Issue:

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

Discussion:

When an individual requests copies of data of which s/he is not the subject, pursuant to Minnesota Statutes, section 13.03, subdivision 3(c), the government entity may charge 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. In addition, Minnesota Rules Part 1205.0300, subpart 3, provides that an entity, in determining a fee, shall be guided by the cost of materials, cost of labor, any schedule of standard copying charges, any special costs, and mailing costs.

In the case of this opinion, the City has asserted that because the database has commercial value, the City may charge a commercial value add-on fee. Pursuant to Minnesota Statutes, section 13.03, subdivision 3(d):

When a request under this subdivision involves any person's receipt of copies of public government data that has commercial value and is a substantial and discrete portion of or an entire formula, pattern, compilation, program, device, method, technique, process, database, or system developed with a significant expenditure of public funds by the agency, the responsible authority may charge a reasonable fee for the information in addition to the costs of making, certifying, and compiling the copies. Any fee charged must be clearly demonstrated by the agency to relate to the actual development costs of the information. The responsible authority, upon request of any person, shall provide sufficient documentation to explain and justify the fee being charged.

The City's position is that the actual cost of copying the database is $500 and that the commercial value add-on fee is $100.

First, the Commissioner will address whether the City's $500 charge for a copy of the database is allowable. As stated above, pursuant to section 13.03, subdivision 3(c), the City may charge 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.

Section 13.03, subdivision 3(e), specifically discusses data contained in a computer storage medium:

The responsible authority of [a government entity] that maintains public government data in a computer storage medium shall provide to any person making a request under this section a copy of any public data contained in that medium, in electronic form, if the government entity can reasonably make the copy or have a copy made. This does not require a government entity to provide the data in an electronic format or program that is different from the format or program in which the data are maintained by the government entity. The entity may require the requesting person to pay the actual cost of providing the copy.

On May 22, 2001, Mr. Laszewski indicated he could take the data in any number of formats, including fixed-width or delimited text files, Microsoft Access files or DBF files. He also stated, I would prefer it on CD-Rom, but could take it on nine-track tape, floppy disks or zip disks.

Mr. Jordan wrote back September 17, 2001, stating, You indicated you could take the data in any number of formats, including DBF files and could take it on floppy disks. We can provide the public data...in a D-Based format on floppy disks. Mr. Jordan also wrote:

To provide the above data in the requested format is beyond what our computer system is presently set up to do. Therefore, we would need to have a program written to archive the data, isolate the data, export the data to a file, merge it, take out the registered owner and narrative data, then compress and put the data on disk. The data base will have the same structure without certain above identified data and fields. The cost of processing the above necessary steps, excluding removing the registered owner and narrative data, is estimated to be $500.

On October 30, 2001, Mr. Laszewski responded, [the September 17, 2001, letter] indicates you will be putting it in D-based format on a floppy disc. My question is, what format is the data in now? We may very well be able to take it in that form and again, save a lot of time and money on your part.

Mr. Jordan replied on December 10, 2001, the data format is D based and the extension is .DBF.

In his opinion request, Mr. Kummer wrote, ....the database is stored in .dbf, a straight forward, 'plain vanilla' format that is essentially the industry standard. The Pioneer Press has neither requested nor expects any conversion of the public data contained in the Impound Lot database.

In her comments, Ms. Rofuth wrote:

The [City's] position is that the estimate for the actual cost for copying the database minus the separation of the not public data is going to be approximately $500. The [City] gave the Pioneer Press this estimate approximation based on the [database] developer's estimate of the actual work he would have to do to retrieve and search for the data which would include his cost for time: making, certifying, and compiling copy of data onto diskette. The [database] developer would be charging the [City] $75 per hour for the work. After the work is done the Department would then know the actual cost and would only charge the Pioneer Press for that actual cost, up to a maximum of $500, as promised.

The Commissioner has the following comments. The Pioneer Press asked for a copy of the database and pursuant to Chapter 13, the City must provide a copy. If the database exists in a .dbf format then the City should provide it in that format. It appears, however, that the City is unable to provide a copy of the database in the .dbf format without first conducting a series of programming adjustments. The City did not explain why this is necessary. If the reason is because the Pioneer Press has asked for a specific manipulation of the database, then the request, in essence, is one to create new data. As the Commissioner has stated in many previously-issued opinions, such a request is outside the purview of Chapter 13. However, it does not appear that the newspaper has asked for a special manipulation of the data in the database. Therefore, the City must provide a copy of the public data in the database. In so doing, the City must keep in mind its obligation under section 13.03, subdivision 1, to keep records containing government data in such an arrangement and condition as to make them easily accessible for convenient use. The City must also keep in mind that pursuant to section 13.03, subdivision 3, it may not charge for separating public from not public data.

