6. Fees for electronic records

Executive branch agencies are prohibited from charging per-page fees for records stored in electronic format.  Executive Oder 734(4)(b).

It is a violation of the CPRA for an agency to charge more than "the direct cost of duplication," unless a statutory fee provision allows for additional charges. Cal. Gov't Code § 7922.530(a). With respect to electronic records, "direct costs" means the cost of "producing a copy of a record in an electronic format." Cal. Gov't Code § 7922.575(a). Direct costs here presumably mean the cost of the disk. However, under the CPRA a requester may be required to bear the additional cost to construct a record, and the cost of programming and computer services necessary to produce a copy of the record when either of the following applies: (1) In order to comply with subdivisions (a) and (b) of Section 7922.570, the public agency would be required to produce a copy of an electronic record and the record is one that is produced only at otherwise regularly scheduled intervals. (2) The request would require data compilation, extraction or programming to produce the record." Cal. Gov't Code § 7922.575(b).

The California Supreme Court has held that extraction under this section includes the cost of “retrieving responsive data from an unproducible government database”, but the term “does not cover every process that might be colloquially described as ‘taking information out.’ It does not, for example, cover time spent searching for responsive records in an email inbox or a computer’s document folders… nor … does ‘extraction’ cover the cost of redacting exempt data from otherwise producible electronic records.”  Nat. Lawyers Guild v. City of Hayward, 9 Cal. 5th 488, 506, 263 Cal. Rptr. 3d 124 (2020)(holding that [Section 7922.575(b)] does not provide a basis for charging requesters for the costs of redacting government records kept in electronic format, including the costs associated with redacting police body camera video footage); ; Ops. Cal. Att'y. Gen. 04-1105 (2005) (where request for parcel map data was made at time other than when data is periodically produced, charge could include cost to construct the record, cost of programming and computer services, but not expenses associated with initial gathering of information or with initial conversion or maintenance of information in electronic format). See also Fredericks v. Superior Court, 233 Cal. App. 4th 209, 238, 182 Cal. Rptr. 3d 526 (2015) (discussing burden of authorized fees to produce electronic records within context of public interest balancing test of CPRA).

Charges for copying electronic records are to be calculated by the material costs involved in generating the copies, such as CDs or DVDs, and administrative costs. 29 Del. C. § 10003(m)(4).

Not specifically addressed.

In addition to a charge for the search, retrieval or redaction of records, an agency may charge a fee for the copying of records or data but, in the case of electronic records, this fee is limited to the actual cost of the media on which the records or data are produced. O.C.G.A. § 50-18-71(c)(2).

When producing electronic records a public body may charge no more than the cost of the medium (digital device) used to transmit the requested electronic records. That is, if the records are produced on a disc, the public body’s fee can only be as high as the cost of the disc. See 5 ILCS 140/6(a).

Fees for electronic records shall include only the use of any computer services including staff time. K.S.A. 45-219(c)(2). There is no specific cost provision for microfiche or non-print media.

Black and white paper copies of printouts may not exceed 5 cents per page. 950 CMR 32.07(2)(e). The custodian is required to develop a program for segregating responsive electronic data from exempt data and only actual costs may be charged.  SPR Bulletin 4-96, at 2. The fee may not include costs expended to develop the database, input data, create the original records or organize files; because a records custodian has an independent, affirmative obligation to maintain records in an orderly fashion, those costs cannot be passed along to a requester.  SPR Bulletin 4-96 (June 7, 1996).

In some instances, statutes prescribe fees for specific types of records. See, e.g., G.L. c. 66, § 10(a) (pertaining to motor vehicle accident reports, fire insurance reports, and other records of police or fire departments); G.L. c. 262, § 38 (copies of Registry of Deeds records).  The records custodian may charge the actual cost of reproduction (as defined below) for a copy of a record “not susceptible to ordinary means of reproduction.”  Guide to Mass. Pub. Recs. Law at 11 (Sec’y of State, rev. Mar. 2020), https://www.sec.state.ma.us/pre/prepdf/guide.pdf; 950 CMR 32.06(1)(f).

