Facts and Procedural History:

On June 18, 2003, IPAD received a letter from Kevin Pachl. In this letter, Mr. Pachl asked the Commissioner to issue an advisory opinion about his rights regarding access to certain public government data maintained by the Minnesota Department of Education (MDE.)

In response to Mr. Pachl's request, IPAD, on behalf of the Commissioner, wrote to Cheri Pierson Yecke, Commissioner of MDE. The purposes of this letter, dated June 19, 2003, were to inform her of Mr. Pachl's request and to ask her to provide information or support for the Department's position. On July 3, 2003, IPAD received a response from Chas Anderson, Assistant Commissioner for MDE. A summary of the facts of this matter follows.

Mr. Pachl asked MDE for copies of any correspondence over the last two years between MDE and Independent School District 11 (Anoka-Hennepin) regarding the issue of special education, excluding any complaint matters. In its response to Mr. Pachl, MDE provided a detailed invoice of the copying costs. Mr. Pachl questioned the charge of $30.00 for one hour of a supervisor's time.

In her comments to the Commissioner, Ms. Anderson stated:

. . . . The one-hour charge for a supervisor to search for and retrieve government data is authorized by law. [Minnesota Statutes, section 13.03, subdivision 3(c).] The Department of Administration's Opinions holding that it is improper to charge an administrator's rate for making photocopies do not apply to this request because MDE charged the clerical rate for making photocopies. Due to the broad, expansive data practices request, it was necessary for the supervisor to identify and search the sources and locations of the requested data in order to comply with the request. The clerical staff then retrieved the requested data and made the photocopies.

. . . . The Commissioner of Administration has opined that it is improper for a governmental entity to calculate the labor cost to make photocopies at an administrator's salary rate. Advisory Opinions, 00-27, 01-33, 01-47, 01-48 [and] 01-67. Here, however, the supervisor did not make and compile the photocopies. . . . .

Here, . . . Mr. Pachl requested copies of public data for which he. . . is not the subject. Accordingly, MDE is authorized, pursuant to Minn. Stat. section 13.03, subd. 3(c), to charge the time for 'searching for and retrieving government data, including the cost of employee time.'

In this matter, it was necessary for the supervisor to search sources and locations for correspondence that address special education and the Anoka-Hennepin School District. Due to the extremely broad request, MDE was required to search the entire state agency's data base and correspondence files going back two years. This task involved inquiring and identifying where the documents might be located, ascertaining sources of the documents, and ascertaining which data would qualify for this broad request. These tasks were a part of searching for and retrieving the data. The clerical staff would not know which files need to be checked, which staff needs to be consulted, which sources to check, or make the decisions which correspondence qualified for the request.

As stated in MDE's May 29, 2003 invoice to Mr. Pachl, MDE charged for five hours of clerical time for searching, retrieving, making and compiling the photocopies. The one-hour charge for the supervisor's time was not for making or compiling any of the photocopies (the clerical staff performed those tasks). . . . . Rather, MDE is charging the [salary] rate of the actual employee who searched and located the extensive correspondence so that the clerical staff could retrieve and photocopy the documents.

Finally, as MDE's letter to Mr. Pachl dated May 29, 2003 noted, Mr. Pachl may inspect the data at MDE without cost upon making prior arrangements with MDE.

Issue:

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

Is the Minnesota Department of Education's inclusion of a $30.00 per hour charge for copies of public government data allowable under Minnesota Statutes, Chapter 13?

---

Discussion:

Pursuant to Minnesota Statutes, Chapter 13, when an individual requests copies of government data, the entity may charge a fee. Section 13.03 provides government entities with guidelines for establishing an appropriate charge when the requestor is not the subject of the data. Section 13.04 sets forth different parameters for situations in which the requestor is the subject of the data. The key difference is that if the data requestor is not the data subject, the entity may include in its charge the actual costs of searching for and retrieving the data. If the data 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. 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.

The Commissioner accepts Ms. Anderson's statements that under these circumstances, an MDE supervisor needed to spend an hour determining which correspondence needed to be photocopied in order for MDE to respond properly to Mr. Pachl's request.

The Commissioner wishes to reiterate that, according to section 13.03, subdivision 1, government entities must manage the government data they maintain such that they are easily accessible for convenient use to the public.

---

Opinion:

Based on the facts and information provided, my opinion on the issue raised by Mr. Pachl is as follows:

Under the circumstances described, the Minnesota Department of Education's inclusion of a $30.00 per hour charge for an hour of a supervisor's time to identify the data responsive to a request for copies of public government data is allowable under Minnesota Statutes, Chapter 13.

Signed:

Brian J. Lamb
Commissioner

Dated: July 29, 2003

---