitor the process and input instructions to ensure the finished copy contains the data requested....[t]he ITS 4 who supervises the process notes: "These are large files that we are transferring to CD/DVD, and require PC system resources to run effectively. Other Developer tools, Visual Studio and SQL Query Analyzer, also require significant resources. We need to be careful not to create a resource conflict."... Failure to monitor the process could result in the need to re-do the task, resulting in substantial lost time and effort.
Given the comments of the IT staff, it seems that this step in the process is more than simply copying the data to the CD. It appears to represent part of the searching for and retrieving component of the charge. In addition, it is not clear if part of the charge represents the actions taken by the Department to ensure that private, inaccurate, or incomplete data from the Statewide Supervision System database are not released to the requestor. As stated in section 13.03, subdivision 3(c), the Department may not charge for separating public from not public data. The Commissioner encourages the Department to revisit this part of the fee.
Finally, as to the other components of the copy charge, the Commissioner does not have enough information to determine whether they represent the actual costs of either searching for and retrieving the data or making the copy.
Thus, because the Commissioner finds some of the copy charge components inappropriate and cannot determine the appropriateness of others, she is unable to state, with certainty, whether the Department's overall charge of $165.49 (reduced from $177.22) is allowable pursuant to Chapter 13.
Based on the facts and information provided, my opinion on the issue raised that Ms. Roberts raised is as follows:
Dana B. Badgerow
Dated: November 3, 2004