THE COST OF COPIES

School’s out!  I am fresh off teaching media law at the UNC School of Media and Journalism over the 2017-2018 academic year.  I loved it and loved my students!  I am happy, though, to now have time to return to other “teaching,” in workshops and through First for a Reason.

With some frequency, we get questions about how much a public agency can charge for copies of a public record.  The issues is particularly sticky when some public official is going to have to do some real work to give you what you’ve requested.  Maybe the IT department is going to print out all the emails that the Mayor sent and received over a given period, and the City Attorney will review them to remove any attorney-client information.  Or the head of HR for a school district has to review text messages prior to release to be sure they don’t contain any confidential personnel information.

There are three statutory provisions at play in these circumstances.  First, the public records law says that you can only be charged the “actual cost” for the provision of a public record.  G.S. § 132-1(b) “Actual cost” has a specific meaning:  “direct, chargeable costs related to the reproduction of a public record as determined by generally accepted accounting principles and does not include costs that would have been incurred by the public agency if a request to reproduce a public record had not been made.” G.S. § 132-6.2(b). So they can charge you the cost of the paper and the ink and the power to run the copier, but they cannot charge you for the time of the secretary, who would have been working that day anyway, or a pro rata portion of the rent or anything else beyond the – you guessed it – actual cost.

The next portion of statutory language that matters says you can be charged “a special service charge” if your request requires “extensive use of information technology resources or extensive clerical or supervisory assistance by personnel of the agency.”  G.S. § 132-6.2(b).  With some frequency, we hear about public agencies attempting to levy this “special service charge” when a staffer has to spend any perceivable amount of time pulling or copying records for a public records request.  (Nevermind that provision of public records is part of public employees’ duties, not something added onto their duties.)  These agencies are proposing sometimes outrageous fees to fulfill public records requests.  Are those fees proper?

The answer to that question lies in another question:  What is the employee doing in that time?  If it just takes 10 hours to pull down and copy all of the files that you have requested, you may have to pay the surcharge.  However, if the staffer is reviewing the records to scan for and remove confidential information, that’s on their nickel.  You don’t have to pay for that work thanks to the third important statute.  The law says, “If it is necessary to separate confidential from nonconfidential information in order to permit the inspection, examination, or copying of the public records, the public agency shall bear the cost of such separation.” G.S. § 132-6(c).

How do you reconcile the “extensive use” statute and the “separate confidential” statute?  When multiple statutes could apply to a situation, courts employ what is called statutory construction.  The relevant statutory construction principle here is that when one statute is general and another statute is specific, the specific controls.  So in our case, the general law — you can be charged for extensive clerical time – must yield to the specific law – you cannot be charged for the separation of confidential from nonconfidential stuff.

As so often is the case, being well-informed and knowing what questions to ask is at least half the battle.  If you understand your rights, you can insist on them.  (Politely, of course.  This is the South, remember.)

Email us with feedback, questions, or topics that interest you:  First@smvt.com

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