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6. How are fees for electronic records determined?

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  • Alaska

    Fees that can be charged for access to public records, including records stored in electronic formats, and “electronic products and services” are governed primarily by AS 40.25.110(b)-(h) (public records) and AS 40.25.115(b) (electronic products and services), and discussed in detail in [Open Records] §I.D above. As a general rule, if you want a copy of a public record you can be required to pay for it.  Public agencies can reduce or waive a fee when the agencies determine that is in the public interest. AS 40.25.110(d). State regulations, which only apply to state agencies, purport to limit the total amount of public interest fee waivers from state agencies in a year to $500.  2 AAC 96.370. Fee reductions and waivers must be uniformly applied among persons who are similarly situated. AS 40.25.110(d). Copying charges of $5 or less may be waived if the cost to the agency of contacting the requester to arrange payment exceeds the copying charges. AS 40.25.110(d). Veterans are entitled to documents needed to determine their eligibility at no charge. AS 40.25.121.

    Unless otherwise provided by law, the fee for copying public records may not exceed the standard unit cost of duplication established by the public agency. AS 40.25.110(b). This includes public records obtained in electronic form. The fee for duplicating these may not exceed the "actual incremental costs" of the public agency. AS 40.25.115(c). Enhanced fees can be charged for electronic products and services to cover incremental costs of providing such services, and costs associated with building and maintaining the information services. State regulations governing fees that state agencies can charge for electronic products and services, as opposed to public records, are found at 2 AAC 96.460.

    The law authorizes public agencies to charge for search time, as well as other time involved in the production of requested public records, but only to the extent that the time spent in producing records for any one requester exceeds five person-hours in a calendar month. If it does, and to the extent that it does, the agency can require the requester to pay the personnel costs required during the month to complete the search and copying tasks, but the personnel costs that are charged may not exceed the actual salary and benefit costs for the personnel time required to perform the search and copying tasks. AS 40.25.110(c). If fewer than five hours are spent in the one calendar month on search and copying tasks to produce requested documents, no fees should be imposed for search and copying time. (Note, however, that as of the time of the most recent revision of this outline, it appears that some agencies have begun to erroneously charge for the initial five hours of time spent on searching and copying tasks in a calendar month, if the total time spent exceeds five hours, rather than only charging for the incremental amount of time by which the total exceeds the first five, supposedly free, hours.  To date, this practice has not been challenged or clarified, but it is contrary to the intent of the Legislature that enacted this provision in 1990.) Searching for or production of records does not include a privilege review — e.g., the time spent by a clerk or agency official to determine if some of the requested documents may be nondisclosable because they are subject to a deliberative process privilege or some other claim of privilege — and privilege review time consequently cannot be charged to the party requesting the records. Fuller v. City of Homer (Fuller II), 113 P.3d at 666.

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  • Arizona

    (This section is blank. See the point above.)

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  • California

    If produced in an electronic format in which the agency holds the information or in a format used by the agency to create copies for its own use or for provision to other agencies, the cost of the record is limited to the direct cost of duplication. Cal. Gov’t Code § 6253.9(a)(1)&(2). If required to produce an electronic record that is produced only at otherwise regularly scheduled intervals or would require data compilation, extraction, or programming to produce, the agency can require the requester to bear the cost of producing the record, including the cost to construct it, and the cost of programming and computer services necessary to produce it.  Cal. Gov’t Code § 6253.9(b); see also Fredericks v. Superior Court, 233 Cal. App. 4th 209, 238, 182 Cal. Rprt. 3d 526 (2015) (discussing allowable charges for production of electronic records); County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 1336, 89 Cal. Rptr. 3d 374 (2009) (same).

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  • Colorado

    If the public record is a result of computer output other than word processing, the fee for a copy, printout, or photograph thereof may be based on recovery of the actual incremental costs of providing the electronic services and products together with a reasonable portion of the costs associated with building and maintaining the information system. Colo. Rev. Stat. § 24-72-205(4). Such fee may be reduced or waived by the custodian if the electronic services and products are to be used for a public purpose, including public agency program support, nonprofit activities, journalism, and academic research. Id.

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  • Delaware

    The Act does not specifically address fees for electronic records, but provides that "[it] shall be the responsibility of the public body to establish rules and regulations regarding access to public records as well as fees charged for copying of such records."  29 Del. C. § 10003(d).  The Delaware Attorney General has approved charging the time, per hour, to attain such records from the computer network system.  Del. Op. Att'y Gen., No. 09-ib04 (June 4, 2009).

