Facts and Procedural History:

On November 29, 1994, PIPA received a letter from Mr. Larry Walsh, a resident of Rosemount, Minnesota, in which he described his attempts to obtain copies of certain public data maintained by the City of Rosemount (hereinafter City or Rosemount ). According to Mr. Walsh, in April, 1994, he requested copies of certain public data. Upon receipt of the copies, Mr. Walsh noted that the City had included copies of data which he had not requested. He said he immediately returned those copies, and informed the City that he would not pay the copying charges for the unrequested items. He also questioned the City's copy charge of $.50 per page, which he believed to be unreasonable, and said he would not pay for the copies he retained until he received an explanation of the charges.

In September and November, 1994, Mr. Walsh received additional invoices from Rosemount concerning the copying charges. He said that he has received no response to his communications with Rosemount concerning these invoices. Mr. Walsh requested an opinion of the Commissioner on the issues stated in the Issues section below.

In response to this request, PIPA, on behalf of the Commissioner, wrote to Mr. Thomas Burt, City Administrator of Rosemount. The purposes of this letter were to inform Mr. Burt of Mr. Walsh's opinion request, to provide a copy of the request to him, to ask Mr. Burt or the City's attorney to provide information or support for the City's position, and to inform him of the date by which the Commissioner was required to issue this opinion. (In subsequent correspondence, Mr. Walsh and Mr. Burt were notified that the Commissioner would be taking a portion of the additional 30 days allowed by the opinion statute to issue this opinion.)

On December 8, 1994, in his response, Mr. Burt stated that the City's practice of charging $.50 per sheet for photocopies is a reasonable charge, based on the [c]osts for copy machines, maintenance, paper and city staff time.... which were considered in the determination of the fee. Mr. Burt did not address the issue of Mr. Walsh's having been charged for copies of data he did not request.

Issues:

Discussion:

It is reasonable to conclude that a person may be assessed a charge for access to public data only if copies of the data are requested. Mr. Walsh requested copies of certain data, some of which he received. He also received copies of data he did not request, for which he may not be charged. In addition, Rosemount is charging Mr. Walsh interest on the unpaid balance. It may be permissible for the City to charge interest on an unpaid balance for copies of public data, if it has the authority to do so, but in no case is it permissible for Rosemount to charge Mr. Walsh interest for copies of data which he did not request.

If Rosemount did not understand what Mr. Walsh was requesting, it could have sought written or other clarification from him. Although there is nothing in Minnesota Statutes Chapter 13 which requires data requests to be made in writing, if it would help a government entity to respond appropriately to requests for access to data, the entity may choose to impose that requirement as part of its data access procedures. In this case, if the City has complied with its obligation to establish public access procedures, it may ask citizens to follow those procedures when making data requests.

As stated above, Section 13.03, subdivision 3, allows a responsible authority to recover the actual costs of providing copies of public government data. Pursuant to this subdivision and Minnesota Rules Section 1205.0300, subpart 4, it is permissible to include certain costs in the calculation of the fee charged for copies of public data. Mr. Burt states that included in the costs considered by the City in its determination of a $.50 per sheet copy charge were the costs of copy machines and maintenance. Neither the statute nor the rule allows inclusion of costs for copy machines and maintenance in the calculation of reasonable copying fees, unless the machine and maintenance costs are directly attributable to the costs of providing the public with copies of public data.

Presumably Rosemount must operate and maintain copy machines for its internal operations. Rosemount did not submit information to the Commissioner which indicates that it must operate and maintain machines other than those necessary for its internal operations in order to provide members of the public with copies of public data. It is not reasonable for government entities to recover a portion of their normal operating expenses by charging a copying fee which is higher than the actual cost to supply the copy. (See also Commissioner's Advisory Opinion #94-040.)

A few further comments are in order. In the documents provided by Mr. Walsh, it appears that Rosemount has added sales tax to its charge for copies of public government data. This issue was previously raised with the Minnesota Department of Revenue, which requires collection of sales tax by entities which are in the business of selling copies. The Department specifically exempted entities which are subject to the MGDPA from including sales tax in their charges for copies of government data.

Also, Mr. Walsh asked the City for an explanation of its policies and procedures regarding access to public data, but apparently has not received a response. For a discussion of this issue, see Commissioner's Advisory Opinions #94-014 and #94-021.

Opinion: