The Public Records Act doesn’t adequately address technology advances like scanning and commonly refers only to “copies” or “photocopies”. The PRA requires an agency to establish and make available for inspection a statement of its actual per page costs or other costs. RCW 42.56.070(7). In determining it’s actual per page cost, an agency may include staff time which is “directly related to the actual cost of copying the public records”. RCW 42.56.070(7)(b).
The Attorney General has adopted “model rules” for compliance with the Public Records Act. The model rules address all aspects of compliance including how to charge for scanning paper copies into electronic copies.
The AG’s model rules are non-binding but many appellate court decisions have cited to the AG’s model rules. They are considered persuasive since they are based on case law and best practices. There are two parts to the model rules. The sections which end in three digits (WAC 44-14-070) are language that an agency could adopt as its own rule. Agencies can modify the language, or adopt some, all, or none of the model rules for their use. The sections which end in five digits (WAC 44-14-07003) are comments that explain the model rules.
This is the language from the model rules that might be adopted as an agency rule:
Costs of providing copies of public records.
(1) . . .
(2) Costs for electronic records. The cost of electronic copies of records shall be (amount) for information on a CD-ROM. (If the agency has scanning equipment at its offices: The cost of scanning existing (agency) paper or other nonelectronic records is (amount) per page.) There will be no charge for e-mailing electronic records to a requestor, unless another cost applies such as a scanning fee.
This is the comments to the model rule which explains charging for scanned copies:
Charges for electronic records.
Providing copies of electronic records usually costs the agency and requestor less than making paper copies. Agencies are strongly encouraged to provide copies of electronic records in an electronic format. See RCW 43.105.250 (encouraging state and local agencies to make "public records widely available electronically to the public."). As with charges for paper copies, "actual cost" is the primary factor for charging for electronic records. In many cases, the "actual cost" of providing an existing electronic record is de minimis. For example, a requestor requests an agency to e-mail an existing Excel¦ spreadsheet. The agency should not charge for the de minimis cost of electronically copying and e-mailing the existing spreadsheet. The agency cannot attempt to charge a per-page amount for a paper copy when it has an electronic copy that can be easily provided at nearly no cost. However, if the agency has a paper-only copy of a record and the requestor requests an Adobe Acrobat PDF¦ copy, the agency incurs an actual cost in scanning the record (if the agency has a scanner at its offices). Therefore, an agency can establish a scanning fee for records it scans. Agencies are encouraged to compare their scanning and other copying charges to the rates of outside vendors. See WAC 44-14-07001.
While the AG’s model rules provide an agency a template for adopting a rule to charge for scanning, the agency must still comply with RCW 42.56.070(7) and “establish, maintain, and make available for public inspection and copying a statement of the actual per page cost or other costs” which include charges for scanning. The statement must be detailed and explain the “factors and manner used to determine the actual per page cost or other costs”. RCW 42.56.070(7).
An explanation of the factors used to determine an agency’s actual scanning costs can be simple. How long does it take an agency employee to scan paper into electronic copies? Use an employee who is likely to be assigned the task of copying (not the supervisor or director of the agency). If the employee is paid an hourly wage, then divide the wage by the time it takes to fully scan all the documents. (Example: An employee with an hourly wage of $10 per hour scans 10 two sided pages in five minutes. A total of 20 copies of electronic pages are produced. Five minutes is worth 83 cents of the employee’s wage. Eight-three cents divided by 20 pages is approximately four cents per page of scanned electronic copies. In this example, the agency should charge a flat four cents per scanned page for electronic copies.) Some agency scanners will be faster which reduces the actual staff time and cost to the agency. Other scanners will be much slower and increase the actual staff time and cost to the agency. An agency may not charge more than its actual costs directly related to copying. However, an agency’s fixed fee for scanning may be based on reasonable assumptions of use of staff time and equipment and does not need to be recalculated for each response. Some agencies with internal document services have already established fixed scanning fees that are charged back to the other divisions of the agency, and those charges could be the basis of the scanning fee to the requester.
Typically, the costs of providing electronic copies is cheaper for the agency than providing paper copies even where an agency scans paper into electronic. This is a savings to the agency and the citizen.