Q: I know that cities cannot charge for staff time when it comes to making photocopies in public records requests. Does this extend to DVDs as well? It appears we are being charged staff time, so DVDs now cost $18 each. Previously I was able to get them free by bringing in a blank DVD disc, which is of minimal cost to me. I can deal with $5, but $18 per meeting DVD is much too steep.
A: As you are aware, the Public Records Act requires, subject to certain exemptions, that each agency, “upon a request for copies of records . . . shall make the records promptly available to any person upon payment of fees covering direct costs of duplication, or a statutory fee if applicable.” Govt. Code section 6253(b).
The PRA further provides that when the information is in an electronic format, the agency:
“(a) shall make that information available in an electronic format when requested by any person, and . . . (1) shall make the information available in any electronic format in which it holds the information. . . [and] (2) 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 the record in an electronic format.” Govt. code section 6253.9.
Agencies are thus permitted to charge only for the actual costs of duplication, and must calculate the costs based on its actual costs. Although this amount will likely be similar among agencies here are some variables that may justify differences in per-page copy costs.
The most common of these is the pay rate of the employee performing the copying. One of the actual costs of duplication is the pro-rated cost of the employee performing the copying.
A difference in copy charges may legitimately result if one agency employs a much less expensive employee to perform the act of copying the record onto the DVD. That is, the agency is permitted to charge for staff time spent in performing the copying, but not the searching for or retrieval of the records.
In addition, the agency is permitted to pass on the actual cost of the blank DVD. (It is not uncommon and not improper for agencies to require that the requester accept the agency-supplied DVD instead of the requester providing a blank DVD. This is justified by a concern for preventing the spread of computer viruses.)
The important thing here is that the copying rate charged must be based on the actual costs of duplication. The agency must be able to demonstrate how it calculated those costs using real data.
You may want to ask the city council how it determined its rate for copying DVDs.
Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.