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Advisory Opinion 97-013

March 20, 1997; Minnesota Secretary of State

3/20/1997 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 citizen who requested this opinion and the response from the government entity with which the citizen 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 January 21, 1997, PIPA received a letter dated January 15, 1997, from Alan Cox of WCCO-TV. In his letter, Mr. Cox requested that the Commissioner issue an advisory opinion regarding the appropriateness of a charge assessed for public data by the Minnesota Office of the Secretary of State.

In response to Mr. Cox's request, PIPA, on behalf of the Commissioner, wrote to Joan Growe, Secretary of State. The purposes of this letter dated January 23, 1997, were to inform Secretary Growe of Mr. Cox's request and to ask her or the Secretary of State's attorney to provide information or support for the Secretary of State's position. On February 3, 1997, PIPA received a response of the same date from Secretary Growe.

A summary of the facts surrounding this matter is as follows. Mr. Cox related that in October of 1996, WCCO-TV requested from the Secretary of State's Office an electronic copy of the state's voter registration database. He wrote, Personnel in the Secretary's office informed us that the charge would be $2,000, regardless of the kind or amount of computerized media used to make the copy. We purchased the data at the stated price. Mr. Cox further stated that in December, the station requested an update of the data and was advised that the cost would be $2000. At that point, according to Mr. Cox, the station requested an explanation of how the cost was determined. Regarding, the Secretary of State's response, he wrote, The response by the Deputy Secretary is included, along with a follow-up letter responding to an oral request for clarification. In their responses, the Secretary of State's office argued that a charge of $2000 is appropriate.

In her response to Mr. Cox's opinion request, Secretary Growe wrote that her office uses the provisions of Minnesota Statutes Section 13.03, subdivision 3, and Minnesota Rules Section 1205.0300, to assist in determining the fee to be charged. She wrote, ...the price was established after determining the costs for employee time, the media, postage and the computer time to compile and electronically transmit the copy requested. She then produced a breakdown of the charge based on the following: materials, labor, a schedule of charges, computer time, and postage. Secretary Growe further wrote, When all of the amounts for each criteria are totaled, it costs the Office $2,222.90 to produce a copy of the statewide database. We charge purchasers of the statewide database less than our actual costs by charging $2,000. In her response, she also referred the Commissioner to the letters written by her staff in response to the inquiries made by WCCO-TV.

Issue:

In his request for an opinion, Mr. Cox asked the Commissioner to address the following issue:

Is the Secretary of State's charge of $2000 for a copy of Minnesota's voter registration database allowable under Minnesota Statutes Chapter 13?

Discussion:

Minnesota Statutes Section 13.03, subdivision 3, and Minnesota Rules Section 1205.0300, subpart 4, provide that government entities may recover some of the costs associated with providing copies of public government data.

In relevant part, Section 13.03, subdivision 3, states:

If a person requests copies or electronic transmittal of the data to the person, the responsible authority may require the requesting person to pay the actual costsof searching for and retrieving government data, including the cost of employee time, and for making, certifying, and electronically transmitting the copies of the data or the data, but may not charge for separating public from not public data. (Emphasis added.)

Minnesota Rules Section 1205.0300, subpart 4, states:

...In determining the amount of the reasonablefee, the responsible authority shall be guided by the following:

A. the cost of materials, including paper, used to provide the copies;

B. the cost of the labor required to prepare the copies;

C. any schedule of standard copying charges as established by the agency in its normal course of operations;

D. any special costs necessary to produce such copies from machine based record keeping systems, including but not limited to computers and microfilm systems; and

E. mailing costs. [Emphasis added.]

In defending the $2000 fee, Secretary Growe explained how her Office used the criteria set forth in Minnesota Rules Section 1205.0300.

First, she stated that the materials used for providing copies are computer magnetic tapes. Secretary Growe wrote, It takes 19 tapes to make a copy at a cost of $17.60 per tape or a total amount of $334.40. Assuming it does take 19 magnetic tapes to copy the entire state voter registration data base and further, assuming each of those tapes cost $17.60, then a charge of $334.40 seems appropriate for the cost of materials.

Second, Secretary Growe stated that the labor of 3 people is needed to process the order and create the copy. For specific details, she directed the Commissioner to examine the January 13, 1997, letter written by Deputy Secretary Voss. In that letter, Ms. Voss wrote:

Administrative charges on VR [voter registration] orders are averaged at one hour at $18.50....This includes a Clerk Typist 2 in Fiscal Services who opens and receives the order; the Management Analyst 2 who assists the customer by providing information on products, fees, procedures for obtaining an order and mails the order out; and the Computer Services employee who actually produces the specific VR lists ordered....The time spent by each employee is allocated as 20 minutes each per order, which totals $18.63 per hour.

The relevant language in Minnesota Rules Section 1205.0300 provides that a government entity may charge the cost of labor required to prepare the copies. It is the Commissioner's understanding that preparing the copies means just that, the actual act of preparing the copies. Therefore, of the cost-of-labor information provided by the Secretary of State's office, it appears the only appropriate charge would be that of the computer services employee who actually produces the specific VR lists ordered. According to Ms. Voss' letter, that person's salary and benefits total $13.52 per hour. Thus, if it takes that employee 20 minutes to produce the order, the cost would be approximately $4.51 (20 minutes of time at $13.52 per hour).

