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Advisory Opinion 95-053

December 11, 1995; Minnesota Pollution Control Agency

12/11/1995 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 are available for public access.

On October 23, 1995, PIPA received a letter dated October 18, 1995, from Don Dame. In his letter, Mr. Dame requested that the Commissioner issue an advisory opinion regarding his dispute with the Minnesota Pollution Control Agency, hereinafter MPCA, over the MPCA's assessment of charges for copies of public data.

In response to Mr. Dame's request, PIPA, on behalf of the Commissioner, wrote to Charles Williams, Commissioner of MPCA. The purposes of this letter, dated October 26, 1995, were to inform Commissioner Williams of Mr. Dame's request, to ask him or MPCA's attorney to provide information or support for Mr. William's position, and to inform him of the date by which the Commissioner was required to issue this opinion. On November 30, 1995, PIPA received a response, dated November 29, 1995, from Ann Cohen, Assistant Minnesota Attorney General. (In subsequent correspondence, Mr. Dame and Commissioner Williams were informed that the Commissioner would be taking additional time, as allowed by statute, to issue this opinion.)

A summary of the detailed facts surrounding this issue is as follows. In his opinion request Mr. Dame wrote, It is my understanding that Minnesota government entities are required by law to disclose public information to the public, and that the public is entitled to received copies of this public information, and that agencies may ask to be reimbursed for some of the costs associated with making copies of public information. I respectfully request that your Department provide me with an 'official opinion' of whether it is appropriate for the agencies to charge sales tax for copies of public information.

Attached to Mr. Dame's letter was an invoice from the MPCA to Mr. Dame dated June 26, 1995 ( Claim for reimbursement to the State of Minnesota for copying performed at/by the Minnesota Pollution Control Agency ). A portion of the charge assessed to Mr. Dame was a 6 1/2 percent charge for Minnesota sales tax and a 1/2 percent charge for local sales tax.

In her response, Ms. Cohen appeared to argue that it is not within the Commissioner's authority to comment on issues relating to tax law. She stated:

The Minnesota Pollution Control Agency (MPCA) first finds it important to point out what this inquiry is NOT about: whether it was proper or improper for the MPCA to have assessed (and paid to the Department of Revenue) sales tax on copies. This is a question for the Department of Revenue. Thus, for the purpose of the opinion request, the question might be stated: assuming a state agency is required to pay sales tax or other tax for copies of public information charged for provided pursuant to Minn. Stat. section 13.03, subd. 3 (1994), may the state agency assess this cost to the person receiving the copies?

Ms. Cohen further commented, The MPCA believes that charges such as sales taxes that are required to be paid when assessing persons for the cost of producing copies can also be assessed to those persons as part of the 'actual costs.'

Issue:

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

Is a government entity authorized, under Chapter 13, to charge sales tax as part of the actual cost for copying public government data?

Discussion:

Before discussing the issue raised by Mr. Dame, it is important to comment on Ms. Cohen's remarks apparently relating to the authority of the Commissioner. The advisory opinion enabling language, Minnesota Statutes Section 13.072, authorizes the Commissioner to give a written opinion regarding the person's rights as a subject of government data or right to have access to government data. Nothing in this language prohibits the Commissioner from commenting on Minnesota Department of Revenue laws or rules which affect the data practices rights of the person. It is also important to note that in this particular instance, PIPA staff, sometime in the past, had discussed this issue with Department of Revenue staff. For this reason, the Commissioner's staff was aware of the Department of Revenue's position as described below.

Mr. Dame's question to the Commissioner is whether the MPCA may charge him a sales tax on the cost of copies of public government data. Pursuant to Section 13.03, subdivision 3, when an individual requests copies of public government data, the responsible authority shall, ...provide copies of public data upon request. 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 costs of searching for and retrieving government data, including the cost of employee time, and for making, certifying, compiling, and electronically transmitting the copies of the data or the data, but may not charge for separating public from not public data. According to this language, government entities may charge only those costs which represent the actual costs of searching for and retrieving government data.

In this instance, a Minnesota Rule specifically provides that government entities such as the MPCA are not required to collect sales taxes for providing copies of government data, pursuant to Chapter 13. Because collecting sales tax is not required, assessing such a tax to Mr. Dame is not part of the actual cost of providing copies of government data. Subpart 2 of Minnesota Rules 8130.9300 states, If law or ordinance requires a governmental agency to furnish copies of documents held in its files, the furnishing of such copies is a governmental act or service and shall not constitute a taxable retail sale.

Chapter 13 is a law which clearly requires the MPCA to furnish copies of documents held in its files. Therefore, pursuant to the aforementioned Rule, the cost of the copies of government data requested by Mr. Dame do not constitute a taxable retail sale. Accordingly, it appears that government entities are not required, and should not be assessing, a sales tax as part of the cost for copies of public government data. Charging sales tax is not part of the actual cost of providing copies of government data. The furnishing of copies is a governmental act or service required by Section 13.03.

Opinion:

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

Pursuant to Minnesota Rule 8130.9300, subpart 2, and Chapter 13, a government entity is not required to charge a sales tax as part of the cost for copying government data. Because collecting sales tax is not required, such a tax is not part of the actual cost of providing copies of public government data, and should not be charged to individuals requesting copies of government data.

Signed:

Elaine S. Hansen
Commissioner

Dated: December 11, 1995

Copy costs

Sales tax excluded