Duplication fees for non-paper records
Q: Our School District Board/Superintendent is charging for labor costs of making a CD copy of each monthly/special board meeting. I understand that the Cal. Gov\’t. Code Section 6253(b) indicates that such charges (i.e., labor costs for recording the CD copy) is not permitted. I have been round and round with the Board/Superintendent about these excessive charges for the past year. They say that the District Counsel has supported them in this regard. My understanding is that only “direct costs” or statutory costs can be applied to “easily accessible records” (in this case simply making a CD copy of board meetings on their computer).
I estimated that the cost of one blank CD is about 60 cents. They are charging almost $7 per CD (usually 3 CDs per meetings) because they “have a right to charge for employee labor costs to copy the CD.” They will not provide CD copies of meetings unless I agree to pay this 1000% mark up (due to employee labor costs). I cannot always attend the board meetings, nor can I spend time sitting in the District office to listen to the (3-4 hour) recordings of each meeting. This is the reason I want to receive CD copies of the meetings. Reasonable costs of materials I am willing to pay per Cal. Gov\’t. Code Section 6253(b) I have contacted the Santa Barbara Co. Council and the D.A.\’s office and they cannot/will not help. They say the only recourse is to file a law suit (estimated total costs $10-20.000). I don\’t have this kind of money. Am I misinterpreting this code? Can you help?
A: For purposes of responding to your question, we assume that the School District already has a CD created for each meeting, and that you are asking solely about making a copy of that CD that is already in existence (i.e., that you are not asking that they create a CD for your use.) The general rule under the California Public Records Act is that the School District can charge for the “direct cost” of duplicating the requested public records. In a case that dealt with paper copies, the court decided that “direct cost” means “the cost of running the copy machine, and conceivably also the expense of the person operating it.” North County Parents Organization For Children With Special Needs v. Department of Education, 23 Cal. App. 4th 144 (1994). “Direct cost” does not include “the ancillary tasks necessarily associated with the retrieval, inspection and handling of the file from which the copy isextracted.” 85 Ops. Cal. Atty. Gen. 225 (2002).
A CD is likely considered a public record kept in “electronic format,” and the general rule for such records is also that the School District can charge only the “direct cost” of reproduction. Cal. Gov. Code Sec. 6253.9(a)(2).The exceptions to this rule are when the request is either (a) made at a time other than when the record is regularly produced, or (b) requires “data compilation, extraction, or programming” to produce the record. It does not appear that either of these exceptions apply in this case. Cal. Gov. Code Sec. 6253.9(b). Since the School District is permitted to charge more than just “material costs” for the CD copy, $7 per CD copy is not necessarily inconsistent with the law. The charge must, however, be limited to the “direct costs” of duplicating the CD, and cannot include any costs associated with the retrieval or review of the CD file, or with the School District’s initial gathering or maintenance of the information.