Q: My recent request for public records was granted. However, the agency wants to charge me about $6000 to supply the records because of the staff time it will supposedly take to compile them all from the various warehouses in which the paper records are stored. And they want to charge for the time spent reacting the forms.
They claim that they are authorized to do this because the Business and Professions Code gives them the power to charge the actual costs of creating the records.
Can they do that?
If they won’t relent on the redaction costs, can I get around this by exercising my right to inspect the records in person for free? January would be a nice time to visit California.
A: The Public Records Act requires a department make “[a]ny reasonably segregable portion of a record…available for inspection by any person requesting the record after deletion of the portions that are exempted by law,” without mentioning a fee. Gov’t Code § 6253. The Act provides an agency producing copies of records can charge only for the “direct costs of duplication, or a statutory fee if applicable.” Gov’t Code § 6253(b).
A “direct cost 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. 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.”).
Under this case law, “direct costs of duplication” would not include paying for time spent by staff members to redact the documents. However, the statutory language also provides that the agency can charge a “statutory fee if applicable.”
No court has ruled on what constitutes a “statutory fee.” Our position is that a “statutory fee” must be one set forth in a “statute,” that is a law passed by the state legislature. Otherwise, the law would at once limit an agency’s ability to charge fees while at the same time empowering what are often those same agencies to set “statutory” fees. That said, the issue has not been resolved by a court, and local governments or agencies may try to argue that a “statutory fee” encompasses fees set by any law-making body, including a local one such as the County. This issue is discussed on this website in-depth in this Asked & Answered post: A&A: Can a public agency demand research fees on a public records request?
The language of Business and Professions code section 161, upon which the department relies, does not specify whether redaction costs are included within the statutory fee:
…“[t]he department…may sell copies of any part of its respective public records, or compilations, extracts, or summaries of information contained in its public records, at a charge sufficient to pay the actual cost thereof…”
Unfortunately, I haven’t found any case law interpreting that statute, however, the plain language suggests the fee is only applicable when you seek copies of the records. The language of Government Code 6253 suggests a department must make “segregable portions” of records available for physical inspection, without cost. As you suggest, a way around the copying fees would be to inspect the records in person.
You might want to write to them taking the position that the statutory fee they’re citing isn’t authorized by the PRA.
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.