Can you be charged a fee to request public records from the State?
While the focus of the story being reported by the Cleveland Plain Dealer is on who made the records requests, Records request from state officials the work of GOP operative an interesting side issue has been raised:
Lawyers for Strickland and Brunner have spoken with Thrasher about her request and in letters asked her to make an advance payment for the minimum cost of printing e-mail messages so that they could be reviewed and redacted. Strickland’s office wants $3,680. Brunner wants $1,400.
David Marburger, counsel to the Ohio Newspaper Association’s Coalition for Open Government, said state law does not allow officials to charge people for the costs of printing records as part of a redaction process.
Lawyers for the governor and secretary of state said they are allowed to recover that cost.
Yes, you now what happened next, I started searching…the first thing I discovered was this Government Relations Client Bulletin by Bricker & Eckler which in part states:
The new law (went into affect June 27, 2007) now also clarifies that a public body may require the person requesting records to pay the cost involved in providing those records in advance. The law further clarifies that the public body is not required to allow the person requesting records to make the copies of the public record themselves.
Then when you read the actual bill, HB 9 some items I noticed:
(a) “Actual cost” means the cost of depleted supplies, records storage media costs, actual mailing and alternative delivery costs, or other transmitting costs, and any direct equipment operating and maintenance costs, including actual costs paid to private contractors for copying services.
(d) “Special extraction costs” means the cost of the time spent by the lowest paid employee competent to perform the task, the actual amount paid to outside private contractors employed by the bureau, or the actual cost incurred to create computer programs to make the special extraction. “Special extraction costs” include any charges paid to a public agency for computer or records services.
For those of you really interested learning more? The Legal Analysis of the Bill which states related to payment:
Generally requires payment in advance of the cost of making copies of the requested public record.
Authorizes a public office to require advance payment of the cost of providing a copy of the requested public record in accordance with the requester’s choice of the medium in which the copy is duplicated.
Provides that the transmission of copies of requested public records may be by mail (existing law) or any other means of delivery or transmission and repeals the provision that a public office generally may limit the number of records requested to be transmitted by mail to ten per month.
I’ll leave it to the lawyers to debate but it appears there are charges allowed under the law and they can be demanded up front.
Why shouldn’t they charge? Might prevent fishing expeditions.
September 27th, 2007 at 3:03 pmI’ve paid for information requested from the Lucas County Board of Elections, it’s a nominal fee and with the way they put information on a cd, it’s well worth it.
It’s obvious in situations like this one where there is a huge amount of information being requested that a fee seems reasonable. I can however understand the concern that the fees not be to the point where the average person who needs access to that information be able to afford it. I think the actual issue could be argued on both sides, but it does appear that there is a process in place to charge fees.
While I’m clearly not a lawyer the definition that applies to “special extraction” might include the redaction process which does take time.
September 27th, 2007 at 3:28 pmAs far as I am concerned it seems perfectly fair to charge for requested materials at cost. The suggestion that materials should be provided for free is a waste of my tax dollars.
September 27th, 2007 at 9:02 pmIt is rather clear from the article that the request is above and beyond the scope of what a citizen may ask for and to be compensated for the time it takes to fulfill the request and to preserve confidentiality is not out of line.
Will this affect a citizens request for some simple information, one would hope not.
September 27th, 2007 at 9:22 pmSimple information, by it’s very nature, is not that which would require $1500 of copies.
September 27th, 2007 at 9:47 pmMissing the point here…it’s legal to charge for the ‘actual cost’ of reproducing the records (which means either a printed copy, cd, etc.). However, courts have consistently ruled that the public agencies are NOT allowed to charge for the time an employee spends to make such copies. The reasoning being that providing access to public records is part of their job for which they’re already being paid with public funds.
The responsibility to provide the public records for inspection lies solely with the public agency and they CANNOT charge for simple inspection of records – EVER.
The interesting issue in this is that, sometimes, simple inspection of records requires the public agency to redact information that is not public. How do you do so without actually producing a copy? And then, is it legal to charge for copies that the public agency needs to produce in order to make available the viewable public record?
I’d say elected officials, public offices, legislatures and courts should err on the side of the requestor in these cases – otherwise, we’ll all find ourselves in the untenable position of having to pay simply to VIEW the public records – something that we’ve already paid for and to which we should have FREE access.
However, once viewed, we should pay only for the actual cost to reproduce the specific document or records we need.
September 28th, 2007 at 11:04 amAdditionally, I think there have been some court rulings about payment – or partial payment – in advance. I don’t remember the specifics, but I do know that the public agency is supposed to provide an estimated cost of copying the requested records.
And this makes sense…if you wanted to see all emails relating to a person or issue, you’d have no way of knowing, ahead of time, how many there might be. Providing the estimate also allows a requestor to narrow the scope of their request, if they so choose.
September 28th, 2007 at 11:06 amMaggie, I agree with you that we should only pay for the actual cost applied to providing the requested materials in most situations. Yes, our tax dollars pay for the service, but not an unlimited service. Or at least I certainly hope not.
September 28th, 2007 at 11:13 amActually, arpa, unlimited service is key…the ability of the public to inspect and obtain documents should have very few and only reasonable limitations relating to specific matters (like on-going investigative work, plans for public safety the publication of which would inhibit the ability to protect the public, etc…
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The public agencies are allowed reasonable time to comply with large requests for documentation. But to say a person should only be able to make a limited number of public records requests, for instance, would negate the purpose behind making records public in the first place.
There are, however, provisions for ‘nuisance-type’ requests to be handled in the court system – but I don’t know of specific instances when this has occurred.
September 28th, 2007 at 11:31 amMaggie, when I said “unlimited service” I was referencing the “Special Extraction Costs” from section (d) of HB9 listed above. Basically my point being is that a distinction must be made between routine commonplace records and those requiring an extreme amount of time and manpower to fulfill. I have no objection to the number of request being made, nor am I suggesting the public be barred from the records it request. Simply that when requiring an inordinate amount of $ and time to comply with, the entire burden shouldn’t fall squarly on the requestee.
September 28th, 2007 at 11:54 amthanks, arpa, for the clarification…
my concern is that ‘government’ (that generic giant) might then use such a provision to discourage public records requests…
How to balance the public’s right to know with an ‘undue burden’ to provide access is always the difficulty. And then the definition of ‘undue’ certainly raises a whole other set of concerns…
September 28th, 2007 at 1:44 pm