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Our library (state university in California) charges non-university-system and non-academically affiliated users $38.00 per hour to use our archival collections. The fee was carefully calculated by our CFO. It is supposed to fund us for general reference. How can we charge the public for using collections largely built on by tax dollars? Is this legal and ethical? What if donors refuse to donate papers and records because of this restriction? We have not received legal challenges although our staff has taken verbal abuse for it.

Tami Suzuki

Back to List of Legal Questions To: Requestor From: Tami Suzuki RE: Use Fees

The question: Our library (state university in California) charges non-university-system and non-academically affiliated users $38.00 per hour to use our archival collections. The fee was carefully calculated by our CFO. It is supposed to fund us for general reference. How can we charge the public for using collections largely built on by tax dollars? Is this legal and ethical? What if donors refuse to donate papers and records because of this restriction? We have not received legal challenges although our staff has taken verbal abuse for it.

Encyclopedic Resources: Beginning with Cal Jur 3d, under Universities and Colleges, Section 120, Tuition and Fees: Authority of trustees to require certain fees is contained in Deering Education Code Section 89700.

Statutory Resources: Using the digest for West Annotated California Under Fees, I was referred to Education Section 89700. (I actually started here, then went back to Cal Jur 3d to check for any other references.)

• Education, Section 89700, Fees, rents, deposits and charges; collection and refund; memorandum of understanding, states:
  • "(a) The trustees may by rule require all persons to pay fees, rents, deposits and charges for services, facilities or materials provided by the trustees to such persons. The trustees may, by rule, provide for the method of collecting such fees, rents, deposits, and charges collected in error or collected for facilities, services, or materials not utilized."
  • (b) (Paraphrased) If the provisions of this section are in conflict with the provisions of a memorandum of understanding reached pursuant to Chapter 12 of Division 4 of Title 1 of the Government Code, the memorandum shall be controlling without further legislative action.
• A review of this reference reveals there is no conflict.
  • Under Authority to establish fees, West refers to 5 Cal. Code of Regs. 43860.
  • Notes of Decisions refers to 53 Ops. Atty. Gen. 182, 5-6-70. "The board of trustees of state colleges may not impose any tuition fee (limited to $25 per year) in excess of the existing materials and services fee for resident students if a substantial portion of that fee is already used to meet instructional expenses." The use fee is not a tuition fee.
  • California Code of Regulations, Title 5, Section 43860, says under Article 3, Authority to Adopt New Rules, Orders and Procedures, Delegation of Authority: "The Chancellor or designee is authorized to adopt such rules, orders, and procedures as may be necessary or appropriate to carry out these guidelines, including but not limited to:...(c) Establishing fees pursuant to Education Code Sections 90500 and 89700, Public Resources Code Section 21089 and the Statewide Guidelines..."

Law Review Articles: No articles were found on LEXIS.

American Library Association (ALA) Code of Ethics (1995), item I, states, "We provide the highest level of service to all library users through appropriate and usefully organized resources; equitable service policies; equitable access; and accurate, unbiased and courteous responses to all requests."

Society of American Archivists (SAA) Code of Ethics (1992), paragraph 1, states, "Archivists perform their responsibilities in accordance with statutory authorization or institutional policy." The code also says, "Archivists...encourage use of them to the greatest extent compatible with institutional policies preservation of holdings, legal considerations, individual rights, donor agreements, and judicious use of archival resources."

In summary, the use fees go against both the ALA Code of Ethics, however, the university can legally charge such fees. No cases have addressed this question. Im sure donors will take a hard look at this issue when they consider homes for their archives, when, for instance, Stanfords Hoover Institution does not charge use fees and opens its archives to the public. I couldnt find anything on use fees from the donors point of view, however, I think there could be a challenge here, if not in the courts, through donors' decisions to withhold their donations and/or send them elsewhere.

Back to List of Legal QuestionsLast Updated: October 15, 1998