Document preparation

2-100 OAG 99-012 Attorney General OPINION NO. 99-012 Syllabus: 1. When a county office responds to a request to create a customized document by coordinating and compiling information from public records kept by that office, the customized document constitutes a copy of public records for purposes of R.C. 149.43(B). Pursuant to R.C. 149.43(B), the county office is authorized to make such a custom­ ized document available at cost. 2. For purposes of determining the fee that may be charged pursuant to R.C. 149.43(B) for a customized document created by coordinating and compiling information from public records, "at cost" means actu­ al costs, exclusive of any charges for employee labor or computer programming time involved in either the preparation or actual pro­ duction of the document. 2-101 1999 Opinions OAG 99-012 To: David P. Joyce, Geauga County Prosecuting Attorney ,Chardon, Ohio By: Betty D. Montgomery, Attorney General, February 2, 1999 You have requested an opinion regarding the charging of fees [or preparation and production of specialized documents by county offices. The issues presented by your request are as follows: 1. If, in response to citizens' requests, a county office is willing to coordi­ nate and compile information from public records kept by that office into individually-tailored, customized documents, does the office have authority to charge a fee for this service? 2. Ifso, what standards may be used to establish the amount of the fee for preparation and production of such documents? Based on your letter, we understand the facts underlying this request to be as follows. You note that an individual is able to take documents obtained from public records requests to a private enterprise to have customized documents professionally prepared from the information contained therein. Some county offices, however, now have the technologi­ cal capability to prepare information from public records in many varied formats. These offices are able to respond to a request for customized documents from a member of the public, even though the requested format is not one which the offices would ordinarily maintain or use for their own purposes. For example, the tax map office of the county auditor could compile information from various public records to produce a subdivision map that indicates all properties with homes valued in a certain range. Similarly, the county planning department could coordinate data from its \'arious records to create maps indicat­ ing soil and geological information. County offices that have such technological capabilities often choose to prepare customized documents as a service to the public. You have requested our opinion, therefore, regarding the charging of fees for such a service. The first issue presented by your request is whether a county office has authority to charge a fee for the described service. The authority of the county, its officers, and its agencies is limited to that conferred expressly by statute or by necessary implication there­ from. Geallga County Bd. o(Conl11z'/'s v. Mlll1l1 Rd. Sand and Gravel, 67 Ohio S1. 3d 579,582, 621 N.E.2d 696,699 (1993); see also State ex reI. Shriverv. Bd. o(Comm'rs, 148 Ohio S1. 277, 74 N.E.2d 248 (1947) (syllabus, paragraphs one and two) (board of county commissioners); State ex rei. Kuntz v. Zangerle, 130 Ohio S1. 84, 197 N.E.2d 112 (1935) (syllabus, paragraph one) (county auditor); 1996 Op. Att'y Gen. 96-043 at 2-161. In accord with this principle, a county office or officer may not charge a fee for any service absent express or implied statutory authority to do so. See R.e. 325.36 ("[n]o salaried county official ... shall collect a fee other than that prescribed by law"); Railroad Co. v. Lee, 37 Ohio S1. 479 (1882) (county prosecuting attorney, who in response to a citizen request exercised discretionary authority to prosecute a case in magistrate's court, had no authority to require payment of a fee from the that citizen); Debolt v. Trustees ofCil1cil1nati Towl1ship, 7 Ohio S1. 237 (1857) (syllabus, paragraph one) ("[a]n officer whose fees are regulated by statute, can charge fees for those services only Lo which compensation is by law affixed"); accord 1982 Op. Att'y Gen. No. 82-075 (absent statutory authority, a county sheriff may not charge a fee for issuance of a permit). I In the early cases, the principle that statutory authority is necessary to charge a fee was articulated in the context of whether a public officer had authority to charge a fee for purposes of personal compensation. The principle applies equally, however, to fees that are March 1999 OAG 99-012 Attorney General 2-102 The compilation of information from public records into customized documents is a discretionary public service. See State ex reI. Scanlon v. Deters, 45 Ohio St. 3d 376, 379, 544 N.E.2d 680, 683 (1989) (holding that "the clerk could not be required to create a new 'document' by compiling material to facilitate review of the public records"), overmled on other grounds by State ex reI. Steckman v. Jackson, 70 Ohio St. 3d 420, 426-27,639 N.E.2d 83, 89 (1994); accord State ex reI. Kerner v. State Teachers Retirement Bd., 82 Ohio S1. 