Q: The County’s Public Safety Group sent me an invoice in regards to my PRA request for copies of their three existing contracts with Cal Fire. These records already exist in an electronic/ digital format. There is no reason to charge me a fee for them to be delivered to me via email. They just have to be uploaded into the email. No other public agency has charged a fee for an existing document which is already in a digital format.
A: The Public Records Act states 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.”).
Therefore, if there was some copy/scan cost associated with scanning the documents specifically for your request, the agency might be able to charge for that cost. However, if as you suggest these records already existed in an electronic/ digital format, the agency may not change you for uploading them to the email. The only other potentially appropriate charge would be one associated with a statutory fee. I suggest you write a letter to the agency asking for a breakdown of the fees, and how such charges are supported.
Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition 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.