By The Associated Press
March 13, 2015
Some recent developments regarding the cost of seeking access to information:
The state Department of Motor Vehicles estimated a minimum charge of $19,950 in response to an Associated Press reporter’s request last fall to determine whether poor people had their driver’s licenses suspended at a disproportionate rate.
The AP requested the number of suspended driver’s licenses by ZIP code, but the DMV said such a request would require special programming that would take 120 hours, at a cost of $135 per hour. In addition, the department would charge a fee of $750 for up to five hours to search the driver’s license database.
Any results found would be assessed a fee of 10 cents per record, DMV stated in its response.
“The total cost at this time is unknown, as the total number of records responsive to your request would be unknown until the file pass is complete,” the DMV wrote in September. “The total fee for the records would be required to be paid prior to production of the documents.”
The AP sought a meeting with the DMV’s public information and technology staff, but the agency never responded. DMV spokesman Artemio Armenta said the agency does not conduct research for the public and is protected by law from doing so.
The AP submitted a narrowed request and was given a new estimate of $377 for a copy of a statistical report. Ultimately, the AP decided not to pay for the report because it was unlikely to contain a breakdown of license suspensions.
Noting wildly varying fees to access public records in Colorado, a law enacted last year caps research and retrieval fees at $30 an hour. Some agencies, including the state Department of Law, were charging more than twice that, saying attorneys would have to review the releases. Before last July, Colorado law said research fees should be “reasonable and nominal,” but the standard was broadly interpreted.
“We need to give uniformity and predictability to citizens,” said Peg Perl, lawyer for Colorado Ethics Watch, which backed the bill.
Some agencies still charge the public for staff time even to determine how much it will cost to fulfill a records request, however. The Department of Law recently quoted The Associated Press $350 just to determine how much it would cost to see communications with federal authorities regarding marijuana. The agency insists those fees are necessary.
“It’s appropriate to have a conversation with the requestor and make sure they’re prepared to pay the bill” for a hefty request, department spokeswoman Carolyn Tyler said.
Copying public documents in Connecticut courts can be an expensive proposition at $1 a page, a fee set by state law that is double what cities and towns can charge and quadruple the rate collected by state agencies.
The fee can be an obstacle for the thousands of low-income people who use state courts, especially in civil and family cases where the files can run dozens, if not hundreds, of pages.
The dollar-a-page charge dates to 1992, when state lawmakers and Gov. Lowell P. Weicker Jr. signed off on a massive fee increase bill that raised about $15 million during a budget crisis. The fee was increased from 50 cents a page. State law allows municipalities to charge 50 cents a page and state agencies 25 cents a page.
“Providing copies of public records shouldn’t necessarily be a source of revenue for government,” said Colleen Murphy, executive director and general counsel of the state Freedom of Information Commission. “We wouldn’t want the fees to be so high that it discourages access or prevents access.”
State law, however, does allow judges to waive copying fees, but only for people deemed “indigent.” That means anyone receiving public assistance or making an income that is 125 percent or less of the federal poverty level, which is $24,250 a year for a family of four. The public also can view records for free.
Open records advocates say even fees of 25 cents a page can block some people’s access to the justice system.
Jason Parsley, executive editor of the South Florida Gay News, made a public records request last year with the Broward Sheriff’s Office for every email for a one-year period that contained various derogatory terms for gays.
The sheriff’s office told him the request would cost $399,000 and take four years to fulfill. He said the sheriff’s office told him its email system is not capable of searching all accounts simultaneously by typing in key words. He said each employee’s email would have to be searched individually and that the request would require the hiring of a full-time staff person.
Parsley says he has talked to computer experts who disagree and say a modern email system could handle the request easily, but he doesn’t have the money or the time to take the matter to court.
“It would be their word against ours,” he said. “Even if we could pay that amount, it would be four years. What good would that do me at that point, anyway?”
He said if the sheriff administrators’ goal was to keep him from learning that their deputies use such terms, they won.
Broward County Sheriff’s Lt. Eric Caldwell said the department was not trying to be evasive. He said each employee’s email is stored on a tape and kept at a remote archive facility. It has to be retrieved physically and then converted into an Outlook file, which can then be searched.
“If we have it, we have to provide it,” he said. “The reason this cost so much is that this person had a very vague request.”