3d 273, 274,695 N.E.2d 256, 258 (1998) ("[a public office] has no duty to create a new document by searching for and compiling information from its existing records"); State ex reI Margolius v. City of Cleveland, 62 Ohio St. 3d 456, 461, 584 N.E.2d 665, 670 (1992) ("[t]here is no requirement on the part of public agencies to create records that are not already in their possession"); see also State ex ref. Lanham v. Ohio Adult Parole Auth., 80 Ohio St. 3d 425, 427, 687 N.E.2d 283, 285 (1997) (RC. 149.43 does not require public offices to search for and identify records that contain requested information). No statute expressly authorizes a county office or county officer to charge a fee for this particular discretionary service or for discretionary services in general. C[ RC. 317.32 (establishing fees for copying and other services associated with specifically listed documents in the county recorder's office). Nor is there any implied authority to charge a fee for the performance of discretionary services. See, e.g., Railroad Co. v. Lee. As a general rule, the authority to charge fees may be implied only in a situation where the fee is imposed for regulatory purposes in connection with an express grant of power to inspect or regulate a particular matter. Prudential Co-Operative Realty Co. v. City of Youngstown, 118 Ohio St. 204, 214,160 N.E. 695,698 (1928); accord 1986 Op. Att'y Gen. 86-081 at 2-456 to 2-457. Your request does not identify any regulatory purpose associated with the preparation and production of customized documents, however. Rather, the purpose appears to be that of providing a "user-friendly" response to public records requests. We tum, therefore, to an examination of the public records laws to deter­ mine whether they provide authority to charge a fee for the preparation and production of customized documents in response to individual requests. R.C. 149.43(B) provides that "[u]pon request, a person responsible for public records shall make copies available at cost." This statute authorizes charging a fee that is limited to costs. By its terms, however, this provision applies to copies of public records. Accordingly, it is necessary to determine whether the customized documents you have described can be characterized as copies of public records. A "public record" is defined, in pertinent part, as "any record that is kept by any public office, including, but not limited to, state, county, city, village, township, and school district units." RC. 149.43(A)(1). The term "records" is further defined to include "any document, device, or item, regardless of physical form or characteristic, created or received by or coming under the jurisdiction of any public office _ which serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office." RC. 149.011(G). The term "copies" is not defined by statute and, thus, should be construed according to its common usage. RC. 1.42. In common usage, a "copy" is under­ stood to be a reproduction or duplicate of an original work, or, as in the case of books or paid into the public treasury. See generally State ex reI. Attorney General v. Judges ofthe Court ofCommon Pleas, 21 Ohio St. 1 (1871) (syllabus, paragraph three) ("[iJt is not essential to the exaction of fees that they should inure to the personal benefit of the officer .... [I]t is immaterial to those receiving their services whether the sum to be paid therefor goes to the officer or into the public treasury"), overruled on other grounds by State ex reI. Guilbert v. Lewis, 69 Ohio St. 202, 69 N.E. 132 (1903). 2-103 1999 Opinions OAG 99-012 magazines, one o[ a series produced [rom the same template. See generally Webster's Third Nt'vv International DictionalY 504 (unabridged ed. 1993). In applying these definitions, it has been established that a compilation o[ in[orma­ tion gathered from pre-existing public records is itself a separate public resord. State ex rei. Cincinnati Post v. Schweikert, 38 Ohio St. 3d 170, 527 N.E.2d 1230 (l988) (syllabus, para­ graph one); accord State ex reI. Margolius, 62 Ohio St. 3d at 459; 584 N.E.2d at 669; State ex reI. Pant v. Tober, No. 71616, 1997 Ohio App. LEXIS 5312 at *4 n.2 (Ct. App. Cuyahoga County Nov. 26, 1997); 1994 Op. Att'y Gen. 94-006 at 2-23. Thus, any reproduction of such a compilation, once it has been created, would be a copy o[ a public record for purposes of RC. 149.43(B). The status of the original compilation document as a copy is less clear cut. Case law indicates that a document created by searching for and compiling information [rom existing records is a "new document." See State ex reI. Kerner, 82 Ohio St. 3d at 275-76,695 N.E.2d at 258; State ex ref. Scanlon, 45 Ohio St. 3d at 379, 544 N.E.2d at 683; see also State ex ref. Pant v. Mengel, 62 Ohio St. 3d 455, 584 N.E.2d 664 (1992). This new document could be characterized as an original in the sense that the organization and format of the information therein is new. The information itself is not original, however. The compilation document is composed of selected pieces of information reproduced from other public records. RC. 149.011(G) provides that the term "records" includes items, as well as entire documents. See generally State ex rei. Beacon Journal Publ'g Co. v. City ofAkron, 70 Ohio St. 3d 605, 606, 640 N.E.2d 164, 166 (1994) (holding that social security numbers within payroll files are "records" for purposes of R.C. 149.011(G». Thus, the compilation document, although original in one sense, can also be characterized as a copy of multiple "items" of information that qualify as records under R.C. 149.011(G). We note further, the statement by the court in State ex reI. Scanlon, that "if the ... computer were already programmed to produce the desired printout, the 'document' would already exist for the purpose of an R.C. 149.43 request." Id. at 379,544 N.E.2d at 683. Under this view, the "original" public record exists inchoate in the programming and database of the public office. Once a program is created, any printout produced by that template, regardless of whether it is the first or last, is a "copy." Accordingly, with respect to the first issue raised by your request, we conclude that when a county office responds to a request to create a customized document by coordinating and compiling information from public records kept by that office, the customized document constitutes a copy of public records for purposes of R.C. 149.43(B). Pursuant to R.C. 149.43(B), the county office is authorized to make such a customized document available at cost. We turn now to the second issue raised by your request, what standards may be used to determine the amount to be charged