Wednesday, November 9, 2016

Overhead

Cal. Pub. Records Research, Inc. v. County of Yolo, No. C078158 (D3 Oct. 14, 2016)

 This case is a complaint about records copying fees, akin to the County of Stanislaus case brought by the same outfit earlier this year. Here, they are challenging Yolo County’s fee schedule demanding $10 for the copying of the first page of a document and $2 for each subsequent page. Government Code § 27366 permits counties to set these fees at rates necessary for the county to recover the direct and indirect costs associates with the copying. 

Unlike in the Stanslaus case, Yolo justifies its copy rates with a fee study that values the staff time of employees in its Recorder’s Office at $129.88 per hour, and then it slices and dices the amount of time spent on responding to requests down to the minute. If you are a clerical worker considering putting in an application and moving to Woodland because of that great pay, don’t go there. The Yolo Recorder employees don’t actually make that much—their pay is about $43 per productive hour—$71k per year on average. A decent government wage, but not worth the move. Yolo’s study, however, bakes in another $85/hour in “indirect costs” in the form of overhead for stuff like the cost of computers, management costs, and office overhead. The issue here is whether that can be lumped in as an “indirect” cost.


After plaintiff filed suit challenging the legality of the fees, Yolo reduced its fees to $7.50/$2. It then moved for summary judgment, arguing that its fees didn’t violate § 27366 and in any event, given the reductions, the petition was moot. The trial court granted the motion. Plaintiff then filed a fee motion under the private attorney general doctrine, arguing that its lawsuit was the catalyst for Yolo’s fee reduction. The trial court denied the motion and plaintiff appealed.


On the merits, the Court of Appeal decides to read “direct and indirect” costs super broadly to include as “indirect” costs “overhead and operating costs not specifically associated with the production of copies.” It supports this reading by reference to dictionaries, federal regulations, and other statutes to determine that “indirect costs” unambiguously includes the kinds of garbage that Yolo is passing off on its citizens by charging $7.50 to make a photocopy of a one-page public document. In that way, it parts ways with D5’s County of Stanislaus decision, which held that the undefined term was ambiguous and thus needed to be interpreted narrowly in light of the State Constitution’s dictate (in Art. I,
§ 3) that statutes that restrict access to public information must be interpreted narrowly.

Plaintiff also sought fees under the private attorney general doctrine, arguing that, even if it didn’t win, it was the “catalyst” for County lowering its first page fee by $2.65. That theory requires a plaintiff to achieve, to some degree, its “primary objective.” The court here interprets Plaintiffs primary objective as stopping County from including indirect costs, not just any old fee reduction. If that was its objective, it failed and thus did not satisfy the test.


Affirmed.

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