Issues:

In his/her request for an opinion, L asked the Commissioner to address the following issues:

Discussion:

The Commissioner would first like to point out that the permitted charge for copies of government data is greatly dependent upon whether the requestor is or is not the data subject. If the requestor is not the subject of the requested data, the government entity may include in its charge the actual costs of searching for and retrieving the data. (See section 13.03, subdivision 3.) However, if the requestor is the data subject, the entity may not charge for searching for and retrieving the data and may charge only the actual costs of making, certifying, and compiling the copies. (See section 13.04, subdivision 3.) Minnesota Rules, parts 1205.0300 and 1205.0400, provide some additional guidance regarding what government entities might consider in determining a reasonable fee for copies of government data, regardless of whether or not the requestor is asking for data about him/herself.

Regarding the first issue of this opinion, L asked the MAC for copies of data about him/her and was charged $.25/page. Mr. Bistram, in his comments to the Commissioner, stated that this charge is consistent with the MAC's Chapter 13 policy. He wrote:

As set forth in Section VI A of the Policy, the MAC charge of $.25 a page is for documents in the possession of the MAC. This charge is inclusive of several costs in addition to actual copying costs, including MAC staff retrieval time, preparation of a request for the MAC copy center to produce the copies, envelopes and postage. The Policy reflects MAC's reasonable allocations based on its experience of costs incurred in retrieving, producing and delivering documents under [Chapter 13].

The Commissioner examined Section VI (Charges for Providing Information) of the MAC's Chapter 13 policy - Mr. Bistram attached a copy to his comments). Section VI A sets forth the standard cost per page. It reads:

MAC charges $.25 per page for black and white copies of information (both one and two sided) and $.60 per page for color copies. This charge is inclusive of time spent by MAC staff to locate and gather the requested information, the time and expense to photocopy the information, and the regular postage incurred in forwarding the information to the requesting party.

It appears that the MAC's policy does not account for situations in which a data subject is seeking copies of data about him/herself, as is the case in this opinion. When an individual is seeking access to public data of which s/he is not the subject, Chapter 13 provides that the entity may include, in its charge, the cost of searching for and retrieving the data. However, the government entity may not charge for searching and retrieving when the data subject is obtaining copies of data about him/her.

Further, the MAC's policy does not clearly establish how the MAC arrived at a standard fee of $.25/page. Specifically, there is no documentation indicating the actual costs associated with preparation of copies, including labor and associated expenses.

In summation, L asked for copies of data about him/herself. Based on Mr. Bistram's comments, it appears that the MAC, in arriving at the $.25/page standard fee, included costs associated with searching for and retrieving the data - this is not allowable under Chapter 13. In addition, the MAC has not demonstrated in sufficient detail whether its standard per page fee is allowable under Chapter 13.

The second issue before the Commissioner is whether the MAC's charge of $142.78 for 21 pages of data is allowable under Chapter 13. In his comments to the Commissioner, Mr. Bistram wrote:

[M]AC has retained W.D. Schock Company ( Schock ) as a consultant with regard to certain noise abatement, land acquisition and relocation programs ( Programs ). Schock is required under its agreement with the MAC to provide or maintain certain information for the MAC. Schock charges MAC for actual staff time incurred in retrieving documents requested under [Chapter 13]. There is no indication in the record that Schock did not incur the actual costs charged to L for retrieving the requested documents.

Section VI B (2) of the Policy covers costs billed to the MAC by consultants such as Schock for costs incurred in responding to [Chapter 13] requests with regard to documents subject to [Chapter 13] that are in the possession of consultants. Schock bills its actual costs for retrieval time plus copying expenses related to [Chapter 13] requests to the MAC. These actual costs are billed to MAC and then passed on to the requesters. MAC's intention under the Policy is to cover only the costs it or its consultants incurs in responding to [Chapter 13] requests.

Mr. Bistram went on to explain that three Schock employees were involved in responding to L's request. He stated that Schock arrived at the per page cost by dividing the number of copies into the total amount of Schock consultant time expended in locating and gathering the copies. The per page fee was $6.49.

In situations where a private party, e.g., Schock, is acting as the government entity's agent (in this case via a contract for services) by housing/maintaining government data, the rights of the individual seeking data have not changed. In other words, the requestor has the right to obtain copies of data; also, any fee either the government entity or its agent assesses must fall within the parameters prescribed in Chapter 13. Therefore, in this case, as the Commissioner discussed in relation to the first issue of this opinion, because L asked for data about him/herself, pursuant to section 13.04, the MAC may not charge for searching for and retrieving the data. It appears that this nevertheless occurred.

Further, the fact that Schock maintains data that L requested does not mean that L should pay unreasonably high charges simply because the data are in the possession of Schock. While the level of reasonableness may vary on a case-by-case basis, in this case, a charge of $6.49/page seems excessive and unreasonable. The Commissioner cannot determine if the fee charged L for copies was higher because Schock rather than MAC employees responded to L's request. An individual should not have to pay significantly and unreasonably higher charges for copies of data because a government entity has contractually agreed that the data in question are held by a private entity.

Opinion:

Based on the facts and information provided, my opinion on the issues raised by L is as follows:

Signed:

David F. Fisher
Commissioner

Dated: November 15, 1999