Let’s talk about fees. Fees for filling FOIA requests. Fair fees for filling FOIA requests.
Am I sounding too Dr. Seuss-like? Well, sometimes the fees I see some state and local agencies charge to fill requests for public records do resemble some sort of fantastical, tongue-twisting scenario only the late children’s fabulist could concoct.
Here’s the latest one to grab my attention. A requester will be billed:
- $.02 per page for 300 pages. Check.
- $9.85 per hour for two hours for one government official to search for records. Check.
- $72.12 per hour for a half hour by a government employee to review the records. Ehhhh….check. Sort of.
- $155.00 per hour for eight hours for another government official to search for records. Uh oh! The Grinch just stole Christmas.
(BTW, that last hourly rate works out to an annual salary in the neighborhood of $322,400.)
Virginia’s FOIA allows the government to “make reasonable charges not to exceed its actual cost” for searching for, accessing, duplicating and otherwise supplying requested records.
That’s pretty vague, but it is generally agreed that the government can include the cost of the copies themselves (toner & paper), as well as the labor involved. Most localities I’ve seen, like the one noted above, will charge different hourly rates based on the different people involved in processing a request, like a clerk, or a manager or a county attorney. All have increasingly higher salaries among them and, consequently, higher hourly rates that will be passed on to the requester.
Sometimes questions arise like, “Did the county attorney really have to review those records? Couldn’t someone at a lower pay rate review them?” This is the question swirling around Beckley, W.Va., where a county hired a Charleston to come in and review payroll and meeting minutes requested through a state FOIA.
Missouri has partially dealt with this issue by saying in its public records statute that the “hourly fee for duplicating time [is] not to exceed the average hourly rate of pay for clerical staff of the governmental body.”
Every state has a different approach to fees. (For a quick comparison of the states’ laws, go to the Reporters Committee for Freedom of the Press’ Open Government Guide). Some are brief and vague, like Virginia’s. Some are long and detailed, with built-in fee schedules for different types of services. In Indiana, the Department of Administration sets a schedule of fees for all state agencies.
Lots of states, like Virginia, refer to the actual cost or the direct cost of filling the request. Idaho notes that labor and administrative expenses are considered part of the public business already funded by the taxpayers.
Some states, like Florida and Nevada, stick to per page fees, e.g., $.25, that incorporate labor charges. Florida does allow, however, for an extra labor charge for requests that take particular information technology skills.
Texas won’t allow labor charges to be imposed for the first 50 pages of records provided, Maryland won’t allow labor charges for the first two hours of searching and Illinois won’t allow any charges if the request isn’t responded to within the proscribed time limit.
In Alaska, Kentucky and Oklahoma, commercial users of FOIA (companies) can be charged more than citizen users.
Approximately 20 states have a built-in fee waiver provision that says fees can be waived if the requester is indigent or if release of the records is within the public interest. Others, like Virginia, do not prohibit waiving the fee, but do not create a specific mechanism to deal with it.
Fifty states. Fifty variations.
There are pros and cons of each and every way. And like so many different aspects of public records laws, all depend more on their implementation than on their exact statutory wording. A state or local government that embraces open government will frequently provide records for free, regardless of what his or her state’s fee provisions state. On the other hand, those who resist the sunlight will find ways to nickel and dime every request. An unreasonably high bill is as effective a denial of records than citing an exemption.
The Virginia FOIA Council has some great guidance for government and citizens on what Virginia law does and doesn’t say, and makes some recommendations for government on how to best handle assessing fees. The publication, “Taking the Shock Out of Charges” can be found on their website.
In Virginia, I’d like to see a few things:
- fee schedules that standardize fees, that are posted prominently on websites and clerks’ offices and are regularly reviewed to update for any increases or decreases in expenses;
- for labor charges, charging the hourly rate of the lowest-paid employee capable of performing the task;
- not passing the cost of poor records management (hard to find or access records) on to the requester;
- no labor charges for the time spent redacting material (the exemptions allowing for redactions are discretionary, not mandatory); and
- no charges for searches that do not turn up any responsive records.
What are your FOIA fee stories, and what changes to the law (or its implementation) would you like to see?