State open records law's 'actual cost' requirement does not apply to prepaid subscription fees

• A subscription rate for regularly produced public records does not have to be provided at actual cost as required for responses to open records requests, a state appellate court ruled.

Feb. 4, 2005 — A Michigan township can sell subscriptions to its regular meeting minutes for a prepaid flat fee without regard to actual cost when actual cost is impossible to calculate in advance, a state appellate court held in January. The 2-1 ruling, affirming a lower court , allows a fee for subscriptions that may well exceed actual production costs, even though the state’s open government law requires that records provided in response to requests be provided at actual cost.

In a ruling that focused in part on the definition of “subscription,” Michigan’s Court of Appeals said that Nunda Township could offer six-month subscriptions to its township board meeting minutes for an advance fee of $25.

Citizen Joseph M. Haley sued, alleging that the prepaid flat fee did not comply with the state’s open records law because it bore no relation to the actual costs the township incurs producing the minutes. The appellate court agreed that the subscription fee was not the records’ actual cost because it would be “impossible to determine in advance what the actual cost will be because the number of pages varies” from meeting to meeting.

The court ruled, however, that Nunda Township’s apparent desertion of Michigan’s general “actual cost” scheme was not fatal to its subscription program.

The appellate court initially observed that Michigan law requires government bodies such as Nunda Township to offer subscription programs for their regularly produced records. Citing Webster’s New Collegiate Dictionary for the definition that “subscription” means “purchase by prepayment,” the court concluded in its unpublished opinion that the state legislature — knowing the difficulties of advance pricing — must have meant to craft an exception to the “actual cost” requirement when it enacted subscription requirements.

The court stressed that its decision would not hamper Haley’s right to get the meeting minutes at actual cost. He could choose not to subscribe, and “may continue to make individual requests for each set of minutes, after the fact, and pay the actual costs for those minutes as he procures each,” the court held.

In dissent, Chief Justice William C. Whitbeck chided the majority for referencing only one dictionary to prove that the legislature must have meant “subscription” to mean “purchase by prepayment.” Other dictionaries did not consider prepayment to be part of the fundamental nature of a subscription, he said.

The “majority, relying on a single sentence in a single definition in a single dictionary, takes it upon itself to do what the Legislature did not do:” require advance subscription fees and abandon the actual cost fee standard.

(Haley v. Nunda Township) — RL

© 2005 The Reporters Committee for Freedom of the Press

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