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Advisory Opinion 97-038

September 23, 1997; City of Lakeville

9/23/1997 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 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 PIPA and, with the exception of any data classified as not public, are available for public access.

On July 28, 1997, PIPA received a letter dated July 27, 1997, from Simcha Plisner, an attorney representing S. In his letter, Mr. Plisner requested that the Commissioner issue an advisory opinion regarding the cost of copies of certain data maintained by the City of Lakeville Police Department.

PIPA, on behalf of the Commissioner, wrote to Robert Erickson, Administrator for the City of Lakeville, in response to Mr. Plisner's request. The purposes of this letter, dated August 5, 1997, were to inform him of Mr. Plisner's request and to ask him to provide information or support for the City's position. On August 18, 1997, PIPA received a faxed response, dated August 15, 1997, from Roger Knutson, an attorney representing the City.

A summary of the facts surrounding this matter is as follows. On behalf of his client, Mr. Plisner requested a copy of a report maintained by the City of Lakeville Police Department. Mr. Plisner was advised that the total charge would be $6.50 ($5 for the first page and $.50 per additional page after). Mr. Plisner stated, The requested fee for the report is $6.50 which seems to be for four pages.

Issue:

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

Has the City of Lakeville Police Department complied with Minnesota Statutes Section 13.04, subdivision 3, in charging a data subject $6.50 ($5 for the first page and $.50 for each additional page) for copies of data concerning the data subject?

Discussion:

Before proceeding, the Commissioner notes that she has addressed the issue of computing costs for copies of government data in numerous previous advisory opinions. For more information, see Advisory Opinions 94-028, 94-040, 94-059, 95-051, 96-014, 97-012, and 97-013.

Pursuant to Minnesota Statutes Section 13.04, subdivision 3, a government entity may require the requesting person to pay the actual costs of making, certifying, and compiling the copies. Minnesota Rules Section 1205.0300 provides further guidance and states that in determining the fee, the entity shall be guided by the cost of materials used to provide the copies, the cost of labor required to prepare the copies, any schedule of standard copying charges, any special costs necessary to produce the copies, and mailing costs.

In his response, Mr. Knutson wrote:

The City did not violate Minn. Stat. 13.04, Subdivision 3. The charge is less than the actual cost of making and certifying the copies. To respond to the request the following took place:

a fax was received making the request.
the fax was removed from the fax machine and carried to the person assigned to respond to such requests
a form was filled out and sent to the requester
payment was received and deposited
the data was searched for and located. [This, however, is not factored into the charge because the subject of the data requested the data].
the requested data was transmitted by fax or mail to the requester.

Mr. Knutson further added, There is a higher charge for the first page because most of the time devoted to the response has nothing to do with the number of pages. Considering payroll cost of [$.33] per minute and the cost of paper and postage, the City believes the charge is less than the City's actual costs.

As stated above, pursuant to Section 13.04, subdivision 3, a government entity may require the requesting person to pay the actual costs of making, certifying, and compiling the copies. Based on the information provided by Mr. Knutson, it is not at all clear how Lakeville arrived at a fee of $.50 per page or why the actual cost of making, certifying, or compiling the first page is $4.50 more than it costs to make, certify, or compile the remaining pages. Furthermore, the first four items cited by Mr. Knutson, which he apparently has factored into the $6.50 charge, have no relevance to the actual cost of copying the data.

Thus, if the first four factors are immaterial and the fifth factor was not used as part of the calculation of the fee (Mr. Knutson stated this in his letter), the only remaining charge cited by Mr. Knutson is that of faxing or mailing the four copied pages. The City, through Mr. Knutson, did not provide documentation that mailing or faxing four pages costs $6.50. Therefore, in the absence of documentation, it appears that Lakeville has not complied with the requirements of Chapter 13.

Opinion:

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

It appears that the City of Lakeville Police Department has not complied with Minnesota Statutes Section 13.04, subdivision 3, in charging a data subject $6.50 ($5 for the first page and $.50 for each additional page) for copies of data concerning the data subject.

Signed:

Elaine S. Hansen
Commissioner

Dated: September 23, 1997