Advisory Opinion 05-016

Facts and Procedural History:

On April 4, 2005, IPAD received a letter, dated same, from Greg LaFond, on behalf of the City of Luverne. In his letter, Mr. LaFond asked the Commissioner to issue an advisory opinion regarding the appropriateness of the Rock County Auditor/Treasurer Office's fee for copies of public data.

IPAD, on behalf of the Commissioner, wrote to Gloria Rolfs, the Auditor/Treasurer, in response to Mr. LaFond's request. The purposes of this letter, dated April 5, 2005, were to inform her of Mr. LaFond's request and to ask her to provide information or support for the Office's position. On April 22, 2005, IPAD received a response, dated same, from Jeffrey Haubrich, Assistant Rock County Attorney.

A summary of the facts as provided by Mr. LaFond is as follows. In his opinion request, Mr. LaFond wrote:

... in January of 2005, my office requested copies of the per diem reports of Rock County Commissioners for the year 2004. The request was made of the Rock County Auditor-Treasurer.

The Rock County Auditor-Treasurer provided 17 pages of per diem reports in mid-January of 2005. The copies were accompanied by a billing that included a charge of $.25 per page for the copies and a $10.00 service charge.

On January 31, 2005, I wrote to the Rock County Auditor-Treasurer and questioned the $10.00 service fee. To date, I have not received a response.

Issue:

Based on Mr. LaFond's request for an advisory opinion, the Commissioner agreed to address the following issue:

Did the Rock County Auditor/Treasurer's Office comply with Minnesota Statutes, Chapter 13, in charging $14.25 for seventeen pages of data relating to per diem claims by Rock County Board members?

---

Discussion:

When an individual requests copies of data of which s/he is not the subject, the government entity may charge the actual costs of searching for and retrieving government data, including the cost of employee time, and for making...the copies...but may not charge for separating public from not public data. (See Minnesota Statutes, section 13.03, subdivision 3(c).)

In addition, Minnesota Rules, section 1205.0300, states, ...the responsible authority may charge a reasonable fee for providing copies of public data.

Further, section 13.03, subdivision 1, states that government entities must keep records containing government data in such an arrangement and condition as to make them easily accessible for convenient use.

In his comments to the Commissioner, Mr. Haubrich wrote:

You will note that accompanying this letter is a photocopy of a Rock County Combination Warrant Check for $1.93, the refund for what Mr. LaFond believes to have been an overcharge for the data requested. The County has in the past used $10.00 minimum charge to administer large data requests such as the extensive request the City and Mr. LaFond sought which was a copy of all the per diem records for each county commissioner. In this particular instance, it appears the $10.00 charge was actually a slight overcharge and that is why the County is refunding the $1.93. In practice, the County only charges this charge when it is a large request and the fee and time required are substantial. In this particular case, as I indicated, it did, upon further review, appear that the County had slightly overcharged by using the minimum, while in many other cases, it is assured that the County has undercharged.

To rectify this situation, the County will now calculate precise charges for all of the requests and bill them regardless of how small the amount of time required is...

I am sure if the County took the time to trace back through its records and if they were able to calculate the actual expenses on the handful of times the $10.00 minimum was applied, that it would be equally often that the County shorted itself and provided a discount rate to the requester of the data. However, in a technical sense the County realizes that this practice isn't probably in absolute strict compliance with the technical requirements of the act and, therefore, it will abandon the fixed minimum charge in favor of calculating a precise charge in each data request.

Attached to Mr. Haubrich's comments was a copy of an April 22, 2005, letter he wrote to Mr. LaFond. In the letter, Mr. Haubrich wrote:

The County Auditor/Treasurer's Department staff spent approximately one-half hour time preparing and researching your request. The lowest hourly rate in the department is $12.38 cash, and when figuring a 1.4 multiplier for labor additives, the total hourly cost becomes $17.33, one-half of which is $8.67 for the time spent. This is in addition to the $4.25 for the copies at 25 cents per page, equated to a total bill of $12.32 as opposed to the $14.25 you were charged, therefore the $1.93 refund.

As discussed above, section 13.03, subdivision 3(c), provides that government entities, in responding to requests for copies of data, may charge only the actual costs of searching for and retrieving, and for making the copies. In his April 22, 2005, letter to Mr. LaFond, Mr. Haubrich states that the Auditor/Treasurer's Office spent 30 minutes preparing and researching the request. The Commissioner does not know if preparing and researching is the same as searching for and retrieving. If not, it is possible the $8.67 (half of $17.33) charge includes labor costs that are not allowable, such as separating public from not public data.

Mr. Haubrich also did not provide documentation explaining how the 25 cents per page fee represents the actual cost of making the copies, i.e., toner, paper, or labor fee.

In addition, it should be noted that the Commissioner's calculation of the Office's revised charge does not match with that of Mr. Haubrich. The Office made seventeen copies at 25 cents per page. In adding that portion of the fee, $4.25, to the prepare and research charge, $8.67, the total is $12.92, not $12.32.

Finally, in previous opinions, the Commissioner has stated that Chapter 13 does not allow government entities to assess minimum charges, such as that set here by the Office. (See Advisory Opinions 99-042, 01-018, 01-019, and 01-020.)

---

Opinion:

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

The Commissioner cannot determine whether the Rock County Auditor/Treasurer complied with Minnesota Statutes, Chapter 13, in charging $14.25 for seventeen pages of data relating to per diem claims by Rock County Board members.

Signed:

Dana B. Badgerow
Commissioner

Dated: May 3, 2005

---