Advisory Opinion 07-008

Facts and Procedural History:

On January 5, 2007, IPAD received a letter dated January 3, 2007, from Jim Stengrim. In his letter, Mr. Stengrim asked the Commissioner to issue an advisory opinion regarding copy charges assessed by the Middle Snake Tamarac Rivers Watershed District.

IPAD, on behalf of the Commissioner, wrote to Nick Drees, Administrator for the District, in response to Mr. Stengrim's request. The purposes of this letter, dated January 17, 2007, were to inform him of Mr. Stengrim's request and to ask him to provide information or support for the District's position. On January 30, 2007, IPAD received a response, dated same, from Jeffrey Hane, an attorney representing the District.

A summary of the facts as Mr. Stengrim provided them is as follows. In a letter dated August 22, 2007, Mr. Stengrim asked to inspect the following data:

1. All expense statements for ditch JD 25-I from January 1990 to September 2006.
2. All board minutes from January 1990 to September 2006 that ditch JD 25-I was discussed.
3. All request for repair or installation of any and all types of crossings on ditch JD 25-I the Watershed District received from January 1990 to September 2006.

In a letter dated October 31, 2006, Mr. Stengrim asked for copies of the data.

In a letter dated November 6, 2006, the District responded, attaching an invoice that indicated the total copy cost would be $138.15. The breakdown was as follows: 133 copies at $.10 a page ($13.30) plus 5 hours to retrieve and copy documents at $24.97 an hour ($124.85).

In a letter dated November 7, 2007, Mr. Stengrim asked how many pages contained the data he requested in Item 1 and how many pages contained the data he requested in Item 2.

In a letter dated December 8, 2007, the District responded, The number of pages for item #1 of your request is 107 pages. The number of pages for item #2 of your request is 26 pages.

In a letter dated December 12, 2006, Mr. Stengrim wrote, After reviewing your response I have decided that at this time I only want copies of the 26 pages concerning the item #2 of my request. These copies will be the minutes of Board meeting from 1999 to September 2006 that JD25-I was discussed.

In a letter dated December 14, 2006, the District responded, This reduces your billing $10.70. The amount now is $127.45. The breakdown contained in the attached invoice was as follows: 26 pages at $.10 ($2.60) plus 5 hours to retrieve and copy documents at $24.97 an hour ($124.85).

In a letter dated December 26, 2006, Mr. Stengrim wrote, It appears that your required payment is in violation of [Chapter 13].

In a letter dated December 29, 2006, the District wrote and indicated the fee remained $127.45.

---

Issue:

Based on Mr. Stengrim's opinion request, the Commissioner agreed to address the following issue:

Did the Middle Snake Tamarac Rivers Watershed District comply with Minnesota Statutes, Chapter 13, in charging $124.85 for copies of government data?

---

Discussion:

Minnesota Statutes, section 13.03, subdivision 3, provides for situations in which an individual who is not the data subject requests access to government data. If the individual wants to inspect the data, the entity may not charge any fee (section 13.03, subdivision 3(a).)

If the individual wants to get copies of the data, the entity may choose to charge a fee. Section 13.03, subdivision 3(c), provides that if the number of requested paper copies is 100 or fewer, the entity may charge no more than $.25 per page. If the number of pages is more than 100, the entity's fee must be based on the actual costs of searching for and retrieving the data, and for making, certifying, compiling, and electronically transmitting the copies. The language establishing a different fee structure based on number of pages copied was enacted during the 2005 Legislative Session.

Here, when Mr. Stengrim made his data request, he asked to inspect the data. Two months later, he wrote to the District and asked that they send him copies instead. Because the total number of pages was over 100, the District charged him $.10 per page and $124.85 to retrieve and copy the documents. The District asked Mr. Stengrim to pay prior to the District sending him the copies. Mr. Stengrim then asked that the District send him only some of the data, the total of which was under 100 pages.

Nothing in Chapter 13 prohibits an individual from making a request to inspect data then deciding to ask for copies. In Advisory Opinion 04-038, the Commissioner addressed a similar issue:

. . . Mr. Browning has engaged in what, technically, is a two-step process. First he asked to inspect certain data. . . . Second, upon examining the documents, he determined that he wanted copies of only 198 pages of data. Given the 'actual cost' language in section 13.03, subdivision 3(c), it does not seem appropriate for Mn/DOT to charge Mr. Browning the cost it incurred searching for and retrieving data in all the documents he initially asked to inspect . . . Therefore, the Commissioner recommends that Mn/DOT prorate the search and retrieval portion of the copying charge. In other words, if it took Mn/DOT one hour at $34.85/hour to retrieve the data in all the pages Mr. Browning asked to inspect, Mn/DOT may charge the percentage of the $34.85 that the 198 pages represent.

Here, Mr. Stengrim revised his request for copies downward, asking for copies only of some of the data he originally requested. Nothing in Chapter 13 prevents him from doing this and the statute clearly states that if the number of paper copies is 100 or fewer, the District may charge him no more that $.25 cents per page. The Commissioner notes that this charge is a flat rate and is not to include any additional costs such as mailing, cost of paper, cost of toner, or searching for the data.

The following note is in order. The Commissioner is aware that in 2005 when the Legislature amended section 13.03, subdivision 3(c), there was discussion in committee about situations in which an individual interested in obtaining hundreds of paper copies might space the requests so the total number of pages is always under 100. Legislators made it clear that such a scenario would circumvent the intent behind allowing entities to charge a search for and retrieval fee if an individual requests a large amount of data.

---

Opinion:

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

The Middle Snake Tamarac Rivers Watershed District did not comply with Minnesota Statutes, Chapter 13, in charging $124.85 for copies of government data.

Signed:

Dana B. Badgerow
Commissioner

Dated: February 14, 2007

---