Cal. Pub. Records Research, Inc. v. Cnty. of Stanislaus

• Decision Date: 28 April 2016
• Docket Number: F070601
• Citation: 201 Cal.Rptr.3d 745,246 Cal.App.4th 1432
• Court: California Court of Appeals Court of Appeals
• Parties: CALIFORNIA PUBLIC RECORDS RESEARCH, INC., Plaintiff and Appellant, v. COUNTY OF STANISLAUS, Defendant and Respondent.

246 Cal.App.4th 1432

201 Cal.Rptr.3d 745

CALIFORNIA PUBLIC RECORDS RESEARCH, INC., Plaintiff and Appellant,

v.COUNTY OF STANISLAUS, Defendant and Respondent.

F070601

Court of Appeal, Fifth District, California.

Filed April 28, 2016

Certified for Partial Publication.^*

Donald W. Ricketts for Plaintiff and Appellant.

Porter Scott, Terence J. Cassidy and Taylor W. Rhoan, Sacramento, for Defendant and Respondent.

Jennifer B. Henning for California State Association of Counties as Amicus Curiae on behalf of Defendant and Respondent.

Robert E. Grossglauser III for County Recorders' Association of California as Amicus Curiae on behalf of Defendant and Respondent.

OPINION

FRANSON

, J.

Plaintiff California Public Records Research, Inc. sought a writ of mandate to compel the County of Stanislaus (County) to reduce the fees it charges for copies of official records. Plaintiff alleged the fees of $3 for the first page and $2 for each subsequent page exceeded County's cost of providing the service and, therefore, violated Government Code section 27366

,¹ which states that copying fees "shall be set by the board of supervisors in an amount necessary to recover the direct and indirect costs of providing the product or service...."

The trial court denied the writ, concluding (1) County's board of supervisors did not abuse its discretion in setting the copying fees and (2) the fees did not constitute a special tax requiring voter approval. Plaintiff appealed, contending there is insufficient evidence to support a finding that the fees charged are based on the actual costs of providing the copies. For instance, plaintiff contends there was no evidence showing it costs County $33 to provide a copy of a deed of trust on the standard 16–page form.

The evidence presented shows the board of supervisors based its decision on a 2001 study that estimated staff spent an average of three minutes processing a copy request and further estimated productive staff time cost County about $0.99 per minute. Multiplying these two figures, the 2001 study estimated it cost County an average of $2.97 to process a request for a copy of an official record. Critical to the outcome of this appeal is the fact that the 2001 study and other evidence presented information on a per document basis, not a per page basis. Despite the lack of cost-per-page information, the study recommended charging $3 for the first page copied and $2 for each subsequent page.

The absence of evidence addressing costs on a per page basis and the estimate that it costs County $2.97 to process the average copy request leads us to conclude the record lacks evidence showing that the fees charged per page reflect County's actual costs. Indeed, the information in the 2001 study affirmatively shows it does not take five minutes or cost County $5 to provide a copy of a two-page document. This affirmative showing is coupled with a complete lack of evidence that (1) it takes 15 minutes or costs County $15 to provide a copy of a seven-page document; (2) it takes 45 minutes or cost County $45 to provide a copy of a 22–page document; or (3) it takes over an hour or costs County $61 to provide a copy of a 30–page document.

Accordingly, County's board of supervisors abused its discretion when it set the copying fees. A writ of mandate should issue directing the board to comply with section 27366

by resetting the copying fees "in an amount necessary to recover the direct and indirect costs of providing the [copies]."

We therefore reverse the judgment and remand for further proceedings.

FACTS

1988 Study

In 1988, County commissioned Northern California Research Associates, with Peter Lauwerys acting as principal consultant, to study the actual costs related to certain fees charged by its clerk's office. The 1988 study did not address the costs of providing copies of real property records maintained by the clerk-recorder's office because those fees were fixed by statute at one dollar for the first page and fifty cents for each additional page. (See Stats. 1984, ch. 1397, § 6, p. 4907 [former § 27366

].)

1994 Study

In 1993, the Legislature amended section 27366

to eliminate the fixed copying fees and directed counties to set the fee "in an amount necessary to recover the direct and indirect costs of providing the product or service." (Stats. 1993, ch. 710, § 3, p. 4039.) In December 1993, County hired Government Finance Research (GFR) to conduct a cost recovery and fee study for selected services provided by the clerk-recorder's office, including the cost of providing copies of official records.

