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Advisory Opinion 95-043

October 31, 1995; Minnesota Office of Administrative Hearings

10/31/1995 10:15:43 AM

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:

For purposes of simplification, the information presented by the citizen who requested this opinion and the response from the government entity with which the citizen disagrees are presented in summary form. Copies of the complete submissions are on file at the offices of PIPA and are available for public access.

On September 13, 1995, PIPA received a letter dated September 11, 1995, from Abigail Grenfell. In her letter, Ms. Grenfell requested an advisory opinion related to the charge she had been assessed, by the Office of Administrative Hearings, for a copy of certain data. Attached to Ms. Grenfell's request letter were copies of correspondence between her attorney, Larry Peterson, and the Office of Administrative Hearings, hereinafter OAH.

In response to Ms. Grenfell's request, PIPA, on behalf of the Commissioner, wrote to Kevin Johnson, Chief Administrative Law Judge. The purposes of this letter, dated September 18, 1995, were to inform Judge Johnson of Ms. Grenfell's request, to ask him or OAH's attorney to provide information or support for OAH's position, and to inform him of the date by which the Commissioner was required to issue this opinion. On September 29, 1995, PIPA received a response, dated September 26, 1995, from Rolf Hagen, Assistant Chief Administrative Law Judge. (In subsequent correspondence, Ms. Grenfell and Judge Johnson were informed that the Commissioner would be taking additional time, as allowed by statute, to issue this opinion.)

A summary of the detailed facts surrounding this situation is as follows. Ms. Grenfell is appealing a decision by OAH to the Workers' Compensation Court of Appeals and has been seeking access to a transcript of the original OAH hearing. Minnesota Statutes Section 176.421, subdivisions 3 and 4, state An appeal initiates the preparation of a typewritten transcript of the entire record.... and The first party to file an appeal is liable for the original cost of preparation of the transcript.... In a letter dated June 6, 1995, the OAH Court Administrator wrote The approximate cost of the transcript in your case is $1416.00. The preparation of the transcript will not begin until you submit either a check in the amount of $1416.00 payable to the State Treasurer/OAH or a petition for an indigent transcript has been received and granted....

Then, in a letter dated July 14, 1995, Mr. Peterson wrote to Judge Johnson, It is my understanding that the transcript has been prepared and is waiting to be submitted to the Workers' Compensation Court of Appeals. Therefore, my client requests a certified copy of the transcript. Please advise what the cost will be for a copy of that transcript under Minn. Stat. section 13.01, subds. 12 and 17 and Minn. Stat. section 13.03, subd. 3.... We believe that my client should be paying a reasonable copying charge for this transcript given the fact that it has been prepared and is now a public record....

In a letter dated July 18, 1995, the OAH Court Administrator wrote to Mr. Peterson, Being that a transcript has already been prepared per a special request, you may obtain a copy of that transcript through the transcriptionist...the copying charge is $1.00 per page (847 pages) for a total of $847.00....

In his response, to Ms. Grenfell's opinion request, Judge Hagen wrote, ...it has always been the position of Office of Administrative Hearings that the transcript of hearings (regardless of its classification) are the property of the court reporter and/or court reporting service that does the actual transcription. In point of fact, when a party(ies) orders an original transcript or a copy thereof, they are actually ordering the original and/or copies from the court reporter and/or court reporting service and not from the Office of Administrative Hearings. (Emphasis his.)

Judge Hagen also stated that the OAH annually sends out Requests for Proposals from the various court reporters and/or court reporting services to solicit bids for providing court reporting services, including transcriptions. Judge Hagen further stated that the Requests for Proposals result in contracts between the State of Minnesota and various court reporters and/or court reporting services, In these contracts, the cost for production of a hearing transcript and/or copies are set forth, and this serves as the basis for the cost of obtaining the requested hearing transcript. Judge Hagen provided a copy of a Request for Proposal.

Issue:

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

Does a copy charge of $1.00 per page represent the actual cost, pursuant to Minnesota Statutes Chapter 13, for copying government data?

