Charging Fees for Public Record Requests of Electronic Records

Providing the public with information is an essential function of local government. But complying with public records requests take time and money. To provide some balance to this conundrum, the Wisconsin Public Records Law allows an authority to charge certain fees for complying with a records request. An authority may impose a fee for the “actual, necessary and direct cost” of “reproduction and transcription,” “photographing and photographic processing,” “locating,” and “mailing or shipping.” Wis. Stats. § 19.35(3). Furthermore, an authority can only charge fees specified in the Public Records Law. (See: Milwaukee Journal Sentinel v. City of Milwaukee, 2012 WI 65.)

 But that raises the question – how should an authority calculate the “actual, necessary and direct cost” of complying with a public records request in an electronic format?

Staff time is usually the main consideration in calculating the cost of providing electronic records. If the records are in paper format, then it will take staff time and machine time to scan the records. Once the records are in electronic form, then staff time will be spent transmitting the record. This could be the few seconds it takes to attach a Word document to an email, or copying an Excel spreadsheet to a flashdrive or CD.

Additional costs may include the cost of any physical medium, such as CDs or flashdrives, used to transmit records. If a file needs to be converted from one electronic format to another, applicable costs will include the staff time spent doing the actual conversion, and sometimes computer run time. Authorities should consult their financial officers to determine the actual, necessary, and direct cost involved in complying with a public records request in each of these circumstances. An appropriate limit maybe the recommend charges for photocopies. The Attorney General recommends a fee of 15¢ and no more than 25¢ for photocopies.

Note that “reproduction” of records only means copying the record. Additional tasks like redacting private information may not be charged to the requester. Milwuakee Journal Sentitnel v. City of Milwaukee, Id. at ¶ 31.

A Wisconsin Department of Justice letter with further information about considerations in providing electronic public records can be found here.

Alex Lewein, Legal Intern