Facts and Procedural History:

On December 11, 2006, IPAD received a letter from David Mealey. In his letter, Mr. Mealey asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data the City of Silver Bay maintains.

In response to Mr. Mealey's request, IPAD, on behalf of the Commissioner, wrote to Tom C. Smith, Silver Bay City Administrator. The purposes of this letter, dated December 18, 2006, were to inform him of Mr. Mealey's request and to ask him to provide information or support for the City's position. On December 22, 2006, IPAD received a response from Mr. Smith. A summary of the facts as Mr. Mealey presented them follows.

In a letter dated November 17, 2006, Mr. Mealey requested copies of all billing statements including the detail of charges to the City of Silver Bay by the law firm of Johnson and Morris for the period November 1, 2005 through October 31, 2006.

In a letter dated November 20, 2006, Mr. Healey requested a copy of the retainer fee schedule approved by the [City] for services provided by the [same firm] to become effective January 1, 2007. Also requested are copies of all communications from Johnson and Morris regarding their request for an increase in their retainer fees.

In a letter dated November 30, 2006, Mr. Smith responded that the data were ready, enclosed an invoice, and requested prepayment. Mr. Healey stated that he received copies of 109 pages, for which the City charged the following to retrieve and copy:

Administrator Rate: $32.15 times; 1 1/2 hours = $48.22
Deputy Clerk Rate: $22.11 times; 1 3/4 hours = 38.69

The total charge to retrieve and copy 109 pages was $86.91. In his opinion request, Mr. Mealey questioned the reasonableness of the City charging copy costs at the Administrator and Deputy Clerk's hourly rates given that [t]here are two additional employees in the city office, both of whom are lesser paid . . . I believe that either of the lesser paid employees were capable of performing the task. Mr. Mealey wrote, [f]urther, it appears that the data requested was not kept easily accessible because it took a total of 3 1/4 man-hours to retrieve and copy 107 [sic] pages of data.

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

I believe we strictly complied with the statute. In my experience, as the Silver Bay City Administrator, this was the first request for copies of government documents this office has ever received. As the Responsible Authority I believed I had the responsibility to personally address Mr. Mealey's request and to designate a member of my staff that could most competently and efficiently search for, retrieve and copy the data requested. It was my opinion that the Deputy Clerk-Treasurer was that person, since she handles the finances, receives and pays all bills. I did not feel that the other two lower paid employees could as efficiently do so in the same period of time.

The City Attorney sends a statement each month for its retainer and expenses together with a detail of time. There are usually separate billings for special services in addition to the monthly retainer. The each [sic] of the statements usually consists of two to three pages stapled together. Those statement [sic] are placed in a packet with other bills and submitted to the Council for approval. The total City bills average one hundred per month. After approval, the bills are paid by the Deputy Clerk. All paid bills are assembled and placed in monthly packets. Those packets are readily accessible. After the year end audit they are placed in the archives. To meet Mr. Mealey's request, it was necessary for the Deputy Clerk to go to the archives, search through the bills and retrieve the monthly paid bills of Johnson Morris for November and December 2005. She would have to go through the packet of approximately 100 bills to pull out the Johnson Morris bills. She would do the same for each month's packet from January through October of 2006. Since the Johnson Morris bills usually were stapled, it would be necessary to remove the staples to copy. The 1-3/4 hours of time involved in searching for, retrieving and copying the requested data is most conservative and reasonable.

As the Responsible Authority, I believed I had a duty to take the time to review the material to make certain it was complete and to participate in the search and retrieval of the requested data.

Mr. Mealey also requested 'a copy of the retainer fee schedule . . . for services provided by the law firm . . . to become effective January 1, 2007' and 'all communications from [the firm] regarding their request for an increase in their retainer fees.' Since I attend all Council Meetings, where these matters were discussed, I felt I could most efficiently secure this material myself. It was necessary to go through correspondence over a period of time to search for, retrieve and make copies.

I was being most conservative in a charge of only 1 1/2; hours for my time. I did not charge Mr. Mealey for the actual cost to the City of my time or for that of the Deputy Clerk. I only charged the actual wage costs. We could have charged the full labor costs of wages and benefits in order to compensate the city for 'actual costs of searching for and retrieving government data.'

