June 28, 2004; Benton County Sheriff
6/28/2004 10:16:43 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:On May 6, 2004, IPAD received a letter from Kelly Ann Scott, of the St. Cloud Times. In her letter, Ms. Scott asked the Commissioner to issue an advisory opinion regarding the appropriateness of a fee that the Benton County Sheriff's Office assessed for copies of data. In response to Ms. Scott's request, IPAD, on behalf of the Commissioner, wrote to Sheriff Jim McMahon, in a letter dated May 7, 2004, to inform him of Ms. Scott's request and to ask him to provide information or support for the Sheriff's position. On May 18, 2004, IPAD received a response from Robert J. Raupp, Benton County Attorney. A summary of the facts of this matter follows. In a letter dated November 15, 2003, Ms. Scott wrote to Sheriff McMahon, and requested copies of the Bias Offense Reports . . . . We'd like copies of all reports filed for 2002. We'd also like a copy of the code sheet that your department uses to fill out such reports. Ms. Scott wrote that she would accept the copies via e-mail, fax or U.S. mail. In response, on November 18, 2003, Sheriff McMahon faxed seven pages to Ms. Scott, consisting of his letter to Ms. Scott, a fax cover sheet, and five pages of data (four bias reports and one code sheet), for which he requested payment of $8.50. According to Sheriff McMahon, [t]his amount corresponds to the allowed amount of $5.00 per fax plus $.50 per page as stated in the Benton County Services and Fee schedule. Ms. Scott provided the Commissioner with a copy of Sheriff McMahon's fax, minus the fax cover sheet, and a copy of a letter to another Times reporter from Benton County Administrator Montgomery Headley. In his response to the Commissioner, Mr. Raupp referenced Mr. Headley's letter. Mr. Headley wrote that the fax fees charged by Benton County were $5 for the first page faxed, plus 50 cents for each additional page. Mr. Headley also stated: When considering the fax fee, the County included the cost of employee time, as allowed by statute. Of course, the time required to comply with a public information request can vary substantially by Department (or by request), based on how readily accessible the information is. It is not practical for the County to have a unique fax fee for every Department or for every situation. Instead, we established a fee that we believe adequately addresses average time spent to comply with information requests throughout the County, including equipment and material costs. To further illustrate, the current average hourly salary and benefit rate for County employees is approximately $22.60. If an employee spent just 15 minutes locating, compiling and faxing information, the labor cost alone would be $5.65 ($22.60/60 minutes*15 minutes). Additional costs include paper, toner, 'wear and tear' (depreciation) on equipment (printers, fax machines), and expenses to support the equipment used in the process (such as equipment maintenance agreements and computer staff support time). In his comments to the Commissioner, Mr. Raupp referenced previous Advisory Opinions wherein the Commissioner opined that a flat fee schedule for copies of government data is problematic, given the statutory requirement that government entities may not charge a fee in excess of the actual cost to the entity to produce copies. Mr. Raupp continued: Nevertheless, the commissioner has, as noted in several opinions, allowed, and even encouraged, governmental authorities to submit evidence on a case-by-case basis demonstrating actual costs incurred, even when those authorities have charged fees pursuant to a flat fee schedule. Advisory Opinions 01-047, 97-012, 03-023, 01-066. The county submits that the actual cost expended by it in responding to Ms. Scott's request exceed the amount she was charged. Mr. Raupp submitted a copy of an e-mail to him from Sheriff McMahon, in which the Sheriff stated: I estimated it took 10 minutes of my time to locate my documents and physically type the letter in response. In addition, according to Mr. Raupp: As noted in the attached documentation from [the Sheriff], in collecting the data and responding to Ms. Scott's request for information, the sheriff's administrative assistant observed that there appeared to be two drafts of one of the documents, each containing differing information. It was unclear which of the bias crime reports was relayed to the state as the official report. In order to ensure that the information relayed to Ms. Scott was accurate, the sheriff's administrative assistant located and communicated with the appropriate official of the Minnesota Bureau of Criminal Apprehension to ascertain which form was sent to that office. Clearly, both the sheriff and the St. Cloud Times have a paramount interest in ensuring that accurate information is provided to the public. The endeavors of the sheriff's administrative assistant occupied ten minutes of her time, resulting in a wage and benefit expenditure by the county of $2.63. The sheriff expended another 10 minutes in originally locating the data, and in typing a response letter to accompany the information. This resulted in a wage and benefit expenditure by the county of $6.25, resulting in a total expenditure by the county, for employee time alone, of $8.88. Thus, the time actually expended in responding to Ms. Scott's request resulted in a county expenditure which exceeded the amount charged to Ms. Scott, even absent any costs incurred in sending the facsimile. Issue:In her request for an opinion, Ms. Scott 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 government