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A&A: Can An Agency Charge Fees for Inspecting Public Records?

Q: I am inquiring whether agencies can charge you to inspect e-mails or get copies of e-mails based on Government Code section 6253.9(b)?  Are they allowed to use rule of cost to construct a record, and the cost of programming and computer services necessary to produce a copy of the record, for the charging of e-mails either to inspect them or get copies of them?

A: Yes, fees may be charged for obtaining a copy an electronic copy of a record and those costs can vary.  However, I am not aware of any case law or statute that allows an agency to charge for inspection.  Charges for obtaining electronic documents are generally limited to the direct cost of providing a copy in an electronic format.  Government Code section 6253.5(a)(2). But see Government Code section 6253.9(b).

As to your second question, in certain circumstances a public agency can charged “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.”  Government Code section 6253.9(b).

Such charges are allowed when:

(1) The public agency would be required to produce a copy of an electronic record and the record is one that is produced only at otherwise regularly scheduled intervals; or

(2) The request would require data compilation, extraction, or programming to produce the record.  Government Code section 6253.9(b).

As a general matter, however, it is not clear why any special programming would be necessarily simply to allow you to view e-mails.

If the agency is suggesting providing the access you seek in a way that would be cost-prohibitive, you might be able to discuss alternatives with the agency.  Note that under Government Code section 6253.1, agencies are supposed to take certain steps “to assist the member of the public make a focused and effective request that reasonably describes an identifiable record or records” including “provide suggestions for overcoming any practical basis for denying access to the records or information sought.”

Government Code section 6253.9:

(a) Unless otherwise prohibited by law, any agency that has information that constitutes an identifiable public record not exempt from
disclosure pursuant to this chapter that is in an electronic format shall make that information available in an electronic format when requested by any person and, when applicable, shall comply with the following:

(1) The agency shall make the information available in any electronic format in which it holds the information.

(2) Each agency shall provide a copy of an electronic record in the format requested if the requested format is one that
has been used by the agency to create copies for its own use or for provision to other agencies. The cost of duplication shall be limited to the direct cost of producing a copy of a record in an electronic format.

(b) Notwithstanding paragraph (2) of subdivision (a), 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 either of the following applies:

(1) In order to comply with the provisions of subdivision (a), the public agency would be required to produce a copy of an
electronic record and the record is one that is produced only at otherwise regularly scheduled intervals.

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

(c) Nothing in this section shall be construed to require the public agency to reconstruct a record in an electronic format if the agency
no longer has the record available in an electronic format.

(d) If the request is for information in other than electronic format, and the information also is in electronic format, the agency may
inform the requester that the information is available in electronic format.

(e) Nothing in this section shall be construed to permit an agency to make information available only in an electronic format.

(f) Nothing in this section shall be construed to require the public agency to release an electronic record in the electronic form in
which it is held by the agency if its release would jeopardize or compromise the security or integrity of the original record or of any proprietary software in which it is maintained.

(g) Nothing in this section shall be construed to permit public access to records held by any agency to which access is otherwise restricted
by statute.

Government Code section
6253.1.

(a) When a member of the public requests to inspect a public record or obtain a copy of a public record, the public agency, in order to assist the member of the public make a focused
and effective request that reasonably describes an identifiable record or records, shall do all of the following, to the extent reasonable under the circumstances:

(1) Assist the member of the public to identify records and information that are responsive to the request or to the purpose of the request, if stated.

(2) Describe the information technology and physical location in which the records exist.

(3) Provide suggestions for overcoming any practical basis for denying access to the records or information sought.

(b) The requirements of paragraph (1) of subdivision (a) shall be deemed to have been satisfied if the public agency is unable to identify the requested information after making a
reasonable effort to elicit additional clarifying information from the requester that will help identify the record or records.

(c) The requirements of subdivision (a) are in addition to any action required of a public agency by Section 6253.

(d) This section shall not apply to a request for public records if any of the following applies:

(1) The public agency makes available the requested records pursuant to Section 6253.

(2) The public agency determines that the request should be denied and bases that determination solely on an exemption listed in Section 6254.

(3) The public agency makes available an index of its records.

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. No attorney-client relationship has been formed by way of this response.

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