Winona County Administrator Duane Hebert will bring a proposal to the County Board in the coming weeks that would create a set of "flat fees" for staff time used when the county responds to government data requests. On Tuesday, as he displayed two large boxes of information that were requested by a citizen last year, Hebert said in some cases, a large request for county data has required $5,000 to $10,000 in employee time to retrieve and sort data, as well as redact private information, in order to comply with the request.
Not all County Board members expressed support for the development of such a fee. Commissioner Jim Pomeroy asserted that, for the most part, access to government data should be free. "We want to be absolutely, completely transparent," he said. Based on the public's right to know what its government is up to, he explained, "Ideally, I'd like to not charge anything."
The board did not discuss many details Tuesday about the future "flat fee" proposal, but Hebert explained that without a flat fee for support and professional staff time, the county had to individually add up the true cost of the employee time to provide data, which itself took time. When Commissioner Steve Jacob asked whether the county had the legal flexibility to impose a flat fee for data requests, or whether state law dictated how such costs must be handled, Hebert said as long as the fees are "based" on the actual salary of the employees used, it should be legal.
The state seems to disagree.
The Minnesota Office of Administration handles disputes between government entities and the individuals and organizations who request data from them. Its commissioner issues opinions on whether government actions are legal in public data or Open Meeting Law issues. When a person prevails in a commissioner opinion, the government entity must pay attorneys fees if the issue is resolved in the individual's favor in court. The process is often used when individuals and government units would like to avoid the cost of litigation when they disagree over whether a government entity has followed state law when responding to a data request.
The Winona Post reviewed dozens of cases in which local governments charged a flat fee similar to Hebert's proposal, and the commissioner ruled in the vast majority of those cases that the flat fee did not comply with state law. Any fees actually imposed must represent the true cost, and the government unit must be able to prove it. (See story page 1a.)
On Tuesday, Hebert provided an example of the kind of broad request that requires the most staff time to grant. Calling them "any and all" requests, he said individuals sometimes simply ask for any and all information related to an issue. That can require county staff to do multiple computer and manual searches, he said, which can result in high personnel costs. The vast majority of the large broad data requests, added Hebert, do not come from the media, but rather from individual citizens. He said he always tries to get a requester to narrow such a broad request, but sometimes the person will not comply. It is like a tactic used in lawsuits, in which one party is inundated with data requests, he said. "We're not hiding anything," he explained.
"Some people say it's just the cost of doing business," said Board Chair Wayne Valentine, who added that taxpayers are already paying the cost of employee salaries in the first place. "A double-tax," added Jacob.
Jacob said that sometimes, government data requests are made for things that are very important to individuals, such as in child custody battles or other court cases. He took issue with several comments aired during the meeting that suggested that those who request data from the county are looking to impose a burden, and that is why they are unwilling to narrow the request when Hebert asks them to. He said he believed people understood such a request from Hebert was genuine and not an effort against disclosing information, but it could be perceived differently.
"We deal with those people on a regular basis," said Hebert. "There are always going to be people who distrust government. It's the nature of the game."
The board is expected to hear more about Hebert's proposal for a flat fee for data requests in the coming weeks.