A&A: What does the CPRA say about an agency charging a $48 “clerical fee”?

Q:  I’m interested in getting some feedback from someone a little more experienced at filing public records act requests. I’m a little suspicious of the Department of Fair Employment and Housing charging a $48 “clerical fee”although their invoice does not list the amount of pages or mailing fee, implying the search has not yet been done.

The request I made was for copies of complaints made against several businesses.

Your thoughts?

A: From your inquiry I understand that you are concerned about the clerical fee that the DHEF  is charging you to “create” reports responsive to your California Public Records Act request, but that the fee they are charging may actually be a search fee for documents that already exist.

Public agencies may charge a fee “covering the direct costs of duplication” (or a statutory fee) for copies of a public record. Gov’t code  6253(b).

For paper copies of records the general rule is that when paper records are sought, the “direct costs of duplication” generally does not include search and retrieval time, but does include maintenance costs and the salary of the clerk for time spent copying (essentially, what a copy shop would charge per page, except for unusual copies, such as building plans). 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”).

There’s no statutory or legal guidance as to exactly what the “direct cost of duplication” would be, but we typically hear of agencies charging around 50 cents per page.

For electronic records, where the agency is merely transferring digital records onto a CD or some other recording device, it would seem the “direct cost of duplication” would mean the cost of the CD, plus any costs associated with the expense of transferring the data to the CD, which presumptively would be minimal, since this task can be achieved at the push of a button.

That said, in certain circumstances involving electronic records, the PRA “allows an agency to recover specified ancillary costs in either of two cases:

(1) when it 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.’ (§ 6253.9, subd. (b)(1), (2))

Under those circumstances, 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….’ (§ 6253.9, subd. (b).)” Fredericks v. Superior Court, 233 Cal. App. 4th 209, 237, 182 Cal. Rptr. 3d 526, 546-47 (2015) citing County of Santa Clara v. Superior Court (2009) 170 Cal.App.4th 1301, 1336.

Of course, you should be able to inspect the records, at no charge, at the public agency’s offices.  Where a member of the public seeks to merely inspect the records, but not obtain a copy of the record, the statute provides, “Public records are open to inspection at all times during the office hours of the state or local agency and every person has a right to inspect any public record, except as hereafter provided.”  § 6253 (a).

You may want to write back to the DFEH to ask for a breakdown of what the $48 clerical fee is intended to cover, and how it relates to the direct cost of duplication for the records you requested.

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.