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A&A: Can An Agency Charge CPRA Fees for Staff Time Spent on Request?

Q: I received this response to a CPRA saying the agency wanted to charge for time to fill the request. The request deals with agency emails. Can the agency charge for time sifting through the emails and redacting?

“The cost comes into reviewing each message in time, not necessary reproducing either in ‘hard copies’ or soft. We pride ourselves in customer service and being responsive to the records request. However, we are a small staff and we don’t have extra folks sitting around that can be tasked with reviewing 3700 emails. Our cost would be labor”

A: Under the Public Records Act, an agency can only charge for the “direct costs of duplication, or a statutory fee if applicable” when responding to a PRA request.  Govt. Code section 6253(b).  “Direct costs of duplication” has been interpreted narrowly, and one case specifically found an agency cannot charge for costs associated with searching for, reviewing or redacting information.  See N. Cnty. Parents v. Dep’t of Ed., 23 Cal. App. 4th 144 (1994).

The agency may be claiming that the charge is permissible as a “statutory fee.”  (The FAC takes the position that statutory fees may only be authorized by the legislature; however, there is some disagreement on this point.  For further information, see the FAC website at https://firstamendmentcoalition.org/2012/08/aa-can-a-public-agency-demand-research-fees-on-a-public-records-request/).

In any event, if the agency is charging you a fee that you do not believe is proper, you may want to consider asking the agency for the specific authority upon which it is basing this fee.

Bryan Cave Leighton Paisner 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.  No attorney-client relationship has been formed by way of this response.

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