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The District Attorney’s Office is withholding public records from voiceofsandiego.org unless we pay a $1,354 bill that open government advocates call outside the law.

A large portion of the bill accounts for overhead costs that, regardless of copying the records, the District Attorney’s Office would have to pay for normal business operations. Some of these costs include software, computer cables, maintenance, electricity and even shelving.

Media attorneys, other government employees and journalists around the state were all surprised at the charges, because they so blatantly contradict the intent of the law and open government policies. Public agencies can only charge for the “direct cost” of copying records, which has been interpreted to mean no overhead costs.

For months, the District Attorney’s Office has refused to discuss the charges or reduce the bill.

In December, I wrote a story about a new tactic being used by the District Attorney’s Office to prosecute pimps in San Diego. Without announcement, it had started accusing some men of pimping for the benefit of gangs, adding years to their prison sentences.

Several defense attorneys and researchers expressed skepticism in the story that such a connection exists between pimping and gangs. Other have criticized how prosecutors can apply the gang charge to any felony crime and speculated that it’s used to intimidate people into plea deals.

In light of my story, and similar controversies in San Diego, I requested information from the District Attorney’s Office about its past cases involving the gang charge. I wanted to know how many times prosecutors argued for the gang connection in court, what type of crime was allegedly committed and how each case ended.

Shortly after the New Year, the District Attorney’s Office said we would have to pay $1,354 before getting the information, which is contained in one of the office’s databases. Most data, like paper documents, is public record.

First, a little background on the state’s public records law: Unless otherwise exempted, public agencies must supply copies of public records upon request. Agencies may charge fees for the “direct cost” of copying records, but many provide records for free.

The fees are meant to help agencies recover the additional costs of copying records. They are not intended to be profit or pay for overhead. When you pay for photocopies, for example, you can’t be charged for electricity or part of the scanner’s cost.

To justify its $1,354 fee, the District Attorney’s Office pointed to a vague part of the law that says agencies may charge fees if copying data requires new “programming or computer services.” The law does not say how agencies are supposed to calculate those fees.

The District Attorney’s Office estimated $275 would cover new programming and $1,079 would cover computer services required to copy its data. The office got $275 by taking the hourly wage of a senior engineer and estimating that programming would take five and a half hours to complete ($50 x 5.5 hours = $275).

Although it’s not uncommon for public agencies to bill a similar hourly rate for programming, the additional charge for computer services is extremely rare. The District Attorney’s Office said the $1,079 would cover costs related to the amount of time it takes to extract the data from its network servers. That process requires no staff time and is like a large computer running a program.

The office said it would take three network servers 16 hours to copy the data, and the office’s budget for each server is $22.49 per hour ($22.49 rate x 16 hours x 3 servers = $1,079).

For months, the office refused to further discuss how it would copy the data and how running the servers would cost taxpayers an additional $22 every hour. The law says public agencies must “describe the information technology and physical location in which the records exist.”

But after repeated requests, the office did provide details last week for how it calculated the $1,079 estimated cost for server time. The office had added together almost every overhead expense related to running its network servers and created an hourly rate.

You can see the full calculation here, but in summary, the office included the cost of the network servers themselves, computer software, electricity, budgeted maintenance and even shelving. To be clear, the office will pay for all of these expenses this year regardless of my request for data.

“As regards the fee, it is not a matter of any effect upon our business operations,” the office wrote in February. “This office has reasonably calculated the cost of our computer services paid by the taxpayers of San Diego County, and as required by statute, are passing them on to you.”

I called Terry Francke, an attorney for CalAware, a nonprofit open government advocacy group. He said the courts have clearly prohibited the type of calculation being made by the District Attorney’s Office.

“That’s not legitimate at all under the Public Records Act,” Francke said. “It is not lawful to bill maintenance, upkeep, full costs into public record charges.”

The law says, “The cost of duplication shall be limited to the direct cost of producing a copy of a record in an electronic format.” The courts have previously defined “direct cost” as not including overhead.

“The direct cost of duplication is the cost of running the copy machine, and conceivably also the expense of the person operating it,” the 4th District Court of Appeals wrote in 1994. “‘Direct cost’ does not include the ancillary tasks necessarily associated with the retrieval, inspection and handling of the file from which the copy is extracted.”

In 2005, the attorney general also emphasized that costs associated with “maintaining the information” should not be included in fees for public records. That opinion specifically addressed electronic data.

When Francke asked what data I had requested, I told him about the controversial gang charge.

“Yeah, I think that must be it,” he said. “They just want you to go away. No agency has been able to get away with that under the Public Records Act.”

In the same e-mail containing details of the cost calculation for network servers, the District Attorney’s Office said it would no longer address my questions about the gang data. The office said its response to my request had been legally sufficient.

“You decline to pay the estimated fee, and seek to further debate our estimate, a debate in which this office is not required to engage,” the office wrote. “Having fulfilled its obligations under [the Public Records Act], this office considers your request of Dec. 22 to be closed.”

The matter is not closed to us, however. We’ll keep on it.

— KEEGAN KYLE

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