AG 1995 10 02 - Laserfiche WebLink

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possible." There has been no comparable language in the statute, but courts around the country have generally held that a records custodian is under a duty to respond to records requests within a reasonable time. It does not appear that the new statutory' phrase goes much beyond the standard that these court decisions suggest was already in place. No Need to Create Records Save for the new requirement that local govermnents and state agencies create indexes for computer databases, Chapter 388 expressly affirms the well-understood point that the public records law allows access to existing records but does not require creation of new records. Thus if it is possible to compile certain kinds of information from a set of public records, but the government maintaining the records does not itself make such a compilation, it is the requesters responsibility to do so and not the goverm~ent's. The revised statute also makes clear that if a government maintains a record in nonelectronic form, the government cannot be forced to create an electronic version of the record. That is the responsibility of the person requesting a copy of the record. Provisions That Clarify Uncertainties in the Law Charges for Making Copies The public records statute has been silent about charges for noncertified copies of records and as a result public agencies have been uncertain about how much they might charge for making copies o£ a public record. Apparently charging practices vary within the state government and among local governments. On general it has been understood that, except in exceptional circmnstances, there can be no charge for simply examining a public record:) Chapter 388 enacts a new G.S. 132-6.2 that addresses this question, although some uncertainty may continue and some variation will definitely continue. The new G.S. 132-6.2 provides that a public agency may not impose a charge for a copy of a public record that exceeds the actual cost to the agency of making the copy. "Actual cost" is defined as "limited to direct, chargeable costs related to the reproduction of a public record as determined by generally accepted accounting principles and does not include costs that would have been incurred by the public agency if a request to reproduce a public record had not been made." Three elements of the quoted provision are noteworthy. First, a local government may determine actual cost pursuant to generally accepted accounting principles. This indicates that a government may establish a cost accounting system associated with providing copies of records, and use that system as a basis for charges for such copies. Many local governments, of course, do not have such cost accounting systems in place, and the demand for copies is unlikely to justify establishing such a system. As long as a government's charges for copies are nominal--perhaps up to twenty-five cents per page for photocopies of paper records or the cost of materials for copies of computerized records--the lack of any accounting support for charges should not be a problem. Should a local govermnent attempt to impose a charge that significantly exceeds these nominal levels, however, the statutory language suggests it must be able to support those higher charges by a developed cost accounting system. Governments are most likely to develop such systems for computerized records. Numerous local govermnents, for example, account for their centralized computer operations through internal service funds. By using such a fund, the local government can bill the full cost of the computer operations to the departraents or agencies that use those sen, ices. If the only reference in the statute were to generally accepted accounting principles, a local government that accounted for its central computer operations through an internal service fund would be able to charge citizens for copies of computerized records on the same basis it charged internal users of the system. But the other two elements of the definition of actual costs may make that impossible. The second noteworthy element of the definition is the limitation of charges to "direct" costs. This appeam intended to prohibit seeking return of indirect costs as part of the system of charges for copies of public records. That is, the cost accounting system for a centralized computer operation may include only the costs directly attributable to the operation and not such indirect costs as a pro rata share of the costs of the manager's office, the finance department, the personnel department, and so on. The final noteworthy element of the definition prohibits including in the charge for a copy costs that the local govemment would have incurred whether the copy request was made or not. However, this provision may exclude from the charge calculation two important cost elements: personnel costs and depreciation of equipment. In general, the employees operating a computer system will be paid whether or not a request is made for a copy of a computerized record. Only if overtime is necessary to make the copy does it seem possible to charge for employee time. With depreciation, the method of depreciation used in the accounting system will determine the propriety of including that cost in the charge. If a local govemment depreciates equipment by the straight-line method, which calculates depreciation based on time not use, using