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November 18, 1999; Minnesota Department of Human Rights
11/18/1999 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 IPA and, except for any data classified as not public, are available for public access. On September 16, 1999, IPA received a fax, dated same, from L. In his/her letter, L asked the Commissioner to issue an advisory opinion regarding fees the Minnesota Department of Human Rights (DHR) assessed L for copies of government data. IPA, on behalf of the Commissioner, wrote to Janeen Rosas, Commissioner of DHR, in response to L's request. The purposes of this letter, dated October 4, 1999, were to inform her of L's request and to ask her to provide information or support for the Department's position. On October 15, 1999, IPA received a response, dated October 13, 1999, from Commissioner Rosas. A summary of the facts is as follows. The DHR maintains data about L. L sought copies of some of the data. DHR staff informed L that the Department charges $.30/page. L then requested this opinion. Issue:In his/her request for an opinion, L asked the Commissioner to address the following issue:
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 (emphasis added) 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. In the case of this opinion, the DHR maintains data that are about L. DHR staff advised L that s/he would be charged $.30/page for copies of data. In her response to the Commissioner of Administration, Commissioner Rosas wrote: The Department last addressed this issue in June of 1993...See attached state memorandum and fee scale. These instructions set forth the Department of Human Rights' $0.30/page copy fee, based on a computation of staff time. The Department has not raised this fee since its inception six years ago. Please note that in compliance with Minnesota Rule 1205.0300, subp. 4, staff time includes only the cost of labor required to prepare copies. It excludes staff time spent reviewing information for data privacy implications. The DHR document Commissioner Rosas referred to in her comments is entitled File Searches and Information Requests. In relevant part, it includes charges in situations when the requestor is the charging party (L is a charging party) and is making a routine request for copies from his/her own file: A. Charging Party, Respondent (or Representative of either) 1. Routine Requests for Copies from own File a. First-time request . . . . . . . . . . . . . . . . . . . . No Charge b. Same information previously supplied . . Actual Costs THRESHOLD 10 pages of 1/4 hour of staff time* MINIMUM CHARGE $5.00 (Waivable upon request by Directory of Enforcement) *Staff time includes only the cost of the labor required to prepare the copies. The current staff member responsible for preparing copies has a salary of $19.06. Another possibly relevant part of the document is entitled Possible Charges. It states: F. Possible Charges 1. Staff time (except the services listed below). . . . $25.00/hour 2. Filing and Photocopying . . . . . . .. . . . . . . . . . . . . $.30/page 3. Retrieval from state Records Center (Archives) . .$3.50/file 4. FAX Transmission a. Local . . . . . . . . . . . . $.30/page b. Long Distance . . . . . . $.50/page The DHR document seems ambiguous. On the one hand, it states that the charge for filing and photocopying is $.30/page, which is the fee that DHR staff quoted to L. On the other hand, the document also states that for first time requests, copies are free, and that for same information previously supplied requests, there is a minimum charge of $5 and the threshold is 10 pages or 1/4 hour of staff time. It appears, however, based upon the information that DHR submitted, that DHR is charging L a flat fee of $.30/copy. This would be consistent with the entry on the DHR document for filing and photocopying under possible charges. However, such a charge seems inconsistent with the charge information set forth under routine requests for copies from own file in the same document. If DHR is charging L a flat fee of $.30/page, DHR has not provided sufficient information for the Commissioner to determine whether the charge is allowable under Chapter 13. In particular, Chapter 13 does not allow government entities to assess minimum charges, or fees based on a threshold number of copies or staff time. One additional point regards the part of the policy that states there is no charge for first time requests. If L is making a first time request for the data, according to the policy, it would seem that s/he should not be charged anything. Opinion:Based on the facts and information provided, my opinion on the issue raised by L is as follows:
Signed:
David F. Fisher
Dated: November 18, 1999 |
Copy costs
Justification of costs
Flat or standard fee
Minimum charge not allowed
