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A&A: Same fees assessed for electronic data as photocopies

Q: I’m trying to obtain the school district’s 2010 spending records in digital form, but the USD’s General Counsel is asking for 25 cents per page to send the digital information to us.

They’ve explained that this is based on the usual fee rate for pages that are photocopied, but as we aren’t asking for any physical copies this rate seems inappropriate.

I’ve looked at California’s FOI laws and I don’t think the 25 cents per page is representative of direct costs of duplication and I’m not sure if the estimate is legal. I’ve gone back and forth on this and I would really appreciate if someone could help me understand whether the county can legally assess these kinds of fees for public records.

Bryan Cave 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.

A: The California Public Records Act specifies that, “unless otherwise prohibited by law,” if an agency “has information that constitutes an identifiable public record not exempt from disclosure pursuant to this chapter that is in an electronic format,” the agency must “make that information available in an electronic format when requested by any person.” Gov’t Code § 6253.9.

The default rule for electronic records is that “[t]he cost of duplication shall be limited to the direct cost of producing a copy of a record in an electronic format.” Id.

In other words, 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, if the agency gives you the records on a CD or some other tangible recording device, it is permitted to pass on the actual cost of the blank CD. The important thing here is that the copying rate charged must be based on the actual costs of duplication.

As you point out, it may be unreasonable to charge 25 cents per page given that the agency is not required to expend any staff time in running a photocopying machine to make paper copies of the records.

In the County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301,1336 (2009), a case that involved access to electronically stored GIS basemaps, at the end of the day, the “direct costs” ended up being $3.10 for each CD (multiplied by four = $12.40).

You may want to write to the school district ask them how the 25-cent-per-page charge reflects the “direct cost of producing a copy of a record in an electronic format,” and perhaps relate your understanding of what is permissible with respect to costs related to duplicating electronic records.

It seems that if the files are easily accessible, the “direct cost of duplication” should not add up to much more than the cost of the CD to which the records are transferred, and the de minimis staff time involved for pushing a button to transfer those records onto the CD. The agency must be able to demonstrate how it calculated those costs using real data.

Bryan Cave 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.

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