Stolen in its entirety from the UNC School of Government and written by Frayda Bluestein
Charging for Copies of Public Records
Wednesday, April 24, 2013
By Frayda Bluestein
This legislative session has produced quite a few bills that
deal with public records. There are bills to make more information
about personnel actions public (SB 332, HB 837), bills specifying that information on concealed carry and pistol permits is not subject to public access (SB 28, HB 17, SB 549), and there is a renewed effort for a constitutional amendment creating a right of public access to records (SB 331). Another proposal, Senate Bill 617,
would allow public agencies to charge for personnel costs incurred in
making copies in response to a public records request. This blog reviews
the current law and discusses what the effect of the proposed change
might be.
Under current law, how much can a public agency charge for responding to public records requests under the current law? The statute limits charges to a “minimal amount,” which is defined as the “actual cost of reproducing the public record or public information.” G.S. 132-1(b). A separate statute defines “actual cost” as: “direct, chargeable costs related to the reproduction of a public record as determined by generally accepted accounting principles and does not include costs that would have been incurred by the public agency if a request to reproduce a public record had not been made.” G.S. 132-6.2(b).
Several important and commonly accepted interpretations of these provisions are:
This proposed change would expand the scope of authority to charge for personnel costs, but apparently, only for the cost of making copies. Referring back to the interpretations set out above, this change would not affect the assumptions 2, 3, and 4. The bulk of the employee time spent in responding to public records would remain an unrecoverable expense of the public agency, a part of the cost of doing the public’s business, as it is now.
The change could raise at least two new questions of interpretation. First, if a request is for electronic copies of records, what activities might be considered to be included in “time spent reproducing the record or information?” Would this include time spent searching for, extracting, and compiling records, or would it be limited to the acts of sending an email or downloading files to an external storage device for delivery. The provision in G.S. 132-6.2, which only applies when there is “extensive use” of information technology resources or personnel, raises similar questions, and has never been subject to any judicial interpretation. Without more specific legislative clarification, I would advise that if the proposed change becomes law, the cost of retrieving, reviewing, and redacting records remains an unrecoverable agency expense, but that perhaps the time spent downloading or copying electronic records to an external storage device, or compiling multiple electronic records for sending by email could be charged to the requester at the minimum wage rate.
A second question is whether the minimum wage rate applies to charges imposed under the special service change authorized in G.S. 132-6.2 for excessive use of information technology resources. Currently, that statute does not establish a rate, providing only that the charge must be “reasonable” and based on the “actual cost” incurred for the information technology resources and labor. Since the proposed legislation does not specifically apply the minimum wage requirement to G.S. 132-6.2, it seems reasonable to assume that the actual rate of pay for the employees doing the work may be the basis of a charge under this provision.
Under current law, how much can a public agency charge for responding to public records requests under the current law? The statute limits charges to a “minimal amount,” which is defined as the “actual cost of reproducing the public record or public information.” G.S. 132-1(b). A separate statute defines “actual cost” as: “direct, chargeable costs related to the reproduction of a public record as determined by generally accepted accounting principles and does not include costs that would have been incurred by the public agency if a request to reproduce a public record had not been made.” G.S. 132-6.2(b).
Several important and commonly accepted interpretations of these provisions are:
- Charges are limited to a very few kinds of costs — the cost of paper, CD’s, flash drives, or other media in which copies of records are provided, and any postage or shipping charges for mailing.
- There is probably nothing that can be charged for providing electronic records by email.
- There is no authority to charge anything when the request is to inspect (rather than receive copies of) public records.
- There is no general authority to charge for the employee time spent to analyze a public records request, determine what records are responsive to it, search for the records, and redact them as necessary.
- Since employees are already on the payroll, the time they spend responding to public records requests is an existing cost and is not attributable to the existence of the request.
- The only authority in the current law to charge for labor is in the case of a request that requires “extensive use of information technology resources or extensive clerical or supervisory assistance by personnel of the agency…” G.S. 132-6.2(b)
This proposed change would expand the scope of authority to charge for personnel costs, but apparently, only for the cost of making copies. Referring back to the interpretations set out above, this change would not affect the assumptions 2, 3, and 4. The bulk of the employee time spent in responding to public records would remain an unrecoverable expense of the public agency, a part of the cost of doing the public’s business, as it is now.
The change could raise at least two new questions of interpretation. First, if a request is for electronic copies of records, what activities might be considered to be included in “time spent reproducing the record or information?” Would this include time spent searching for, extracting, and compiling records, or would it be limited to the acts of sending an email or downloading files to an external storage device for delivery. The provision in G.S. 132-6.2, which only applies when there is “extensive use” of information technology resources or personnel, raises similar questions, and has never been subject to any judicial interpretation. Without more specific legislative clarification, I would advise that if the proposed change becomes law, the cost of retrieving, reviewing, and redacting records remains an unrecoverable agency expense, but that perhaps the time spent downloading or copying electronic records to an external storage device, or compiling multiple electronic records for sending by email could be charged to the requester at the minimum wage rate.
A second question is whether the minimum wage rate applies to charges imposed under the special service change authorized in G.S. 132-6.2 for excessive use of information technology resources. Currently, that statute does not establish a rate, providing only that the charge must be “reasonable” and based on the “actual cost” incurred for the information technology resources and labor. Since the proposed legislation does not specifically apply the minimum wage requirement to G.S. 132-6.2, it seems reasonable to assume that the actual rate of pay for the employees doing the work may be the basis of a charge under this provision.
