Issue:

In her request for an opinion, Ms. Abrams asked the Commissioner to address the following issue:

Discussion:

Pursuant to Minnesota Statutes, section 13.03, subdivision 3, government entities may charge for copies of public government data. Specifically, the statute states that an entity may charge the actual costs of searching for and retrieving government data, including the cost of employee time, and for making, certifying, compiling, and electronically transmitting the copies. In addition, Minnesota Rules Part 1205.0300, subpart 4, provides that an entity, in determining a fee, shall be guided by the following: cost of materials; cost of labor; any schedule of standard copying charges; any special costs; and mailing costs.

A related provision requires government entities to keep records containing government data in such an arrangement as to make them easily accessible for convenient use. (See section 13.03, subdivision 1.)

In his February 1, 2000, response to Ms. Abrams' request for clarification, Chief Sullivan explained the City's billing for the data referenced in one of the subpoenas. He wrote that 830 pages were charged at $.10/page, plus 7 hours of clerical retrieval and copying time charged at $16.62/hour, plus 2 hours of Chief Sullivan's retrieval and copying time were charged at $36.36/hour. The total was $272.06 or approximately $.33/page.

Also in his February 1, 2000, letter, Chief Sullivan discussed the billing referenced in the other subpoena. There were 537 pages charged at $.10/page, plus 7 hours of Captain Grill's retrieval and copying time at $31.19/hour, plus 2 hours of Chief Sullivan's retrieval and copying time ($36.36/hour). The total was $344.75 or approximately $.64/page.

It does not appear, however, that Chief Sullivan provided Ms. Abrams with any explanation regarding the second invoice for $136.70.

Ms. Abrams wrote back to Chief Sullivan on April 6, 2000, stating that his response was inadequate. She questioned the necessity of the Chief and the Captain having spent time reading and copying documents. Ms. Abrams also stated, The union's request was for raw data. The presentation of the documents in a formal three-ring binder with tabs and title pages went beyond what was requested. She added, Further, it was my understanding that a copy was also made for the employer.

Chief Sullivan responded in a letter dated April 13, 2000. He wrote that LEIS was not billed for any of the time spent on this project on behalf of the City. The Chief also stated, Captain Grill and I prepared many of these materials because it is the established practice in our department to do so, particularly when any form of personnel or computerized productivity data is requested.

In his response to the Commissioner, Chief Sullivan wrote:

The law does not, and should not, stipulate who must be responsible for responding to these requests in any governmental organization. In an organization such as ours, with only forty employees and no designated Human Resources Department, it is both prudent and practical for the police department's command staff to be responsible for maintaining, duplicating and disseminating the types of information requested by LELS. It is the desire of our department to honor the requirements of [Chapter 13], to ensure the integrity of our records system and to protect the privacy interests of our employees, to the extent that such protection is reasonable and lawful. As such, Captain Grill [sic] Administrative Services Director Goeken and myself will always be involved in this form of records management....

...[y]ou will note that we did use less expensive time of a clerical person where it was appropriate and reasonable to do so.

As discussed above, Chapter 13 and Minnesota Rules, Chapter 1205, provide that government entities may charge the following for copies of public data: the actual costs of searching for and retrieving government data, including the cost of employee time, and for making, certifying, compiling, and electronically transmitting the copies.

Based on the information provided, it does not appear that Oakdale has properly justified the charges it assessed LELS for the copies of data. First, Chief Sullivan offered no explanation for the December 31, 1999, bill totaling $136.70. Other than Copies Labor, there is no accounting for the assessed fee.

Second, Chief Sullivan's explanation of the $616.81 fee is problematic. In referencing the subpoena for which Oakdale assessed LELS a fee of $272.06, the Chief stated that the total included 7 hours of clerical retrieval and copying time, 2 hours of his retrieval and copying time, plus an additional $.10 per page. Chapter 13 does permit an entity to charge employee time for searching and retrieving. However, Oakdale also has a statutory responsibility to keep data easily accessible for convenient use. To first assign the task for search, retrieval, and copying to one of its most highly compensated employees, in this case its Chief of Police, and then base its charges on that assignment, could have a chilling effect on an individual's right to gain access to data. This is not consistent with the City's obligation to keep data easily accessible.

In this case, the Chief states that due to the employee complement in the office, it is appropriate that he conduct the search, retrieval, and copying of relevant data. This is his decision to make, as the manager of the office. However, it would not be fair or prudent, then, for the city to also charge for the fully allocated cost associated with that assignment. Rather, the individual should pay only that amount of the actual costs incurred which would be equal to the fully allocated cost associated with use of a city employee in a clerical position.

Finally, it is not clear why Oakdale assessed an additional $.10/copy.

The Commissioner finds similar issues with the $344.75 fee that Oakdale assessed for the data referenced in the other subpoena. In this situation, Oakdale charged LELS for Chief Sullivan and Captain Grill (most likely the two highest paid employees in the Police Department) to retrieve and copy, and, again, an additional $.10/page fee was assessed. For the reasons stated above, Oakdale's charges do not seem appropriate.

In addition, there appears to be an issue regarding the presentation of the requested data. Regarding the data described in one of the subpoenas, Ms. Abrams stated that Oakdale placed the data in a three-ring binder. She wrote, The citations were divided by officer with a cover sheet for each officer. They were tabbed with brightly colored printed sheets separating citations (orange) and warnings (lime green) by month....This format went far beyond that requested by the union. From Chief Sullivan's comments, it is not clear whether Oakdale charged LELS for these extras. If so, such a charge would not be appropriate. If a government entity does not understand a request for data, it should clarify before responding.

One final comments is in order. In his comments to the Commissioner, Chief Sullivan wrote, The law does not, and should not, stipulate who must be responsible for responding to these requests in any governmental organization. Pursuant to Chapter 13 and Minnesota Rules, part 1205.1000, government entities are required to appoint a responsible authority. Section 13.02, subdivision 16, states that the responsible authority is the individual responsible for the collection, use, and dissemination of any set of data on individuals, government data, or summary data... The responsible authority must fulfill numerous obligations under Chapter 13, one of which is establishing procedures to ensure that requests for government data are received and complied with in an appropriate and prompt manner. Chief Sullivan did not indicate that Oakdale has appointed a responsible authority.

Opinion:

Based on the facts and information provided, my opinion on the issue that Ms. Abrams raised is as follows:

Signed:

David F. Fisher
Commissioner

Dated: July 27, 2000