Setting the Record Straight on PRA Fees

The California Public Records Act (PRA), all the supplementary legislation, and numerous court decisions has made it clear and specific on when and how much a municipality can charge for copies of records. Through our fee study engagements, we often find existing copy fees that are no longer acceptable. This blog lists copy fees which should be removed and our suggested copy fees, and cites the municipal codes which governs us.

It surprises me that the PRA was enacted in 1968, making it 52 years old this year. People often cite the federal Freedom of Information Act (FIOA), but its actually the California Public Records Act which guides us in California local government. Leave the FIOA to the federales.

If you are an elected official or municipal employee, a good start would be to read The People’s Business – A Guide to the California Public Records Act, published by the League of California Cities. This guide was first published in 2008, and revised in April 2017. Of course, there have been updates and court decisions since then, which further define the application of the PRA.

We suggest a citywide photocopy fee and removing all other document copy fees.

In 1998, the California Government Code was amended to the following:

Except with respect to public records exempt from disclosure by express provisions of law, each state or local agency, upon a request for a copy of records that reasonably describes an identifiable record or records, shall make the records promptly available to any person upon payment of fees covering direct costs of duplication, or a statutory fee if applicable. Upon request, an exact copy shall be provided unless impracticable to do so. Gov. Code, § 6253, subd. (b)

It clearly states copy fees are to (only) cover the direct costs of duplication. It should not include staff time and costs to store, manage or retrieve the record prior to duplication, but it can include the minimal staff time during duplication. It cannot include costs to review or redact the record prior to duplication. From our decades of calculating time and costs, any photocopy fee of $1.00 per page is on the high side and hard to defend in court if challenged.

California Government Code 81008, relating to the Political Reform Act of 1974 and the Fair Political Practices Commission, states the following about copies of candidate filings.

Copies shall be provided at a charge not to exceed ten cents ($0.10) per page. In addition, the filing officer may charge a retrieval fee not to exceed five dollars ($5) per request for copies of reports and statements which are five or more years old. A request for more than one report or statement or report and statement at the same time shall be considered a single request.

For this reason, some municipalities made their citywide photocopy fee the same amount of $0.10 per page. Some municipalities will duplicate the first 5-10 pages for free, rather than collecting change or processing a credit card transaction for such a small amount.

I have also seen confusing fees for copies of formal documents, such as the General Plan, Budget, Zoning Map and Municipal Code amendments. I suggest you remove these copy fees. If your municipality prints out the document on the photocopier for the requestor, remove these formal document copy fees and refer to the citywide photocopy fee. If you have staff print and bind the formal document, I suggest you stop that immediately, and make those documents available for free on your website. If you have a local printer print and bind the formal document, I suggest you set the fee as actual cost of outside printer, rather than adopt a set fee.

The statement “exact copy shall be provided unless impracticable to do so,” can bring up questions. An exact copy of a photograph may require staff looking for a photo printer. An exact copy of a set of plans require printing on a plotter on blueprint paper. This is another reason to establish a citywide photocopy fee and remove all other copy fees for unusual size documents and types of paper.

I also suggest municipalities adopt a digital copy fee. A digital copy fee would cover staff time to copy requested files onto a digital device, and the cost of the device itself. We’ve seen this fee calculated to be $5-$10 per request, and your municipality should not allow requestors to bring their own thumb drive, as it may contain a computer virus. A digital copy fee is only when the requestor is to receive the files on-site on some type of device, such as a thumb drive. If the files are to be sent via email, then there will be no fee. You could also establish a scanning fee, similar to a photocopy fee. This is for the rare case where paper documents (e.g. timecards, workorders) are to be scanned as requested.

In May 2020, the California Supreme Court ruled that the City of Hayward cannot charge for staff time and technical costs related to reviewing requested police bodycam footage and converting it to a common digital video format (National Lawyers Guild, San Francisco Bay Area Chapter v. City of Hayward). Once again, the courts decided that public records must be made available, and any associated fees shall only be for the photocopying time or digital transfer time.

If a requestor was willing to pay for software programming to have that data presented in a specific way (e.g. multiple data files merged into a single report), subsequent requests cannot be charged the same custom software programming costs. There’s language in the Government Code which states records provided to one should be provided to any and all requestor afterwards.

So, what is considered public records? California Government Code defines public record as:

“Public records” includes any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics. “Public records” in the custody of, or maintained by, the Governor’s office means any writing prepared on or after January 6, 1975. Gov. Code, § 6252, subd. (e)

“Writing” means any handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored. Gov. Code, § 6252, subd. (g)

That basically covers everything we say, write, draw, or make an image of, which can be saved, even if it’s temporary. In addition, municipalities must realize that almost all the cost to store, manage, and retrieve public records will not be recoverable through fees. Then in 2014, California voters approved Proposition 42, a constitutional amendment making it clear that local governments, not the State, are responsible for the cost of duplication.

There are 76 exceptions from disclosures within the PRA, with half geared toward privacy rights and the other half intended to maintain effective governance. None of the exceptions allow a municipality to charge more than direct cost of duplication of the record. One of these exception does state crime reports which include witness statements may only be given to crime victims and their representatives (Gov. Code, §§ 6254(f), 13951). Traffic accident reports may only be given to parties needing the information, such as insurance companies and parties involved (Veh. Code, §§ 16005, 20012). I’m sure most municipalities are aware of these right to privacy exceptions.

Records management is a growing tax-based service

Since the passage of the California Public Records Act over 50 years ago, it seems like we are still learning about, challenging and defining what is considered a public record. On top of that, municipalities are frustrated over the increasing time and costs required for public records requests. We just have to acknowledge that today’s digital age is a stimulus for the PRA, making it easier for the public to assert their rights: the right to inspect public records, and the right to prompt availability of public records.

Is this fair that government must be so transparent? No, but it’s not changing. I think it’s unfair that purchasing a Coke does not allow me the rights to their secret formula. Why can’t I find the true cost breakdown for my Apple products, or have access to all their internal emails on pricing? Would it not be a public benefit to know what those secret 11 herbs and spices are, in case someone is allergic to some of them? It’s not fair that government is held to a higher standard, but that’s the career you have chosen.

My opinion is that we must all acknowledge records management as a larger part of the tax-based services provided by municipalities. We have always considered police patrol, park maintenance and library services as something our tax dollars pay for, so now, we must accept records management as such. Each municipality should develop a records management master plan and budget it for success.