November 3, 1997; City of St. Paul
11/3/1997 10:14:43 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 person who requested this opinion and the response from the government entity with which the person disagrees are presented in summary form. Copies of the complete submissions are on file at the offices of PIPA and, with the exception of any data classified as not public, are available for public access.On September 11, 1997, the Commissioner received a letter dated September 9, 1997, from Dick Senese, DFL State Party Chair. In his letter, Mr. Senese requested that the Commissioner issue an opinion regarding the issue of copying charges assessed by the City of St. Paul for copying public government data. PIPA, on behalf of the Commissioner, wrote to Fred Owusu, Clerk of the City of St. Paul, in response to Mr. Senese's request. The purposes of this letter, dated September 16, 1997, were to inform him of Mr. Senese's request and to ask him to provide information or support for the City's position. On September 22, 1997, PIPA received a response, dated September 18, 1997, from Paul McCloskey, Assistant City Attorney.
A summary of the facts surrounding this matter is as follows. In a letter dated April 23, 1997, Mr. Senese requested access to the following data:
In a letter dated May 5, 1997, Deputy Mayor, Tim Marx, wrote to Mr. Senese and stated, We intend to comply fully with your request consistent with the Minnesota Data Practices Act and have begun the process of gathering the data....[staff will] provide you with an expected time by which we can comply with the request and an estimate of the charges that will be incurred. In a letter dated May 14, 1997, the Assistant to the Mayor, Roger Curtis, wrote to Mr. Senese's office with an estimate for the actual costs of retrieving this information. Mr. Curtis further wrote, We are assembling this data on the assumption that you will pay the legally-allowed cost. If this is not the case, please let me know as soon as possible. The estimated charge was $597.65. Mr. Marx wrote again to Mr. Senese on June 26, 1997. Apparently attached to that letter were copies of requested data. Mr. Marx wrote, Your request required many hours to assemble, substantially more that our original estimates. The total cost of $1,070.60is accounted for in the following summary. He further wrote, You should be aware that your letter of June 25, 1997 [a copy of this letter was not provided to the Commissioner] was received after we completed the work to respond to your data request. Consequently, we cannot accommodate your request to copy the documents yourself, and we believe our duplicating charges presented the most economical option for you. Then, on June 30, 1997, the Mayor's office apparently faxed, to Mr. Senese, another copy of the June 26, 1997, letter. On this copy of the letter, someone had reduced the duplicating fee from $283.60 to $238.60 (the higher figure was crossed out and the lower number was written in). Further, the original total charge of $1,070.60 was crossed out and the revised fee (based on the reduction of the duplicating charge) was written in at $1,020.60.
Issue:
In his request for an opinion, Mr. Senese 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 Section 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.
Intertwined with the standard for copying charges is the requirement in Section 13.03, subdivision 1, which states that the government entity must keep records containing government data in such an arrangement and condition as to make them easily accessible for convenient use. In the case at hand, Mr. Senese requested access to certain data maintained by St. Paul. The City responded with an estimation of the cost of retrieving this information. The estimate included a breakdown according to staff costs (for telephone records, administrative time, travel records, and salary records) and paper/computer costs (for computer time and travel/telephone copies). However, when the data were sent to Mr. Senese, the assessed fee had almost doubled and the new charge was accounted for in a different fashion (staff time for telephone records, staff time for employee salary records, computer processing, two reams of paper, and duplicating costs).
