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A&A: Fees for “compiling” digital documents at UC?

Q: I am trying to obtain public records at my university which are stored in electronic format. I have been told that I will be charged $.20 per page for the electronic record and, upon inquiring about this fee have been referred to the following policy by the California State University:

Public Records Act? The records that I am trying to obtain are in ready-made format and used for analysis by the CSU on a regular basis. In other words, there is no compiling of records required in my request.

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 it seems you are aware, there appear to be two situations where an agency may charge a fee that goes beyond the “direct costs” of duplication:

(1) when the agency must “produce a copy of an electronic record” between “regularly scheduled intervals” of production, or

(2) when compliance with the request for an electronic record “would require data compilation, extraction, or programming to produce the record.” County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301,1336 (2009), citing Gov’t Code § 6253.9, subd. (b)(1), (2); see also 88 Ops. Cal.Atty.Gen., 153, 154 (2005).

If the agency can recover ancillary costs as a result of either or both of the two situations outlined above, then the agency may charge “the cost to construct a record, and the cost of programming and computer services necessary to produce a copy of the record … .” Id., citing Gov’t Code § 6253.9(b).

Since you state that the university would not need to compile data to fulfill your records request, and the electronic records are already compiled for university use, it does not seem that charges related to the above situation would apply.

Given this, it may be unreasonable to charge 20 cents per page given that the university is not required to expend any staff time in running a photocopying machine to make paper copies of the records.

In 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).

When making a public records request, you may want to ask the university to justify the costs for producing those records by breaking down the totals: cost of a CD, the staff time spent copying the records onto the CD.

At the end of the day, it may well be that charging $20 for 100 pages of electronic records using the 20 cents/page fee is reasonable, but charging $200 for 1,000 pages of electronic records is unreasonable, particularly if the effort expended by the agency in transferring those records to the CD is the same regardless of the number of pages produced.

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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