A&A: Can I be charged fees for downloading court records posted online?

Q: Riverside Superior Court changes fees to search and acquire court records through its website. This wasn’t always the case. Several years ago this service was provided for free, and that seems to still be the case in other counties.

For the past three budget years, these fees have meant additional annual revenue for the court of roughly $600,000. I’m wondering if there’s a way to determine if these fees are “reasonable” under the law considering the large amount of revenue they bring in.

A. As background, the Public Records Act provides that an agency producing copies of records can only charge for the “direct costs of duplication, or a statutory fee if applicable.” Gov’t Code § 6253(b).

Beyond the “direct costs” and “statutory fee” for copies, which is still under debate, as what a “statutory fee” is has not been resolved by a court: https://firstamendmentcoalition.org/2012/08/aa-can-a-public-agency-demand-research-fees-on-a-public-records-request/), it generally does not seem that agencies may charge for tasks related to the search and retrieval. See North County Parents Org. v. Department of Educ., 23 Cal. App. 4th 144, 148 (1994):

Under the Public Records Act, an agency may charge “[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.”

I do not think this issue has ever been litigated, but it may be that so long as the county is providing a way in which members of the public can get the same records without paying the higher fees associated with an online search, then the fees may be permissible.  (I.e., if a member of the public can request the same records in person, and get copies at the “direct cost” allowed by statute, then there may not be any violation
of the Public Records Act in connection with the website.)

One very equitable way that the county could ensure that there’s not preferential access being offered to one class of individuals (those willing to pay for the luxury of remote access) would be to provide computer terminals at county offices for use by members of the public for no charge (except perhaps for any copies made of public records).  This would help ensure that anyone willing to make the trip is able to search for and retrieve records in the same manner as those who are willing to pay a premium for remote access.

I should also mention that there is also a provision in the Act that permits an agency to charge fees in connection with requests for selected data from a database under Gov’tCode § 6253.9(b), which provides:

(1) …the requester shall bear the cost of producing a copy of the record, including the cost to construct a record, and the cost of programming and computer services necessary to produce a copy of the record when . . .

(2) . . the request would require data compilation, extraction, or programming to produce the record.

It may be that the county is treating its online records program as such an online database, thereby justifying the higher fees for records searched and retrieved through this database.

Given, however, that the county was probably not compelled to provide the online search mechanism in this instance, but rather chose to do so for purposes of making it easier to search for records remotely, it may be that this provision does not quite fit the situation.

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.