NOTE: Subsequent to Ms. Kerr's opinion request, she was provided access to all of the data she requested. Therefore, this opinion will address only Issue 2.

Discussion:

First, there does not appear to be any dispute that the OAH is a state agency as defined in Section 13.02, subdivision 17 and is therefore subject to the requirements of Chapter 13. In Advisory Opinion 95-033 the Commissioner stated:

The issue is further complicated by the fact that OAH is an executive branch agency which functions like a court; its hearings are quasi-judicial proceedings. However, the rules that govern judicial records are not applicable to OAH. (See the Supreme Court's Rules of Public Access to Records of the Judicial Branch.) OAH is subject to Chapter 13, and is subject to administrative rules. (See Section 13.02, subdivision 17, and Section 176.83.)

Second, the Commissioner wishes to make absolutely clear that this opinion addresses only the issue of the cost of a copy of a transcript maintained by OAH.

Given that OAH is a state agency, any data it collects, creates, receives, maintains, or disseminates are government data. (See Section 13.02, subdivision 7.) Therefore, if OAH has, in its possession, a document which is a transcription of a hearing, then that transcription is government data. Further, since there appears to be no provision in Minnesota law which classifies the transcription as private or confidential data, it appears to be public data. It follows, then, that if an individual requests a copy of a transcript which has been collected by OAH, OAH may require the requesting person to pay only the actual costs of searching for and retrieving the transcription, including the cost of employee time, and for making, certifying, compiling, and electronically transmitting the copies. (See Section 13.03, subdivision 3.)

In his response, Judge Hagen, stated that OAH has always regarded transcripts of OAH hearings to be the property of the court reporting services which are under contract to OAH. He further pointed out that individuals seeking original transcripts or copies thereof, must order such documents from the appropriate court reporting service. However, Judge Hagen did not directly address the issue of transcripts which are maintained by OAH, nor did he discuss how the accessibility of those transcripts might be impacted by the requirements of Chapter 13.

Given that OAH is a state agency subject to Chapter 13, the answer to the specific issue raised by Ms. Grenfell depends on whether OAH is actually in possession of the transcript of which she seeks a copy.

In this particular situation, there appears to be no disagreement over the issue of whether a transcript has been prepared. However, it is not entirely clear that the transcript is in the possession of OAH. According to Minnesota Statutes Section 176.421, subdivision 5, If the transcript is prepared by a person who is not an employee of the office of administrative hearings, upon completion of the transcript, the original shall be filed with the chief administrative law judge. Based on the aforementioned language, it seems reasonable to conclude that since a transcript has been prepared, the original has been collected and is being maintained by OAH. Assuming this, there appears to be nothing in law which prevents Ms. Grenfell from obtaining a copy of the transcript pursuant to the requirements of Chapter 13.

Following this logic, the question next becomes whether OAH is justified, pursuant to Chapter 13, in charging Ms. Grenfell a copying charge of $1.00 per page. Section 13.03, subdivision 3, and Minnesota Rules 1205, subpart 4, provide the parameters within which a government entity is authorized to charge for copying public government data. It is reasonable to assume that OAH would have documentation which demonstrates how it arrived at a charge of $1.00 per page. However, if OAH has such documentation, it was not provided to the Commissioner. Therefore, it does not appear OAH has met the burden of establishing that a $1.00 per page copy charge is the actual cost of providing copies of public data.

Opinion:

Based on the correspondence in this matter, my opinion on the issue raised by Ms. Grenfell is as follows:

Based on the assumption that the transcript sought by Ms. Grenfell is government data because it has been collected and is maintained by OAH, OAH has not met the burden of establishing that a copy charge of $1.00 per page represents the actual cost, pursuant to Chapter 13, for making a copy of the transcript.

Signed:

Elaine S. Hansen
Commissioner

Dated: October 31, 1995

Copy costs

Office of administrative hearings OAH

Actual cost - public