Q: A media partner of ours reported that a municipality has adopted a “schedule of charges” for public records requests. The board voted that there will be a $25 administrative fee per request. The number of pages requested will generate additional fees.
The first 10 pages of records will cost $1 per page and each additional page up to 50 pages will cost 25 cents per page. Requests that exceed 50 pages will be provided for the actual cost of commercial copying. Is this legal? I thought the PRA provided that an agency could only charge the actual cost of copying paper copies.
A: The PRA provides that copies of records must be made available “upon payment of fees covering direct costs of duplication, or a statutory fee if applicable.” 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.” North County Parents Org. v. Department of Educ., 23 Cal. App. 4th 144, 148 (1994).
There is little additional authority as to what agencies can charge for copies and, in particular, what they can charge for staff time in making copies. North County suggests that agencies can charge for the cost of operating the copy machine, though there may be room to argue about whether a particular hourly charge for copying is reasonable.
There is also very little authority interpreting the “statutory fee” alternative of Government Code § 6253(b). The most relevant case would seem to be Shippen v. Department of Motor Vehicles, 161 Cal. App. 3d 1119 (1984), in which the Court of Appeal considered whether the DMV could charge $30 per thousand records, pursuant to a provision of the Vehicle Code authorizing the DMV to sell copies of records “at a charge sufficient to pay at least the entire actual cost to the department,” with the director to determine specific charges. The court determined that the then-existing cost provision of the PRA (equivalent in substance to current provision) did permit the DMV to impose charges that exceeded actual costs.
In doing so, the court suggested that the fact that the plaintiff requester would sell the records as part of a commercial venture lessened its concern that the fee in excess of actual costs would undermine “the fundamental right” of “access to information,” concluding that it was “not persuaded that charges in excess of actual cost by DMV will unduly impede plaintiffs’ access to DMV’s records or violate the spirit of the Act” and noting that the plaintiff did “not contend DMV’s fee of $30 per thousand is an abuse of the agency’s discretion.” Id. at 1126-27.
Turning to the situation you outline below, imposing a charge for making a request under the PRA would seem to violate not only the spirit but also the clear language of the PRA, which provides that “[p]ublic records are open to inspection at all times during the office hours of the state or local agency and every person has a right to inspect any public record, except as hereafter provided. Any reasonably segregable portion of a record shall be available for inspection by any person requesting the record after deletion of the portions that are exempted by law.” Govt. Code § 6253(a).
Even if the schedule of charges only applies to providing copies of public records, it may still be problematic. Clearly, the schedule of charges bears no relationship to the direct costs of duplication, which means that it should only be permissible if it represents a “statutory fee” under Government Code § 6253(b). But it is not clear that a municipal enactment constitutes a “statutory fee” for these purposes. The Shippen court analysis of that phrase suggests that a “statutory fee” is authorized at the state level. Shippen at 1124-1125.
In addition, the charges themselves might be said, in the language of Shippen, to impede access to records and also violate the spirit of the PRA.