Charging for Electronic Records
Q: A local hospital district claims it is “required” to charge me for access to inspect records that they claim are only available in electronic form. They have demanded a deposit of hundreds of dollars and my agreement to pay them whatever they determine the actual cost to be. When you consider that more and more government agencies, like businesses, are going paperless, this will become a major problem unless it’s already been addressed in law.
As I have had explained to me, CA Gov. Code Section 6253.9 would require a charge for inspection if the records are only available in electronic form, even though I never requested to see them that way.
In my humble opinion, Prop. 59 made public access and inspection a right, not a privilege afforded to those who can pay.
Is there any established law that backs me up on this?
Section 6253.9 also states an exception, “unless otherwise prohibited by law.” I’ve been searching and I can’t find any law prohibiting them charging me for access.
A: As an initial point, agencies can charge for providing copies of records (more on this below) but not for inspection of records. Although I am not aware of any case law directly on point, I don’t know why this rule would not apply to records in electronic form as well as records kept on paper.
As you may know, the general rule on cost of copies of public records is that unless a particular statutory fee has been established for copies of a record, agencies can charge fees “covering the direct costs of duplication.” Govt. Code § 6253(b). In the context of paper copies, a California court has said that “[t]he direct cost of duplication is the cost of running the copy machine, and conceivably also the expense of the person operating it. ‘Direct cost’ does not include the ancillary tasks necessarily associated with the retrieval, inspection and handling of the file from which the copy is extracted.” N. County Parents Org. v. Dep’t of Educ., 23 Cal. App. 4th 144, 148 (Cal. App. 4th Dist. 1994)
As you know, § 6253.9 (reproduced in its entirety below) provides guidance with respect to information in electronic form and provides that “[e]ach agency shall provide a copy of an electronic record in the format requested if the requested format is one that has been used by the agency to create copies for its own use or for provision to other agencies.The cost of duplication shall be limited to the direct cost of producing a copy of a record in an electronic format.” Govt. Code § 6253.9(a)(2) (emphasis added). If, however, the requested record would normally be produced only at regularly scheduled intervals or requires “data compilation, extraction, or programming” to produce it, then “the requester shall bear the cost of producing a copy of the record, including the cost to construct a record, and the cost of programming and computer services necessary to produce a copy of the record.” Govt. Code § 6253.9(b).
Accordingly, if the record has been created and can be viewed electronically without any special programming, the PRA would seem to require that an agency allow members of the public to inspect it without charge. If the record would not be created until some future time, under a regular schedule, then the PRA appears to allow the agency to require the requester to bear the cost of creating the record for inspection earlier. And if the record cannot be viewed without data compilation, extraction, or programming, then the PRA allows the agency to charge the requester for the cost of that compilation, extraction, and programming.