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  • District of Columbia

    Not specifically addressed.

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  • Georgia

    Fees for the search, retrieval, redaction and production of electronic records requested under the Act are to be determined according to the same rules governing such fees for non-electronic records.  The Act requires that any charge “not exceed the prorated hourly salary of the lowest paid full-time employee who, in the reasonable discretion of the custodian of the records, has the necessary skill and training to perform the request; provided, however, that no charge shall be made for the first quarter hour.”  O.C.G.A. § 50-18-71(c)(1).

    For a copy of electronic records requested under the Act, the Act allows a requester to avoid agency copying charges altogether by permitting the requester to make “electronic reproductions of the records using suitable portable devices brought to the place of inspection.”  § 50-18-71(b)(1)(b).  For agency provided copies, the Act permits an agency to “charge the actual cost of the media on which the records or data are produced.”  § 50-18-71(c)(2).

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  • Hawaii

    There is no statutory or case law addressing this issue.

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  • Idaho

    Fees for electronic records are assessed under the provisions of Idaho Code § 74-102(d)(i)-(iii).

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  • Illinois

    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 a disc.  See 5 ILCS 140/6(a).

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  • Indiana

    Public agencies may charge fees for assessing electronic records.  For providing a duplicate of a computer tape, computer disc, microfilm, or similar or analogous record system containing information owned by the public agency or entrusted to it, a public agency may charge a fee, uniform to all purchasers, that does not exceed the agency’s direct cost of supplying the information in that form and the standard cost for selling the same information to the public in the form of a publication.  Ind. Code § 5-14-3-8(g).  In addition, a public agency may charge a person the direct cost of reprogramming a computer system if the agency is required to reprogram the computer system to separate the disclosable information from nondisclosable information.  Ind. Code § 5-14-3-6(c).

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  • Iowa

    Governmental bodies can charge a reasonable fee for all “expenses of the work," which may include time spent retrieving, copying and supervising the retrieval or access to the records. Iowa Code § 22.3.

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  • Kansas

    Fees for providing access to records maintained on computer facilities shall include only the cost of any computer services, including the staff time required. K.S.A. 45-219(c)(2).  According to the Kansas Attorney General’s Police and Procedures for Obtaining Copies, that office charges “$0.125 per page for electronic copies.”  Whether such a charge is “reasonable” as required by K.S.A. 45-219(c) has yet to be litigated.

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  • Kentucky

    The agency may prescribe a fee equal to its cost of reproduction, which may vary by medium. Ky. Rev. Stat. 61.874(3). The fee may not include staff costs unless the record is for commercial use. Id. (“The public agency may prescribe a reasonable fee for making copies of nonexempt public records requested for use for noncommercial purposes which shall not exceed the actual cost of reproduction, including the costs of the media and any mechanical processing cost incurred by the public agency, but not including the cost of staff required.”).

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  • Louisiana

    There is no specific provision for the records of most public bodies. Except for the records of state agencies, the fees are established by the custodian and must be "reasonable." Fees for copies of records of state agencies are charged according to a uniform fee schedule adopted by the commissioner of administration unless otherwise fixed by law. La. Rev. Stat. Ann. § 44:32(C). That fee schedule provides that "charges for copies of public records on preprinted computer reports shall be at the same rate [as non-computer records]. Each agency shall develop a uniform fee schedule for providing printouts of public records stored in a computer data base utilizing routine utility programs . . . . An estimated cost shall be given for request for reproduction of public records stored in a computer which require program modification or specialized programs. The requesting party shall be advised of the estimate . . . but the actual cost for reproduction, including programming costs, shall be charged if it differs from the estimate." LAC 4:301. But see St. Tammany Parish Coroner v. Doe, 48 So.3d 1241 (La.App. 1st Cir. 2010) (requestor not charged for “apparently negligible” cost of electronic format on which requested data would be down-loaded).

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  • Maine

    An agency or official may charge a fee to cover the actual cost of searching for, retrieving, and compiling the requested public record of not more than $15 per hour after the first hour of staff time per request. 1 M.R.S.A. § 408-A(8)(B). Compiling the public record includes reviewing and redacting confidential information.  Id.  An agency or official may also charge the actual cost of converting a record from an electronic form to a readable form. 1 M.R.S.A. § 408-A(8)(C).

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  • Maryland

    There is no statutory or case law addressing this issue.

