When it comes to providing records, government agencies have flexibility to determine the fees they’ll charge curious citizens or journalists for producing paper copies.

But that’s not the case when the records are in an electronic format, an appeals panel ruled earlier this week.

In an opinion authored by Justice Robert D. McLaren, a unanimous 2nd District Appellate Court ruled Monday that a county assessor could charge no more than the cost of the compact disc the requested records were copied to.

The decision affirmed an earlier ruling by 17th Circuit Judge J. Edward Prochaska.

Rather than charging thousands of dollars pursuant to language in Section 9-20 of the Property Tax Code that allows the office to ask a “reasonable fee” for records, the three-judge panel said the office must abide by the Freedom of Information Act.

Section 6(a) of that statute limits charges for electronic records to “the actual cost of purchasing the recording medium, whether disk, diskette, tape or other medium.”

The court noted that before the act was amended a few years ago, the assessor may have been within legal bounds to charge the original fee.

“Although Section 6(b) of the FOIA still allows agencies to rely on another statute, such as the Property Tax Code, to charge a fee in excess of the cost of production for paper records, Section 6(a) now governs electronic reproductions. And, in doing so, it has narrowed the exception to the cost-only rule,” McLaren wrote.

Before the law was changed, McLaren wrote, the assessor — in this case Winnebago County Deputy Supervisor of Assessment Brenda Suhr — could have charged a fee because the Property Tax Code generally provided for a reasonable charge to produce records.

However, “[a]fter the amendment, to enable assessor offices to escape Section 6(a)’s cost-only rule for electronic records, there must be a statute that expressly provides that the assessor may charge fees ‘applicable to copies of public records when furnished in a paper format,’ ” McLaren wrote.

The assessor argued that the language in the Property Tax Code is, in fact, express permission to charge her own fee.

The court disagreed, calling her argument “a non sequitur.”

“Section 9-20 simply does not contain this express provision. The first paragraph authorizes, but does not require, assessors to keep records in electronic form exclusively. It does not expressly authorize them to charge more than cost for the electronic production of these records,” McLaren wrote.

“The second paragraph authorizes assessors to charge reasonable fees for providing records. It does not expressly authorize them to charge the same fees for electronic records as they may charge for paper records.”

The case stemmed from an attempt by Sage Information Services, a national company that obtains public real estate assessments for its clients, to get the property assessment file for all of Winnebago County.

Suhr, who is also the county’s FOIA officer, responded by saying the company would have to pay $6,290 for the file.

Noteworthy: Sage and owner Roger W. Hurlbert were also plaintiffs in the 2013 U.S. Supreme Court case McBurney v. Young.

In that case, the nine justices determined a state could limit its open record laws to apply solely to citizens of that state.

Donald M. Craven, owner of Donald M. Craven P.C., represented Sage Information Services.

He could not be reached for comment.

Winnebago County State’s Attorney Joseph P. Bruscato and Assistant State’s Attorneys Charlotte A. LeClercq and David J. Kurlinkus represented Suhr in the appeal.

They also could not be reached for comment today.

The case is Sage Information Services and Roger W. Hurlbert v. Brenda M. Suhr, No. 2-13-0708.