January 25, 1995
Mr. William R. Gilkeson Staff Attorney, Research Division Legislative Services Office North Carolina General Assembly 300 N. Salisbury Street Raleigh, North Carolina 27603-5925
Re: Advisory Opinion; Cost of Voter Registration Records; N.C. Gen. Stat. § 163-82.10(b)
Dear Mr. Gilkeson:
This is in response to your memorandum of December 20, 1994, in which an advisory opinion was requested on the following questions:
- What factors should be included in the determination of cost when former N.C. Gen. Stat. § 163-66 referred to the authority of the county board of elections to require a recipient of voterregistration data "to make full reimbursement for expense incurred in preparing it"?
- When N.C. Gen. Stat. § 163-82.10(b), superseding N.C. Gen. Stat. § 163-66 on January 1, 1995, refers to "actual cost," should the same factors be used in making the determination of an amount that were used in Question #1? If not, what factors should be used?
- Who is authorized to make the determination in N.C. Gen. Stat. § 163-82.10(b) of what is "actual cost"?
- N.C. Gen. Stat. § 163-66 has been repealed effective January 1, 1995, by 1994 N.C. Sess. Law Ch. 762, sec. 1. In an advisory letter dated March 31, 1993, my view was that the phrase "full reimbursement for expense incurred in preparing [the list of registered voters]" was limited to the "actual costs of producing" either printed copies of lists or computer disks or tapes of the lists. The phrase "actual costs" was not further defined. The new statute has incorporated the phrase "actual costs" in its provisions. Consequently, it is our opinion that the wording of N.C. Gen. Stat. § 163-66 and the earlier opinion letter are essentially incorporated into the new statute. The remarks that follow as to the new statute would have applied to the old statute as well.
- The newly enacted N.C. Gen. Stat. § 163-82.10 deals with registration records. Public access to registration records maintained by county boards of election is provided for in Subsection (b). Access by state and county chairs of recognized political parties is covered in Subsection (c) where recognized political parties are entitled to free lists. The provisions applicable to political parties are not relevant to members of the general public. Subsection (b) provides that "[t]he county board shall require each person to whom a list is furnished to reimburse the board for the actual cost incurred in preparing it . . . ." (emphasis added)
Cost has been defined as "the amount [of money] spent in producing or manufacturing a commodity." Webster’s New World Dictionary, Second College Edition (1972). This definition does not, however, give the elements that make up a general cost, much less actual costs. There is no direct statutory or case law in North Carolina that defines "actual costs" when used in the context of the statute under consideration.
Guidance is furnished, however, by the analogous situation of permissible fees that may be charged by custodians of other public records. Fees and costs that may be charged by custodians of public records who furnish certified and uncertified copies of public records in general have been discussed by David M. Lawrence of the Institute of Government in a book entitled: "Interpreting North Carolina’s Public Records Law." In the course of this discussion, it was said:
A fee may also be charged when the custodian furnishes uncertified copies of public records, whether the record is a simple document or a computer tape. Again with the registers of deeds’ fee schedule as a guide, the fee should "bear a reasonable relation to the quality of copies supplied and the cost of purchasing and maintaining copying equipment." [N.C. Gen. Stat. § 16110(11)] This standard allows recovery of the actual costs of reproduction. But the standard refers only to the equipment costs and the quality of copies; probably there should be no recovery of the cost of labor incurred in making the copies.
Lawrence, Interpreting North Carolina’s Public Records Law, p. 19 (1987) (emphasis added).
In the light of this authority, it is our opinion that the "actual costs" recoverable by local boards of election would include the price paid for the paper used if printed lists are provided, the price paid for the ink used to print paper lists and the price paid for the blank disk or tape for data supplied in that manner. This type of cost is often referred to as "out-of-pocket costs."
Along the lines suggested by Lawrence, labor costs should not be included because these costs are present whether or not the employee is performing a reproduction task or some other task. By the same reasoning, estimated depreciation costs, estimated wear and tear on equipment, estimated costs of electricity, estimated heating or air-conditioning costs, prorated space rental costs and other fixed but allocated costs should not be included because they are incurred whether or not copies are made.
3. It has been the consistent opinion of the lawyers on the Attorney General’s Staff who have represented the State Board of Elections that county boards of elections are independent agencies which are not subject to control or supervision by the county commissioners or their staff. E.g., Ltr. of 23 June 1981 to George G. Cunningham, Wilkes County Attorney, from James F. Bullock, Senior Deputy Attorney General ("The County Board of Elections is not a county board in the usual sense, and that board is not subject to the County Board of Commissioners except as to funding of its budget for the ensuing fiscal year.") Although the county boards of election are independent agencies, they are funded by the county and the better practice would be for a designated representative of a county board to confer with the appropriate county official to arrive at a consensus as to what constitutes actual costs. However, since the county board is an independent agency, it is our opinion that it makes the determination of "actual costs" associated with providing lists in the event the county officials and the board cannot agree.
Any money collected by a county board of elections should be returned to the county because the county provides the money for the local boards of elections. This view is consistent with the past informal, written but unpublished opinions of our office which have held that any money collected by county boards of election are to be delivered to the county and placed in the general fund.
In summary, our opinion is that the "actual costs" for producing copies of registration lists are basically the "out-of-pocket" costs incurred for that one, limited function and the county boards of election can make the determination of what are its "actual costs" after consultation with the appropriate county official.
Ann Reed Senior Deputy Attorney General
Charles M. Hensey
Special Deputy Attorney General