Indiana lawmakers are considering a bill that — on the surface — aims to simplify school management by cutting obsolete or duplicate regulations in education. But hidden within the bill — which is more than 270 pages long — are major changes to how public records are handled by all types of public agencies, not just schools, sparking mixed reviews from open-record advocates.
The state Senate voted 31-18 in favor of the proposal, sending it to the House. The bill would allow government entities to charge a searching fee for records requests that take longer than two hours to fulfill. After that time, an agency could charge up to $20 an hour and require payment up front.
The search time would not include time spent redacting confidential information, but opponents such as Gerry Lanosga, president of the Indiana Coalition for Open Government, said the fee will discourage more in-depth record requests and give officials another tool to fight transparency.
However, the bill would allow someone to receive records that already are in an electronic format via email. Under current law, an agency can refuse to send electronic copies, forcing a requester to pick up records in person and pay the copying fee.
The Hoosier State Press Association says the benefit of getting records in an easy format outweighs the potential negatives of a search fee; the organization has not opposed the bill.
HSPA Executive Director Steve Key said he doesn’t believe the fee will deter someone from making a large request, but said it could “discourage fishing expeditions where you just want to go through and find everything.”
More specific requests would save time and improve the process for both sides, he said.
In December, the Iowa Public Information Board reluctantly upheld an agency’s decision to charge a nonprofit news outlet more than $2,000 to access mandatory reports about sexual violence against inmates.
The Marshall Project had sought reports that were submitted to the federal government under the Prison Rape Elimination Act from 2004 to 2013. Several states, including some more populous than Iowa, provided them free of charge or for relatively small fees. But the Iowa Department of Corrections said it would take an employee 108 hours to review, redact and copy 2,672 records that were responsive to the request. The agency said it would cost $15 per hour for the employee’s time, plus 15 cents for copies of each page, for a total of $2,020.
Corrections officials said extensive redactions were necessary to protect the identities of victims. But the Marshall Project called the fees excessive and complained to the information board, which was created in 2013 to enforce the open records and meetings law. The group questioned whether the high fees were meant to keep the information from the public.
Board members wondered why Iowa’s fees were so much higher than those in other states and whether excessive fees would discourage public access. But they ultimately dismissed the group’s complaint, concluding that state law clearly allowed agencies to charge requestors to cover the time it takes to make records available.
“This information is extremely sensitive and confidential in the prison environment and goes to the core of the Iowa Department of Corrections’ statutory and legal duty to keep inmates in our custody safe,” said the department’s attorney, Michael Savala, who called the estimated processing time for each case “quite reasonable.”
Charges imposed by government agencies in Kansas for fulfilling records requests sometimes run into the hundreds of dollars. State government agencies regularly demand that people requesting records pay $60 an hour to have attorneys review material and redact it and impose fees to have their information technology staffs search for emails.
For example, the state Department for Aging and Disabilities Services told The Associated Press earlier this month that searching for and providing several years’ worth of emails from the governor and two other individuals related to the state’s Medicaid program would cost $600.
Republican Gov. Sam Brownback’s office in January told The Wichita Eagle that it would have to pay $1,235 to obtain records of email and phone conversations between it and former chief of staff David Kensinger since Kensinger’s departure from the administration in April 2012. Kensinger is now a prominent statehouse lobbyist but remains a Brownback confidante.
State Sen. Jake LaTurner, a Pittsburg Republican, is sponsoring a bill to limit the fees charged by government agencies. Under his legislation, any request that could be fulfilled with an hour or less of staff time and produces less than 25 pages of documents is free. But it would still allow agencies to charge $60 an hour for attorneys’ time and $38 an hour for IT staff time.
In February, lawmakers introduced a bill to update the state Public Information Act. The legislation would establish a compliance board to handle complaints, with its members appointed by the governor. It also would cap the fees agencies could charge the public for complying with records requests and close loopholes in the original law, passed in 1970.
The legislation was filed in the Senate and the House by Democratic lawmakers. They said their goal is to promote transparency, fairness and government accountability.
House Delegate Bonnie Cullison said law enforcement is one of the most important areas for improving transparency and accountability. She also has heard from constituents who ask why some education testing information is not publicly available.
In particular, open government advocates point to the Maryland Department of the Environment, which has a history of requesting sizable fees when it receives requests for information.
