September Shine On – Monthly Chat with First Amendment Foundation

It’s time to shine again. Barbara Petersen with the Florida First Amendment Foundation is back! In August she addressed access to car accident reports and whether or not information stored in public agency’s computers are fair game for the public This month she is addressing charges for digital items, like CD’s and whether or not agencies can charge for the redaction process, specifically the copying of paper.

Let us know what you could use some help with, when it comes to the Florida Sunshine Laws. You can leave questions and comments below or send them to Vice President of Programs, Lynn Walsh.

SPJ South Florida: I recently made a request for some electronic records and they attempted to charge me $10 for one CD. That seems outrageous. Can they do that?  

Barbara Petersen: No.  There are two fee provisions in the public records law, both found in s. 119.07(4).  The first says that an agency can charge you 15 cents/page for paper copies up to 8½ x 14 inches, plus an additional 5 cents for a two-sided copy.

If you want copies of public records in an electronic format, on a CD, for example, then the agency can charge no more than the actual cost of duplication.  “Actual cost of duplication” is defined in s. 119.011(1), F.S., as “the cost of the material and supplies used to duplicate the record, but does not include labor cost or overhead cost associated with such duplication.”

This means an agency can charge you no more than the actual cost of the CD – 60 cents? A buck?  If the agency insists on charging you more than what seems reasonable, make a public record request for the invoice proving the agency actually paid the fee being charged.

The second fee provision, commonly referred to as the extensive use fee, is where we run into problems.  Agencies are allowed to charge a reasonable fee based on actual costs incurred for the extensive use of the agency’s resources, whether information technology or personnel or both.

The fee can be imposed, however, only if a request requires an extensive use of the agency’s resources.  “Extensive” isn’t defined in statute, so each agency must define the term for itself; I’ve heard definitions as short as 15 minutes and as long as 4 hours.  Say, for example, the City has defined extensive use as 30 minutes or more; my request takes 15 minutes.  I pay only for the duplication costs – 15 cents/page or the actual cost of duplication.  But if my request takes two hours, I pay the cost of duplication and 1½ hours of extensive use fees.

Most agencies charge only for personnel time – it’s difficult, if not impossible, to determine the actual costs involved with the use of information technology; if charging for personnel time, the agency can charge no more than the hourly rate, including benefits, of the lowest paid employee capable of performing the task.

So, you may pay only 60 cents for the CD but extensive use fees can drive up the cost of obtaining records by tens, hundreds, or even thousands of dollars.  Tailor your request and make it as specific as possible, and remember:  the extensive use fee must be reasonable and must be based on actual costs incurred.  If an agency charges you for the extensive use of its resources, ask for a detailed invoice and the agency’s definition of “extensive.”

SPJ South Florida:  I recently requested some electronic records and they had to print out copies in order to redact certain information. They attempted to charge me for those redacted copies. Is this allowed?

Barbara Petersen:  This is a sticky issue and there’s not a lot of case law to lean on in answering the question.  Generally, an agency can charge you for only those copies you receive.  If you want to inspect records, for example, the agency can charge a copying fee only if you want copies of certain documents you’ve inspected.  But in this case, the request was for records in their native electronic format; the agency doesn’t have redaction software capable of redacting exempt information contained in those electronic records, so makes a copy, redacts on the copy, scans the redacted copy, and gives the requestor a .pdf of the redacted documents.

Here’s my opinion:  An agency has a statutory duty to redact exempt information.  The agency must also provide me a copy of a public record in any form or format in which the record is maintained, so if I request a record in its native electronic format, the agency must provide me with a copy in that format.  I’ve not requested a paper copy; I want the record in an electronic format and if the agency has to make a paper copy of the requested record to redact exempt information in order to comply with my request, the agency is not authorized to pass along the cost of making paper copies to me, the requester, unless I take those paper copies with me.  When you have a minute or two, take a look at s. 119.01(2), and pay particular attention to (2)(a) – (f) which lays out the requirements for providing access to records in electronic formats.

(By the way, the phrase “native electronic format” should be used by everyone requesting records in electronic formats; if you simply ask for the record in “some electronic format” you may end up with a .pdf which is not nearly as useful, generally, as say, Excel for a spreadsheet or .pst for an email.)

Click here in case you missed last month’s chat.

Answers to these questions and many more, including questions about application of Florida’s open meetings law, can be found in the 2013 Government-in-the-Sunshine Manual, which is now available in both a print edition and electronically.  Go to the First Amendment Foundation website and click on FAF Store for information on how to order the manual.

Barbara A. Petersen, President First Amendment Foundation

A graduate of the University of Missouri-Columbia and Florida State University College of Law, Barbara A. Petersen is president of Florida’s First Amendment Foundation.  Before taking her current position in 1995, Petersen was staff attorney for the Joint Committee on Information Technology Resources of the Florida Legislature, where she worked exclusively on public records legislation and issues.  A passionate advocate of the public’s right to oversee its government, Petersen is the author of numerous reports and articles on open government issues.  She currently sits on the board of the National Freedom of Information Coalition, having served as its president and treasurer, and was recently appointed to the Integrity Florida board of directors.  Petersen served as chair of Florida’s Commission on Open Government Reform.