Can a court or clerk assess a fee for sending a document via facsimile?
Several times each year the Division is asked whether a clerk or court can assess a fee for sending a document via facsimile. There is a statute that authorizes a public agency, which includes the judicial branch according to I.C. 4-13-1-1, to collect a facsimile fee provided it is authorized by a statute or court order. See I.C. 5-14-3-8(f). In addition, there is a statute that requires deposit of all facsimile fees collected in the Clerk’s Record Perpetuation Fund. See I.C. 33-37-5-2(a)(1). However, these two statutes alone do not authorize assessing a fee for sending a document via facsimile. As I.C. 5-14-3-8(f) indicates, there must be a statute or court order authorizing this fee.
Can a court use a Standing Court Order to authorize this fee?
Since no such statute exists, can a court use a standing order to enact a fee for transmitting a document via facsimile? No. Indiana Trial Rule 81(A) prohibits the use of a standing order for local court or administrative district practices. Local fees are included within the scope of local court practices. However, a court may order a facsimile fee in an individual court case.
Can home rule be used to enact a local court rule authorizing this fee?
No. The General Assembly has stipulated that a facsimile fee may only be authorized by statute or court order. Courts are not authorized to invoke Home Rule, which declares that it is the policy of the state to grant units all the powers that they need for the effective operation of government as to local affairs. See IC 36-1-3.
What amount can be assessed for sending a document via facsimile?
I.C. 5-14-3-8(d) limits fees to “actual costs” if established by public agencies (this includes the judicial branch). Actual costs are defined as “the cost of paper and the per-page cost for use of copying or facsimile equipment. It does not include labor costs or overhead costs.” While I.C. 5-14-3-8(d) does not seem to control a facsimile transmission fee specified by statue or ordered by a court, it may be used by a court as guidance. A court may decide that a reasonable fee for transmitting a document by facsimile may be so small as to not be worth ordering.
A fee may be charged for receiving documents via facsimile. Administrative Rule 12 provides specific guidelines for how courts and clerks can receive court documents through facsimile transmission. The guidelines include technical standards for facsimile transmission equipment, for the cover sheet and time of receipt, and for establishing and charging fax fees for these services.