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California Public Records Research, Inc. v. County of Alameda

California Court of Appeals, First District, Fifth Division

July 22, 2019

CALIFORNIA PUBLIC RECORDS RESEARCH, INC., Plaintiff and Respondent,
v.
COUNTY OF ALAMEDA, Defendant and Appellant.

          Alameda County Superior Court No. RG14740491. Hon. James P. Cramer; Hon. Kimberly E. Colwell Judge.

          Donna R. Ziegler, County Counsel, Farand Kan, Deputy County Counsel; Porter Scott, John R. Whitefleet and Thomas L. Riordan for Defendant and Appellant County of Alameda.

          Donald W. Ricketts for Plaintiff and Respondent California Public Records Research, Inc.

          JONES, P. J.

         We consider a county's exercise of its statutorily delegated discretion to set fees for copies of official records. Government Code section 27366 provides that the fee “shall be set... in an amount necessary to recover the direct and indirect costs of providing the product or service.”[1] In 2010, the Alameda County Board of Supervisors (the County) adopted an ordinance charging $3.50 per page for copies of official records from the Clerk-Recorder's Office. In 2014, California Public Records Research, Inc. (CPRR) filed a petition for a writ of mandate under Code of Civil Procedure section 1085 arguing the fee violated section 27366. In 2017, the trial court granted the petition.

         In these consolidated appeals, the County challenges the order granting the petition, the court's subsequent issuance of a preliminary injunction against the County, and its award of attorney fees to CPRR. We reverse the order granting the petition. First, CPRR fails to establish the County's calculation of recoverable “indirect costs” violates section 27366. Second, the County did not act arbitrarily, capriciously, or otherwise abuse its discretion when it determined that charging $3.50 per page was necessary to recover the direct and indirect costs of making copies. Because we reverse the order granting the petition, we also vacate the subsequent orders granting a preliminary injunction and awarding attorney fees to CPRR.

         FACTUAL AND PROCEDURAL BACKGROUND

         We summarize the facts relevant to the issues on appeal. We provide additional factual and procedural details in the discussion of the parties' specific claims.

         I. The Clerk-Recorder's Office

         The Clerk-Recorder's Office processes and maintains the County of Alameda's public records, including documents affecting real property, business records, and vital records, such as marriage, birth and death certificates. The office maintains approximately 300 different types of recorded documents in both digital and microfilm formats. The office is required to maintain these records so that copies can be made available when requested. There are numerous costs associated with this service, including the costs of storage and maintenance of recorded documents on microfilm, and the costs associated with digitalization, salaries and benefits of employees.

         II. The County's Adoption of the Ordinance Increasing Fees for Copies

         On June 23, 2010, the County adopted an ordinance increasing various fees charged by the Clerk-Recorder's Office, including an increase of the fee for copies of records from $1.50 per page to $3.50 per page. The County's decision was based on fee studies conducted in 2009 and 2010. As explained in a declaration, “The methodology of the [2009] Fee Study calculated Alameda County's direct and indirect costs and reduced them to the total cost of duplicating each page.”

         With regard to direct costs, the County based its calculation on the salary and benefits of an “Auditor Associate III (now known as Clerk-Recorder Specialist III).” This position is the one that “most commonly performs copies of Official Record documents.” The average time to process a page was 2.68 minutes per page, which included retrieving print requests, inputting data, and, for pre-1969 documents, retrieving the document from the microfiche. The average salary per minute of an Auditor Associate III was $0.53. As a result, the average direct salary cost to the County to make copies on a per page basis was $1.42 (2.68 minutes times $0.53). The County also factored in the cost of paying benefits to these employees.

         The indirect costs of providing copies included the salaries and benefits of administrative staff and management, services and supplies for the Clerk-Recorder's Office, and “ ‘County Indirects,' ” which included “costs to the Clerk-Recorder's Office arising from other County departments.” Other indirect costs included the costs of “equipment maintenance, modular furniture, other professional services, data processing services and supplies, systems development supplies, alarm services, mail/postage charges, messenger services, county facility use charges, intra fund, and indirect costs from the county wide cost plan.” The County also included the cost of regular paper. Based on these direct and indirect costs, the total cost to the County to copy a recorded document was calculated at $3.60 per page, which is 10 cents more than the amount the County decided to charge for copies.

         In 2010, the County conducted a second fee review “in anticipation of the fee increase ordinance.” This fee review “found a per minute cost of $4.08” per page, based primarily on “increases in salary and benefits costs in the intervening year.” Nonetheless, the County kept the proposed fee for copies of official records at $3.50 per page. In addition, the County conducted a comparison with the fees charged by neighboring counties, and found their fees “ranged from $1.00 per page to $7.00 per page, with Alameda County's $3.50 proposed rate falling squarely within this range.”

         III. CPRR's Legal Challenge to the Ordinance

         In September 2014, CPRR filed its writ petition alleging the County's fees for copies of recorded documents “recoup[ed] costs in excess of those permitted by [section]... 27366.” CPRR is a “non-profit, public-benefit corporation.” It is “organized to promote the public interest by seeking to reduce the costs of government and to provide education and information regarding governmental activities.” In 2014, CPRR purchased a copy of a document from the County's Clerk-Recorder's Office and was charged $3.50 per page, “the fee in effect at the time, and presently.”

         In its first cause of action, CPRR accused the County of violating its mandatory duty under section 27366 to limit fees for copies to an amount that does not exceed direct and indirect costs. In its second cause of action, CPRR contended the fee was an unconstitutional tax. CPRR sought the issuance of a writ directing the County to collect fees “limited to recoupment of, only, the costs of paper, ink and toner to print and copy the documents; the photocopier used to make the copy and the cost of its operation and maintenance; the salary and benefits of the person making the copy; and costs necessarily associated with the retrieval, inspection, redaction and handling of the document being copied.”

         In January 2015, the County filed its answer. In May 2015, CPRR filed a memorandum in support of the petition. In opposition, the County explained the fees were based on cost studies conducted in 2009 and 2010. After supplemental briefing, the court held a hearing on the petition in April 2017.

         IV. The Trial Court's Order Granting the Petition and ...


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