WALTER B. SMITH, )
vs. ) CASE NO. 78-1946RX
Respondent. )
This cause came on for final hearing on Petitioner's challenge to the validity of Respondent's Rule 22-1.115, Florida Administrative Code, pursuant to Section 120.56, Florida Statutes.
For Petitioner: Randall O. Reder
For Respondent: David V. Ferns, Esquire
At the time of final hearing Respondent moved to dismiss the Petition.
After hearing argument of counsel, the motion was denied.
Having considered the testimony, evidence, and memoranda filed by the parties the Hearing Officer enters the following:
The Petitioner and a business associate formed a partnership for the purpose of publishing an administrative reporter. In pursuit of that purpose the Petitioner's partner, in October, 1978, requested from the Division of Personnel, Department of Administration, (hereinafter referred to as "Respondent") copies of several Career Service Commission orders. On October 16, 1978, Petitioner's partner received a packet from Respondent containing the requested orders. The orders totaled 183 pages for which Petitioner and his partner were charged fifty cents a page. Petitioner paid Respondent $91.50 for the copies.
The charge of fifty cents a page was assessed by Respondent pursuant to its Rule 22-1.115(1), Florida Administrative Code.
It was undisputed at the final hearing that the actual cost of the materials, rental on the copying machine, and the cost to Respondent of its
service agreement on the copying machine was less than two cents per page copied.
One of Respondent's employees expended time in pulling the requested orders from the files and copying the orders pursuant to the request. The employee did not record nor clearly remember how much time she spent responding to the request for copies. On the evidence presented it is reasonable to conclude that the employee expended one hour of time at the rate of $6.95 per hour, and two hours of time at the rate of $4.63 per hour.
Petitioner paid the $91.50 charqe by warrant. Respondent's fiscal officer testified that he did not have at head the cost to Respondent of processing a warrant but he roughtly estimated that cost to be $5.00.
The cost items set forth in paragraphs 3, 4, and 5 above are the only elements of the cost of copying for which Petitioner or Respondent could establish a firm dollar value. These elements total $24.87 for the 183 copies. Respondent charged Petitioner $91.50 for the 183 copies.
The Respondent presented evidence showing that there are many indirect, "incalculable" costs attributable to the production of copies of public documents pursuant to a request from a member of the public. As examples of these "incalculable" costs Respondent referred to state auditing procedures; budgeting procedures; administrative hearings, such as the instant proceeding; bookkeeping required by the Comptroller's office and Treasurer's office; the cost of obtaining legal opinions; the cost of space for the copying machine; and the cost of electricity for the copying machine. Respondent's witnesses testified that these costs are "incalculable" and therefore have to be estimated. No evidence was presented which would establish that but for the necessity of providing copies to the public these "incalculable" costs would not be incurred. On the contrary, the evidence indicated that these "incalculable" costs would, in large part, be incurred by the agency in the pursuit of their responsibilities without regard to providing the public copies of public records.
Respondent's evidence established that, with regard to the challenged rule, these "incalculable" costs were estimated by the Secretary of the Department of Administration and several of his division directors, including the State Budget Director and the State Personnel Director. No evidence was presented to show that these persons had the benefit of any formal or informal estimate or study of these "incalculable" costs. No evidence was presented to establish that these persons made an attempt, beyond their discussion of the matter at a meeting, to accurately and finitely estimate these "incalculable" costs. Other than the fact that these persons occupied senior management positions in State government, no evidence was presented which would establish their expertise or experience in estimating the "incalculable" costs appurtenant to copying public records pursuant to requests from members of the public.
No evidence was presented which would establish that the price of fifty cents for the first copy of each page and twenty cents for each additional copy of each page, set forth in Rule 22-1.115(1), Florida Administrative Code, is based on any accounting study or other detailed inquiry into the cost of providing, to the public, copies of public records. Those elements of that price for which known dollar amounts have been established include the costs of the machine, which total less than two cents per copy; the cost of labor involved to produce the copies, which in this case has been established to be
8.86 cents per copy; and the cost of processing the payment warrant, which in
this case has been established as 2.7 cents per copy. These identifiable costs with regard to the instant case total approximately 13.6 cents per copy.