for the preparation and production of these custom­ ized documents? As indicated in the discussion above, RC. 149.43(B) requires that copies of public records be made available "at cost." There is no countervailing statutory authority for the county or any of its various offices and officers to establish a fee in excess of costs. Cf: RC. 1501.01 (authorizing the Director of Natural Resources to "sell ... data, reports, and information"); 31 U.S.C. §167; 9701(b) (1994) (authorizing federal agencies to establish charges based on, not only actual costs, but also "the value of the service or thing to the recipient [and] public policy or interest served"). In State ex reI. Warren Newspapers, Inc. v. Hutson, 70 Ohio St. 3d 619, 625, 640 N.E.2d 174, 180 (1994), the court held that, [or purposes of R.C. 149.43, "at cost" means March 1999 OAG 99-012 Attorney General 2-104 "actual cost." Accord 1989 Op. Alt'y Gen. 89-073 at 2-336 to 2-337. The cOLlrt reasoned that "[s]ince [public officers] are already compensated for performing their duties, and respond­ ing to public records requests is merely another duty, the cost set forth in RC. 149.43(B) should not include labor costs regarding employee time." State ex rei. Warren Newspapers, Inc., 70 Ohio 51. 3d at 626, 640 N.E.2d at 180; accord State ex reI. Lemke v. Columbiana County Proseclltor's OfTice, No. 93-C-56, 1996 Ohio App. LEXI5 521 (Ct. App. Columbiana County Feb. 16, 1996) (excluding the costs of attorney review and preparation time from actual cost of making copies available). The service you have described differs from that in State ex rei. Warren Newspapers, Inc., in that there is no absolute duty to create customized documents in response to public records requests. As we have already established, however, a public office has no more power to charge individuals for the performance of discretionary services than for the performance of mandatory services. See Railroad Co. v. Lee. The lack of general authority to charge a fee in excess of "actual costs" for the preparation and production of customized documents is also highlighted by the provisions of R.C. 149.43(E). Pursuant to R.C. 149.43(E), the Bureau of Motor Vehicles is expressly authorized to charge fees in addition to actual cost for responses to public record requests designated as "bulk commercial special extraction requests." A bulk commercial special extraction request is defined, inter alia, as a request, made for commercial purposes, for "copies of a record for information in a format other than the format already available, or information that cannot be extracted without examination of all items in a records series, class of records, or data base." R.C. 149.43(E)(2)(b). The charge for responding to such a request may include, not only the "actual cost," but also "special extraction costs, plus ten per cent." RC. 149.43(E)(1). "Actual cost" is defined as "the cost of depleted supplies, records storage media costs, actual mailing and altenative delivery costs, or other transmit­ ting costs, and any direct equipment operating and maintenance costs, including actual costs paid to private contractors for copying services." RC. 149.43(E)(2)(a). "Special extrac­ tion costs" are "the cost of the time spent by the lowest paid employee competent to perform the task, the actual amount paid to outside private contractors employed by the bureau, or the actual cost incurred to create computer programs to make the special extraction." RC. 149.43(E)(2)(d) (emphasis added). As did the court in State ex reI Warren Newspapers, Inc., RC. 149.43(E) excludes labor and preparation costs from the calculation of "actual cost."2 However, RC. 149.43(E) expressly authorizes the Bureau of Motor Vehicles to charge an additional fee for labor, including computer programming, and also to impose a surcharge, when responding to requests for public information in customized formats. This express grant of authority to the Bureau of Motor Vehicles implies that public offices generally do not have authority to charge fees in excess of actual costs when responding to such requests. See generally Thomas v. Freeman, 79 Ohio 5t. 3d 221, 224-25, 680 N.E.2d 997, 1000 (1997) (recognizing the principle of statutory construction that "the expression of one thing is the exclusion of the other"); Kroger Co. v. Bowers, 3 Ohio 5t. 2d 76, 78, 209 N.E.2d 209, 211 (1965). Accordingly, in response to the second issue raised by your request, we conclude that for purposes of determining the fee that may be charged under RC. 149.43(B) for a custom­ ized document created by coordinat.ing and compiling information from pubiic records, "at cost" means actual costs, exclusive of any charges for employee labor or computer program­ ming time involved in either the preparation or actual production of the document. 2 The statutory definition of "actual cost" at RC. 149.43(E)(2)(a) applies only to division (E)(1), but it is consistent with judicial interpretation of the term generally. Thus, it provides a useful guide to the factors that may be considered in other circumstances. 2-105 1999 Opinions OAG 99-013 Therefore, it is my opinion, and you are hereby advised that: 1. When a county office responds to a request to create a customized document by coordinating and compiling information from public records kept by that office, the customized document constitutes a copy of public records for purposes of R.C. 149.43(B). Pursuant to R.C. 149.43(B), the county office is authorized to make such a custom­ ized document available at cost. 2. For purposes of determining the fee that may be charged pursuant to R.C. 149.43(B) for a customized document created by coordinating and compiling information from public records, "at cost" means actu­ al costs, exclusive of any charges for employee labor or computer programming time involved in either the preparation or actual pro­ duction of the document. March 1999