In January 1994, GFR completed the study and delivered it to County. The document did not identify the principal consultant or any other person who worked on its preparation. The study quoted the recently amended section 27366

and section 54985, which set forth limits for certain fees not covered by section 27366.

The 1994 study's approach to determining the cost of providing a service was based on time—that is, the average number of minutes taken by staff to provide the service was multiplied by an estimate of the per minute cost of staff time. The study estimated the regular cost for the activities of the clerk-recorder's office at $0.77 per minute of productive time. This estimate included staff salary, overhead costs, indirect costs of supplies and services, supervision costs, administrative support services, building and facilities costs, amortized costs of computers and certain improvements, and inflation.

As to providing copies of official records, the 1994 study found: "An average of 8 minutes (rounded to the nearest minute) is allocated per unit of service, including general and support time. [¶] The cost to the County of processing requests for official copies of records [is] 8 minutes @ $.77 per minute = $6.16." The study also concluded "that additional pages of any document take an average of one minute per document to process and copy," representing a cost to County of $0.77. (Italics added.)² The general process of copying and certifying official records was divided into 12 steps described in Appendix B to the 1994 study. The steps included the clerk asking the customer for the year the document was recorded, the document number or the book and page number; the clerk directing the customer to the appropriate microfiche or tape to search for the document; the customer bringing the microfiche or tape to the clerk after locating the document; and the clerk putting the microfiche or tape into the copy machine.

The 1994 study recommended charging $6 for the first page of a copy of a recorded document and adjusting the fee for each subsequent page from $0.50 to $1. The study also estimated the impact of the new fees on revenue. The revenue on 6,600 first pages duplicated was estimated to increase from $6,600 to $39,600, or a total increase of $33,000. Revenue from copying 23,200 subsequent pages was estimated to increase from $11,600 to $23,200. Consequently, the proposed adjustment to copying charges was predicted to increase revenue by $44,600. The data of 6,600 first pages and 23,200 subsequent pages can be used to calculate that the average length of the documents copied was 4.52 pages (i.e., [6,600 + 23,200]/6,600 documents).

2001 Study

In 2000, County again hired GFR to study the costs related to selected fees charged by the clerk-recorder and to recommend cost recovery and fee adjustments. The study was completed in February 2001 and identified Peter Lauwerys as the principal consultant. The study addressed 16 categories of charges and fees, including the issuance and duplication of marriage licenses, fictitious business name filings, notary bond filings, administrative fees for environmental impact reports, power of attorney filings, and the copying of official records. The study referred to the requirements in sections 54985

through 54987 and mentioned the 1993 amendment of section 27366.

The 2001 study, like the previous study, estimated the cost of a particular service by multiplying (1) the amount of staff time used to provide the service by (2) the cost to County of that staff time. The time figure included an estimate of the average number of minutes needed by staff to provide the service plus an allocation of general and support minutes. The consultant determined the average number of minutes by evaluating tracking forms completed by County's staff, which estimated the time spent performing the tasks involved in providing the service.³ The resulting time figure was multiplied by the cost per minute of productive staff time, which produced an estimated average cost for the service.

The 2001 study updated the per minute estimate of the regular cost of activities of the clerk-recorder's office from $0.77 to $0.99. The formula for estimating costs included eight line items: (1) individual staff salary; (2) County's indirect costs, which were referred to as overhead; (3) indirect costs related to services and supplies;⁴ (4) management and supervision costs; (5) costs accounting and bookkeeping staff services provided to the clerk-recorder's department by County's financial services section; (6) costs of automation, services modernization and improvements, including software and training; (7) the cost of the 2001 study itself;⁵ and (8) lease and utility costs for the clerk-recorder's office not included in the figure for County's overhead. Aggregating these items produced an estimate of $101,287 as the annual costs for a single staff member.

When divided by 1,726 productive hours of time per year, the cost per hour figure was $58.69, which GFR rounded up to $59 per hour and, rounding up again, equated to $0.99 per minute of productive time.

Part IV of the 2001 study was labeled "Cost–Recovery Estimation" and provided cost estimates for the 16 categories of charges and fees addressed. As to copying costs, the study stated that section 23766 allowed "fees for the duplication of official records in order ‘to recover the...