Can a public agency demand research fees on a public records request?

Answer

The issue you have raised is a fairly controversial one. So be forewarned: you are probably going to get much more information here than you bargained for.

As you know, The Public Records Act itself limits the fees an agency can charge for responding to a public records request to the “direct costs of duplication, or a statutory fee if applicable.” Govt. Code section 6253(b). As you note, that provision has been interpreted to bar an agency from charging for costs associated with searching for, reviewing or redacting information. North County Parents v. Dept. of Education, 23 cal. App. 4th 144 (1994). (There are also certain exceptions for recovering costs for computer programming necessary to extract data from a database. Govt. Code section 6253.9(a),(b). But those exceptions do not seem to be relevant here.)

The rub here is in figuring out what a “statutory fee” is. If the phrase were intercepted to mean that local governments could, by local ordinance, set fees for duplication, it would essentially nullify the limitation on cost recovery built into the law. Those agencies wishing to charge excessive fees would just memorialize those fees in local legislation, without limitation.

The argument follows then that “statutory fees” must refer to fees set by the state Legislature, the same body that enacted the Public Records Act and has the ability to modify it; in some ways, statutory fee provisions are just highly specific modification of the Public Records Act itself. This argument is supported by Shippen v. Dep’t of Motor Vehicles, 161 Cal. App. 3d 1119, 1124-25 (1984) in which the court gave as examples of “statutory fees” only laws enacted by the Legislature.

The counter argument is that the word ‘statutory” in its common usage generally refers to any legislative enactment, whether on the state or local level. And, the argument goes, if the Legislature had wanted to limit “statutory fees” to its own enactments, it could have specifically written the law in that way.

Compounding this problem is Government Code section 54985 which, “notwithstanding any other provision of law that prescribes an amount or otherwise limits the amount of a fee or charge that may be levied by a county,” authorizes county governments to increase or decrease that is otherwise provided for by law “in the amount reasonably necessary to recover the cost of providing any product or service . . . . ” Thus counties frequently assert, as Santa Clara has in your situation, that they have the ability to recover their actual costs for processing public records requests “notwithstanding” the PRA’s limitations to the contrary. They thus interpret section 54958 as authorizing them to not only increase the amount they can charge, but also the services for which they can charge. Fees authorized by section 54958 are thus the “statutory fees.”

Unfortunately, there is no case law on this issue. However, in 2002, the Attorney General issued an opinion that tried to answer this question. Op. Atty. Gen. no. 01-605 (November 1, 2002). (you can find this at http://ag.ca.gov/opinions/pdfs/01-605.pdf#xml=http://search.doj.ca.gov:8004/AGSearch/isysquery/224f694e-bca1-4d9f-b4f4-b50129deace3/2/hilite/ )
The Attorney General opined that section 54958 did apply to Public Records Act fees to the extent that the Act authorized a county to collect the costs of duplication. The AG thus concluded that “a county board of supervisors has statutory authority to charge a fee for a copy of a public record that exceeds the fee amount authorized by the Act provided that the fee set by the county does not exceed the amount reasonably necessary to recover the cost to the county of providing the copy.”

The AG’s opinion did not directly discuss whether section 54958 authorized the county to also charge fees for research, that is, if such fees are properly included as the costs of “providing a copy.” It is still however the best authority to support an argument that section 54958 only permits a county to set a fee for the actual costs of duplication, and not the research.

Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to inquiries, we can give general information regarding open government and freedom of speech issues but cannot provide specific legal advice or representations.