According to Mr. Smith, the City's actual hourly labor costs are: City Administrator, $46.20; Deputy Clerk-Treasurer, $34.36; Assistant Deputy Clerk, $28.38.

Issue:

Did the City of Silver Bay comply with Minnesota Statutes, Chapter 13, when it charged $86.91 to retrieve and copy 109 pages of government data?

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Discussion:

Pursuant to Minnesota Statutes, section 13.03, subdivision 3(c), when an individual requests copies of data of which s/he is not the subject:

. . . the responsible authority may require the requesting person to pay the actual costs of searching for and retrieving government data, including the cost of employee time, and for making, certifying, [and] compiling . . . the copies . . . but may not charge for separating public from not public data. However, if 100 or fewer pages of black and white, letter or legal size paper copies are requested, actual costs shall not be used, and instead, the responsible authority may charge no more than 25 cents for each page copied.

In addition, according to Minnesota Rules, section 1205.0300, . . . 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.

Mr. Mealey made two requests for data, dated November 17 and November 20, 2006. The City charged Mr. Mealey approximately $.80 per page. The Commissioner was not given information as to whether each request was for copies of fewer than 100 pages, or if one of the requests was for more than 100 pages. Neither Mr. Mealey nor Mr. Smith addressed the statutory requirement that limits a government entity to charging no more than $.25 per page for fewer than 100 pages. Given that Mr. Mealey made his second request three days after his first, and it involved related data, it is understandable that the City treated them as one request. However, the statute requires an entity to respond to each request individually. Thus, if each of Mr. Mealey's requests was for fewer than 100 pages of data, the City may not charge more than $.25 per page for the copies, or a total of $27.25.

If one of Mr. Mealey's requests was for more than 100 pages, then the City was entitled to charge its actual, reasonable cost to provide copies of those data. Mr. Smith stated that as responsible authority, he determined that he and the City's Deputy Clerk-Treasurer could most competently and efficiently search for, retrieve, and copy the requested data. He also stated that the City did not charge Mr. Mealey its actual full labor costs to provide the data, but rather charged the two higher-paid employees' hourly rates excluding benefits.

In Advisory Opinion 04-044, the Commissioner opined:

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 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.

The Commissioner has the following comments. Mr. Smith, as responsible authority, is in the best position to determine who among the City staff is best able to search for and retrieve requested data. However, as the Commissioner has opined previously, it is not reasonable to charge the highest labor cost to pull staples and make photocopies.

Mr. Smith said that the City did not charge its actual labor cost, i.e., including benefits, as it is entitled to do. Mr. Smith stated that the City's actual labor cost for 3 1/4 hours at its two lowest paid employees' rates is higher than the cost it charged Mr. Mealey, namely $92.24 instead of $86.91. Thus, the actual cost is approximately $.85 per page of data, rather than the $.80 per page the City charged Mr. Mealey. The Commissioner finds either to be excessive.

One of a government entity's responsibilities under Chapter 13 is to locate and provide data, in a reasonable amount of time, in response to data practices requests. To better comply with this requirement, section 13.03, subdivision 1, states that entities shall keep records containing government data in such an arrangement and condition as to make them easily accessible for convenient use.

Here, the City took 3 1/4 hours to locate and copy 109 pages of legal bills and correspondence, which seems excessive given the nature of the data requested. Based upon Mr. Smith's description, the Commissioner questions whether those data were easily accessible for convenient use. As noted above, a government entity's copy charges must be reasonable. For the reasons discussed, the Commissioner concludes that the City's charge of $.80 per page is not.

Finally, although apparently not at issue here, the Commissioner reminds her readers that a government entity may not charge its time to separate public from not public data.

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Opinion:

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

The City of Silver Bay did not comply with Minnesota Statutes, Chapter 13, when it charged $86.91 to retrieve and copy 109 pages of government data. If the two requests were each for fewer than 100 pages, the City may not charge more than $.25 per page, or $27.25. If one request was for more than 100 pages, the City may charge its actual, reasonable cost to provide copies of those data.

Signed:

Dana B. Badgerow
Commissioner

Dated: January 12, 2007

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