Can a fee be charged for requesting public documents held in storage?

Answer

The city may argue that charges for retrieval are based on the allowance of a “statutory fee” under Government Code § 6253(b).  However, California courts have not ruled on what constitutes a “statutory fee.”  It seems obvious 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 agencies may try to argue that a “statutory fee” encompasses fees – such as retrieval fees – set by any law-making body, including a local agency such as the city council.  This issue is discussed in-depth in this Asked & Answered from the FAC’s website: http://ift.tt/1hPD6T3

The Public Records Act provides that an agency producing copies of records can only charge for the “direct costs of duplication, or a statutory fee if applicable.”  Gov’t Code § 6253(b).

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”).

The city, therefore, cannot charge you for retrieval of the records as part of the “direct costs of duplication” that is permitted under the Government Code.

You may want to ask the city for a breakdown of costs related to your Public Records Act request, as well as the statutory basis for those costs.  You can also let the city know that costs for retrieval are not permitted under the Act.

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.