Note: In 2014, the Legislature amended Minnesota Statutes, section 13.05, subd. 11(a), related to government contracts.

Facts and Procedural History:

On September 10, 2003, IPAD received a letter from Jerry Gumphrey, Business Representative for Iron Workers Local Union No. 512. In his letter, Mr. Gumphrey asked the Commissioner to issue an advisory opinion regarding a copying charge assessed by the City of Little Falls.

In response to Mr. Gumphrey's request, IPAD, on behalf of the Commissioner, wrote to Richard Carlson, Administrator for the City. The purposes of this letter, dated September 16, 2003, were to inform him of Mr. Gumphrey's request and to ask him to provide information or support for the City's position. On October 15, 2003, IPAD received a response, dated October 3, 2003, from Mr. Carlson.

A summary of the facts is as follows. In a letter dated May 13, 2003, Mr. Gumphrey wrote to Art Cherry, the City's Water and Waste Plant Superintendent. Mr. Gumphrey asked to review the following data for the time period March 10, 2003, to April 11, 2003:

1. Certified Payrolls for all contractors of subcontractors who have performed work at the above reference site during the time period requested.
2. All Inspectors Reports and/or Daily Logs of Construction of [sic] other documents which identifies [sic] work performed on the reference project during the time period requested.

Mr. Gumphrey wrote:

It is understood and acknowledged, some information may be redacted relating to individual employee personal information, such as names, address, social security numbers and proprietary personal tax deductions. All other information required for reporting under the Davis-Bacon Act is necessary for review....Iron Workers Local 512 is aware of any reasonable fees incurred for time and reproduction of these documents.

In his opinion request, Mr. Gumphrey stated, On July 30, 2003, I received an invoice for $272.50 from an Environmental Engineer, for copies I still have not received. My feeling is that this is not in line with Minnesota Statutes Section 13.03, as it relates to copying fees.

Mr. Gumphrey provided the Commissioner with copies of two invoices. One is dated July 18, 2003, and is addressed to the City from McCombs Frank Roos Associates, Inc. (MRFA). Its invoice number is 44522 and the heading states, 20-City of Little Falls-Iron Worker Request for Copies. The amount is $272.50 for 2 hours of an environmental engineer's time. The engineer's hourly rate is $109.

The second invoice, number 003333, is dated July 29, 2003, and is from the City to Mr. Gumphrey. The charge is $272.50 and the reference is Copies Little Falls WWT Addn.

In a letter dated August 15, 2003, Mr. Gumphrey again wrote to Mr. Cherry:

...Insofar as your invoice dated July 29, 2003 and in the amount of $272.50, for information retrieval services by MFRA Associates, Inc., an environmental engineering firm, invoiced amount to be excessive and not in compliance with Minnesota Statutes, Section 13.03, as it relates to copying fees.

The information requested in our May 13, 2003 letter under...Minnesota Statutes, should already be in your possession and available for copying. For your office to hire MFRA Associates, Inc. to retrieve this information is, we believe, not in line with applicable statutes.

Local Union No. 512 is aware of the fact that 'reasonable' data copying costs will be incurred as the result of its request and will pay those reasonable costs, once you have established guidelines...

Issue:

In his request for an opinion, Mr. Gumphrey asked the Commissioner to address the following issue:

Discussion:

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 the data and making the copies. (See Minnesota Statutes, section 13.03, subdivision 3(c), and Minnesota Rules, section 1205.0300.)

In his comments to the Commissioner, Mr. Carlson wrote:

...The charge of $272.50 is for two and one-half hours of retrieving and compiling the data and no costs for making copies. The data is held by the City's engineering firm, McCombs Frank Roos and Associates, who are the project managers for this [improvement to the Little Falls Wastewater Treatment facility]. When the project is completed, the records will be transferred to the City.

The Commissioner assumes the City has a contract with MFRA. Pursuant to section 13.05, subdivision 11, if a government entity enters into a contract with a private person to perform any of its functions, the entity shall include terms making it clear that all of the data created, collected, received, stored, used, maintained, or disseminated by the private person in performing those functions are subject to the requirements of Chapter 13 and that the private person must comply with those requirements as if it were a government entity. The language in section 13.05, subdivision 11, became effective August 1, 1999. The City did not provide the Commissioner with a copy of any contract language.

Mr. Carlson appears to be saying that the payroll information and inspector reports currently are in the possession of MFRA. Assuming that is correct and assuming the contract between MFRA and the City states that (1) the data MFRA creates and collects are subject to Chapter 13 and (2) MFRA must comply with requests as if it were a government entity, neither the City nor MFRA has demonstrated why it was necessary for an environmental engineer to retrieve and compile the data Mr. Gumphrey requested. Therefore, as the Commissioner has opined in related situations, he cannot agree that the $272.50 charge for copies of data is allowable.

The Commissioner also wishes to remind both the City and MFRA of the following. Pursuant to section 13.03, subdivision 1, the responsible authority of a government entity is required to keep records containing government data is such an arrangement and condition as to make them easily accessible for convenient use. One of the reasons for this requirement is to reduce the possibility that a highly paid staff person is the only individual capable of retrieving data responsive to a request.

Opinion:

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

Signed:

Brian J. Lamb
Commissioner

Dated: November 4, 2003