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  • Michigan

    Not specifically addressed.

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  • Montana

    An agency may charge a fee for the copy, not to exceed the actual cost of reproducing the copy, and any costs for gathering the information. Mont. Code Ann. § 2-6-1006(3).

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  • Nebraska

    Neb. Rev. Stat. §84-712(3)(b) requires that fees for copies of records be based on the “actual added cost of making the copies available.” For electronic data, “the actual added cost of making the copies available shall include the reasonably calculated actual added cost of the computer run time, any necessary analysis and programming . . . and the production of the report in the form furnished to the requester.

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  • Nevada

                An agency can charge for their actual costs of producing electronic records, including photocopying or the cost of the media, such as CDs, DVDs, flash drives, etc.

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  • New Hampshire

    The only provision of the Statute that addresses fees is RSA 91-A:4,IV, which reads: “If a computer, photocopying machine, or other device maintained for use by a public body or agency is used by the public body or agency to copy the governmental record requested, the person requesting the copy may be charged the actual cost of providing the copy, which cost may be collected by the public body or agency. Nothing in this section shall exempt any person from paying fees otherwise established by law for obtaining copies of governmental records or documents, but if such fee is established for the copy, no additional costs or fees shall be charged.”

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  • New Jersey

    Access to electronic records and non-printed materials shall be provided free of charge, but the public agency may charge for the actual costs of any needed supplies such as computer discs.  See N.J.S.A. 47:1A-5(b).

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  • New Mexico

    In assessing fees for electronic records, a custodian may: (1) charge reasonable fees for copying the public records, but shall not charge more than one dollar per printed page for documents eleven inches by seventeen inches in size or smaller; (2) charge the actual costs associated with downloading copies of public records to a computer disk or storage device, including the actual cost of the computer disk or storage device; (3) charge the actual costs of sending copies of public records by mail, email or facsimile; and (4) require advance payment of the fees before making copies of public records.  NMSA 1978 § 14-2-9(C) (2013).

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  • North Carolina

    The law permits a charge for only the actual cost of reproducing a record. Therefore, if the electronic record were copied onto a disk, magnetic tape or thumb drive, the cost of the disk, tape or thumb drive could be charged, but nothing more.

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  • North Dakota

    A public entity may charge a “reasonable fee” for making any copy of a record that is not a paper copy. N.D.C.C. § 44-04-18(2). “Reasonable fee” is defined as the actual cost to the public entity of making the copy, including labor, materials, and equipment. N.D.C.C. § 44-04-18(2). The entity may also charge for the actual cost of postage to mail a copy of a record. N.D.C.C. § 44-04-18(2). The entity may require payment before locating, redacting, making, or mailing a copy. N.D.C.C. § 44-04-18(2). If locating records requires more than one hour, the entity may impose a fee not exceeding $25 per hour per request, excluding the initial hour, for locating records, including electronic records. N.D.C.C. § 44-04-18(2). The entity may also impose a fee not exceeding $25 per hour per request, excluding the initial hour, for excising confidential or closed material, including electronic records. N.D.C.C. § 44-04-18(2).

    An electronic copy of a record must be provided upon request at no cost, other than the standard costs discussed above, unless the nature or volume of the public records requested to be accessed or provided requires extensive use of information technology resources. N.D.C.C. § 44-04-18(3). In that case, the agency may charge no more than the actual cost incurred for the extensive use of information technology resources incurred by the public entity. N.D.C.C. § 44-04-18(3). “Extensive” is defined as a request for copies of electronic records which take more than an hour of information technology resources to produce. N.D.C.C. § 44-04-18(3).

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  • Ohio

    Public offices may only charge actual cost for producing electronic records, which is generally limited to the cost of the physical media. See, e.g., State ex rel. Data Trace Info. Servs., L.L.C. v. Cuyahoga Cty. Fiscal Officer, 131 Ohio St. 3d 255, 264, 963 N.E.2d 1288, 1297, 2012-Ohio-753, ¶ 43.

    “Actual cost” for electronically stored records may include reasonable extraction and processing costs in special circumstances. See, e.g., State ex rel. Gambill v. Opperman, 135 Ohio St. 3d 298, 305, 986 N.E.2d 931, 938, 2013-Ohio-761, ¶ 31 (reasonable for public office to pass on contractor’s quote for extracting requested electronic data from copyright-exempted software and copying it onto a hard drive as part of the actual cost); see also State ex rel. Margolius v. City of Cleveland, 62 Ohio St. 3d 456, 584 N.E.2d 665, FN4 (1992)(Public Records Act did not preclude the public office from passing costs of copying computer tapes with outside contractors directly to the requester).

