6. Fees for electronic records

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 § 6253(b). 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 § 6253.9(a)(2). However, under the CPRA a requester may be required to bear the additional costs of "constructing 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 the provisions of subdivision (a), 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; or (2) the request would require data compilation, extraction or programming to produce the record." Cal. Gov't Code § 6253.9(b). See Fredericks v. Superior Court, 233 Cal. App. 4th 209, 238, 182 Cal. Rptr. 3d 526 (2015) (discussing burden of authorized fees within context of 6255 balancing test).

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).

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).

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).

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).