Kathy Phillips, executive director of the Assateague Coastal Trust, said she retained the University of Maryland Environmental Law Clinic in 2012 to request 280 comprehensive nutrient management plans. The reports show how the waste from poultry farms and other caged-animal feeding operations is handled.
Phillips said the department wanted $80,000 to comply with the request, claiming labor hours to redact information such as personal emails and phone numbers.
In an emailed statement, department spokesman Jay Apperson said the department receives about 4,000 requests per year under the records act. He said it “does not have the financial resources to provide free staff time beyond two hours to fulfill” them “while still meeting the Department’s legal mandates to protect public health and the environment.”
Michigan Gov. Rick Snyder in January signed what media advocates say is the most significant update to the state’s Freedom of Information Act since it was written almost 40 years ago.
Beginning in July, public bodies will be limited to charging no more than 10 cents a page for copying a public record. Governments can continue charging labor costs to retrieve documents, but the costs will have to be estimated in 15-minute increments and be reduced each day a response is delayed. Public bodies also will have to provide an itemized explanation of fees and will face higher fines for refusing or delaying the disclosure of requested information.
The bill’s Republican sponsor, now-Sen. Mike Shirkey, said there have been more “constructive denials” of FOIA requests, in which exorbitant fees prove to be an outright denial.
“If the fees get excessively high … we need to make sure they are truly warranted and not expensive just for the sake of being expensive,” he said.
Further, those who request records can sue if they believe they are being overcharged. If they prevail and get a fee reduction of at least 50 percent, a court can award them all or a portion of attorneys’ fees and costs. If the public body is found to have acted “arbitrarily and capriciously” in imposing the fees, a judge must fine it $500 payable to the state and can issue an additional fine of $500 payable to the requestor.
Beyond providing protections against excessive fees, the law also punishes agencies that resist releasing their documents. If a government body “willfully and intentionally” fails to comply with the state’s freedom of information law, a judge shall impose a fine of $2,500 to $7,500 payable to the state.
Minnesota law allows government entities to charge for copies requested under the open records law, and the charges can stack up if data-seekers exceed certain thresholds. For requests that consume fewer than 100 pages, the charge is up to a quarter per page. Mailed requests cost extra.
Beyond that amount, the government agency is allowed to tack on fees for employee processing time; some also charge for the employee salaries to retrieve and redact the data. The only workaround is inspecting the data in person, when the fees are waived. But even then, requesting copies of selected documents to take away from the inspection can start the meter running.
Those who request public documents are required to pay all costs of producing records, making money a potential barrier to access.
When The Associated Press requested correspondence and emails relating to cheating on state standardized tests in October 2013, the state Department of Education demanded about $1,305 for staff research and legal review time, plus an undetermined amount, at 25 cents a page, for copies. The AP didn’t pay the fees. It emerged within months that cheating was widespread at a Clarksdale elementary school, after teachers tipped off The Clarion-Ledger newspaper of Jackson.
Last year, Gov. Phil Bryant signed a law that was intended to drive down the cost of staff time for public records requests. It requires that the costs reflect the pay scale of the “lowest-level employee or contractor competent to respond to the request.”
The law’s effect remains unclear.
In September, for example, the Department of Education demanded $2,103 when The Associated Press requested written documents relating to departmental reorganization efforts that had been discussed at meetings and resulted in layoffs. The charge included hourly rates ranging from $33 an hour to $143. When asked about the cost, department spokeswoman Patrice Guilfoyle said only senior department officials could search their own emails for documents. That meant the AP would have to pay hourly rates for the department’s top officials, including the state school superintendent.
In February, the AP paid $15 an hour to have an employee do nothing but watch a reporter for 2 1/2 hours while the reporter examined hundreds of pages of Department of Finance and Administration documents relating to a state building project.
The Legislature is considering a bill supported by municipalities and Las Vegas police that would let government agencies recoup the cost of complying with records requests taking more than 30 minutes to complete. The bill also would implement a charge of 50 cents per page for electronic documents.
Under current law, agencies are allowed to charge 50 cents per printed page and for staff time if an “extraordinary” effort is required to fulfill the request. Because “extraordinary” is not defined, the amounts charged can vary widely.
Senate Bill 28 received its initial committee hearing March 4, although no vote was taken.
