72 Op. Att'y Gen. 150 (1983)
 
72 OAG 150  151  152  153

OPINION NO. OAG 40-83,

Wisconsin Attorney General Opinions

16 September 1993

Fees; Public Records;

Under the public records law, the fee for
copying public records may include a
component for labor expenses actually,
necessarily and directly incurred in
connection with reproduction of public
records; search fees cannot be charged
as reproduction fees;

local units of government cannot by ordinance
establish public record copy fees that
deviate from actual, necessary and direct
costs of reproduction;

and the municipal law provision authorizing
the same fee for the same service has little
if any practical impact vis-a-vis the
requirement that fees for public records
be limited to actual, necessary and direct
costs.

ROBERT G. MAWDSLEY,
Corporation Counsel Waukesha County

You ask four questions relating to fees
chargeable under the public records law.
Your questions and my answers follow:

1.   According to Section 19.35(3)(a)
     an authority may impose a fee upon the
     requester of a copy of a record which
     may not exceed the actual, necessary
     and direct cost of reproduction and
     transcription of the record. . . .

     Does the phrase "actual, necessary and
     direct cost of reproduction" limit
     allowable charges to only those based
     on the costs of the copying equipment,
     e.g. chemicals, machine maintenance
     and purchase, paper, sales tax and
     the like,  or can a county agency
     include as a cost the labor expense
     incurred in making the copy?

 
72 OAG 150  151  152  153

It is my opinion that labor expenses that are
actually, necessarily and directly incurred
in connection with reproduction of public
records may be incorporated in the fee
charged for reproduction of the documents.

Typically this will mean that a copy fee may
include a charge for the time it takes for
the secretary or clerk to reproduce the
records on a copying machine.

2.   Does Section 19.35(3)(c) regarding
     charges for record location searches of
     costs in excess of $50.00 exclude the
     possibility of adding labor costs
     for searches of $49.99 and less
     to the copying fee allowed
     under Section 19.35(3)(a)?

Yes.
Section 19.35(3)(a)
governs costs of reproduction.

Section 19.35(3)(c) governs
costs of locating records.

The clear limitation on charging for search
costs in section 19.35(3)(c) would be
circumvented if search costs of less
than $50 were added to reproduction costs.

3.   Can a county or other municipality
     establish its own copying fees by
     ordinance on a basis other than
     actual, necessary or direct costs"
     by virtue of the clause in Section
     19.35(3)(a) which  reads: . . .

          unless a fee is otherwise
          specifically established
          by law . . .?

The full sentence provides that:

An authority may impose a fee upon the
requester of a copy of a record which
may not exceed the actual, necessary
and direct cost of reproduction and
transcription of the record, unless
a fee is otherwise specifically
established or authorized to be
established by law.

It is my opinion that the term "law"
as used in this provision refers
to state statutory law.

Cf.,

Musback v. Schaefer,
115 Wis. 357, 360,
91 N.W. 966 (1902)

The Legislature clearly intended to minimize
copying fees and to establish a general
cost-based standard for all custodians
except those for whom special
provisions have been created.

It would be inconsistent with these goals to
interpret the statute to allow the multitude
of local governments to adopt their own fee
schedules without regard to actual costs.

An example of "a fee . . . otherwise
specifically established . . . by law"
is section 814.61(10) which requires
the clerk of court to charge a
copying fee of $1 per page.

 
72 OAG 150  151  152  153

As to the latter portion of section
19.35(3)(a), I am not aware of any state
statute that affirmatively authorizes
counties or municipalities to establish
their own fees for public records.

Therefore, they do not have the
authority to deviate from the
requirements in section 19.35(3).

4.   How does Wis. Stat. Section 66.111,
     which authorizes an officer to charge
     the same statutory fee allowed to
     other officers if performing the same
     duties, affect Section 19.35(3)(a)?

     In other words, can an officer
     charge, for example, the statutory
     copying fee of $1.00 per page set by
     statute for sheriffs on the basis of
     Section 66.111, or is that officer
     bound by Section 19.35(3)(a) to
     derive and charge the actual,
     necessary and direct cost?

Section 66.111 provides:

     When a fee is allowed to one officer the
     same fee shall be allowed to other
     officers for the performance of the same
     services, when such officers are by law
     authorized to perform such services.

This statute applies where either of two
officers may legally perform a particular
act and a fee is specifically allowed to
one and not to the other.

Then the fee is made incident to the
service, so it may be rightfully claimed
by the officer performing the same.

Musback, 115 Wis. at 360.

Therefore as to fees for copying records,
section 66.111 would apply only if two
distinct public officers are specifically
authorized by the statutes to copy the very
same public records, and the statutes specify
a particular copying fee for one officer but
not the other.

For example, county court judges formerly
were specifically authorized to make
certified copies of papers filed in their
courts, so a judge could charge the same
statutory copying fee as that authorized
by statute for the clerk of courts.

30 Op. Att'y Gen. 697 (1941).

As to your specific example regarding a
$1.00  per page copying charge by sheriffs,
I assume you are referring to section
814.70(intro.) and (6), which reads:

Fees of sheriffs.

The sheriff shall collect the following fees:
. . . . . . . . .

814.70(6) COPIES.

     Making a copy of any bond, undertaking,
     summons, writ, complaint or other paper
     served or taken, when required by law
     or demanded by a party, and if not
     furnished by a party to the action or
     attorney, $1.00 per page.

 
72 OAG 150  151  152  153

This $1.00 fee applies only to the particular
documents and under the limited circumstances
described in the statute.

In most cases, the fee for copying public
records on file in a sheriff's office will
be governed by section 19.35(3)(a).

Section 66.111 would come into play vis-a-vis
section 814.70(6) only if some officer
outside the sheriff's office was specifically
authorized to provide copies of the
particular documents described and under the
circumstances set forth in section 814.70(6),
and no specific fee was otherwise set by the
statutes.

Under those circumstances, the outside
officer could charge the fee specified
in section 814.70(6).

This would constitute "a fee that is
otherwise specifically established . . .
by law" and would thus constitute an
exception to section 19.35(3)(a).

I have found no statute that presently
specifically authorizes one public officer to
provide copies of particular records in the
custody of another public officer.

Therefore, I expect that, in reality, the
provisions of section 66.111 will have
limited or no impact on the mandate of
section 19.35(3)(a) to limit copy fees
to actual, necessary and direct costs.

BCL:RWL
 
 
72 OAG 150  151  152  153