In compliance with Act 159 of 1996, we have surveyed state and municipal agencies to determine the impact of the 'actual cost' provisions of the new law regulating access to public records. We have found that the General Assembly's intent to standardize charges for copies of the public record has largely been achieved.
Shortly after the law took effect in 1996, hearings were held and a fee schedule for copying was adopted by rule for state agencies. Pursuant to the law, the rule also is binding on any municipality that has not set its own cost-based fee schedule. As a result, the practice of determining copying costs on factors other than the actual cost of making a copy appear to have all but ended among those state and local agencies that responded to our survey.
Copying costs are generally lower than before Act 159 but the lower costs apparently have not increased demands for copies. There remain, however, some wide variations in charges for electronic media among municipal agencies.
We do not recommend changes to the law. Variations in charges that seem to go beyond actual cost calculations can be addressed through continuing education by state agencies and municipal organizations, while the current law provides citizens with the means for learning how a municipality has arrived at its actual cost figure.
The impact of posting records on World Wide Web sites was raised in the surveys. The one state agency that reported experience with such postings noted that on-line access to the records eliminated requests for the documents on disk. Our own experience is that our Web site, posted in April of 1996, made no appreciable difference during its first year, but that a significant number of people found their requests for forms and information satisfied on-line during 1997. This suggests that some of the concerns raised in our survey about the labor costs for providing copies of public records may be reduced as more records become available on-line.
-- Jim Milne
Secretary of State
Section 5 of Act 159 (1996) requires the Secretary of State to:RESPONSE
- survey state and local agencies covered by actual cost provisions;
- identify any issues relating to access, charges, and administration that have arisen as a result of this act;
- compile a list of actual cost charges and staff time charges that have been established by local legislative bodies and determine whether charges differ significantly among municipalities;
- compare municipal charges to the charges established by state agencies;
- file findings, together with any recommended amendments to the access to public records law, with the General Assembly on or before January 15, 1998.
State and local agencies were surveyed on any impact the actual cost provisions had on the demand for copies or on the administration of copying requests. They also were asked for any recommendations for changing the State's actual cost fee schedule.
Municipalities were asked to indicate whether they had adopted the State fee schedule or established their own under 1 V.S.A. §316(e). If a municipality adopted its own schedule, it was asked to provide us with a copy.
State agencies were contacted both by our Office and by the Secretary of Administration. Municipalities were contacted by our Office and reminded several times in municipal publications.
Land surveyors, lawyers, and the news media, professions routinely requesting copies of public records, were invited to comment on the impact of the new law through notice in their professional publications, by direct mailings, and by our participation at meetings.
As might be expected, a significant number of potential participants did not respond. Fewer than half the municipal governments returned survey forms, although more than a hundred did so. And although 37 state entities responded, more than half of these responses came from three agencies. Nor did all survey respondents answer all questions we asked. Two responses were received from the user groups that were polled.
Since we can demonstrate that the potentially interested parties to this survey were put on notice, however, we can suppose that those who did not respond felt no compelling need to do so, and the likelihood is slim that a serious problem with the actual cost provision of the new law escaped our notice. (On the other hand, we recognize that an entity that has disregarded the law would also have little incentive to respond.)
We represent, then, that this report is based on a reasonably reliable survey, but neither an exhaustive one, nor a scientific sampling.
There is no extensive pre-Act 159 baseline information on copying practices either for state agencies or for municipalities. Although summaries of a 1993 Vermont Municipal Clerks' and Treasurers' Association survey on public records ("the 1993 survey") and a 1995 survey of state agency charges ["the 1995 survey"] were reviewed as part of this survey, this lack of baseline limits the effort to measure the new law's impact. Nevertheless, the following provides a frame of reference:FINDINGS
- The 1993 survey found that 12 of 23 responding municipalities were charging by the name for checklists, rather than charging actual copying costs, and 28 of 89 were using per-name charges for copies of the Grand List.
- The 1993 survey reported a wide range of charges for similar records, with copies of Grand Lists costing from $5 to $240.