A concession proposed by the Nevada League of Cities and Municipalities would reduce the per-page cap to 25 cents for electronic and paper copies. Opponents argued that charging an additional fee for research and redaction would still make documents too expensive for many to obtain.
“The trouble comes when some agencies see it as an opportunity to discourage people from obtaining public documents by jacking up fees as much as possible,” said Barry Smith, executive director of the Nevada Press Association. “I hear from newspapers and reporters that they want to charge for redaction by an attorney at $100 an hour. That can easily run into thousands of dollars.”
The Nevada System of Higher Education, for example, told the Las Vegas Sun that its staff spent 54 hours, at a cost of $5,579, to compile 844 pages of a document sought by a reporter.
Ric Anderson, the newspaper’s managing editor, said administrators agreed to limit the overall cost to 50 cents per page, or $422. The Sun arranged to avoid the cost by having a reporter review the documents at the system’s headquarters in Las Vegas.
In another instance, Clark County charged the Sun $150 for 125 emails from seven county commissioners after a reporter last year asked for communications relating to medical marijuana licensing. Anderson said county officials billed for three hours of work sifting through records, at a cost of $50 per hour.
Nevada has no oversight agency enforcing open records laws, so the only recourse is for a newsgathering agency to go to court. Smith says the possibility of having to pay legal fees also can act as a barrier to access.
Ohio open records law requires government entities to charge only the cost of making a copy, whether it’s a physical photocopy or an electronic one, and prohibits including an employee’s time as part of the cost. The law does allow some exceptions, permitting the state Bureau of Motor Vehicles, for example, to charge $4 for highway patrol accident reports. The law also allows coroners’ offices to charge a “record retrieval and copying fee” of 25 cents a page for records.
Recently, the state’s hiring of private companies or purchase of proprietary software to manage records has led to questions about the appropriate fee to charge for public records.
Last year, the state attorney general determined that a county recorder did not have the authority to charge a monthly subscription fee to view records maintained online by a private company. But in 2013, the Ohio Supreme Court upheld a southern Ohio county’s determination that providing map records to a real estate appraiser carried a $2,000 price tag because of the proprietary software used to produce them.
Journalists in Oregon say high fees charged by government agencies are one of the biggest obstacles to obtaining public records.
Last fall, the Register-Guard newspaper in Eugene asked the University of Oregon for records related to a nonprofit group trying to bring a major track meet to campus. The university demanded $2,163 to produce them. After the newspaper complained the fees hindered news coverage in the public interest, interim University President Scott Coltrane waived the fee, but much of the information was blacked out. The newspaper has appealed the redactions to the district attorney.
After a teacher sued for the right to carry a concealed handgun into class for personal protection in 2007, The Mail Tribune newspaper in Medford wanted to know how many other teachers could potentially do the same. The Jackson County Sheriff’s Office refused to supply a database of concealed weapons permits, saying the information was personal, despite the words “This is a public record,” printed on the permit. After the Oregon Court of Appeals ruled in the newspaper’s favor in 2010, the county demanded more than $18,000 for staff and attorney time to review and redact the documents. By then, the teacher had lost her lawsuit; the newspaper dropped the request.
The Oregonian newspaper asked the Oregon Department of Energy for emails and documents about business energy tax credits awarded to solar energy projects between 2003 and 2013. The agency demanded $9,830 for 170 hours of attorney and staff time to produce the documents. The reporter reduced his request to a database at a cost of less than $500.
The Associated Press asked state police for records pertaining to their 2012 investigation of the director of a commission regulating boxing and martial arts after $22,000 in cash and checks was found lying around his office. Last December, the state police demanded $4,000 for 25 hours of staff time to prepare, review and redact materials. The AP dropped the request. State police said they found no evidence of wrongdoing.
A legislative proposal would allow government agencies to charge for anything more than one hour of time assembling open records requests. Current law allows them to charge for copies, but not for the time they spend collecting and redacting documents.
The bill’s sponsor, Republican state Sen. Jim Tracy, said he introduced it on behalf of the state’s school boards association because of complaints about the cost of preparing requests for thousands of emails.
A legislative analysis of a similar proposal that failed in 2011 estimated that local governments would collect about $1.6 million in fees under the change.