data, including the cost of employee time, and for making . . . the copies . . . but may not charge for separating public from not public data. (See Minnesota Statutes, section 13.03, subdivision 3(c).) In addition, according to Minnesota Rules, part 1205.0300, subpart 4, provides that an entity, in determining a reasonable 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. A related provision requires government entities to keep records containing government data in such an arrangement as to make them easily accessible for convenient use. (See section 13.03, subdivision 1.) Mr. Raupp stated that the $8.50 charge is appropriate because it exceeded the County's actual costs to fax Ms. Scott the five pages of data she requested. The Commissioner disagrees. First, the charge included the cost to produce the fax cover sheet, and the cost of the Sheriff's time to type a letter that served, in essence, as an invoice. The statute allows a government entity to recover some, but not all, of the cost it incurs to produce copies of government data. The invoice and fax cover sheet were not part of the requested copies of data for which the County may charge. (See also Advisory Opinion 97-013.) In addition, the fax fee included the cost for the Sheriff's assistant to contact a state agency to verify the accuracy of its data. That charge is not allowable. Implicit in the requirements of Chapter 13, and section 15.17, is that government entities must maintain accurate data. Also, the County charged Ms. Scott the Sheriff's salary and benefit rate of $37.50 per hour for the ten minutes he said he spent searching for the data and typing the invoice. The Commissioner previously has opined that, in situations like this one, it is not appropriate to charge his rate of pay. (See, for example, Advisory Opinions 00-027, 01-033, 01-047 and 04-038.) Mr. Raupp did not discuss the propriety of the County's copy fee schedule, but limited his comments to a calculation of the County's costs to produce the data Ms. Scott requested. However, the Commissioner has the following comments about Mr. Headley's discussion of the County's fee schedule in his letter to the Times. Mr. Headley stated that, although the time required to comply with a public information request can vary substantially. . . based on how readily accessible the information is . . . . it is not practical for the County to have a unique fax fee for every Department or for every situation. Instead, we established a fee that we believe adequately addresses average time spent to comply with information requests throughout the County, including equipment and material costs. The County bases its labor charge on the average salary and benefit rate for County employees. The fax charge reflects additional costs includ[ing] paper, toner, 'wear and tear' (depreciation) on equipment (printers, fax machines), and expenses to support the equipment used in the process (such as equipment maintenance agreements and computer staff support time). In Advisory Opinion 01-047, the Commissioner opined that the labor cost must reflect the entity's actual cost: Mr. Cady stated that the District's average labor costs for secretarial and administrative staff are $20.00 per hour and $45.00 per hour respectively. However, the statute requires a government entity to charge its actual, not average, costs associated with producing copies of data. . . . . The Commissioner recognizes that pursuant to Minnesota Rules, part 1205.0300, subpart 4, a government entity may be guided by a fee schedule of standard copying charges. However, the fee schedule must reflect the entity's actual and reasonable copying costs. The Commissioner finds that the District's is neither. In addition, in Advisory Opinion 94-059, the Commissioner opined: 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.) The County's fee schedule to fax copies of public government data is not allowable, because the labor charges are the average, not the actual, cost, and the charge includes the cost of depreciation and maintenance that the County presumably would incur as a normal operating expense. In summary, the County's charge of $8.50 to fax five pages of data in not allowable either under its general fee schedule or as explained by Mr. Raupp. The Commissioner suggests the County revise its calculation of copy fees so that the labor charge reflects its actual cost, and that it eliminate charges that are not allowable. Here, the Sheriff retrieved the data, but, as noted above, the Commissioner previously has opined that it is not appropriate to charge his rate of pay. The Commissioner is of the opinion that in general, a flat fee structure works best for the portion of the copy fee that reflects the cost of paper, toner, etc. A flat fee for labor costs is more problematic. As Mr. Headley noted, the cost to search for, retrieve and compile data, and to make the copies, can vary widely depending upon the specific request. Finally, the Commissioner acknowledges that it may be difficult, administratively, for some government entities to set a unique fee for each request of copies. However, the statute authorizes entities to charge only their actual and reasonable costs, which implies copy charges must, at least in part, be calculated on a case-by-case basis. The Commissioner intends to bring these issues to the Legislature's attention, as guidance would be helpful. Opinion:Based on the facts and information provided, my opinion on the issues raised by Ms. Scott is as follows:
Signed: Brian J. Lamb
Dated: June 28, 2004 |
Copy costs
Flat or standard fee
Verification of data accuracy