- The 1993 survey also found that charges were calculated in a variety of ways, including fees per document of up to $100, fees per name, fees for labor of up to $40 an hour, and fees of up to $50 each for floppy disks. The same survey indicated that "more than a few" municipalities charged "design fees" as part of the copying costs, design fees encompassing computer time, expense and expertise or training.
- Other 1993 responses reported charging residents different rates from non-residents.
- The 1995 survey of state agencies indicated that most respondents charged 10 cents per paper copy, a fee set through an administrative bulletin, and often did not charge for electronic copies on floppy disks.
Our survey's findings are as follows:MUNICIPAL FEE SCHEDULES
- The actual cost provision of the law apparently has curtailed the use of fee schedules based on factors not associated with the direct cost of producing a copy. Per-name charges were not reported by any who responded to our survey.
- The new law brought standardization of charges by state and municipal bodies.
- There still appear to be significant variations in municipal fees for electronic copies, ranging from 88 cents to $10 per 3.5-inch disk. We also received a call from a citizen who reported being charged $25 for a disk by a municipality that did not respond to the survey.
- In general, the new law apparently has had no significant effect on the quantity of demands for copies. Among the state responses, one agency indicated an increase, while another reported a decrease. The increase was attributed to people believing it was now cheaper to request copies of entire files by phone, rather than to visit the office and select records from a file. The decrease was attributed to the agency's charging for copies that had previously been provided free.
- Only five municipalities linked increases in copying requests to the new law, identifying real estate brokers as the source of the increase. Increased requests for copies of Grand Lists and checklists were also reported and were attributed to more people making blanket copying requests.
- A couple of respondents reported difficulty in determining Act 159's impact on copying requests, given traditional fluctuations based on consumer needs rather than the cost of copies. Election years, for example, always bring increased requests for copies of the checklist, regardless of the copying fees.
- The law's impact on the administration of copying requests appears minimal, though a few issues were raised. Twelve state and 10 municipal respondents reported not charging for small requests, since processing the fees would cost more than the amount received. The stated threshold for when charging began varied. It is unclear, however, whether these respondents previously charged for small requests and it also is unclear whether this practice was limited to those who mentioned it.
- There were several comments on the impact of copying requests on staff time, often coupled with suggestions that all labor costs associated with copying be charged without the 30-minute threshold set out by law. Those who raised this issue enumerated the time spent in retrieving, copying, and re-filing records; time interpreting records for the public; and training costs for staff so they can provide electronic copies.
- The law also affected clerks in municipalities where clerks rely on fees for their remuneration. Two clerks reported loss of fee income, one estimating that the new law cost $300 per year in fees.
- Several responses indicate a need for education about the actual cost provisions and public records requests in general. Through survey responses and in calls to the Office, questions were raised on whether a state agency could calculate its own fee schedule; whether requests for mailing labels (as opposed to mailing lists) were legitimate records requests; how to charge when the agency does not have the ability to create copies and must outsource copying; whether travel to the Middlesex records center counts against the 30-minute copying time; whether mailing costs could be included; etc.
- Related questions were directed less at the actual cost law than at conflicting understandings of the nature of public records and the responsibilities of custodians of public records. Since some public records are highly marketable, there were several suggestions that government charge the market value or establish separate rates for (and somehow distinguish among) business and citizen requests. One agency indicated it would seek to exempt its most marketable records from the public records law, similar to the exemption currently accorded Vermont Life's subscription list (1 V.S.A. §317(c)(21).
- Other responses raised issues about whether complying with public records requests was a non-business function that disrupted "normal" work responsibilities. Such statements were more largely represented in the 1993 survey, which found that 38 percent (59 of 154) of respondents felt "copies of public records should be limited for use in the democratic process only (such as checklists to candidates running for elected office)" and 41 percent (65 of 159) did not think "public records should be available to all who request them (such as Realtors, businesses, etc)."
