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Advisory Opinion 01-047

May 25, 2001; School District 11 (Anoka-Hennepin)

5/25/2001 10:15:43 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, with the exception of any data that are not public, are available for public access.

On April 6, 2001, IPA received a letter from "X." In this letter, X asked the Commissioner to issue an advisory opinion regarding his/her right to gain access to certain data maintained by Independent School District 11, Anoka-Hennepin.

In response to X's request, IPA, on behalf of the Commissioner, wrote to Dr. Roger Giroux, Superintendent of the District. The purposes of this letter, dated April 13, 2001, were to inform him of X's request and to ask him to provide information or support for the District's position. On April 2, 2001, IPA received a response from Paul H. Cady, District Legal Counsel. A summary of the facts of this matter follows.

X requested copies of educational data about X's minor child, a student in the District. After reviewing the District's copy charge invoice, and copy fee schedule, X wrote to the District and requested "data that documents justification for the $.50 per page charge, $15 per disk charge, $20 per hour for secretarial time, and $45 per hour for administrative time."

The District responded to X's request with the following: "[t]he District arrived at the current fee schedule after administrative discussions of appropriate charges. There is no data available. The $20 and $45 per hour charge for secretarial and administrative time were arrived at by a wage and benefit analysis."

In his response to the Commissioner, Mr. Cady referred to Minnesota Statutes, sections 13.03 and 13.04, and Minnesota Rules, parts 1205.0300 and 1205.0400, and stated:

Pursuant to this guidance, the District determined that $.50 per page based on the cost of materials (i.e. paper, toner, staples, etc.) and the labor to make and prepare the copies is reasonable and within the meaning and intent of [Chapter 13] and the Departments= [sic] corresponding rules. It should be noted that the Department opined more than five years ago that $.25 per page is, on its face, reasonable.

The following is a description of how the District arrived at the $.50 per page charge:

$.15 cents per page is a well-recognized, usual and customary cost to cover paper, toner, staples, etc. for copy projects.

$20 per hour is the average secretarial labor cost based on the hourly rate of pay, benefits and other miscellaneous employer expenses ($14.53 per hour, $3.14 per hour for benefits, $1.99 per hour for miscellaneous expenses {Workers Comp, PERA and FICA contributions}).

$45 per hour is the average administrative labor cost based on salary, benefits, and other miscellaneous employer expense ($41.82 per hour including salary and benefits and $5.56 per hour for miscellaneous expenses {Workers Comp, PERA and FICA contributions}).

A typical ten (10) page copy project takes approximately ten (10) minutes of labor time. Therefore, for every ten pages copied by a secretary or administrator, the labor cost would be $3.33 or $7.50 respectively. The cost of supplies for the same project would be $1.50 (10 pages at $.15 per page). The total cost of the project would be $4.83 or $9.00. Therefore, the per page fee would be approximately $.48 or $.90.

Therefore, it is the District's position that $.50 per page is reasonable and serves as an appropriate standard cost for operations.

As for the $15 per disk fee, the District used the same rationale with regard to materials and labor.

Issue:

In his/her request for an opinion, X asked the Commissioner to address the following issue:

Is Independent School District 11, Anoka-Hennepin, in compliance with Minnesota Statutes, Chapter 13, with respect to the following charges for copies of government data: 1) $.50 per page; 2) $20 per hour for secretarial time; 3) $45 per hour for administrative time; and 4) $15 per disk?

Discussion:

Pursuant to Minnesota Statutes, Chapter 13, when an individual requests copies of government data, the entity may recover some of the associated costs. Pursuant to section 13.04, subdivision 3, when a data subject requests copies of government data, the government entity may charge only the actual costs of making, certifying, and compiling the copies. According to Minnesota Rules, part 1205.0400, subpart 5, which governs access to private data, [t]he responsible authority may charge the data subject a reasonable fee for providing copies of private data. In determining the amount of the reasonable fee, the responsible authority shall be guided by the criteria set out in part 1205.0300 concerning access to public data.

Pursuant to Minnesota Rules, part 1205.0300, subpart 4:

The responsible authority may charge a reasonable fee for providing copies of public data. In determining the amount of the reasonable fee, the responsible authority shall be guided by the following:

A. the cost of materials, including paper, used to provide the copies;

B. the cost of the labor required to prepare the copies;

C. any schedule of standard copying charges as established by the agency in its normal course of operations;

D. any special costs necessary to produce such copies from machine based recordkeeping systems, including but not limited to computers and microfilm systems; and

E. mailing costs.

Accordingly, a government entity may charge a data subject its reasonable actual costs to make, certify (if requested) and compile the photocopies.

The District's position is problematic for a number of reasons. Mr. Cady stated that the Commissioner had previously opined that $.25 per page is, on its face, reasonable. That statement was made in Advisory Opinion 96-014:

On its face, a copy charge of $.25 per page does not seem unreasonable. However, such a charge is statutorily permissible only if it is the true cost incurred by the City in making, certifying, and compiling each copy. Because the City did not include any documentation indicating how the $.25 per page cost was calculated, the Commissioner is unable to determine if such a charge is appropriate.

The same situation holds here. Mr. Cady stated, for example, that $.15 cents per page is a well-recognized, usual and customary cost to cover paper, toner, staples, etc. for copy projects. Mr. Cady did not provide documentation for that assertion. However, Kinko's current standard photocopy charge, which includes labor, is $.08 per page. The Commissioner does not find it reasonable that the District's costs for paper, toner, staples, etc., are twice Kinko's total cost to produce photocopies.

Mr. Cady stated that the District's average labor costs for secretarial and administrative staff are $20.00 per hour and $45.00 per hour respectively. However, the statute requires a government entity to charge its actual, not average, costs associated with producing copies of data. Furthermore, regarding the propriety of calculating the labor cost to make photocopies at an administrator's salary rate, the Commissioner has previously opined that the District should charge its labor cost at a clerical salary rate. (See Advisory Opinion 01-033.) In addition, Mr. Cady stated that District staff take ten minutes to produce ten photocopies. Based on Department of Administration experience, the Commissioner does not find that to be reasonable.

The District charges $15.00 per disk for data in electronic format. According to a brief survey conducted by IPA, the cost of a formatted diskette is less than $1.00. Again, the Commissioner questions the District's assertion that $15.00 reflects its actual cost to provide a data subject with a copy of data on a diskette.

The Commissioner recognizes that pursuant to Minnesota Rules, part 1205.0300, subpart 4, a government entity may be guided by a fee schedule of standard copying charges. However, the fee schedule must reflect the entity's actual and reasonable copying costs. The Commissioner finds that the District's is neither.

Opinion:

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

Independent School District 11, Anoka-Hennepin, is not in compliance with Minnesota Statutes, Chapter 13, with respect to the following charges for copies of government data: 1) $.50 per page; 2) $20 per hour for secretarial time; 3) $45 per hour for administrative time; and 4) $15 per disk.

Signed:

David F. Fisher
Commissioner

Dated: May 25, 2001

Copy costs

Employee wage/labor cost