Facts and Procedural History:

For purposes of simplification, the information presented by the person who requested this opinion and the response from the government entity with which the person disagrees are presented in summary form. Copies of the complete submissions are on file at the offices of IPA and, with the exception of any data that are not public, are available for public access.

On April 22, 2001, IPA received a letter from X. In this letter, X asked the Commissioner to issue an advisory opinion regarding his/her right to gain access to certain data maintained by Independent School District 11, Anoka-Hennepin.

In response to X's request, IPA, on behalf of the Commissioner, wrote to Dr. Roger Giroux, Superintendent of the District. The purposes of this letter, dated April 25, 2001, were to inform him of X=s request and to ask him to provide information or support for the District's position. On May 3, 2001, IPA received a response from Paul H. Cady, District Legal Counsel. A summary of the facts of this matter follows.

In letters dated April 11 and 15, 2001, X asked the District to make an adjustment on a photocopy charge for an earlier request for copies of data about X's minor child. The Commissioner considered issues related to that request in Advisory Opinion 01-033, wherein the Commissioner opined that a charge of $50.00 per hour for administrative time to make photocopies of government data does not reflect the actual labor cost borne by the District, and is therefore not allowable under Minnesota Statutes, Chapter 13. The Commissioner reached that conclusion based on information, provided to X by the District, that the person who made the photocopies is an administrator, employed full-time, at a salary of $43,550 per year. The fringe benefit is $9,850; salary and fringe total $53,400. The Commissioner used the information provided by the District to calculate an hourly rate for salary and fringe of $25.67 per hour.

In response to X's requests for an adjustment to the copy fee, based on Advisory Opinion 01-033, the District told X that the actual cost for the administrator's time was $32.00 per hour. X objected, based on the figure of $25.67 per hour figure calculated by the Commissioner.

In response to X's request for access to data that document the basis of the District's charge of $32.00 per hour, the District stated: A. . . please be advised that the $25.67 stated by the Commissioner takes into account only [the administrator's] salary and flex benefits. In addition to the wage and flex benefits, the $32.00 fee . . . includes other benefits [she] receives and other expenses incurred by the District to employ her.

In his response to the Commissioner, Mr. Cady wrote: [X's] reliance on the Departments [sic] reference of $25.76 [sic] in Advisory Opinion 01-033 is misplaced. The Departments [sic] reference was based on insufficient information and failed to take into account all relevant and direct labor expenses. Mr. Cady stated that due to an inadvertent typographical error the actual charge should have been $30.00 per hour, rather than the $32.00 the District had charged X and others. According to Mr. Cady, the correct figures for the employee are: salary and benefits, including 403b, $55,400; PERA, Worker's Compensation FICA, $7,357; for a total of $62,757, which yields an hourly rate of $30.17 per hour. According to Mr. Cady: [t]herefore, it is the District's position that $30.00 per hour . . . is appropriate. Please be advised the District will be making appropriate adjustments.

Issue:

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

Discussion:

Pursuant to section 13.04, subdivision 3, when a data subject requests copies of government data, the government entity may charge only the actual costs of making, certifying, and compiling the copies. According to Minnesota Rules, part 1205.0400, subpart 5, which governs access to private data, [t]he responsible authority may charge the data subject a reasonable fee for providing copies of private data. In determining the amount of the reasonable fee, the responsible authority shall be guided by the criteria set out in part 1205.0300 concerning access to public data.

Among the things a government entity may include in its copying charges, as authorized under Minnesota Rules, part 1205.0300, subpart 4, is the cost of the labor required to prepare the copies.

In his response to the Commissioner in connection with Advisory Opinion 01-033, Mr. Cady did not state that the salary and benefit figures the District had provided to X were incomplete. Now, Mr. Cady says that the Commissioner erred in relying upon the District's own figures in calculating the District's labor cost to provide photocopies to a data subject. The Commissioner cannot reconcile the difference in the figures provided in connection with Advisory Opinion 01-033 and this one. However, the District ought to be able to make available specific, accurate data that document the basis of its photocopy charges, including its actual total labor cost. It appears from the figures provided here by Mr. Cady that the District is now calculating its actual labor cost to make photocopies as allowed under statute and rule. However, regarding the propriety of calculating the labor cost to make photocopies at an administrator's salary rate, the Commissioner has previously opined that the District should charge its labor cost at a clerical salary rate. (See Advisory Opinions 01-033 and 01-047.) Under the applicable rule, the photocopy charge must be reasonable. It is not reasonable for the District to charge an administrator's salary to make photocopies.

Opinion:

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

Signed:

David Fisher
Commissioner

Dated: June 4, 2001