To return to this list after selecting an opinion, click on the "View entire list" link above the opinion title.
August 16, 2001; City of Oak Park Heights
8/16/2001 10:16:43 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 HistoryFor 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, except for any data classified as not public, are available for public access. On June 26, 2001, IPA received a letter from Song Lo Fawcett, an attorney, on behalf of a client, the owner of an MGM Liquor Warehouse. In this letter, Ms. Fawcett asked the Commissioner to issue an advisory opinion regarding her client's right to gain access to certain data maintained by the City of Oak Park Heights. In response to Ms. Fawcett's request, IPA, on behalf of the Commissioner, wrote to Thomas Melena, City Administrator. The purposes of this letter, dated June 28, 2001, were to inform him of Ms. Fawcett's request and to ask him to provide information or support for the City's position. On July 23, 2001, IPA received a response from Mark J. Vierling, attorney for the City. A summary of the facts of this matter follows. In a letter to the City dated April 12, 2001, Ms. Fawcett requested copies of [a]ll data concerning and relating to the MGM Liquor Warehouse . . . . The cost was $504.70 for 72 black and white photocopies, which included the following charges: $50.00 per hour for labor, plus an additional $.10 per page, $30.00 per videotape and $5.00 per audiotape. In his response to the Commissioner, Mr. Vierling stated that the charges for providing data on a videotape, namely $30.00 for two hours' labor and $5.00 for the blank tape was what the City paid for the tape to the Central St. Croix Valley Cable Commission, which, at that time, was videotaping City Council meetings . . . . According to the Cable Commission's invoice, the $30.00 labor charge was to find various segments on original tapes; then compile them onto new videotape copy in video editor. The $5.00 charge was for the cost of a blank videotape. Mr. Vierling also included a copy of the hourly wage and benefits paid to City staff that are used to research and produce records, which range from $12.32 to $42.67 per hour, and a copy of the City Finance Department's analysis of the cost to produce photocopies, which is $.10 per page. Issue:In her request for an opinion, Ms. Fawcett asked the Commissioner to address the following issue:
Discussion:Pursuant to Minnesota Statutes, Chapter 13, when an individual requests copies of public government data, the entity may recover some of its associated costs. Section 13.03 provides government entities with guidelines for establishing an appropriate charge. Minnesota Rules, part 1205.0300, subpart 4, provides that an entity, in determining a reasonable fee, shall be guided by the following: cost of materials; cost of labor; any schedule of standard copying charges; any special costs; and mailing costs. The primary problem with the response from the City is that it does not adequately account for its charges and how they relate to the language in section 13.03. For example, it is not clear how the City calculated its copying charges in this instance. According to the City's invoice to Ms. Fawcett, it charged 9.25 hours of labor at $50.00 per hour, but the labor charges it provided to the Commissioner ranged from $12.32 to $42.67 per hour. Furthermore, as the Commissioner has previously opined, it is not appropriate for a government entity to charge the salary rate of its highest paid employees when it calculates its labor costs associated with making photocopies. Rather, the government entity should base its charge for labor on the salary and benefits of an employee in a clerical position. (See Advisory Opinions 01-033 and 00-027.) In addition, based on the information provided by Mr. Vierling, the City has not met the burden of establishing that its charge of $.10 per page represents its actual cost to produce a copy. Specifically, the City charges $.07 per page for electricity and all other costs associated with copying. What constitutes all other costs? Furthermore, the Commissioner has previously opined that it is not appropriate to include charges for costs like electricity in copy charges for government data. (See Advisory Opinions 94-059 and 01-066.) According to Mr. Vierling, the City simply passed on to Ms. Fawcett its actual cost, i.e., what it paid to the Cable Commission, to provide a copy of the videotape. (In her opinion request, Ms. Fawcett referred to a charge of $5.00 for an audiotape; the documentation refers only to a videotape. Therefore, the Commissioner assumes that the $5.00 charge in dispute is the cost of the blank videotape.) According to a brief survey conducted by IPA, the cost of a blank videotape ranges from $1.08 to $1.75 per tape; however, because the $5.00 charge represents the City's actual cost, it may pass that charge along to Ms. Fawcett. One further comment is in order. When discussing the City's copy charges, Mr. Vierling referred to charges for research. Ms. Fawcett did not ask the City to conduct any research. She made a straightforward request for copies of existing government data, and any costs charged to her must comply with Chapter 13 and its implementing rules. Opinion:Based on the facts and information provided, my opinion on the issue raised by Ms. Fawcett is as follows:
Signed: David F. Fisher
Dated: August 16, 2001 |
Copy costs
Operating expenses excluded