Third, Secretary Growe wrote, The Office has established a schedule of charges for copies of all or a portion of the voter registration system to make our reproduction effort more efficient. The schedule is based on the actual cost of producing each product. The Commissioner is not clear as to the meaning of this statement. Minnesota Rules Section 1205.0300 states that a government entity shall be guided in assessing its copying fees by any schedule of standard copying charges as established by the entity in is normal course of operations. If the Secretary of State's office it basing its $2000 fee on a schedule of standard copying charges already established, no such information was provided to the Commissioner. However, any previously established standard charges would still have to be proposed in compliance with Chapter 13 and with Minnesota Rules Chapter 1205.

Fourth, Secretary Growe wrote that there are special costs because the electronic copy is produced from a machine based record keeping system. She stated:

Rule 1205.0300, subp. 4, specifically provides that the cost of the computer may be part of the cost determination, if it applies to the copy to be produced. In the case of voter registration products, the computer is used to retrieve, compile and copy the data. The original documents which provide the data are maintained in each of the 87 counties. Without the centralized database operated by the Secretary, a statewide list of information like the one WCCO received would not be possible. The database is operated by the Secretary in support of the election administration functions performed by the counties. No voter registration functions are performed internally by the Secretary using the database and the computer.

Secretary Growe again referred the Commissioner to the January 13, 1997, letter. She wrote, The cost to operate the computer is $186 per hour. It takes 10 hours of computer time to retrieve, compile and copy the statewide database.

In the January 13, 1997, letter, Ms. Voss wrote:

Computer time is charged at $186.00 per hour. This fee was established by taking the total operating costs $1,624,853 and dividing that number by the total operating hours 8,736. The operating hours are calculated by multiplying 364 days by 24 hours.

The operating costs are as follows:

Rent (Computer Room)                29,605

          Utilities                           36,000

          Computer Supplies                   12,880

          Computer Insurance                   4,800

          Computer Phone Lines                 3,672

          Computer Maintenance Contracts     229,000

          Software Licenses                    2,500

          Offsite Tape Storage                12,000

          Loan payment                     1,034,372

          Staffing                           236,784

          Other related costs                  8,620

          (Office space; workstations and equipment depreciation, training)



                    TOTAL:              1,624,853.00

The Secretary of State's office appears to partially justify the $186 per hour figure based on the special costs language of Rule 1205.000. Secretary Growe appears to assert that because the copies are produced by a machine-based record keeping system, the special costs provision unquestionably applies. However, the rationale behind the special costs language is that it is reasonable for government agencies to recover, as part of their copy charges, any special costs associated with making copies of data from a machine-based, i.e. computer, record keeping system. Special costs might include writing or modifying a computer program to format data.

In this case, Secretary Growe has not provided information sufficient enough to clearly show that special costs are involved in the copying of the voter registration tapes. The fact that the copying entity is a computer rather than a copy machine is not, in itself, sufficient.

Fifth, Secretary Growe stated that the mailing costs for a statewide database on tape is $10.00 via UPS. Assuming this is correct, the only other issue is whether parties, such as WCCO-TV, would rather pick up their copies. In such cases, the Secretary of State's Office should not include mailing charges as part of the total fee.

Finally, although not entirely clear, it appears that Secretary Growe makes an additional argument in support of the $186 per hour computer fee. She wrote, The database is operated by the Secretary in support of the election administration functions performed by the counties. No voter regestration functions are performed internally by the Secretary using the database and the computer.

Secretary Growe, on behalf of her Office, seems to assert that the charge is justifiable because the Secretary of State's Office does not utilize the voter registration database as part of its normal business operations. It appears that the Secretary Growe argues that this database is maintained primarily for use by the public, political parties, etc. However, given that providing access to public government data, either through inspection or by providing copies at reasonable cost, is a duty of all government entities (see Section 13.03), and that the Secretary of State's Office is statutorily required to provide a central database containing voter registration information, and to make data available to the public for election, public, political, and law enforcement purposes (see Sections 210.022 and 201.091, subdivision 5), this line of argument is disingenuous.

The language of Section 201.091 is especially pertinent. Subdivision 5 of Section 201.091 states, ...the secretary of state shall provide paper copies of the public information lists and may provide the lists in some other form to any voter registered in Minnesota within ten days of receiving a written request accompanied by payment of the cost of reproduction.... (Emphasis added.) The phrase cost of reproduction does not seem to apply to all of the charges included by the Secretary of State's Office in its calculation of the total cost of a copy of the voter registration database.

Opinion:

Based on the correspondence in this matter, my opinion on the issue raised by Mr. Cox is as follows:

Based on Minnesota Statutes Sections 13.03, 210.091, and 201.091, the $2000 fee assessed by the Secretary of State for a copy of Minnesota's voter registration database is not justified.

Signed:

Elaine S. Hansen
Commissioner

Dated: March 20, 1997

Commercial value

Copy costs

Mailing

Commercial value

Special costs (1205.0300)