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Should Winona County charge flat fee for gov. data? (06/23/2013)
By Sarah Squires

The cost of government transparency will be the subject of discussion during the Winona County Board meeting on Tuesday, June 25, at 7 p.m. at the County Government Center on Main Street.

County administrator Duane Hebert has suggested that the county should impose a "flat fee" on those who request county data: one set rate for hourly "professional" staff time, and one set rate for hourly "support" staff time. However, Minnesota statutes allow governments to charge only the true, justifiable cost for data, and only when a requestor asks for copies of materials. The state Department of Administration's Independent Policy Analysis Division (IPAD) provides state commissioner opinions on questions of whether governments have complied with transparency laws, and several suggest governments may not adopt "flat fees" as suggested by Hebert.

The last time the board discussed the idea, several commissioners said they preferred not to charge citizens for data in the first place. "We want to be absolutely, completely transparent," said commissioner Jim Pomeroy during the last discussion about fees for data. "Ideally, I'd like to not charge for anything."

"Some people say it's just the cost of doing business," added board chair Wayne Valentine, who said taxpayers are already paying the cost of employee salaries in the first place. "A double tax," echoed commissioner Steve Jacob.

Currently, Winona County charges $10 per DVD of material burned, and when hard copies of information are requested, the price tag has ranged from a few dollars to more than $1,000. Several months ago, Winona County staff members attempted to charge the Winona Post $400 for any copies of a set of requested emails; in 2011, it attempted to bill Mary Cichanowski $1,125 for another set of requested emails. Since requestors in both situations subsequently declined to request copies of the data, the fees were not assessed.

IPAD commissioner opinions

Several IPAD commissioner opinions suggest that the county may not impose the flat fee for data requests, since Minnesota statutes explicitly state that government units may only assess the actual cost of making copies and retrieving the information. Because the costs may only be applied when a person asks for copies of data, many of the opinions reference "copy costs" when discussing fees for data.

Opinion 99-042, under the section "Minimum Charge Not Allowed," the commissioner wrote, "In particular, Chapter 13 [Minnesota Data Practices Act] does not allow government entities to assess minimum charges, or fees based on a threshold number of copies or staff time."

Opinion 04-042 states "A flat fee for labor costs is more problematic. As Mr. Headley noted, the cost to search for, retrieve and compile data, and to make the copies, can vary widely depending upon the specific request. Finally, the Commissioner acknowledges that it may be difficult, administratively, for some government entities to set a unique fee for each request of copies. However, the statute authorizes entities to charge only their actual and reasonable costs, which implies copy charges must, at least in part, be calculated on a case-by-case basis."

Opinion 94-028 states "The actual statement of policy contained in Section 13.03 reflects a legislative judgment that a government entity ought to be able to recover its "actual" costs for providing copies of public data. Charging everyone the same price for copies may be fair to some individuals and not to others. Whether the charge is fair is not the issue. The issue is whether or not a standard charge of $5.00 per page for the first page of public data requested to be copied and a charge of $1.00 per page for each additional page reflects the actual costs to the Sheriff of providing copies of public data. The legislative policy, as set forth in Section 13.03, subdivision 3 does not authorize a government entity to be compensated for all of its activities but allows the entity, if it so chooses, to recover the actual costs of providing copies of public data."

Several opinions assert that a government entity cannot assess hourly rates for higher-paid staff members, such as Hebert's suggested flat rate for "professional" staff time, for searching for, retrieving and copying data.

Opinion 00-027 states, "Second, Chief Sullivan's explanation of the $616.81 fee is problematic. In referencing the subpoena for which Oakdale assessed LELS a fee of $272.06, the Chief stated that the total included 7 hours of clerical retrieval and copying time, 2 hours of his retrieval and copying time, plus an additional $.10 per page. Chapter 13 does permit an entity to charge employee time for searching and retrieving. However, Oakdale also has a statutory responsibility to keep data easily accessible for convenient use. To first assign the task for search, retrieval, and copying to one of its most highly compensated employees, in this case its Chief of Police, and then base its charges on that assignment, could have a chilling effect on an individual's right to gain access to data. This is not consistent with the City's obligation to keep data easily accessible. In this case, the Chief states that due to the employee complement in the office, it is appropriate that he conduct the search, retrieval, and copying of relevant data. This is his decision to make, as the manager of the office. However, it would not be fair or prudent, then, for the city to also charge for the fully allocated cost associated with that assignment. Rather, the individual should pay only that amount of the actual costs incurred which would be equal to the fully allocated cost associated with use of a city employee in a clerical position."



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