Respondent argues that the other 36.4 cents charged per copy are accounted for by the above-referenced "incalculable" costs which have been estimated without benefit of any studies as heretofore mentioned.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over this cause. Section 120.56, Florida Statutes.
Rule 22-1.115, Florida Administrative Code is a "Rule" as defined in subsection 120.52(14), Florida Statutes. Petitioner has shown that he is substantially affected by the subject rule.
Petitioner does not challenge the authority of Respondent to adopt a rule establishing the price to be charged the public for copying public records. Rather, Petitioner argues that Respondent exceeded its authority by adopting a rule which establishes a price for copies which exceeds the cost to the agency of that copy. Subsection 120.53(2), Florida Statutes, provides that:
Each agency shall make available for public inspection and copying, at no more than cost:
All rules formulated, adopted, or used by the agency in the discharge of its functions.
All agency orders.
A current subject-matter index, identifying for the public any rule or order issued or adopted after January 1, 1975.
The pertinent portion of Respondent's Rule 22-1.115 Florida Administrative Code, reads:
Photocopying of any record will be performed upon request of any person on the basis of the following charges which are computed as covering the actual cost of personnel, material, and machine costs involved:
(1) Fifty (50) cents for the first copy of each page and twenty (20)
cents for each additional copy of the same page.
Clearly, subsection 120.53(2), Florida Statutes, with regard to the three categories of public records in subsections (a), (b), and (c), requires that the public be charged no more than the cost to the agency of reproducing those documents. Respondent's rule, which applies to any public record, not just those three enumerated above, states that the charge is computed on the basis of the "... actual (emphasis added) cost of personnel, material, and machine costs involved ..." It then establishes a price of fifty (50) cents for the first copy and twenty (20) cents for each additional copy of the same page. It is interesting to contrast the language of the rule, "actual cost" etc., to the argument of Respondent in this cause that in addition to the three named cost items there are significant and "incalculable" costs which have also been
included in the price of fifty cents and twenty cents. On the face of Respondent's Rule it would appear they have established the cost by considering only those items of actual cost referred to in Paragraphs 3, 4, and 5 of the Findings of Fact above. However, the evidence in this cause establishes that if such were the case, the price per copy would be less than fourteen (14) cents per copy. In fact Respondent says that it has included in its price those other "incalculable" costs bringing the price to fifty (50) cents per copy.
The statute is clear. The agency may charge no more than its cost. Certainly that cost includes the actual cost of personnel, material, and the machine with its maintenance. That cost might also properly include the "incalculable" costs, but such has not been established here. There exists a serious question whether an agency could include as a cost to the public for copying documents at public request, those elements of cost which an agency would incur even if it did not provide copies of public documents to the public. The "incalculable" costs referred to in this cause would seem, in large part, to fall in that category. It is not necessary here, however, to decide that question.
The actual cost to Respondent, in this case, of personnel, material, and the copying machine is approximately 13.6 cents per page. While the additional 36.4 cents per page which Respondent's Rule requires be charged may represent a chargeable cost incurred by the agency, such a conclusion is speculative and not supported by any competent substantial evidence. The evidence in this cause establishes the identifiable actual costs involved in copying and they are significantly less than fifty (50) cents per copy. It further establishes that, because of its speculative nature, the price of fifty cents and twenty cents set forth in the subject rule has no demonstrated reasonable relationship to the actual cost incurred by Respondent in providing copies of public records to the public. Thus, the establishment by rule of a price of fifty cents for the first copy of each page and twenty cents for each additional copy of the same page exceeds the authority granted the agency by the Legislature in Section 120.53(2) Florida Statutes with regard to the three items of public records set forth in subsection 120.53(2),(a), (b) and (c).
Rule 22-1.115(1), Florida Administrative Code, is an invalid exercise of delegated legislative authority as it is applied to all rules formulated, adopted, or used by the agency in the discharge of its functions; to all agency orders; and to a current subject matter index, identifying for the public any rule or order issued or adopted after January 1, 1975.
DONE and ORDERED this 7th day of February, 1979, in Tallahassee, Florida.
CHRIS H. BENTLEY, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
Randall O. Reder David V. Kerns, Esquire
546 Oakland Avenue Room 530 Carlton Building Tallahassee, Florida 32301 Tallahassee, Florida 32304