N.J.S.A. 47:1A-5(c) and (d) provide:

1. Whenever the nature, format, manner of collation, or volume of a government record embodied in the form of printed matter to be inspected, examined, or copied pursuant to this section is such that the record cannot be reproduced by ordinary document copying equipment in ordinary business size or involves an extraordinary expenditure of time and effort to accommodate the request, the public agency may charge, in addition to the actual cost of duplicating the record, a special service charge that shall be reasonable and shall be based upon the actual direct cost of providing the copy or copies; provided, however, that in the case of a municipality, rates for the duplication of particular records when the actual cost of copying exceeds the foregoing rates shall be established in advance by ordinance. The requestor shall have the opportunity to review and object to the charge prior to it being incurred.
2. A custodian shall permit access to a government record and provide a copy thereof in the medium requested if the public agency maintains the record in that medium. If the public agency does not maintain the record in the medium requested, the custodian shall either convert the record to the medium requested or provide a copy in some other meaningful medium. If a request is for a record: (1) in a medium not routinely used by the agency; (2) not routinely developed or maintained by an agency; or (3) requiring a substantial amount of manipulation or programming of information technology, the agency may charge, in addition to the actual cost of duplication, a special charge that shall be reasonable and shall be based on the cost for any extensive use of information technology, or for the labor cost of personnel providing the service, that is actually incurred by the agency or attributable to the agency for the programming, clerical, and supervisory assistance required, or both.

Charges for providing copies of electronic data to the news media for a news purpose shall not exceed the direct cost of making the copy. 51 O.S. § 24A.5(4). A public body may not charge a per-page fee for electronic records kept in a computer-readable format. 2005 OK AG 21.

Pursuant to 65 Pa. Stat. Ann. § 67.1307(e), agencies may impose a flat rate, a subscription fee for a period of time, a per-transaction fee, a fee based on the cumulative time of system access, or any other reasonable method for “enhanced electronic access.”  The user fees for enhanced electronic access must be reasonable, pre-approved by the Office of Open Records, and absent an intent or effect of excluding persons or creating profit for the agency.  65 Pa. Stat. Ann. § 67.1307(e).

Generally, the cost of obtaining a copy of public information must be an amount that reasonably includes all costs related to producing the public information, including costs of materials, labor, and overhead. See Tex. Gov’t Code § 552.261. In the event the response to a request for information requires programming or manipulation of data, the cost of providing the information in electronic form is determined in accordance with the rules established by the Attorney General under Section 552.262. See Tex. Gov’t Code § 552.231(b)(4). If a request for a copy of public information will result in the imposition of a charge under this subchapter that exceeds $40, or a request to inspect a paper record will result in the imposition of a charge under Section 552.271 exceeding $40, the governmental body must provide the requester with a written itemized statement that details all estimated charges. See Tex. Gov’t Code § 552.2615.

Pursuant to 1 V.S.A. § 316(d), the Vermont Secretary of State has established a fee schedule for the cost of providing a copy of a public record, which includes electronic records, available at https://www.sec.state.vt.us/archives-records/certifications-fees/uniform-fee-schedule.aspx.

If an agency maintains public records in an electronic format, the requester may choose to receive the copies in either electronic format or paper format. 1 V.S.A. § 316(i).  An agency may, but is not required to, convert paper public records to electronic format. Id.  The Vermont Supreme Court has noted that nothing in the Act “prevents a public agency from contractually binding itself to provide electronic versions of documents in a specified format in return for sufficient consideration.”  Blum v. Friedman, 172 Vt. 622, 624-25, 782 A.2d 1204, 1207 (Vt. 2001).

Section 2.2-3704.G. of the Act provides in relevant part that “the public body shall make reasonable efforts to provide records in any format under such terms and conditions as agreed between the requester and public body, including the payment of reasonable costs.”

Fees for electronic records, like all others, may not exceed “the actual, necessary and direct cost of providing the information.” WIREdata, Inc. v. Village of Sussex, 2008 WI 69, ¶ 107, 310 Wis. 2d 397, 751 N.W.2d 736; see Media Placement Servs., Inc. v. Wis. Dep’t of Transp., 2018 WI App 34, 382 Wis. 2d 191, 913 N.W.2d 224 (news media not entitled to free access to government web portal).