Legal Updates


DEPARTMENT OF JUSTICE ISSUES GUIDANCE ON CHARGING FEES UNDER THE WISCONSIN PUBLIC RECORDS LAW

September 19, 2018

On August 8, 2018, the Wisconsin Department of Justice (DOJ) Office of Open Government (OOG) issued an advisory on permissible fees a governmental “authority,” (which includes public school districts and other municipalities) may charge when responding to a public records request.  The OOG issued this advisory in response to an increase in inquiries concerning high fees charged by authorities to produce public records.

Under Wisconsin’s Public Records Law, an authority may charge a requester the actual, necessary, and direct costs for: 1) reproducing and transcribing records; 2) photographing and photographic reproducing records; 3) locating records when the costs exceed $50.00; and 4) mailing or shipping records.[1]  An authority is not authorized to charge fees for other tasks such as staff time spent redacting records.[2]  Additionally, an authority can only recover its actual costs; an authority may not profit from fees charged responding to a public records request.[3]

Reproduction and Transcription (i.e., Copying) Fees

The OOG recommended that authorities reevaluate their copying fees to ensure the fee charged reflects the actual cost per page, especially if the authority has purchased or leased new copiers since establishing its fee schedule.  The OOG issued its recommendation in response to the results of DOJ’s recent reevaluation of its per page costs for copying records.  The DOJ determined that its actual cost per page for black and white copies was $0.0135 and its actual cost per page for color copies was $0.0632.  The DOJ based its analysis on its contract with a copier company and the price charged for printer paper.

The OOG published the DOJ’s fee schedule for photocopies and recommended that authorities use it as guidance when developing their own fee schedules.  The OOG also offered additional assistance to authorities that are developing a methodology to determine the actual per page cost for copying records.

Digital and Electronic Records

The OOG also suggested that authorities review the DOJ’s published fee schedule (available on the DOJ’s website) for guidance on developing the authority’s fee schedule for providing records in a digital or electronic format, such as digital files, DVDs, CDs, and flash drives.[4]  According to the DOJ’s published fee schedule, there is no charge for providing records in a digital format unless the records are provided on a physical medium, such as a DVD or flash drive.  The OOG also offered to help authorities develop a methodology for determining their actual costs for providing copies of records in a digital or electronic format.

Location Fees

As a general rule, authorities are permitted to charge for the cost of locating records that are responsive to a public records request only if such costs exceed $50.00.  The OOG recommended that authorities minimize location costs by limiting the time specialized employees (e.g., computer programmers or IT professionals) spend responding to records requests.  According to the OOG, location tasks should be divided among specialized and non-specialized employees to minimize the cost for locating records.  Once the specialized employee has located the records, a second, non-specialized employee capable of reviewing the records, should review the documents generated from the search results in order to locate responsive records.  The OOG also recommended that authorities minimize location costs by using the pay rate of the lowest paid employee capable of locating the records to calculate location costs, even if a higher paid employee is the individual locating the records.

The OOG reminded authorities that time spent reviewing records for purposes of determining whether information must be redacted and time spent redacting records are not tasks for which location fees may be charged to a requester.  Thus, once the responsive records are identified from the search results, the authority may not charge for the subsequent review and redaction of the responsive record(s).

Conclusion

The OOG’s advisory provides helpful guidance for school districts and other authorities on permissible fees that may be charged when responding to a public records request.  Authorities should review existing public records policies and practices to determine whether changes must be made.  Thereafter, authorities should analyze public records requests on a case-by-case basis and determine the actual, necessary, and direct costs of producing the records requested.  The OOG recognized that an authority’s actual, necessary, and direct costs may fluctuate, and may need to be adjusted to account for factors such as inflation or an increase in expenses. 

For questions regarding this article, please contact your Strang, Patteson, Renning, Lewis & Lacy, s.c., attorney.

[1] Wis. Stat. §§ 19.35(3)(a)-(d).

[2] Milwaukee Journal Sentinel v. City of Milwaukee, 2012 WI 65, ¶ 59, 341 Wis.2d 607, 815 N.W.2d 367.

[3] WIREdata, Inc. v. Village of Sussex, 2008 WI 69, ¶ 107, 310 Wis.2d 397, 751 N.W.2d 736.

[4] A copy of the DOJ’s published fee schedule is available at, https://www.doj.state.wi.us/sites/default/files/office-open-government/fee-schedule-final.pdf.

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