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  • Oklahoma

    A public body may recover search fees for: "(1) the storage media used, including disk, tape, or other format unless provided by the requestor; (2) any access or processing charges imposed upon the public body because of the request; (3) any hardware or software specifically required to fulfill the request and reproduce the record in computer-readable format which would not otherwise generally be required or used by the public body; and (4) the cost of labor directly attributable to fulfilling the request."  2005 OK AG 21.  The Attorney General further determined that the public body could not charge a per page fee for electronic copies of records which are kept in electronic format.  2005 OK AG 21.    However, the legislature authorized county clerks to charge fifteen cents per page for copies in electronic format when the request is for more than 3,500 electronic pages.  19 O.S. § 245.

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  • Oregon

    Fees for electronic records are assessed on the same basis as fees for other records. ORS 192.324(4) (formerly ORS 192.440(4)(a)) authorizes public bodies to establish fees “reasonably calculated to reimburse the public body for the public body’s actual cost of making public records available.” The same provision additionally allows fees to recover the “costs for summarizing, compiling or tailoring the public records, either in organization or media, to meet the person’s request.” The actual costs include time spent searching, copying, reviewing and redacting records (including redactions made by attorneys), as well as time spend mailing records by special methods. Actual costs do not include time attorneys spend determining whether the Public Records Law applies and do not include the costs of providing records in formats to accommodate hearing or visually impaired people under the Americans with Disabilities Act. The costs of a search may be charged even if no records are found or if the records that are found are all exempt from disclosure. Public bodies may require prepayment of estimated charges before taking action on a request. Fee waivers and reductions are available as set forth in ORS 192.324.

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  • Rhode Island

    A public body may not charge more than the reasonable actual cost for providing electronic records or retrieving records from storage where the public body is assessed a retrieval fee.  R.I. Gen. Laws § 38-2-4(a).

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  • South Carolina

    A public body may charge an amount not to exceed the actual cost of searching for, making available or copying public records, including electronic records. Seago v. Horry County, 663 S.E.2d 38 (S.C. 2008). Copy charges cannot be applied to records that are transmitted in an electronic format. However, if records are not in electronic format and the public body agrees to produce them in electronic format, the public body may charge for the staff time required to transfer the documents to electronic format. S.C. Code Ann. § 30-4-30(B).

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  • South Dakota

    If there is a “modem to modem” transfer, law allows “reasonable fee . . . for specialized service,” including amortization of computer hardware and software. SDCL §1-27-1.2.

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  • Tennessee

    The Schedule of Charges does not address this, except to the extent there is a labor charge for searching and redacting such records.

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  • Texas

    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 § 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 § 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 § 552.2615.

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  • Utah

    When the record is “the result of computer output, other than word processing,” fees may include “the actual incremental cost of providing the electronic services and products together with a reasonable portion of the costs associated with formatting or interfacing the information for particular users,” as well as staff and administrative costs. Utah Code § 63G-2-203(2)(a)-(c).

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  • Vermont

    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.  See https://www.sec.state.vt.us/archives-records/certifications-fees/uniform-fee-schedule.aspx.

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  • Virginia

    Official records maintained by a public body on a computer or other electronic data processing system shall be made available to the public at reasonable costs. Va. Code Ann. § 2.2-3704.G (incorporating general fee rules in subdivision 3704.F).

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  • Washington

    The Public Records Act permits an agency to charge ten cents per page for scanning records into an electronic format, and five cents for each four electronic files or attachment uploaded to email, cloud-based data storage service, or other means of electronic delivery.  RCW 42.56.120. Agencies also can charge for the actual cost of the medium onto which the electronic information is copied – for example, the cost of a disk. Agencies should not charge for emailing records.

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  • West Virginia

    Fees for electronic record request should be consistent with the fees that may be charged for reproducing paper records. Thus, the limit on fees charged by public bodies should be the “actual cost of reproduction” of records in an electronic format. If the record is transmitted to the requester on a computer readable DVD or CD the charge should be no more than public body's actual cost of that medium.

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  • Wyoming

    By the actual cost of reproduction or, in the case of electronic records, the amount of time taken by government officials or employees in retrieving the electronic records.

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