The District Attorney’s Office responded to DA Watch last week, and we’ll address those comments soon, but in the meantime, let’s explain why you should care about this public records fight.
About 80 percent of the $1,354 fee the district attorney wants to charge us is made up of overhead costs. These normal operating expenses — such as existing computer software, network cabling and shelving — will be paid by the office regardless of whether or not it copies the data I requested.
To charge for these overhead costs, the office created a new hourly rate for a mechanical process that imposes no further cost to complete. The office simply pushes a button and a computer does the work. They want to charge $1,079 for pushing that button.
Let me explain this situation with a hypothetical analogy.
A portion of the taxes you pay every year goes toward public libraries. Your money pays for books, electricity for each building’s lighting and its chairs. No matter how many people come into the building when it’s open, these operating costs are practically the same.
Now let’s imagine public libraries started charging people every time they looked at a book, they stood in a lighted room and they nestled in chairs. Let’s say the library created a new hourly fee for people who wanted to enter the library to use the information and resources that they, essentially, already paid for with taxpayer dollars.
You would be outraged, right? City Hall would fill with sign-waving protestors, taxpayer advocates and even frustrated librarians. Why? Because your taxes already paid for the public library’s operational expenses and your presence imposes no further cost upon them.
That guiding principle is similar to the intent of the state’s public records law. Public agencies can only charge fees related to the “direct cost” of copying electronic records like data. If copying data imposes no additional expense, the data should be provided without charge.
In some cases, public agencies only charge for the cost of the CD that the data comes on, and we have paid those fees, because that new CD is obviously a new expense (even if just a few dollars).
While many agencies provide data for free, some also charge an hourly rate to compile data that requires additional computer programming. We have been charged this rate before, but usually negotiate with an agency for a free set of data that requires little or no programming.
About 20 percent of the district attorney’s total fee is for new programming, and in principle, we would consider paying that amount. Programming fees can be legitimate, because the cost of writing a new program would otherwise not happen and might significantly impact normal operations.
Our main dispute is with the other 80 percent of the district attorney’s fee — pushing that $1,079 button. We have never been charged this type of fee before and are not agreeing to pay it, because open government advocates say it falls outside the law.
Regardless of my request for records, the District Attorney’s Office will pay the same overhead costs this year. It will pay the same electricity costs to run its network servers. It will pay the same software costs to operate its equipment. It will pay the same costs for cooling, cabling and shelving.
So why should we pay anything more for these systems? The District Attorney’s Office has not explained whether the computer work needed for our request would actually interfere with their normal business.
Perhaps the larger concern of paying the district attorney’s fee, however, is the dangerous precedent we would be setting for anyone seeking government data in the future. If public agencies are allowed to charge overhead costs for copying data, you could expect to see some extremely large bills for pushing other government buttons.
The city of San Diego, for example, implemented a new database system last year that has cost taxpayers about $48 million. Under the novel fee structure supported by the District Attorney’s Office, the public could once again be charged a percentage of those millions when requesting certain information about the city’s financial operations.
We obviously don’t want to encourage this new obstacle to government accountability. Stay tuned for more DA Watch.
— KEEGAN KYLE