- Numerous respondents suggested changes to the fee schedule. Suggestions included adding media to the list (microforms, for example); making photocopies and printer-generated copies the same cost to avoid tying up printers (printer copies currently are 2 cents and photocopies 4 cents, providing an economic incentive to request printer copies); raising certain labor charges; etc. Such changes can be addressed when the fee schedule is revised.
- Two respondents noted the impact of posting frequently requested records on agency Web sites. One agency was beginning to post such records in hopes that it would reduce requests for copies. The other, the Legislative Council, had been posting records for more than a year. The Council noted that since it began posting bills, calendars and other records, the number of requests for documents on disks had dropped to zero. Our own Office has noted a small but growing reduction in requests for forms and documents as the result of our extensive Web offerings.
A chart of reported municipal fees accompanies this report. It illustrates the following:CONCLUSIONS & RECOMMENDATIONS
- Act 159 brought greater standardization of charges among towns. Municipal charges largely mirrored the state fee schedule, with most exceptions occurring in charges for electronic and audio and videotapes. Extremely high charges reported in the 1993 survey ceased and, in general, copies of municipal records are more affordable.
- Of the 102 responses from municipalities, 39 indicated they had adopted the state's fee schedule. This number is somewhat skewed since some of the 39 actually adopted a different fee for paper copies, while some of the remaining 63 municipal respondents incorporated parts of the state schedule into their locally adopted schedule.
- Municipal fees for paper copies ranged from 5 cents to $1 a page (compared to the state charge of 4 cents). Since not all town clerks' offices are open 40 hours a week and because economies of scale have a profound impact on calculating the actual cost of photocopies, we believe that any fee up to $1 might well be justified. Only two municipalities charged $1 a page, which happens to be the same as the fee established under 32 V.S.A.§1671(a)(7) for uncertified copies not covered by the actual cost provisions.
- There is greater divergence between state and municipal schedules for electronic copies. The state fee is 88 cents for a 3.5" disk; locally established municipal charges ranged from 80 cents to $10. Thirty of the 47 who reported fees for 3.5" disks charged $1 or less; only three municipalities reported charging $10 dollars.
- In comparison with the state charge of 69 cents for a 5.2" disk, municipal charges ranged from 69 cents to $10. Sixteen of the 19 respondents charged $1 or less.
- The state charge for audiotapes was set at $1.25, while municipal rates ranged from $1 to $15. Sixteen of the 19 municipal respondents charged $2 or less for copies of audiotapes.
- There was greater conformity to the state fee of $2.25 for videotapes, only one of the 10 respondents charging more, at $4.
- The state set a 23-cent per minute charge for labor, after 30 minutes, for the actual task of copying. Thirty-two of 40 respondents charged 23 cents a minute or less. The highest labor rate was 92 cents a minute. It should be noted that several municipalities charged labor as well as cost of the medium for electronic copies and for copies of audio and videotapes. Since the law anticipates this charge, but only after 30 minutes, it is not immediately clear that respondents who mention the labor charge for a particular type of copy are charging more than respondents who quote the same copy fee without mentioning labor.
The intent of Act 159 -- to standardize charges, to make copies of records more accessible, and to provide a formula for calculating actual cost -- has been met. We do not recommend changes to the law at this time.
The rule establishing the state fee schedule will have to be periodically revised as media costs change. Efforts should continue, by our Office and others, to educate custodians of the records and the public as to what the law requires. Further surveys of local practices should be predicated on anecdotal evidence of significant non-compliance, but since well-informed lawyers, news reporters and other professionals are likely to scrutinize compliance with the law in every office every year, routine followups seem unnecessary.
Though discrepancies in the cost for electronic copies still occur, notably at the municipal level, they can be largely attributed to temporary differences in technological capacity. The current effort by the Department of Taxes to ensure that all town offices have up-to-date personal computers should have a stabilizing effect on these costs.
Most importantly, Act 159, by establishing a formula for calculating actual cost, provides citizens with the means to determine whether charges comply with the actual cost provisions. They may inquire as to how the charges were calculated, the law gives them a way of evaluating the method, and experience tells us they will not hesitate to speak out if the law is not being followed. We believe that that is always the best and most effective method of enforcement.