Again, section 13.03 provides a limited parameter within which a government entity may charge for copies. Here, the City has not demonstrated how the $500 charge represents the actual costs of copying the data. For instance, what portion of the $500 is for searching for and retrieving the data, what portion is for compiling the data, what portion is for actually making a copy of the database, etc. Therefore, the Commissioner opines that the City has not demonstrated that the that the $500 fee is allowable.

The Commissioner also would like to point out that the communications between the parties in this situation seem lacking in detail. As technology continues to advance, it is especially important that persons asking for data be very clear about what they are requesting and that government entities be equally clear about how data are maintained and how best to facilitate access. In his opinion request, Mr. Kummer wrote, ...the Pioneer Press asked the Department to allow us to meet with the contractor to better understand how he arrived at the cost quoted. The department declined, however, to arrange or permit such a meeting unless the newspaper agreed to pay the contractor a fee. If, as it appears in this case, the contractor is the one with the most detailed knowledge of the data and the database, it does not seem reasonable for the City to prohibit at least some communication between him and the newspaper.

The Commissioner next will discuss the issue of the commercial value add-on fee. It is important to note the Legislature intended that this provision apply only to very specific situations and that in each such situation, the entity must be able to provide sufficient documentation to explain and justify the fee being charged. Here, the Commissioner disagrees that there is commercial value and also that the City expended significant public funds for the database. Regarding commercial value, Ms. Rofuth wrote that the City had logically deduced that the Pioneer Press could benefit commercially from the use of the [database] if they use the data in an article for newspapers for which they are in the business of selling. Further, in his September 17, 2001, letter to Mr. Laszewski, Mr. Jordan wrote, ...the system has a commercial value according to the system's developer and programmer.

For an entity to add on a commercial value fee, the data that either make up or are an entire formula, pattern, compilation, program, device, method, technique, process, database, or system must have intrinsic commercial value. The issue is not whether there is some form of commercial use for the data but rather whether the data, in and of themselves, have commercial value. There is no firm guidance by which to determine whether or not data have commercial value. However, one of the best ways to determine this is whether there is a demand for the data. In this case, Ms. Rofuth noted there has been only one request for the database - that from the Pioneer Press. One request would not seem to indicate a commercial demand for the data. If, for example, five companies had sought the data and were willing to pay the fee, it would be far more clear that the data have commercial value. Here, the City has only one person requesting the data and he is not willing to pay the add-on fee. Thus, it is the Commissioner's opinion that the City has not demonstrated that the database has commercial value.

The Commissioner has the following comments regarding whether the City expended significant public funds for the database. In Advisory Opinion 01-030, the Commissioner discussed the origination of the commercial value add-on fee. He stated:

This provision was the result of a compromise that originated from a proposal brought forth by Hennepin County. The County sought legislative approval to 1) copyright County databases, and 2) allow user fees to fund databases that the County would build and maintain to carry out required County functions. In adopting the compromise language, the Legislature acknowledged that there are situations when a government entity should be allowed to charge more than the actual cost of making the copies. Thus, the language in section 13.03, subdivision 3(d), allows government entities to recover development costs the entity has incurred in the course of normal business operations when data such as those contained in a database were developed with a significant expenditure of public funds and the requestor could benefit commercially from obtaining the data.

The Legislature did not define significant. Minnesota Statutes, section 645.16, statutory interpretation, in relevant part states, When the words of a law are not explicit, the intention of the legislature may be ascertained by considering, among other matters...(1) The occasion and necessity for the law. When the Legislature enacted the commercial value add-on fee language in 1984, the amount Hennepin County expended on the database in question was approximately $425,000. If the Legislature thought that $425,000 was a significant expenditure, the Commissioner is not prepared to concur with the City that $10,000 or $30,000 is significant.

For these reasons, it is the Commissioner's opinion that the City may not charge a commercial value add-on fee.

Opinion:

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

Signed:

David F. Fisher
Commissioner

Dated: March 20, 2002