“The bill has no protections for citizens. If someone can’t afford the fees, they can’t see the records,” said Deborah Fisher, the executive director of the Tennessee Coalition for Open Government. “There is nothing yet to safeguard against abuse by government officials who may want to block access by inflating fees.”
The bill has yet to be scheduled for hearings in the Tennessee General Assembly.
In the four years since the state Legislature bowed to intense public outcry and repealed a law that would have shielded lawmakers’ voicemail, text messages and instant messages, lawmakers have taken steps to streamline open records requests. A new state open records portal launched this year that provides one-stop shopping for records from the state’s executive committee. It will be equipped to handle requests for local governments throughout the state in two years.
The state government records ombudsman, a position created in 2012, reports getting more requests for help each year from the public and media. This year, a lawmaker has proposed a bill that would allow a state records committee that hear appeals to grant fee waivers during the review process. Residents and reporters still run into problems in Utah, especially with small or rural governments that don’t know public record rules or want to overcharge, but the trend seems to be heading toward more openness and transparency.
The fiasco in 2011 made state lawmakers realize how seriously the public takes open records laws, said David Reymann, a Salt Lake City attorney who does extensive work on public records cases.
To get electronic copies of Gov. Terry McAuliffe’s daily calendar for nearly 10 months, officials told the AP earlier this year that it would need to pay about $500 upfront. That’s because McAuliffe’s counsel said staff would have had to search, review and possibly redact certain calendar entries. By contrast, daily calendar entries for California Gov. Jerry Brown are routinely provided at no cost to the AP.
In another instance, the University of Virginia Medical Center requested nearly $860 upfront for about 1,700 documents in response to a request from the AP for emails discussing possible Medicaid expansion.
Virginia law allows reasonable charges not to exceed the actual cost of accessing, duplicating, supplying or searching for the requested records. However, agencies cannot charge extraneous fees or expenses to recoup the general costs associated with creating or maintaining records.
Sometimes, there is no cost to obtain public records. Other requests might be met with a request for thousands of dollars.
“We’ve said over and over again in Virginia that it’s important that records are released, and if there is a cost to government for preparing those records, then they should be able to recover their actual costs,” said Ginger Stanley, executive director of the Virginia Press Association and a founding board member of the Virginia Coalition for Open Government. “But what the law doesn’t provide is a practical business model to address the everyday challenges of correctly assigning a value to the work that goes into the production of a record.”
A separate advisory council is in the middle of a three-year study of Virginia’s freedom of information laws, in the hope of making them less restrictive.
State law dictates that only “reasonable” charges may be imposed for providing copies of public records and that no agency can charge more than the actual cost of copying, an amount not to exceed 15 cents a page.
Toby Nixon, president of the Washington Coalition for Open Government, said most state agencies provide electronic records free by email or at a nominal cost if provided on CD.
Earlier this year, the Legislature considered a bill that would allow state agencies to charge for digital public records.
House Bill 1684 passed one committee but failed to get a vote in another, meaning it is likely dead for the year. Under the bill, the first 10 megabytes of digital public records would be free, but the cost would increase to 15 cents per megabyte thereafter. For videos, the first five minutes would be provided free of charge, with additional footage costing 10 cents per minute. Those charges would be capped at $50 for the first batch of digital records, increasing to $100 for additional batches.
Nixon says he is not opposed to agencies charging something for providing digital records, but he said the costs in the bill language were unreasonable.
“There’s no rational relationship between 15 cents a megabyte and the actual cost of copying electronic records,” he said.
Agencies can be allowed to charge something, he said, “but they should not be making a profit off of it.”
Associated Press writers Jeff Amy in Jackson, Mississippi; Curt Anderson in Miami; Brian Bakst in St. Paul, Minnesota; Jeff Barnard in Grants Pass, Oregon; David Collins in Hartford, Connecticut; David Eggert in Lansing, Michigan; Michael Felberbaum in Richmond, Virginia; Ryan J. Foley in Iowa City, Iowa; John D. Hannah in Topeka, Kansas; Rachel La Corte in Olympia, Washington; Judy Lin in Sacramento, California; Brady McCombs in Salt Lake City; Ken Ritter in Las Vegas; Erik Schelzig in Nashville, Tennessee; Lauryn Schroeder in Indianapolis; Meredith Somers in Annapolis, Maryland; Andrew Welsh-Huggins in Columbus, Ohio; Kristen Wyatt in Denver.