In his response to the opinion request, Mr. McCloskey noted that upon further review of the City's final charge, for the purpose of responding to Mr. Senese's opinion request, the fee had been increased by $5. He wrote, The correct charge has increased by $5.00 to a total of $1,025.60 due to an arithmetic error contained in our first bill. Mr. McCloskey also wrote:
Mr. McCloskey summarized the costs. He wrote that total staff time was $645 for retrieving and collecting the data. He wrote that the cost of computer processing and copies ($20.30) increased the total charge to $665.65. He wrote that a secretary had to organize the materials at a cost of $121.35 and that duplicating costs were $238.60. Apparently in relation to the duplicating bill he wrote:
In closing, Mr. McCloskey wrote:
As stated above, Section 13.03, subdivision 3, provides that in charging for copies of public government data, the entity may charge only the actual costs of searching for and retrieving the data, including the cost of employee time, and for making, certifying, compiling, and electronically transmitting the copies. In the present situation, it is difficult for the Commissioner to determine whether St. Paul complied with the guidelines set forth in statute. First, is that Mr. Senese's original April 23, 1997, request appears to be a combination of a request for copies of existing data and a request for the City to create new data, i.e., creating data that do not exist or organizing or reconfiguring existing data into a different format, such as a chart. As the Commissioner has stated in previous advisory opinions, 96-007, 97-005, 97-026 and 97-031, Chapter 13 does not require government entities to create data, only to provide access (inspection or copies) to data currently in existence. In situations where an entity has been asked to create new data, the request is not a true data practices request and the amount of any charge levied by a government entity to respond to the request is not regulated by state law. In previous advisory opinions (see above), the Commissioner has advised that in such instances, the entity and the requesting party work out an agreement as to an appropriate charge. Mr. Senese's request also appears to be a request for copies of data currently in existence. However, because of the way St. Paul documented the charge, the Commissioner is unable to determine whether the assessed fee is allowable under Section 13.03, subdivision 3. According to the information provided by Mr. McCloskey, the employee time involved seven different employees who worked a total of 41.5 hours collecting, retrieving, and organizing, the data. Further, it is not clear why seven different staff of the City, whose job titles include Accounting Clerk I, Payroll Clerk, Computer Operator, EDP Programmer, Secretary, Payroll System Tech, and Mayor's Secretary, and whose salaries range from $15.87/hour to $29.13/hour, were required to respond to a request to provide copies of financial and accounting records of the City. The assignment of seven people to this task also raises a question as to whether the City failed in its duty to keep its records in such a condition as to be easily accessible by the public. (See Section 13.03, subdivision 1.) However, without more detail, it is difficult to determine how the charges, which appear to amount to $1.42 per copy, represent 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, there is a computer processing charge of $11.20, which Mr. McCloskey did not explain, as well as a copying charge of $9.10, which appears to be for 883 pieces of paper. However, the most confusing part of Mr. McCloskey's supporting documentation is what he refers to as the duplicating costs of $238.60 from the print shop. Without a guide to the coding used in the print shop invoice, the documentation provided to explain the print shop charges is incomprehensible. In conclusion, based on the lack of detail provided, the Commissioner is unable to determine whether the charge assessed to Mr. Senese by the City of St. Paul is in compliance with the provisions of Section 13.03, subdivision 3. First, while Mr. McCloskey provided information regarding the number of staff hours spent searching and retrieving the data, he did not explain why so many different people spent so much time pulling the data together. Second, the City did not offer an explanation as to why a charge was necessary for computer processing. Third, Mr. McCloskey did not explain why Mr. Senese was charged for two reams of paper when the number of copies appears to be 883. Finally, it is not at all clear how the print shop's charge of $238.60 (or, for that matter, the original fee of $477.27, which was apparently split between Mr. Senese and the Star Tribune) was calculated. The issues discussed in this opinion illustrate the need for individuals making requests to clarify with government entities whether they are requesting copies of data or requesting that the entity prepare new data. One way to do this is for the individual to ask to inspect the data. This situation also points to the need for government entities to ensure that public data are easily accessible and to communicate fully with the public when estimated charges change dramatically, as they did in this case. Opinion:Based on the facts and information provided, my opinion on the issue raised by Mr. Senese is as follows:
Signed:
Elaine S. Hansen
Dated: November 3, 1997 |
Copy costs
Existence of data
Cost of creating new data
Telephone records/bills
