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City cannot charge for time spent finding exemptions

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NEWS MEDIA UPDATE   ·   ALASKA   ·   Freedom of Information   ·   June 7, 2005

NEWS MEDIA UPDATE   ·   ALASKA   ·   Freedom of Information   ·   June 7, 2005

City cannot charge for time spent finding exemptions

  • Access to public documents cannot be conditioned on payment for a government review of whether a privilege might shroud requested documents from release, the state high court ruled last week.

June 7, 2005  ·   The government cannot bill records requesters for the time its officials spend searching for a privilege that might exempt the requested documents from release, the Alaska Supreme Court ruled Friday.

Justice Robert Eastaugh wrote for the unanimous high court that copying and searching as defined by the state open records law literally refers to “the processes of looking for and duplicating requested documents” only, and not the time the government spent conducting privilege review.

After officials in Homer, Alaska, began discussion of the annexation of 25 square acres in December 1999, annexation opponent Abigail Fuller requested government records pertaining to the proposed expansion. Fuller’s initial, unsuccessful litigation against the city challenged its claim that some of the documents were exempt from the state open records law under a privilege designed to shroud internal “deliberative” documents.

Fuller sued Homer a second time pursuant to another records request after City Manager Ron Drathman billed her $354.59 in January 2002 for the 7.25 hours he spent searching for, copying and reviewing requested records for deliberative process privilege. Alaska open records law authorizes the government to charge requesters for”search and copying tasks” that take more than five hours.

Fuller challenged Drathman’s charges for review time, arguing in a letter to him that the law only allows requesters to be charged for “time searching for the information, not time spent sifting through old papers to make sure you aren’t compromising national security, or whatever it is you are worried about.”

The trial court ruled in favor of the city and the Alaska Supreme Court reserved.

Because the law only permits the city to charge requesters for copying and searching personnel costs if more than five hours are spent on the task and there is a question of how much of Drathman’s claimed 7.25 hours of work time corresponded to the privilege review, the high court remanded the case to the trial court for further proceedings on that issue.

Fuller had argued that if Drathman had efficiently searched for the records it should not have taken him five hours, a proposition Eastaugh said the factual record did not establish.

(Fuller v. City of Homer; Media Counsel: Brooks W. Chandler, Chandler & Falconer; Anchorage, Alaska)RL

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