HomeMy WebLinkAboutPublic Records - Government Code - Statutory Fees - Direct C1 06/29/02 SAT 1.2:38 FAX 714 841 4484 Cook/Fisher U 001
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the identifiers will be a lengthy and costly process — especially where the re-
quester is willing to pay the cost of the masking by a specially hired force of re-
view attorneys.
—State Board of Equalization v. Superior Court (Associated Tax Consultants, Inc.), 10
Cal.App. 4th 1177 (California Court of Appeal, 3d Dist. 1992)
r--3 "Statutory Fee" This phrase refers to a specific monetary amount set by the Leg-
islature or to a fee established by the agency under an act of the Legislature — a
state statute — which expressly delegates to the agency the fee -setting function.
An example is the DMV director's authority under Vehicle Code § 1811 to set fees
for various types of records. (Shippen v. Department of Motor Vehicles, 161 Cal.
Apt 3d_1119 (California Court of Appeal, 3d Dist. 1984)). While some focal
agencies contend that "statutory fee" permits any charge so long as it is formally
established in an ordinance, the Act does not use "statute" and "ordinance" inter-
changeably. In the three other provisions in which "statute" is used, two of them
clearly refer to state or federal legislation (§6254.5 (c) and §6254.6), and in the
third instance "statute" and "ordinance" clearly do not refer to the same thing:
Government Code §6254, 7. ...(c) All records of notices and orders directed to
the owner of any building of violations of housing or building codes, ordinances, sta-
tutes, or regulations ... are public records.
If the Legislature meant to allow "fee[s] set by ordinance" it could have easily said
so, although that language would have left the proliferation of high charges for
public records access essentially unchecked.
• "Direct Costs of Duplication" means "the cost of running the copying machine,
and conceivably also the expense of the person operating it. `Direct cost' does
not include the ancillary tasks necessarily associated with the retrieval, inspection
and handling of the file from which the copy is extracted. So ruled the Fourth
District, California Court of Appeal in 1994, disapproving a 25 cent per page fee
which reflected not only copying but "staff time involved in searching the records,
reviewing records for information exempt from disclosure under law, and deleting
such exempt information." (North County Parents Organization for Children with
Special Needs v. Department of Education, 23 Cal. App. 4th 144). A point sup-
porting this view is that the fee charging under the Act attaches to copying —
there is no fee -charging authority provided in the sections dealing with mere
record inspections. To produce a record for inspection, the agency must expend
every effort — search, retrieval, review, masking confidential information, re-
placement - except for copying itself. If these costs were meant to be motivated
by a fee, there would need to be authority to charge a fee for inspection even
when no copy was requested.
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• E-mail Transmission Fees Government Code § 11104.5, effective in 1998, allows
! public agencies to charge a "direct costs" fee for transmitting public records to the
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requester via electronic mail:
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(a) Notwithstanding any other provision of law, any requirement that a state agency
send material, information, notices, correspondence, or other communication through
the United States mail shall be deemed to include the authority for the state agency
to send that material, information, notice, correspondence, or other communication
by electronic mail upon the request of the recipient, unless impracticable to do so, or
unless contrary to state or federal law.
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(b) Any state agency may require that direct costs incurred by the agency involving the
electronic transmission of information be paid by the requester pursuant to this sec-
tion and the California Public Records Act (Chapter 3.5 (commencing with Section
y _ 6250) of Division 7 of Title 1).
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(c) Nothing in this section shall be construed to permit an agency to act in a manner in-
consistent with the standards adopted pursuant to the California Public Records Act
(Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1) and the In-
formation Practices Act of 1977 (Chapter 1 (commencing with Section 1798) of Title
1.8 of Part 4 of Division 3 of the Civil Code).
• Fees and Police Reports Some local law enforcement agencies charge high fees,
LT well beyond the actual cost of duplication, for copies of such documents as accid-
ent and crime reports. These agencies apparently believe that since they need not
produce copies of these records for general members of the public, but only for
persons with a direct interest in the accident or crime (for insurance or litigation
purposes), the records are therefore not "public records" subject to the fee -setting
HIS restrictions in the Act. In the Act's early days, the CHP took this position re-
garding its accident reports, The Second District, California Court of Appeal re -
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jected this view in vallejos v. California Highway Patrol, 89 Cal. App. 3d 781
(19791). If the agency provides copies of its records, either to the general public or
_ to a special class of persons with defined access rights not generally available,
`!" then the Act's fee limitations apply.
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• Waiver of Fee Although agencies rarely reduce or waive fees, they may do so, as
�R! part of their general authority to adopt regulations providing greater access to in-
formation than the minimum standards in the Act. (North County Parents of
Children with Special Needs v. Department of Education, 23 Cal. App. 4th 144
(California Court of Appeal, 4th Dist. 1994)).
A
Exemptions in General
Exemptions Are Discretionary
Although agencies commonly treat Act disclosure exemptions as if they prohibit disclosure, the
fact remains that these exemptions are discretiona
ry; ary; the agency may withhold information, but
is not required to. The agency is free to allow more extensive access unless the contrary is clearly
expressed.
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