A proposed resolution headed to the Duluth City Council for a Monday night vote would authorize the city to charge $35 per hour for anything beyond 15 minutes of staff time spent fulfilling a request for public data.
But Mark Anfinson, legal counsel for the Minnesota Newspaper Association, said he believes the straight fee being proposed in Duluth doesn't jibe with state law.
"If that kind of a process were allowed, it would jeopardize the ability of members of the public to obtain copies of public records," he said.
Anfinson points to a number of advisory opinions issued by Minnesota's Information Policy Analysis Division through the years.
"Basically, what they have held is that the amount the government can charge for making and compiling copies is determined by the lowest-paid employee who's capable of doing it," he said.
A full-time employee pulling down $35 per hour would earn the equivalent of $72,800 per year.
An initial draft of the resolution provided to the council electronically on Wednesday called for a $40 per hour fee, but it was subsequently reduced after the News Tribune and Anfinson raised questions about how the city arrived at that charge.
City Attorney Gunnar Johnson contended the hourly fee being proposed is justifiable, particularly when all employee costs, including health insurance and other benefits are baked into the mix with wages.
"We were trying to come up with a number that's reasonable and fairly approximates the cost of not the highest-paid employee but your basic administrative employee, and that's the number that we feel is appropriate," he said.
On Thursday night, Johnson told councilors the $35 per hour fee is consistent with what the city has been charging people for research although it previously was not set forth explicitly as a "a fee for public data research and retrieval."
"We're trying to find that middle ground. We're happy to give people information, but we're also trying to make sure that we're doing that in an administratively sound way," Johnson said.
Yet Anfinson remained unconvinced.
"Section 13.03, subdivision 3, of the Data Practices Act, mandates that the government agency can only charge its actual cost, and so from that IPAD has derived the rule that you can't inflate the charge by having someone who is paid much more than a clerical employee would be to make the copies," he said.
Tony Webster, a software engineer and online citizen journalist who specializes in public records research, concurred, saying: "Advisory opinions have said that this has to be the lowest-paid employee capable of performing a search, but that's going to be different for different types of data, so it can't just be a flat fee. If someone just needs to copy a file and email it to someone, you do not need an IT engineer to do that."
Anfinson agreed, noting that the Information Policy Analysis Division generally has frowned on local governments that try to adopt a one-size-fits-all fee structure, such as the one being proposed in Duluth.
Duluth is not alone in facing new challenges as it responds to data requests.
"Data practices is an area where we're seeing more and more administrative time taken up," Johnson said. "This is something that's happening all across the state."
Johnson said the new fee is not meant to discourage data requests.
"The Minnesota Data Practices Act is a good law. It provides transparency so people can find out what's going on with their local governments, and the city of Duluth works very hard to comply with that law."
Johnson noted that the first 15 minutes of staff time required to comply with a request would be provided for free under the proposed resolution, as most public requests are relatively straight-forward and simple to fulfill.
But when the requests are more complex, they can become a greater time burden, and Johnson said the city can no longer justify spending up to an hour on data requests at no cost as it currently does.
"It's just an area that's kind of growing, in terms of the activity that we're seeing," he said.
Johnson said more ambitious data requests generated by some, such as Webster, can pose a particular challenge.
"He's one of a few people out there making very voluminous and administratively difficult data practices requests, and the city works to accommodate that. But we need to make sure that we're also doing the other work of the city so that the little things are getting done," he said.
"There are only so many staff people that we have, and every department works hard to respond to data practices requests, but we want to make sure that doesn't overwhelm the city, and it hasn't. This is just a tweak," Johnson said.
Webster questioned Johnson's suggestion that his data requests - delving into issues that have included the city's use of technology such as license plate readers and police body cameras - are maybe getting in the way of city business.
"Responding to data requests is city business, and there have actually been advisory opinions from the state commissioner of administration that make that exact point," he said. "So being transparent and accountable to taxpayers should not be considered a nuisance but rather a public policy priority, and I would hope the City Council would consider the ideals of transparency and accountability before they would start thinking about how to nickel and dime people," he said.
"I don't mean to say they shouldn't be charging for requests. Obviously if they can under law, they're entitled to do that," Webster said, noting, however, that the city lawfully can charge people only when it provides copies of documents and files. It cannot charge people who choose to review data on site.
For his part, Neal Ronquist, publisher of the Duluth News Tribune, referred to the proposed fee structure for public data requests as "disappointing."
"The public has a right to know. City staff is already paid by taxpayer dollars to serve the citizenry," he said.